Category Archives: Justice and Crime

Disrupt J20: Solidarity Six Months Later

Posted on by

Six months ago today, a diverse collection of autonomous direct actions occurred in downtown Washington, DC, disrupting the Inauguration. Despite he fact that January 20th signified the arrival of the Trump presidency, the massive turnout across the city and country made it a beautiful day of collective struggle against hate, white supremacy, misogyny, and xenophobia. From across the country, leftists of all stripes came together to resist Donald Trump’s presidency in defense of women’s rights, indigenous sovereignty, black lives, peace, bodily autonomy, trans/queer lives, the climate, health care, reproductive rights, labor rights, and other causes. Thousands of people came to DC from near and far. There were dance parties and blockades and marches all day. We set the tone for resistance from day one.

While I was holding the line at 10th and E with a growing crew of radical feminists, I also got news that riot police had kettled the anti-capitalist antifascist march just a few blocks north of us. Several friends had been up there, and I had planned to join them if our blockade at the gate had been dispersed. Busy with our own aggressive cops and Trump supporters, I didn’t see video of cops indiscriminately pepper spraying crowds – including the elderly, disabled, and children – and using less lethal crowd control on penned protesters until I got home. It wasn’t until the next day that I heard that they had been denied food, water, or access to a bathroom for hours. It wasn’t until months later that news came out that several were stripped down and subjected to invasive searches, and have since sued MPD for using “rape as punishment.”

The two hundred individuals caught up in the kettle that day now face about 70 years in prison for protesting. There is little evidence of individual wrongdoing; and some lawyers have argued that the case has “fatal defects” since many are simply charged for associating with those who destroyed property. The case is a prime example of the type of unconstitutional mass arrests that MPD used to be known for, but have since abandoned thanks for community organizing, legal support, and expensive settlements – that is, until J20. In both their use of pepper spray, stingball grenades, allegedly tear gas and flashbangs too, and in their decision to mass arrest a city block of protesters – and anyone else who happened to be in the area – MPD violated its own policies and broke the last decade of crowd control precedent in the District. DC’s Office of Police Complaints issued a report  [pdf] in February citing concerns that MPD may have violated Standard Operating Procedure, and the City Council already appropriated funds to investigate MPD misconduct and abuses that will cost the city more than all damages from the protest itself, not to mention pending civil cases that could cost the city millions like past police misconduct settlements. Despite all of this, interim police chief Peter Newsham, who oversaw crowd control that day and has been implicated in the illegal kettling of proteters in 2002 at Pershing Park, was approved as police chief by DC City Council a few months later over the wishes of many in the DC community.

Beyond the police repression that day, the prosecutorial strategy has also been one that seeks to punish people for engaging in protest. Superseding indictments brought the total list of charges for most defendants to eight felonies including rioting, incitement, and conspiracy charges. These charges effectively argue that people can be held responsible for the actions of those around them, positing guilt by association just for being there. “Evidence” listed include the fact that people wore black clothing, covered their faces, chanted, and marched. Even journalists and legal observers have been charged (some, but not all, had their charges dropped). Such actions aren’t illegal, but the prosecution is trying to leverage them as evidence anyways, arguing that there exists a form of criminal protest rather than specific illegal acts. This is not new: Black Lives Matter and Standing Rock protesters have faced state repression, and the J20 case is just the most recent. There will be more: lawmakers in numerous states have proposed laws ratcheting up the punishment for nonviolent direct action, specifically targeting forms of protest that seek to disrupt the norm.

In the face of all of this, those involved in J20, and a growing network of support, are working to show the true meaning of solidarity. In conversations leading up to the day of action, organizers promised to provide legal support for those who got arrested. When the scale of arrests and felony charges became apparent, this legal support structure didn’t back down, it was amped up. Solidarity and mutual aid are at the core of what makes direct action possible, and in DC teams of people are attending status hearings at the courthouse, paying for transport and providing housing options for those who have to make multiple trips to DC. While the state tries to isolate individuals and intimidate them with decades in prison, people have got each other’s backs. You should have their backs too.

Ways that you can help:

  • Donate to the DC Legal Posse to help provide legal support and defray costs
  • Donate to local legal support funds
  • Keep the pressure on MPD by calling for investigations into police misconduct and abuse
  • If you’re in DC, provide housing for defendants or show up for court support
  • Support anti-fascist work in your community
  • Spread the word that protesting isn’t illegal, mass arrests are

Things that you should read, watch, or listen to:

Advertisement

Society Must Be Defended #readin

Posted on by

When I saw Paige West and J.C. Salyer’s call to mark January 20th with a read-in of lecture eleven of Michel Foucault’s Society Must Be Defended, I was excited to re-read the lecture in light of the right-wing ascendancy in U.S. politics. As West and Salyer note, this lecture in particular is a useful text now because “it demands we simultaneously consider the interplay of sovereign power, discipline, biopolitics, and concepts of security, and race.” I did my reading a little bit early, because I knew that I’d be busy on Friday, as a series of direct actions were being planned to disrupt the inaugural proceedings (and we were largely successful). This post is partially about Foucault and the read-in, and partially an initial foray into thinking through Friday’s events. More to come, I’m sure.

Foucault’s lecture is critical because of its close attention to biopolitics and sovereignty, something crucial to a number of the issues represented at the direct actions on Friday. As West and Salyer noted, this is a time when “the reaction to activism against persistent racism has been to more overtly perpetuate racism as political discourse, [and] we need to remember and re-think the role of racism as central to, rather than incidental to, the political and economic activities of the state.” Same with sexism, same with xenophobia, same with homophobia, same with Islamophobia. Many of these ideologies are part of the American state in general, of course, but they are all crucial and central building blocks of the current administration’s claim to power. Losing the popular vote by millions, Trump has no real mandate to govern. The only mandate he can lay claim to is a voting bloc built around white supremacists, misogynists, and nativists.

“Sexuality,” Foucault states, “exists at the point where body and population meet. And so it is a matter for discipline, but also a matter for regularization” (251-252). The rise of biopolitics and biopower brought about a new set of technologies that measured and quantified the population that needed to be regulated, in addition to marking the body that needed to be disciplined. Efforts to measure, maintain, and control reproduction and fertility were at the center of this in the late eighteenth century, and continue today as the struggle over the bodily autonomy of women is unfinished.

An important point that Foucault highlights, though, is how “the emergence of this biopower… inscribes [race] in the mechanism of the State. It is at this moment that racism is inscribed as the basic mechanism of power, as it is exercised in modern States” (254). This has roots in settler colonialism and the slave trade, and racism continues to be tied to the state now. The racial logic of biopower leads the state to wage war not against a political enemy but against a racial Other. “From this point on, war is about two things: it is not simply a matter of destroying a political adversary, but of destroying the enemy race, of destroying that [sort] of biological threat that those people over there represent to our race” (257), i.e. for white supremacists, not a war on terrorist organizations in specific locales but a war against Muslims everywhere, not an effort to reform immigration policies but a war to prevent particular races from entering this country, not a war on crime but a criminalizing of black life.

