Fomer Child Soldiers: Product of Armed Conflicts and How the International Criminal Court Fails to See Its Significance

In armed conflicts, children are often kidnapped and forced to become child soldiers, they are also given forced indoctrination (by violence and threats) and are taught to commit crimes, such as looting and murder. Disobeyed children and those who try to escape will be punished in the form of torture or even being executed in front of other children's soldiers as a lesson so others will not follow their step. When they did not serve the armed forces anymore or they grew up and no longer held child status, they were given the title of "former child soldiers". These former child soldiers might still live in rebellious environments and commit serious crimes including international crimes under jurisdiction of International Criminal Court when they grow up. This research argues whether the International Criminal Court considers the historical status of the perpetrators who are former child soldiers as mitigating factor of their punishment. The research method used is the juridical normative approach. The result of this research shows the International Criminal Court has never considered the history of international criminals as child soldiers. However, the International Criminal Court may use the consideration beside what has been regulated in Rome Statute, such as Article 21(3). This is also based on the Judge's right for discretion in the Rome Statute to adjudicate, as what we can see in the Case of Omar Khadr.

The Children's Fund (UNICEF) stated that children who were victims of being involved in armed conflict in the past few decades consisted of 2 million dead children; 4-5 million children become mentally and physically disabled; 12 million children become homeless; more than 10 million are orphans or separated from their parents and suffer from psychological trauma. 4 This armed conflict also shows that children were always in the field of armed conflicts as a part of the armed forces. 5 Children, who are forcibly trapped in a cruel military environment, have no way to get out of the environment. Their condition was under strict and vicious military environment. They were forced to directly witness as their fellow child soldiers are being tortured or executed when any of them disobeyed orders. 6 Child soldiers are seldom mere witnesses to violence, sadly; they are often made victims of coercive violence as well. Compared to their adult counterparts, child soldiers are far more likely to have been initially forced into military service. The reasons are complex but hardly 183 Dino Panji Pananjung, Sigar Aji Poerana Fomer Child Soldiers: Product of Armed Conflicts and How the International Criminal Court Fails to See Its Significance counterintuitive, and the most straightforward explanation is simply put: compared to an adult, a juvenile is more easily (and cheaply) manipulated by force and the threat of force. 7 One of the poignant stories dialed by the children is the story of Ishmael Beah. He is a former child soldier in an armed conflict in Sierra Leone. Based on his confession, children who were former child soldiers in Sierra Leone were forced to fight, brainwashed, forcibly drunk, and forced to kill; "shooting people with weapons is as easy as drinking water", he stated. 8 Another story can be found in Congo, where Dikembe Muamba, 17 years old in 2014, has surprisingly become a Captain in the Democratic Republic of the Congo (DRC) and carried out his duties as a leader of 50 people, consisting of 30 children and 20 adults. Muamba was forced to join the DRC by his own uncle who at the time was one of the DRC leaders. Not only that, Muamba claimed to have joined in more than 45 battles. He claimed that he did not remember how many people he had killed without knowing the reason, but one of them was a 6-year-old girl who shot him when war broke out in Congo. 9 Another story is also despairingly told in Sudan, where a child soldier named Immanuel Jal together with 400 other friends of child soldiers tried to escape from a cruel military environment, but unfortunately only 16 of them survived. This shows that running away from such an environment has its own 'price'. 10 All forms of crime committed by 7 Bernd Beber and Christopher Blattman, "The Logic of Child Soldiering and Coercion", International Organization, Volume 67, Issue 1, January 2013, p. 65-104; 8 CNN, "Ex-child-soldier: Shooting became just like drinking a glass of water", https://edition.cnn.com/2012/10/08/world/africa/ishma el-beah-child-soldier/index.html accessed at 8 th of February 2017; Ishmael Beah, A Long Way Gone: Memoirs of a Boy Soldier, New York: Sarah Crichton Books, 2007, p. 122. these child soldiers were carried out when they were yet 18 years old, thus they could not be tried by the jurisdiction of the International Criminal Court like adults since they were children at the time of the crime and should be protected.