Reading this lecture before #j20, it became readily apparent that the commonalities between the various groups offended, affected, targeted, and attacked by Trump and his supporters lie in the biopolitical. In the first days of Trump’s administration, it is clear just how right those fears are. He has appointed white supremacists to senior government posts, including Customs and Border Protection. He has signed an executive order restricting abortion access that has serious impacts for women’s reproductive rights and health globally, and which promises to actually increase the number of unsafe abortions, in an effort to exert control over women’s bodies. He approved both the Keystone XL and Dakota Access pipelines (which he has stock in), while simultaneously instituting a blackout at the EPA and other agencies. His senior appointments promise to destroy our planet, eviscerate labor, and punish the press for holding his government accountable.

20170120_074156crop

These four people were at the center of a blockade of one of the entrances to the Trump inaugural parade. The Future is Feminist blockade lasted six and a half hours and was just one of over a dozen actions on Friday, January 20th.

On the day of his inauguration, we saw a coalition of activists stand in the way of Trump’s rule. Every single issue-based group involved had good reason to resist a Trump presidency. Women’s rights, black rights, indigenous rights, Muslim rights, and labor rights have been under attack from before the beginning. Climate, anti-war, and anti-police activists have been under attack as well. Certain forms of protest are being made illegal, meaning mobilization against the government will become more difficult. I’m sure I’ll have more to say about Friday, and I’m sure I’ll have more to say as we move into (and push against) this new government. But for now, the key takeaway is that all of these groups and more came together Friday to ensure that there is no smooth transition to an authoritarian regime, to show a refusal to acquiesce, to be ungovernable, to defend society with their bodies and their voices.

Shameless Self-Promotion: ICC Justice at Warscapes

Posted on by

Hello – brief note that I had a piece go up last week at Warscapes on the Dominic Ongwen trial at the ICC, now underway. It builds off of my first article for them last March, and parts of it are visible in this post I wrote the day the trial began. Here’s the article, and here’s an excerpt:

The courtroom is thought to be a site of justice, but critics have pointed out that justice often lies beyond the confines of law–that transitional justice, social justice, and a just memory can be attained not only in the courtroom but in  everyday public life. As Giorgio Agamben once claimed, “law is not directed towards the establishment of justice. Nor is it directed toward the verification of truth. Law is solely directed toward judgment.” The ICC case is arguably about judging Ongwen, regardless of what that judgment might mean. The LRA conflict is a good example, as Ongwen will likely be the only person to stand trial, and the four attacks for which he is charged are merely the ones with enough evidence to make it into court. This is shocking considering that the war has ravaged northern Uganda for the better part of three decades, resulting in thousands of killings and abductions and the displacement of millions at the hands of both the army and the rebels. The infamous rebel leader Joseph Kony is still in hiding; most other rebel commanders are dead or have been granted amnesty as part of a counterinsurgency demobilization effort. The Ugandan military has never been investigated for its role in the conflict. As such, Ongwen and the four attacks he is being tried for bear the weight of the quest for justice for countless victims of untold violations.

International criminal law has little room to acknowledge Ongwen’s unique position as both a war criminal and as the victim of war crimes. He himself was abducted as a child and forced into the rebel army in the late 1980s. Charged with the very crimes of which he was a victim, Ongwen’s personal history sheds light on the limits of international criminal justice in complicated situations like the war in northern Uganda. Ongwen has had to live his life in the context of everyday violence. His actions, whether he found himself reluctant or enthusiastic about the beatings, rapes, murders, and abductions he carried out or ordered, were shaped by this environment, making him what Erin Baines, professor at the Liu Institute for Global Issues, calls a “complex political perpetrator.” Growing up in such traumatic times, how does one pursue a moral life? And to what extent is one held responsible for failure in that pursuit? While admitting that “the evidence of many of the child victims in this case could, in other circumstances, be the story of the accused himself,” Chief Prosecutor Bensouda argued that “having suffered victimization in the past is not a justification or an excuse to victimize others.”

The uneasy act of prosecuting a victim-turned-perpetrator, and the continued failure to hold the Ugandan state accountable, are some of the reasons that justice here is seen as a fiction, or as justice only partially realized. For victims of other attacks–for victims of Ugandan state violence, and for victims in South Sudan, Central African Republic, and the Congo–justice still seems out of reach. The pursuit of justice, after all, is the quest to establish a fair and equitable society for all. In northern Uganda, where the president whose ascendancy provoked the LRA into existence is still in power thirty years later and increasingly authoritarian, there is little in the way of justice. The people of the other three countries have fared even worse, both in terms of justice and peace, as each state has seen numerous crises and wars in recent years. If, as anthropologist Kamari Clarke claims, “justice itself is not a thing but a set of relations through which people establish norms of acceptability,” then revealing the truth of what has happened in the war is as important as finding new ways for people to understand and reconcile with one another. This requires much more than a single trial.

Click on through to read the rest. Big props to the Warscapes team and the critical edits that got the piece out rather quickly. Ongwen’s trial will continue into the spring, so I’ll be keeping an eye out as everything moves forwards. I’m sure there will be more.

The Prosecutor vs. Dominic Ongwen

Posted on by

Today, the trial of Dominic Ongwen is continuing at the ICC. Opening statements were heard in early December, and the remainder of the trial, starting today, will be held throughout this spring. The case is an important one, both because it’s one of the earlier cases to be heard at the ICC, because it is the first (and potentially only) case to be heard regarding the LRA conflict, and because of the unique fact that Ongwen was kidnapped and forced to join the rebel group as a child about thirty years ago, making him a former child soldier being tried for crimes conducted while conscripted.

There will be a lot written about the trial as it happens and in its aftermath. I wrote about the Ongwen trial last year, focusing on the debate over whether he should stand trial or not, and I’m working on another piece now (update: here it is!). The blog Justice in Conflict also held an online symposium that includes some really good, short posts about different aspects of the case. And back in 2008 Justice and Reconciliation Project published a report about Ongwen and the complicated issue of victim-perpetrators that gets at some of the complexities involved [pdf]. It is the uniqueness of this case and the crucial debates around it that put it at the center of conversations about the ICC and the search for justice in the LRA conflict.