They were given the title of "former child soldiers" because they did not serve the armed forces anymore or they grew up and no longer held child status, so some of these former child soldiers might still live in rebellious environments, where they will naturally lose their time as a child who should have grown and developed normally since they were forced to be drunk, indoctrinated, received cruel threats, and were tortured during childhood to make them conformed with their new military environment where they commited crimes as they grew up. 11 The well-being of children and the effect of involving children in battlefield are noteworthy since had from the beginning these children were not kidnapped and forced to become soldiers, they would not have become criminals. Their lives should not constantly under any threat or fear. A guilty verdict by the Court will only add to the suffering they experienced after escaping a despicable environment of armed conflicts which stole their childhood. Dominic Ongwen, who had the background as a child soldier, was kidnapped at the age of 9 years and got indoctrinated, intoxicated, and forced to commit a 9 The New Humanitarian, "Growing up in war -the DRC's child soldiers", http://www.thenewhumanitarian.org/feature/2014/03/3 1/growing-war-drc-s-child-soldiers, accessed on 9 th of February 2017. 10 National Public Radio, "A Former Child Soldier Finds Escape, Heaven Through His Music", https://www.npr.org/sections/goatsandsoda/2015/01/29 /382482527/a-former-child-soldier-finds-escape-heaventhrough-his-music, accessed at 9 th of February 2017. 11 P.W. Singers, "Caution: Children at War", Journal of the US Army War College, Volume 31, No. 4, 2002, p. 47. crime. 12 However, Ongwen was not as fortunate as his friends who were rescued or escaped from these conditions; he spent the rest of his life in the Lord Resistance Army (LRA) environment and ended up being one of the leaders of the LRA forces. The-now adult Ongwen committed some of the most terrible crimes such as crimes against humanity and war crimes. These crimes make him currently the only former child soldier tried at the International Criminal Court. 13 Those who are under rebel authority always follow the orders of their superiors to spread terror to civilians ranging from murder, rape, slavery, and other crimes such as war crimes and even genocide. They must do this "survival crime" since if they disobey, they will be tortured, enslaved, or even killed and so they have no other means to survive. 14 Cases involving former child soldiers, such as Dominic Ongwen, really portray a common practice of involving children in the battlefield who are supposed to be protected by International Human Rights Law and International Humanitarian Law. Instead, they were presence in armed conflicts as participants and yet, the law has not regulated such involvement. There is no clear determination of child soldiers status; whether they, if ultimately involved, are treated as members of armed forces or children in armed conflicts. The article will discuss this phenomenon and the treatment given by the International Criminal Court when dealing with former child soldiers which will be compared by other national judicial decision involving child criminals. It will be then identified whether such status become a part of consideration by the Court when assessing a case involving criminals who were under 18 years old at the time of the crime committed and also criminals who were child soldiers as they grew up and became adults.

B. THE OVERVIEW OF CHILD SOLDIER
International Conventions do not explicitly regulate the definition of children. These conventions only have regulations regarding the prohibition on the use of children in armed conflict. However, the International Criminal Court in Lubanga's decision defines child soldiers as soldiers whose age is less than 18 years old. 15 In armed conflicts, children are often kidnapped and forced to become child soldiers, they are also given forced indoctrination (by violence and threats) and are taught to commit crimes, such as looting and murder. Disobeyed children and those who try to escape will be punished in the form of torture or even being executed in front of other children's soldiers as a lesson so others will not follow their step. 16 Not only were they involved in armed conflict, female soldiers were also forced to serve their superiors, become sex slaves, or even "concubines" for their superiors' children to become soldiers again. 17