The case has been an interesting one so far. During the confirmation of charges hearings last January, the prosecution laid out its evidence for the case, comprised of numerous witnesses as well as the radio conversations of several LRA commanders, recorded by Ugandan security forces. The facts of the case will address four different attacks on IDP camps – at Pajule, Odek, Lukodi, and Abok camps – as well as “thematic” crimes concerning sexual and gender-based crimes as well as crimes against children. All told, Ongwen faces seventy charges of war crimes and crimes against humanity, more than any other person. In the transcript of the opening day in December, the reading out of the charges took up seven pages.

The trial will produce a narrative about the conflict. How much this narrative follows the “official discourse” of the war that Sverker Finnström once laid remains to be seen. As Adam Branch notes, the presentations of the prosecution and defense during this preliminary stage of the trial at times followed this dominant narrative but at other times ruptured it. Over the course of this trial, an archive will be produced by the arguments, evidence, and testimonies. This archive has the potential to shape the broader way that the conflict is understood.

But the trial is just part of the way people will find justice in the aftermath of this conflict. Ongwen is but one man, and his trial will principally be about the four attacks he is accused of committing or ordering. This war has lasted thirty years and spanned four countries, including attacks by both the rebels and the state. There is a lot of accountability that has been deferred. But can a trial bring people justice?

“Law is not directed toward the establishment of justice. Nor is it directed toward the verification of truth,” Giorgio Agamben writes in Remnants of Auschwitz: The Witness and the Archive. “Law is solely directed toward judgment, independent of truth and justice” (18). The law is about trials, so international criminal law leads us to the ICC, but that doesn’t necessarily mean that we’re going to get closer to justice, especially if we are talking about something beyond criminal justice. Transitional justice requires changing the politics that led to the violence in the first place – but Uganda has seen little transition since 1986. Social and political justice requires reshaping society to address people’s grievances – but the more we focus on the trial of one man, the further we get from the reform necessary to prevent future outbreaks of violence. A just memory requires acknowledging the responsibilities of all parties involved, but much of the discourse around the LRA conflict still glosses over state violence and humanitarian complicity. Justice at the ICC may indeed be a good thing, but it’s certainly not the only thing.

If a trial is merely about judgment, and criminal justice becomes the only avenue through which the victims of the conflict can find justice, then we will be left at an impasse. Agamben, again, can be guide us here. In his discussion of the Nuremberg trials and the trials of Barbie, Eichmann, and others, he says that such judgments “are responsible for the conceptual confusion that, for decades, has made it impossible to think through Auschwitz. Despite the necessity of the trials and despite their evident insufficiency (they involved only a few hundred people), they helped to spread the idea that the problem of Auschwitz had been overcome” (19-20). The Ongwen trial will shed light on the specific attacks, victims, and witnesses, but much will not be acknowledged. What will become of those victims? Those perpetrators? Those memories?

As the trial begins, it will be important to pay attention to the narrative being created. It will also be important to not attach too much to this narrative, because it will inherently be insufficient. If the trial is a necessary part of fostering justice in Uganda and the international stage, it is also necessary to remember that it is not the only place where justice can be found.

The Future of the ICC and Justice

Posted on by

It’s an interesting time to be watching the ICC. Last month, Gabon surprised many by referring a situation to the Court, potentially opening up another investigation on the continent. But in the last week South Africa, Burundi, and The Gambia have all officially withdrawn from the Court, throwing the entire institution into question as the collapse of African support for the ICC is manifested after years of erosion.

I don’t have too many hot takes right now, but do want to note both the obvious importance of such ongoing events, but also flag the long and thorough critiques of the ICC’s structure and capabilities. The ICC as an institution rests on state compliance and participation, and so the withdrawal of these three African countries – particularly the unexpected decision by South Africa – will have a big impact, especially if they herald a larger exodus. At the same time, the type of justice that the ICC offers is a narrow and specific one. If the ICC is indeed crumbling, it is not the end of justice. It may even be a new beginning. That said, the ICC continues to have its hand in many pots. The trial of Dominic Ongwen is set to begin in January, and will be a place to watch for what types of justice might be offered by the ICC.

For now, though, a brief link roundup.

Kate Cronin-Furman and Stephanie Schwartz have a good write-up on what Burundi and South Africa’s withdrawal means in light of the continent as a whole. Burundi’s withdrawal was almost expected, and the reasons for it are clear. The case of South Africa is a little harder to discern:

As anti-ICC sentiments have hardened within the A.U., South Africa has struggled to balance its role as a regional leader with its ambitions as an emerging global power. One read of the situation is that the withdrawal is less about South Africa’s relationship with the court than it is about its view of itself vis-à-vis the rest of the continent. If, in fact, a mass walkout is imminent, South Africa would prefer to lead the movement rather than follow others.

Mark Kersten agrees with this analysis, but doesn’t think a mass walkout is in order – though a few states may follow suit. In his post, Kersten also takes a hard look at the domestic political situation in South Africa, which is worth perusing. In the end, as always, we’ll have to watch this play out and see how the chips fall. The ICC is a robust institution, but its record is shaky and its reliance on state participation means every state that leaves weakens it little by little. But it’s never had the overt support of powerful states like the U.S., China, Russia, etc. – arguably a bigger obstacle to any effort at establishing global justice norms.

It’s this reliance on states that renders the ICC ineffective from the start. While many criticisms of the ICC are about bias, the power inequities of the global stage as well as who has signed the Rome Statute and who has not create an inherent bias – an inherent impunity. As Samar Al-Bulushi notes:

From the protection of victims and witnesses to the apprehension of suspects, the ICC’s operational reliance on powerful states ensures that individuals from those states will largely escape scrutiny, and that the Court’s decisions are often far removed from the very people it was designed to protect.

[…]

The ICC and its more prominent supporters, much like proponents of the “responsibility to protect,” generally lead us to believe that the Court is the answer to impunity, as though the law were divorced from politics, and as though “peace” and “justice” can simply be delivered at the push of a button.

Yet the ICC is an institution located within a larger architecture of power that endows some crimes and some victims with legitimacy, and not others. At the same time, its “responsibility to punish” is subject to political manipulation that allows for further exception and impunity.

This last point is why, regardless of what happens to the ICC, justice will have to be found elsewhere. The ICC will continue to receive referrals and investigate conflicts, it will even issue warrants and charges and try those it is able to get to The Hague. But even if these withdrawals didn’t happen, the ICC’s crippling reliance on member states – and the refusal of human rights-abusive states like Syria or Sudan, Israel or the U.S. to even join the Court – mean the ICC would still face be biased not only in where it chose to investigate, but where it even could investigate legally. What justice is there if some will never even be investigated?