Voluntary and Involuntary Child Soldier
Generally, there are two conditions relating to the involvement of children in war, namely those who are involved because of their own wishes (voluntarily) or by means of forced (involuntary). Alice Schmidt in her research stated that there were some differences between child soldiers who were voluntary and not voluntary. committed crimes later in the future; and someone who, as a result of being a victim to a crime committed against him/her, commits the same crime as or other crime. Currently, child soldiers can only be seen as victims, which reflects upon the lack of international instruments that regulate or prohibit the persecution of children who have committed crimes. The victims who became criminals are not only limited to former child soldiers who commit crimes; the condition can occur outside of ar med conflicts, even in a modern-day city. 21 Determinism is defined as a doctrine which confirms that an event occurs because of necessity and certainty so that it is unavoidable. 22 This definition then narrows the concept of "causal determinism" which translates to: a current event is entirely the result of previous events. In its continuity as a chain of events, this definition is divided into several points of view, for example depending on the chain of determinism or how strong the determinism is. 23 This notion believe that if someone did a crime, it must be caused (determined) by past events. 24  Ibid.

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Padjadjaran Journal of International Law Volume 3, Number 2, June 2019 had become perpetrator or not is a result of the forced abduction and indoctrination towards them, which means that these poor former child soldier would not become a villain soldier neither a perpetrator if they had not been captured in the past. The children forcedly employed by these ruthless soldiers often constrained to perform rites of initiation. Indeed, even within these groups, children are more likely than adults to be subject to such rites Recruits are sometimes made to commit acts that are both traumatic and identity-transforming, like the murder of a family member or the defilement of a neighbor's corpse. It is worth considering this phenomenon in light of the preceding discussion about appetitive aggression. After all, if participating in violence is part of the price of admission to an armed group, recruits may be on a trajectory toward increased levels of appetitive aggression even before they begin participating in 'official' hostilities as part of the group. Additionally, these initiation rites can serve to dissolve ties between the child soldiers and their social habitats, which is a particularly hazardous outcome for young people. Even if adults and children were forced with equal frequency to perform similarly horrific rites of initiation-which they are not, the evidence indicates-an adult is more likely to have already established strong bonds within their community, which even a deep violation of that community's norms will be hard to break. Contrary, child 25 Tyler Fagan et.al, "Child Soldiers, Executive Functions, and Culpability", International Criminal Law Review, Volume 16, No. 2, 2016, p. 284 soldiers who are forced to kill a family member or assist in torturing a prisoner may find themselves cut off from the communities that raised them, beyond the hope of reconciliation or return. The more successful and permanent the recruit's traumatic disconnection from their community, and the earlier that separation occurs, the more remote are the recruit's chances are for subsequently qualifying as a responsible agent for their new group. 25 In combination with initiation rites, armed groups generally use forcible indoctrination to keep their child soldier under control. This indoctrination can take the form of misleading political propaganda, selective suppression of information or access thereto-for instance, seizing all radios within the armed group once leaders learned that offers of amnesty were being broadcast-or spiritual or religious brainwashing. 26 These measures do not merely affect a child's mind with some misleading information or allegiance feelings; they serve to bring the child soldiers' habits of thinking, acting, and making decisions in line with the priorities of the military leaders who give them command. Also, indoctrination measures are not unique to child soldier populations, but child soldiers are significantly more likely to be the subject to such measures than their adult counterparts for the intuitive reason, borne out by the available data, that children are more vulnerable to this 187 Dino Panji Pananjung, Sigar Aji Poerana Fomer Child Soldiers: Product of Armed Conflicts and How the International Criminal Court Fails to See Its Significance kind of influence. From the strategic perspective of these leaders, the relative ease of indoctrinating children can offset their comparative ineffectiveness as troops. Indoctrination is not a spontaneous by-product of conflicts involving child combatants; it is rather a purposely adopted strategy to produce allegiance, fear, and unquestioning obedience in their youngest recruits. 27 Such conditions applied to the case of Ongwen, His mind in the present, or in the time that he allegedly committed the crimes was a cumulative aftermath effect he received since he was very young from the time he was abducted by the LRA. The author believes that Ongwen, or any other perpetrators (if any) who has the history as a victim of abduction by criminals and forcibly grew up with such group would have had different path if they did not.