So let’s not conflate justice with international criminal justice. As Kamari Clarke writes in Fictions of Justice, “it is limiting to assume that ‘the law’ – rule of law, criminal law, national law – is the only way that justice can be achieved, especially because justice itself is not a thing but a set of relations through which people establish norms of acceptability” (147). Western liberal legal norms at the international level are certainly not the only place where people can be held accountable, guilt can be attributed, responsibility meted out, and reconciliation fostered. The ICC is one place where some of this can happen, sometimes, for some people. What happens to the ICC matters, but we can and should imagine justice happening outside of The Hague. The withdrawal of these three countries should be taken seriously not only for its potential consequences for the ICC, but also as a signal to think beyond the ICC, as Al-Bulushi urges.

Demobilization as Defection, and Other Thoughts on Blurring Categories in Conflict

Posted on by

A big chunk of my MA thesis was on radio demobilization projects in the LRA conflict (shameless self-promotion: new [gated] article about it in ASR!), and I’m hoping to do some more work on it this summer as I sort out my next project (The Dissertation). A common theme that came up throughout my research – both in the field and in looking over documents and videos from groups working in the region – was the frequent blurring of different categories. I’ll illustrate by thinking my way through and around this recent article in the Daily Beast, “Joseph Kony’s Former Bodyguards Are Now Helping US Troops Hunt Him” by Kevin Maurer.

The article is centered around a recent incident in which LRA leader Joseph Kony’s guards fired on his house before escaping to a distant U.S. base where they surrendered, and since then they have been assisting the U.S. in counter-LRA efforts. This incident is definitely worth talking about – as several interviewees note in the article, this is an incredibly bold move by the abductees, and it only reinforces the continuing story that the LRA is shrinking and its command structure collapsing – but beyond just this incident and even beyond this article, I want to tease out some of the blurring that’s happening in the conflict and in how it gets represented.

Blurring Demobilization with Defection

The first thing worth lingering on is something frequent in how several people talk about the conflict – the conflation of demobilization with “defection.” The radio program is, at its heart, a demobilization campaign. Messages encourage rebels to surrender, to go home, to reintegrate into their communities, to receive amnesty, to give up on war. It is different from most DDR programs in that it is not post-conflict, nor is it en masse, but it is a demobilization campaign nonetheless. But, starting in 2011, some began to call this program and this process “defection.” In my thesis I tied this to a broader shift in linguistic and programmatic practices that signaled the militarization of humanitarianism:

LRA who escaped and turned themselves over to be reintegrated were no longer just “returnees,” but also became known as “defectors.” The leaflets that MONUSCO had been dropping became “defection fliers,” and come home messaging also gained the moniker “defection messaging.” This more militaristic jargon seems to serve little purpose except to align Invisible Children closer with its narrative as forming an “army of peace.” By 2013, there was even a department within Invisible Children called “Counter LRA Initiatives.”

[…]

This latest shift in discourse, paired by a shift in programming on the ground in the region, puts Invisible Children on new terrain. Where most NGOs operate in a place of aid and development, they rarely endorse military action or engage in collaborations with military forces. Even in Uganda, where humanitarian organizations were complicit in the government’s violent displacement policy (Branch 2008 [pdf]), NGOs did not endorse military action nearly as explicitly as Invisible Children has. By using an early warning network that relies on FARDC, assisting the UPDF and U.S. army advisers in establishing a military presence in the region, and using come home messaging as an effort to disrupt LRA activity, Invisible Children has moved into uncharted territory in its contribution to the militarization of humanitarianism. Quoted in a recent news article, the organization’s Program Manager for Counter-LRA Initiatives Sean Poole stated that “Invisible Children does not claim to be neutral. You know, we are not in this conflict saying we are not going to take sides” (Gonzales 2014).

I think an aspect of this linguistic shift is creeping militarism in humanitarianism, writ large – a problem bigger than Invisible Children or the LRA conflict, but rather a part of the post-9/11 securitization of (Western?) society. But, linguistic analysis and militarization critique aside, the fact of the matter is that some of the former LRA fighters who come out of the bush do actually help counter-LRA forces, effectively defecting to the other side in this conflict. Defection is happening. I don’t think that negates my argument, which has to do more broadly with humanitarianism, militarization, and ways of speaking and thinking.

Still, the linguistic practices are still doing a lot of work in Maurer’s article. When Maurer refer to these former child soldiers who have demobilized as “defectors,” the logical point of progression is that they will assist the U.S. in helping track Kony – that’s what a defector would do. If we started by calling them returnees or formerly abducted child soldiers, we might have a different perspective; maybe we would stop and wonder whether they should still be engaged in warfare at all, regardless of which side.

Blurring Child Soldiers with Soldiers

I do think that the presence of actual defectors is worth staying with for a bit, because it raises a lot of questions. In Maurer’s article, he focuses on the “Kony 7” – seven bodyguards who turned on Kony, tried to kill him, and fled to escape LRA captivity. They have since joined up with counter-LRA operations and are helping the U.S. Special Forces pursue Kony. In the article, Maurer notes that “Roland [one of the returnees] is now over 18 years old, as are his fellow Kony 7 members, Alex and Simon… The former bodyguards already completed reintegration training in Gulu, a town in Northern Uganda, and were looking forward to starting a new life. But first they wanted to help the Americans free their comrades.”

If they’re going to help the U.S. fight, it’s good that they’re over 18 (child soldier laws, after all!) – but it’s not like the second you turn 18, years of abuse and trauma go away. Should these former child soldiers really be continuing to carry out war? (Again, if we start with calling them “defectors,” the answer is a more quick yes than if we start with “former abductee.”) In an article on military humanitarianism, Sverker Finnström explains that:

The American military intervention, promoted by Invisible Children as essential to any solution, has itself been described by a US army officer on the ground this way: “These ex-LRA guys don’t have many skills, and it’s going to be hard for them to reintegrate,” he said to the New York Times. “But one thing they are very good at is hunting human beings in the woods” (10 April 2010). With a statement like this in mind, we ought to be more uncomfortable than ever with President Obama’s waiving of the Child Soldiers Prevention Act for some of the very countries where the LRA is active.

The use of former child soldiers to help track Kony has been happening for a long time now, but should it? Does completing reintegration training do anything if you immediately head back into the bush with a gun, just under a different flag? Is that really reintegration? What does it mean to demobilize if you stay in a state of war? Is that really demobilization? Will these child-soldiers-turned-soldiers ever truly disarm, demobilize, and reintegrate?

The use of former LRA to go back into the bush where they spent recent years might have negative consequences for the returnees themselves, but it also feeds into other forces at play. How do victims of LRA violence feel, knowing that former LRA fighters are now coming back as counter-LRA fighters? When I was taking a break from interviews in northeastern Congo, one of the men I was with accused the UN of helping the LRA. Another interviewee told me that one of the issues the radio demobilization programming ran into was that locals that it was actually a coded message the Ugandan military used to coordinate with the LRA to attack civilians. Does actually using former LRA fighters do anything but exacerbate such beliefs?

Blurring Forms of Accountability

In the same instance, it’s worth noting that employing (deploying?) former child soldiers as soldiers pulls us away from the question of accountability. There’s a lot of ongoing debate over whether child soldiers – particularly ones that grow up to become adults and therefore legally responsible for their actions – should be held accountable. Much ink has been spilled on the place of child soldiers in justice after atrocities, and the issue continues to be debated (most recently in this symposium and my article on ICC-indicted LRA returnee Dominic Ongwen). Even from the perspective of LRA victims, it is often debated [pdf].

Child soldiers can (and should) be seen as victims too. Sometimes that leads to sympathy or solidarity between different victims, sometimes that leads to a perceived hierarchy of victimhood, sometimes it gets rejected completely and people see child soldiers as perpetrators instead. Often this depends on how the individual is portrayed – some get more sympathy than others.

When child soldiers grow into adult rebels, this gets murky enough. When the now-adult abductee rebels surrender and then take up arms as former abductee, former child soldier, now state soldier, things get even messier. How should local civilians interpret their change of uniform? Part of the reason even adult abductees and former child soldiers can be seen as victims rather than perpetrators is that every decision they make is shaped by the environment they find themselves in, and therefore the level of accountability or responsibility might change. For returnees who may not be able to imagine life after war, is choosing to switch sides rather than disarm still a decision in a wartime environment and a wartime mentality?

Blurring Returnee Experiences

And on the subject of accountability, there’s a lot of justice, accountability, and amnesty discussion absent from this article (either for space or because it didn’t really fit the narrative). In heralding the successes of radio demobilization programs, Maurer notes that:

One of [the] highest profile defectors was LRA commander Dominic Ongwen. He surrendered in January 2015. He was one of five high-ranking LRA officers indicted by the International Criminal Court for war crimes. After Ongwen’s defection, military officials had him record a message urging his fighters to defect. The U.S. soldiers said many of the defectors said hearing Ongwen or other defectors on the radio convinced them it was safe to leave Kony.

“We try and let them know what is available to them,” the soldier said.

[Brownyn] Bruton [of the Atlantic Council] said there is some indication that LRA fighters listen to the radio and get the leaflets. The promise of amnesty is tempting.

“The people who go get amnesty, that is not a small thing,” she said. “To be able to wipe the slate clean, that is a very tempting offer.”

But Ongwen wasn’t able to wipe the slate clean. He received no amnesty. He demobilized and then was arrested and is now on trial. Ongwen might be an example of the success of the radio come home messaging, but to say that he defected – and then to equate that with amnesty – glosses over a lot of detail. It makes demobilization programming explicitly counter-LRA and a tool for fighting rather than a tool for not-fighting, a tool for demobilization. It also obscures the fact that Ongwen was sent to The Hague and has now been charged with more war crimes than anyone in history, surprising for a child soldier (again, see the JiC symposium or my Warscapes piece for more).

On the ground in the LRA conflict, returnee experiences are in the plural. Some returnees were never abducted, though most were. Some returnees received amnesty, while many enjoy freedom (or impunity, depending on how you look at it) but without official documentation. Two men are actually in jail cells, one in The Hague and the other in Uganda, both pending controversial trials. Many reintegrate into their old homes, some reintegrate into the army, some don’t reintegrate at all and move away to escape ostracism. Much of the literature on the LRA sees one process, but there are many, many ways that demobilization and reintegration occur. Blurring these together obscures that, and blurring them into defection obscures even more.

Blurring Agency

But, in this very blog post I’m also blurring some representations of the actors involved. Child soldiers, inherently through the act of abduction and conscription, lack a certain level of agency in the legal sense, but also in scholarly and journalistic and humanitarian discourse. A lot of the back and forth in discussing the actions of abductees (and, me above, returnees) is shaped by this refusal to grant/recognize agency. But former child soldiers (or even active child soldiers) can be said to make their own decisions – decisions structured by the violent circumstances they find themselves in, of course, but decisions nonetheless.

The question remains whether, upon demobilization, taking up arms against the LRA is a decision shaped by structures of conflict or structures of post-conflict. Some post-conflict agreements include not necessarily demobilization but reintegration into the national army, after all. Is that what’s happening for these fighters? It’s not clear how long they will continue to act as soldiers, or if they’re role in helping Uganda and the U.S. in counter-LRA efforts may end up taking them as AMISOM soldiers in Somalia or as riot police to Kampala or contractors in Baghdad.

So, my own hesitation against turning demobilization into defection and turning former child soldiers into soldiers also steals away a certain agency for these individuals. Child soldiers could become soldiers, and they could defect. Who is to say they can’t take up arms? Can former LRA returnees still desire regime change in Uganda at the barrel of a gun? Can they desire to end the LRA once and for all, even if it means staying in the bush a little longer to help the U.S.?

Questions of agency in wartime are hard ones to answer, but they are questions worth asking again and again. But, in asking them, I’m trying to avoid blurring different categories together. As this erasure keeps happening, language and representation obfuscate what’s happening on the ground. In doing so, we may be closing off possibilities and asking the wrong questions.

Shameless Self-Promotion: at Warscapes

Posted on by

Short post to link you all to a new piece I have up at Warscapes: “Dominic Ongwen and the Search for Justice.” The article focuses on Dominic Ongwen, an LRA abductee-turned-commander who sat before the ICC’s confirmation of charges in January. I explore his particular case, but also look at the ICC’s broader intervention in the LRA conflict, and how it has narrowed the popular understanding of what types of justice are possible and for whom. You should read the whole thing (please!) but here’s a preview:

When Dominic Ongwen stood before the International Criminal Court on January 21, he confronted  a team of prosecutors and judges presenting a list of his alleged war crimes.  After spending years as a brigade commander in the notorious Lord’s Resistance Army (LRA), Ongwen was no longer outfitted in rebel attire, but stood in a gray suit and tie, listening to the proceedings as they were translated into his native Acholi language. He waived the right to have each of the charges against him read aloud in court, so the presiding judge, Cuno Tarfusser, summarized the seventy charges of war crimes and crimes against humanity.

When Ongwen was first taken into custody last January, major rights groups heralded his capture as an important step towards justice. Amnesty International argued that “Ongwen now needs to be held to account for the numerous charges he faces of murder, mutilation, forced recruitment of child soldiers and use of sex slaves.” Africa director of Human Rights Watch, Daniel Bekele, called Ongwen’s transfer to The Hague “a major step for those affected by the LRA’s long history of crimes.” This was a sign of progress in the ICC’s first case, which was opened in 2004 and has otherwise seen little development.