State Obligation to Protect Children in Armed Conflict
There are child's specific rights or special rights for children that require the involvement of States in its fulfillment. Jhon Eekelaar explains that the emergence of human rights regime specifically those which are intended for children was motivated by at least three things. 28  child. 30 Based on these considerations, States guarantee that every child has a parent or guardian in the context of civil rights, for example, the State also guarantees that the child has the right not to be tortured and they are not a subject of human trafficking and sexual crime. Various inherent civil rights bestowed upon children also instigate punishment for the offenders. Second, children have interests or the need to develop their capacity and potential. 31 This need is driven by the guarantee of children's rights to education, health, healthy food intake, and even recreation. 32 The need for a child to develop requires an active role from the State, such as the provision of free mandatory education, free immunization or free health insurance for children from poor families.
Third, children have autonomy interest, it means children can only take action on their own will which requires the presence of the State in addressing this. For example, the child's right to obtain a fair legal process when he or she is suspected of committing a crime. 33 In many countries, considering the psychological development of children who are different from adults, legal proceeding for children is usually distinguishable from the adult's, the punishment for children who commit crimes is also usually lighter compared with the adult.
Legal instruments regarding the recruitment of child soldiers are also found in the International Convention on the Right of the Child ( applies to other armed groups and in all situations. 36 In this case, there is no specific provision regarding penalties if the State fails to protect children who are then recruited to become child soldiers. However, the practice of countries such as Canada, Sierra Leone, Central Africa, the United Kingdom, and many other countries show that States should provide rehabilitation to, at least, reduce and restore these former child soldier lives. 37 The CRC also mandates the application of "the best interest of the child". The principle states that in all actions relating to children, the best interests of the child must be a primary consideration in making decisions or policies, 38 meaning that decisions made by legislative, executive and judicial bodies must always consider the impact of their decisions on the interests and rights of the well-being of the children.

C. CASE OF FORMER CHILD SOLDIER:
VICTIM OR PERPETRATOR? Ongwen had no other choice but to obey ordered by the LRA. 39 While kidnapped and under the control of the LRA led by Joseph Cony, Ongwen and other kidnapped children were forced to become brutal soldiers through forced indoctrination (brainwashing) so that they were unable to distinguish between what was right and wrong. 40 When they were still under 18, they were forced to burn villages, pillages, mutilation, and kidnapping. 41 These action were done so the LRA could spread terror and increase its military strength. These horrible deeds was forced to be carried out by the child soldiers in order to make a life, since if they disobeyed or tried to escape, they would be punished in the form of torture or even execution by LRA leaders in the presence of other child soldiers so it would spread fear among them. 42 In addition, besides being forced to commit crimes, child soldiers are also intended to be used as real soldiers who fight in armed conflicts. In order to improve their adrenaline and to eliminate fear, the LRA then forced the child soldiers to consume addictive substances in the form of narcotics or alcoholic beverages that they believed as adrenaline relievers; in other words, the child soldiers were under forced intoxication. 43 Over time, the surviving child soldiers grew up, including Dominic Ongwen who was later trusted by Kony to become one of the five LRA leaders (including Kony) because of his courage and brutality in carrying out Kony's orders. The crimes that he conducted during the time he was a child soldier were still a part of his routine as a leader, such as rampant killings, kidnapping, raping, and burning villages in Uganda. 44 The death of Vincent Otti (one of the senior commanders at the LRA) made Ongwen then occupies Vincent's position at the LRA starting in 2012. 45 On 3 rd January 2015 Ongwen surrendered to the Central African Republic army, two days later he was taken over by American soldiers who were on duty to help fight the LRA and then American soldier took Ongwen to their base in Obo, central Africa. Finally Ongwen ended in Den Hag under the supervision of the International Criminal Court since January 17, 2017. Three of the five LRA leaders were declared dead, leaving the remaining Ongwen and Kony. Ongwen Succeed being taken care by "correct" handler at International Criminal Court, while Kony still could not be found. 46 Seeing a court ruling outside the International Criminal Court, there is almost no verdict that considers the history of a former child soldier neither to reduce nor to exclude criminal liability. The only decision that involved an accused who was a former child soldier is a verdict in the Canadian National Court that will be discussed on the next section. Christopher Speer. Khadr, who was miraculously still alive after being shot twice by the American forces, arrested and detained at Bagram Air Base for three months and then transferred to Guantanamo where he lived there for nearly ten years. During his imprisonment at Guantanamo, Omar Khadr received various methods of torture while being interrogated. However, Khadr always consistently denied that he had thrown the grenade, he swore he did not throw the grenade. Sadly, none of the US forces believed and reviewed the evidence and so the torture continued. 51 The Government of Canada in the end apologized to Khadr and even provided him restitution as their prior failure to fulfill their citizen's right.