But while Western rights groups were nearly unanimous in supporting Ongwen’s transfer to the ICC, the mood among Ugandans was decidedly mixed—even among victims of LRA violence. The Acholi Religious Leaders Peace Initiative issued apress release regretting that Ongwen had been sent to the ICC, arguing instead for him to be brought home and forgiven through traditional reconciliation ceremonies. The statement said that the ICC, “which is punitive or retributive, promotes polarization that only leads into ultimate alienation on both sides” of the conflict. Around the same time, Makerere University’s Refugee Law Project facilitated a dialogue of local leaders in Gulu, a town that was at the center of the conflict for many years. A report on the discussion found that attitudes among the Acholi people were complicated and support for Ongwen’s arrest was far from universal.

Intersections, on encountering police

Posted on by

When I lived in New Haven, a young man on a motor scooter crashed into my parked car at an intersection in the Wooster Square neighborhood. I was walking home at the time, and turned the corner as a police officer was writing up some notes. The officer asked if I knew the owner of the car, I said it was me, he told me that the “kid” was going up a one-way street in the wrong direction and, when he saw the officer, tried to speed away and lost control, crashing into my car. The officer told me that he had found drugs on the young man.

newhaven

An intersection in New Haven. (Google Maps)

I fidgeted a lot, worried about the man in the back of the police car. I tried to look at him from where I was standing, to see who he was, but I didn’t want him to feel like I was gawking. New Haven doesn’t have a history of good race relations or of good police conduct. I wanted him to feel my worry and my solidarity, but I wasn’t sure how to convey it. I wanted to ask the officer if I could not press charges, but I knew that neither possessing drugs nor driving the wrong way were crimes “against” me, but against the state. I wanted to ask the young man if there was anyone I could call for him, anybody I could tell about what happened. I was nervous around the officer; I did none of these things. I stood by as he continued talking.

As we were standing there, a middle-aged white woman driving by slowed down and rolled down her window. “THANK YOU THANK YOU THANK YOU!” she shouted at the officer. He waved at her. They might have talked for a moment. She drove away.

I was not thankful for the arrest of another one of New Haven’s black youth. The young man in the backseat of that squad car certainly wasn’t thankful either. But her grateful outpouring for the policing presence was probably enough for the three of us. This experience – the blind appreciation for policing the neighborhood – is ingrained in my memory.

The lived experiences of policing are so, so different depending on where you live or what you look like. The intersections of state and society are not the same for everyone. In every place I’ve lived in, I’ve seen this. SB 1070 in Arizona. Stop and frisk in New York. A one-way street in New Haven. The intersections at which police and everyday people meet, depending on the city, the neighborhood, the block, can be polar opposites.

*  *

gilbert

A street in Arizona. (Google Maps)

When I was a teenager, I was driving home from somewhere. A police car drove past me, and I saw it flip a dramatic U-turn in my rear view mirror. I drove slowly, trying to let him pass to whatever demanded his attention. He didn’t pass. I turned into my neighborhood, and he followed. I decided I would stay on a road with more traffic, and pulled over by the neighborhood mailbox instead of going to my house. The officer pulled over behind me. His lights weren’t on.

I hesitated. My parents – like many parents of sixteen-year-olds – had taught me what to do when pulled over by a police car, but parents don’t usually teach you what to do when an officer follows you for half a mile without turning the lights on and then pulls over behind you when you stop.

Trying to act casual, I got out of my car and I picked up the mail. I stood by my car. I think a few people drove by, but I don’t remember. I do remember wishing that my parents or one of my friends would just happen to be passing. Someone who knew me. I remember standing on the sidewalk, feeling vulnerable, immediately regretting that I was not still in my car. The police officer rolled down his window and looked at me like I might have something to say, but he remained silent.

“Is there a problem, officer?” I asked. I remember asking it like that because I think that’s what they say in movies. He gestured towards his laptop and told me he was checking to see if my car was stolen. He didn’t mention it matching a description or a recent call or similar plates or anything. After a pause, he said everything checked out, and he drove off. I lingered for a while before getting back in my car and driving home, unnerved.

That was before SB 1070, but police have been profiling long before it was law. (I grew up half-white, half-brown in a more-than-half-white town, county, state). This was before I had really come to realize how easily a man in a car with lights on top of it – even if the lights weren’t on – could make you feel like you had done something wrong, like you were in trouble, like you might not make it home. I learned quickly. I learned around the corner from my house. (And that was in a middle class, white neighborhood in which I wasn’t stopped, nor arrested, and no weapon was drawn on me – a huge sign of privilege in and of itself).

*  *

I often think about the guy with the scooter. I wish I had done more, not knowing exactly what more I could have done. Once I think about him, I begin to think about my own encounters with police, as a brown-skinned driver in Arizona, or as a protester in New York (another story, another time), and think about how they compare to my experiences with police when I was in a car accident, or when I needed directions downtown somewhere. I often think about how these situations shift, how much depends on so little. Every encounter depended on what intersection it happened at (and who was involved). Most of my encounters with police have involved no confrontation, they’ve been professional, and no harm was caused. But it’s the moments of unease that remain with me, and even my encounters have been remarkably unremarkable. I was followed once, and I saw someone get arrested. I was wrestled to the ground in a protest once, but I got away scared but relatively unscathed. But these moments are what I think of when I think of police. People remember their vulnerability more than any run-of-the-mill interaction.

I’m not a victim of police violence, that’s for sure. I’ve only ever been inconvenienced and a little unnerved. I’ve never been in the real danger that whole segments of our society know all too well. Policing happens everywhere, but it looks different. I’ve often thought about writing about these anecdotes, but I never know what to say about it all. I’m typing this now because I read about what happened to Steve Locke a month ago.

Locke is a professor in Boston, and he was stopped by police while getting lunch on his way to class because he fit the description of someone who broke into a nearby house. The description was essentially black-person-in-winter. The whole account is worth reading, but this excerpt is what got to me:

Something weird happens when you are on the street being detained by the police.  People look at you like you are a criminal.  The police are detaining you so clearly you must have done something, otherwise they wouldn’t have you.  No one made eye contact with me... An older white woman walked behind me and up to the second cop.  She turned and looked at me and then back at him.  “You guys sure are busy today.” I noticed a black woman further down the block.  She was small and concerned.  She was watching what was going on.  I focused on her red coat.  I slowed my breathing.  I looked at her from time to time. I thought: Don’t leave, sister. Please don’t leave.

The difference between the two passersby is a crucial gap in society. Those who feel protected and those who feel vulnerable. Those who admire police officers (and want to thank them blindly and profusely) and those who fear them. Those who are thankful that they can live their lives in safety because of those who serve and those who just want to live their lives, but can’t, for the same reason.

Experiences with law enforcement are different depending on the people and places involved. But the moments that stick – to me and to others – are those encounters tense with vulnerability and fear. Some, like me, know these moments from a rare experience thanks to our privilege. Many don’t know them at all. But a number of people also know these moments all too well.

This fundamental difference in how we live our lives is an obstacle to real change that can improve the lives of those on the other side of the law’s enforcement. I was nervous for the person in the backseat that day in New Haven, but what I was feeling was probably nothing compared to what he was dealing with. The woman who drove by knew nothing about the situation, but she blindly expressed gratefulness to the uniform standing next to me. These different perspectives, on Centre Street in Boston, on Hughes Place in New Haven, on every street in the country, are something that I can’t get out of my head. If we are going to be able to create a society where there is less police oppression of minority communities, we need to make an attempt to understand how those communities experience the police presence.

Straight to Court: The Case for Private Prosecutions

Posted on by

If there is one issue that has marked American society in the last year, it has been a lack of accountability for violence against people of color – especially by law enforcement. Men like Michael Brown, John Crawford III, and Eric Garner all died at the hands of police officers who were never even indicted, let alone tried and found guilty in a court of law. The rampant impunity that negligent police officers enjoy has been the rallying point for many protests and demonstrations since last summer.

The process from investigation to indictment to trial is usually not one that favors the alleged perpetrator, but mounting evidence shows that the system protects its own as multiple police officers escape accountability for actions both minor and egregious. In the United States, if anyone commits a crime, it is up to the state to hold them accountable – even if agents of the state are the ones who stand accused. This is part of a long tradition in which crimes are seen not only as crimes against a particular victim, but against the state and society itself. State prosecutors punish suspected criminals by defending the rule of law that binds our society together, not by merely seeking justice on behalf of victims.

This is one of the ideals on which our justice system rests, but in practice this turns out to be a legal version of “#AllLivesMatter” as the victim all but disappears in cases labeled “State v. Defendant,” leaving the quest for justice in the hands of a state attorney. These public prosecutors don’t always dole out justice evenly, however, and throughout history minority victims have faced huge obstacles in gaining any modicum of justice. Recently, in police killing after controversial police killing, news cameras have awaited announcements from county prosecutors and state attorneys who have decided not to file charges. More often than not, the state has failed to hold itself accountable.

20141125_203151-1

Black Lives Matter demonstrators in NYC last November.

This is not surprising. On top of the racial disparities of the Unites States criminal justice system, the fact is that prosecutors work alongside police departments on a regular basis, and as such we should not expect them to suddenly be willing to crack down on police violence. Prosecutors have tremendous power at the early stages of an investigation if they want an indictment, but recent history shows that this isn’t always the goal. St. Louis County Prosecuting Attorney Bob McCullough showed as much when he shepherded Darren Wilson’s case into non-existence and then reprimanded the media and demonstrators rather than make any attempt to discipline a police force responsible for preying on the residents of Ferguson.

Even in the rare instance that prosecutors do indict police officers, they face incredible obstacles and costs. When District Attorney Kari Brandenburg first began considering handing down indictments for two police officers for shooting and killing a homeless man in Albuquerque, police began investigating her for allegedly bribing witnesses related to an incident involving her son in an attempt to “destroy [her] career.” Later, when Brandenburg finally did issue the indictments, she immediately paid for it. The next day, when a prosecutor from her office went to investigate a different, unrelated murder, police denied her entry to the scene, citing a “conflict of interest.” Such blatant intimidation and brazen attempts to deny victims justice is only possible because police have so much power in American society and the U.S. criminal justice system.

In the face of such obstacles, we should expect most prosecutors to default to supporting police departments, regardless of the evidence or public opinion. Mass demonstrations, civil disobedience, petitions, speeches, and even a direct line to City Hall have failed to change the course of police impunity in New York as well as Ferguson. Very rarely are indictments handed down for police officers who kill people in the line of duty, and even more rarely are they found guilty.

In the absence of criminal indictments, the families of victims have tried to seek some semblance of justice in civil court.  Just in the last year, the relatives of Michael Brown, Tamir Rice, John Crawford III, Eric Garner, Ezell Ford, and many others have filed or considered filing civil suits or wrongful death claims against those responsible for their loved ones’ murders. However, while these lawsuits may win the families of victims some compensation for their loss, there is little done to actually hold their killers to account.

Protesters in Union Square this April.

Protesters in Union Square this April.

When civil suits are filed against police officers for excessive force or other forms of misconduct, the police officers themselves seldom pay. The penalty often doesn’t even come from the police department at all, but rather from the city’s municipal coffers. The Baltimore Sun released an investigative piece last September – spread widely in the aftermath of Freddie Gray’s murder in Baltimore this spring – that found that over one hundred people have won court settlements against the city’s police department in the last four years alone (this represents only one third of the 317 lawsuits filed against Baltimore police in the same time period). The city spent $5.7 million in pay outs in addition to $5.8 million in legal costs defending officers.

Little to none of this money comes from the police officers in question, however. According to the Baltimore Sun investigation, “an agreement between the city and police union guarantees that taxpayers will pay court damages” in cases in which officers were following department guidelines on the use of force, and “in such settlements, the city and the officers involved do not acknowledge any wrongdoing.” There is some degree of restitution, but no accountability and no incentive for police officers to change their behavior. From the police officers’ standpoint, even when found guilty, nothing changes.

Most recently, the City of New York reached a $5.9 million settlement with the family of Eric Garner in order to avoid a civil lawsuit. However, this money won’t come from the police department, and as a result will not give any disincentive to the NYPD – even though the officer who killed Garner, Daniel Pantaleo, did so using a chokehold maneuver banned by the department. Pantaleo remains unindicted and at his desk job, and other officers are well aware that there is no punishment for breaking the rules and killing unarmed civilians.

In a study [pdf] of such lawsuits across the country, legal scholar Joanna C. Schwartz found that “between 2006 and 2011, in forty-four of the seventy largest law enforcement agencies across the country, officers paid just .02% of the dollars awarded to plaintiffs in police misconduct suits. In thirty-seven small and mid-sized law enforcement agencies, officers never contributed to settlements or judgments.” In a summary of her findings, Schwartz states that during this five year time span:

Governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments— even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

With such protections in place, filing civil suits against police officers only hurts the cities that employ them. While there is hope that such actions would encourage cities to discipline such officers and do more due diligence in police training, hiring, and other responsibilities, this isn’t always the case. In Baltimore, while some officers were forced to resign, many kept their jobs even after being found liable in court because the department’s internal investigation cleared them. Even the state judicial system was secondary to the police departments’ own institutions – this reinforces the idea that police are above the law in nearly every possible way.