D. JUDGE'S CONSIDERATION IN IMPOSING CRIMINAL OFFENSE AGAINST AN INTERNATIONAL CRIMINAL WHO HAS A BACKGROUND AS A CHILD SOLDIER
The International Criminal Court has not yet decided to exclude an international criminal who has a history of being a former child soldier or an international criminal who has been a victim of other crimes. But, at the moment, the ICCis following up on Dominic Ongwen's case, which is the only case with the perpetrator who has a history of being a child soldier. 52  background as a former child soldier, this assumption is based on the number of child soldiers spread throughout the world in the past decade.
In determining whether someone is guilty or not, and determining the weight or severity of a sentence, the ICC Judges must look at certain situations. In this case, as discussed previously, in deciding a case the Court will consider the gravity of the crime and the individual conditions set out in Article 77 and Article 78 of the Rome Statute concerning Penalties. 53 The following is the Ongwen case that the author will try to analyze using formal standards at the International Criminal Court:

Gravity of the Crime
In determining how severe the level of crime committed by the accused, the judge saw from the facts and evidence presented at the trial. The facts and evidence will be obtained from the Public Prosecutor and Legal Counsel, as well as the testimony and participation of victims' representatives, which refers to the number of victims, the form of damage done, circumstances against the law, time and place. Gravity of the crime is one of the elements in article 17 (1)   the jurisdiction of the Court in the relevant situation? Raul C. Pangalangan who acted as Judge in the Ongwen case stated that this case was a case that met the gravity of the crime criteria. 55 As a defendant, Ongwen was at least ranked second with the highest number of victims, and more than 4,500 victims had been given the right to be able to participate in the trial. 56 With 70 counts filed against him including war crimes and crimes against humanity which claimed more than 100,000 lives and the kidnapping of more than 60,000 children to be forcibly used as soldiers; Ongwen's role was very dominant in those following acts. 57 Raul added Ongwen's participation was very marginal, he was directly involved in the crimes committed by the LRA. 58 It means, according to Raul, the gravity of crimes includes the number of victims, the involvement of the accused, and the amounts. This shows that the gravity of the crime in the Ongwen case has been met, but the final verdict of this case cannot ascertain whether with such gravity of the crime, it will incriminate the sentence or exclude criminal responsibility due to his status as former child soldier who suffers from crimes done towards him.

Defendant's Personal Situation
The next criterion for the judge to see is the defendant's personal situation. There are certain circumstances for the Court to determine this situation, such as age, health, character and family responsibilities. In addition, there is also In this section, a former child soldier history is likely not to be considered by the judge, this can be seen from the decision of the International Criminal Court Confirmation of Charges. In its confirmation, the ICC did not consider Ongwen as one of the victims of the armed conflict that had occurred in Uganda, 60 however the Ongwen Legal Counsel team still tried to touch the judge's conscience and ensure that Ongwen is also a victim.
If it is based only on the formal framework of the ICC's decision, the decision will include the following matters which have nothing to do with the crimes committed by former child soldiers, including: 61 a. Age, background, education, socioeconomic situation in the defendant's detention Ongwen, who is now 43 years old, has no educational background since his kidnapping occured 33 years ago, while he was 10. In confirming the accusations against Ongwen, the crimes committed from 2001 to 2003 meant that he was 26 to 28 years old. 62   jurisdiction to proceed the case to trial.
Ongwen was forced to leave his normal life with his family and could no longer saw his friends or relatives in school or at home. 63 Ongwen was detained for one and a half years in the Den Hag, far from his hometown in Uganda, after he surrendered himself to the International Criminal Court. 64

b. Confession of Guilt
Confession of Guilt is a sense of remorse and guilt from the perpetrators of international crimes to the victims for the crimes they committed. Dominic Ongwen surrendered to US troops in the Central African Republic and was later handed over to the ICC before the Public Prosecutor of the International Criminal Court where Ongwen admitted his crimes of massacring civilians. 65 This can be directly considered by the judge that the defendant regrets his actions. In the trial at the International Criminal Court, the plea bargaining is not explicitly stated, but the judge must objectively assess and consider the decision based on these conditions in accordance with the RPE. 66 In the end, the guilty plea is not specifically related to a person's history as a former child soldier, but whether or not the remorse of the defendant will generally be considered by the Judge.   70 The ICTY is very concerned in dissecting "participation in committing crimes" as not only as a form of responsibility, but also in formulating punishment. 71 In the case of the Vasiljevic, ICTY stated that "aiding and abetting is a form of responsibility which generally warrants a lower sentence than what is appropriate for responsibility as a coperpetrator". 72 The difference between this model is it is no longer in the form of description, but also the severity of a criminal responsibility. The essential principle of this statement is that committing a crime has a greater degree of criminal responsibility and is given a greater sentence than aiding a crime. 73 Being a perpetrator of international crimes is often formed by the cooperation of a group of 195 Dino Panji Pananjung, Sigar Aji Poerana Fomer Child Soldiers: Product of Armed Conflicts and How the International Criminal Court Fails to See Its Significance people. This means that the level of errors in international criminal law is more essential compared to other legal systems. Previously, it was explained and it must be understood that we do not only see descriptive concepts to determine criminal liability individually, but also an indicator of the level of individual error, so that it can be used to assist judges in determining punishment 74 Besides, Ongwen was also charged with accountability as a commander in which case in the case of Kunarac, the judge stated that "the criminal culpability of leading others is higher than those who follow." 75 In the Prosecution's Pre-Trial Brief in the case of Dominic Ongwen, the ICC mentioned in detail according to witnesses and evidence that Ongwen participated in crimes with the LRA in Uganda. 76 Ongwen's inclusion above was a result of Kony's 77 treatment during his time as a child soldier in LRA; his current rank in the LRA makes him one of those former child soldier who became criminals. The existence of children as Ongwen's subordinates shows that involving children as members of armed forces is a cycle where someone who used to be a child soldier will eventually search for children to be made as his subordinates, likewise to what happened to Ongwen. Participation to a crime will obviously incriminate Ongwen during the proceeding before the Court but the author sees that this 74 They were in a state of being forced to follow orders without having a choice but to obey to those who have power in their environment. For Ongwen, survival is the only reason for him to hope he can return to his original environment with his family. This can at least prove that Ongwen's initial intention to be in the LRA and to take part in all activities including the LRA's military activities was to survive, pretend to be submissive and obedient is his daily life. 79 The scene of torture and execution of other child soldiers was inevitable; the attempt to escape was lost to the threat that was so great.
For many years Ongwen lived his life and did terrible deeds he was forced to do, making him used to doing crimes. Ongwen's promotion in the military ranks to become one of the LRA Leaders is considered as gift for his loyalty and cruelty in carrying out operations according to Kony's and his collegues' orders. 80 Based on the provisions contained in the Statute and the RPE, there is no obligation for judges to consider the to apply the standard of justice for teenager that was universally recognized in this case, Khadr was detained and treated as adults. 82 Because it was difficult to get evidence to try Khadr, America offered a plea bargain to provide a reduction in sentences against Khadr. The legal proceeding was lengthy and problematic in America, not only because America did not recognize his status as a teenager and ignored their obligation to provide rehabilitation for him, but also because his actions have not been considered a violation of the law of war. Punishing him as an adult would make a drastic reduction of the universal understanding of the law of war and yet punishing him as a former child soldier for such crimes is far more disturbing. 83 Finally, in 2012, Khadr was transferred to Canada with the aim of completing his sentence, but the Canadian Government saw that there was something wrong with the legal process in America. Finally, Canada decided to rehabilitate Khadr and provide compensation. According to the Government of Canada, not only is the legal process was incorrect, but also punishing someone who was also a victim (child soldier) is also not justified 84 Likewise with Jawad who was later released by the United States Military Court because it was believed that he was in a state of forced intoxication while committed his alleged crimes. In addition, Jawad's urces/us_opac_review_-_2017_hrw_submission.pdf downloaded at 15 of April 2018. 84 Tony Navaneelan and Kate Oja, "The United States v. Omar Khadr, Pre-Trial Observation Report," https://www.law.utoronto.ca/documents/ihrp/Khadr_-_Pre-Trial_Observation_Report_FINAL_March_2009.pdf accessed at 22 nd of October, 2018.

Dino Panji Pananjung, Sigar Aji Poerana
Fomer Child Soldiers: Product of Armed Conflicts and How the International Criminal Court Fails to See Its Significance legal counsel also insisted that Jawad has a history as a child soldier. 85 Canada as a country considers itself to have failed to fulfill Khadr's rights as its citizens when he was still a child who needed an supportive and condusive environment to shape his behavior and character. The restitution and rehabilitation done by Canada is nothing but to make amends for State's failure to protect Khadr's rights when he was a child.
According to Human Right Watch, if Khadr and Jawad were punished, then the sentences sent to them must pay attention to: 'lack of independence, relative culpability, and vulnerability to outside influence as a child'. The CRC which the United States is a signatory requires ""imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time." 86 This shows that their condition when they become child soldiers has claimed their inherent rights and imprisonment is not in favour of their best interest.
In this case it is the opposite of the school adopted by the International Criminal Court. . The ICC judge tends to adopt the school of indeterminism which argued that Ongwen has free will on the choice of whether he will commit an evil deed and also considers that the influences obtained by Ongwen while he was still a child soldier did not affect his evil deeds in the future. The author actually considers that the crimes committed 85 Reuters, "U.S. judge orders Guantanamo prisoner Jawad freed," https://www.reuters.com/article/us-guantanamojawad/u-s-judge-orders-guantanamo-prisoner-jawadfreed-idUSTRE56S7H120090730. accessed at 7th of February 2018. by former child soldiers are a form of the influence of the treatments that they have forcibly received as long as they are forced to serve in a hard (determinant) military environment. The author assumes that this can be proven by the fact that not all child soldiers end up like Ongwen, many of them who finally survived or were saved have to pay the price after spending time under such circumstances which affects their wellbeing, physically and psychologically.
These circumstances are what made Ongwen and other child soldiers as they are today.

E. CONCLUSION
Until now, the ICC has not considered yet whether the history of someone who was a child soldier could exclude him from criminal responsibility. In imposing a sentence, the ICC Judge only considers the gravity of crime, the personal condition of the defendant, and the ability of the perpetrator to be responsible. Currently, the case of Dominic Ongwen is still in the Trial stage and has not been decided. However, based at the common practice of the ICC, the Court will not consider the history of Dominic Ongwen as a former child soldier. However, based on Article 21 of the Rome Statute on the legal basis, the International Criminal Court Judge has the discretion to use legal sources beyond the Rome Statute, including national law and national court decisions, such as the Canadian Court which considers the history of Omar Khadr who has the same history as Dominic Ongwen, namely as a child soldier. 86 Human Right Watch, "Omar Khadr: Military Commission Trial of Ex-Child Soldier," https://www.hrw.org/sites/default/files/related_material /Omar%20Khadr%20Q%26A.pdf accessed at 16 th of April 2018.