If public prosecutors won’t indict officers, and city governments shield them from the costs of civil suits, how can they be held accountable?

In the case of Tamir Rice, the twelve-year-old boy shot in Cleveland for carrying a toy gun in a park, there may be an answer.  In early June, more than six months after Rice was killed by Officer Tim Loehmann, the Cuyahoga County Sherrif’s Department concluded its investigation and handed over its findings to county prosecutor Timothy J. McGinty, who will present the findings to a grand jury to determine whether or not to proceed with indictments.

While everyone else is awaiting the grand jury’s decision, community leaders and activists in Cleveland have taken the initiative and asked a judge to issue an arrest warrant. By doing this, these community leaders are trying to circumvent the process that we have all seen unravel in the cases of other victims of police violence, from Staten Island to Ferguson. According to the New York Times, “Ohio law allows anyone with ‘knowledge of the facts’ to file a court affidavit and ask a judge to issue an arrest warrant. If approved, the arrest would be followed by a public hearing, and community members said that was preferable to allowing prosecutors to make the decision in secret.”

This attempt to secure a private prosecution rather than one through the state prosecutor’s offices may allow Rice’s family to have more control over the indictment, and may force Officer Loehmann to actually face accountability – or at least public scrutiny. If the tactic yields any success at all, it will be an important step towards attaining justice and give hope to those struggling to end police impunity.

* *

Such private prosecutions are incredibly rare in the United States, but they can be found in other parts of the world. In fact, private prosecutions have played a critical role in modern history as the foundations on which the emerging international justice movement has been built. In her book The Justice Cascade, political scientist Kathryn Sikkink points to human rights prosecutions in Greece, Portugal, and Argentina as beginning the shift towards individual accountability for serious state crimes like torture – a shift we continue to see today on the international stage.

In Greece, the first human rights prosecutions were held after the right-wing government was replaced in 1974. Just a month after the transition, Alexandros Lykourezos, a Greek lawyer who had returned from exile, initiated private prosecutions against military government leaders for treason for overthrowing the democratic government seven years prior. He was followed by others who filed charges against officials for torture and for the murder of students in the Athens Polytechnic uprising. According to Sikkink, “the private prosecutions both forced the government’s hand and relieved it of the burden of having to initiate prosecutions itself.” This brought about justice even in the face of government officials who did not want to focus on accountability for their predecessors.

Soon after, Argentina tried the leaders of the right-wing government that had tortured, murdered, and disappeared thousands of leftists and alleged communists in its Dirty War. Just two years after the junta stepped down in 1983, President Raúl Alfonsín’s government prosecuted several junta leaders. But it was everyday citizens and their use of private prosecutions that charged almost three hundred military officers for their actions during the authoritarian years.

When the expansion of accountability led to the attempted Easter Coup in 1987, Alfonsín issued amnesties for members of the junta to satisfy powerful criminals and prevent a return to the dark years of military rule. The strength of the military had forced the government to step back through its use of force and intimidation. Years later, however, the citizens of Argentina grew tired of impunity and once again used private prosecutions to find ways to hold torturers and murderers accountable.

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Led by the Madres de Plaza de Mayo, an association of mothers and grandmothers whose children had been kidnapped and disappeared by the military junta, civilians began to push for true accountability in Argentina. In addition to torture and murder, there were many cases in which murdered communists lost their children, who were given away to military families to be raised away from “subversive” influence. The mothers’ association argued that the guilty military officials had never been charged with abducting children, and as a result had never been granted amnesty for such acts. After a decade of state-sanctioned impunity, the authoritarian leaders were back in the dock thanks not to the government’s prosecutors but to citizens determined to see justice carried out.

In these countries, as in Cleveland, private prosecutions served as a channel through which victims can seek not only compensation for their loss but true justice in the courtroom. As Sikkink states, “in a judicial system with strong private prosecution provisions, like that in Argentina, victims can insist that a prosecution continue, even when the state prosecutor would like it dropped.” In Cleveland, the Reverend Jawanza K. Colvin, a pastor and one of the community leaders bringing forth the charges, stated that “as citizens we are taking this matter and the matter of justice into our hands.” Walter Madison, a lawyer for Tamir Rice’s family, explained that “here we are taking some control of the process as citizens.” This is a democratic effort to do what democratically elected governments cannot – rein in police violence by ending impunity.

Just as private prosecutions helped victims find justice for torture and murder under right-wing authoritarian governments in southern Europe and South America, private prosecutions offer a new avenue to accountability for victims of police violence, among other prevalent crimes – especially for the more vulnerable in our society. While perhaps different than a state campaign of torture and murder, police violence in America is an issue with a long history and tragic consequences for America’s minorities. To many people of color, the difference between the two issues is probably not very big. For this reason, the actions of activists in Greece and Argentina are more than a sufficient parallel to efforts to hold police accountable for their actions. Private prosecutions are the link that ties them together.

* *

This method of bypassing the state is not new, but it is novel. As Noah Feldman explains, an Ohio state appellate court ruled that private prosecutions were legal in 1957, and in 1960 a state law was passed codifying the practice.

Feldman begins his analysis feeling uneasy about whether we should applaud such actions or not. “The law… would tend in the long run to give an advantage to families with greater means to greater political clout. They, after all, would have the resources to collect affidavits and go to court,” he says. “Tamir Rice’s family has that capacity because this case attracted national attention and the help of clergy and civil-rights leaders. But the families of other, less heralded victims might not be so fortunate.”

Feldman is right that our society is unequal, and that we shouldn’t expect a provision such as private prosecutions to be any different. As much as private prosecutions would give the victims of police violence, rape, and illegal foreclosures a chance to put cops, rapists, and bankers in jail, those in power would also have yet another tool which they could use to discipline the vulnerable. But we shouldn’t convince ourselves that they don’t already do this. The nation’s rich and powerful already have all the tools – one of which is the state – on their side. That’s why police impunity, rape culture, and unregulated capitalism are the norm and accountability for their perpetrators is the exception.

If we can bypass the state in these early stages, however, we could at least remove one part of the system that protects the powerful and ignores the downtrodden. Sure, those with the backing of executive boards and police unions would still have the best lawyers, but a public that was committed to accountability could rally behind victims of our society’s major ailments – inequality, racism, sexism. Private prosecutions could address issues of structural violence by indicting those responsible for carrying out direct violence and forcing the issue to be discussed in the open.

Despite this worry, Feldman closes his editorial by saying that “prosecutors’ offices are always going to be tempted to go easy on the police with whom they must work. Ohio’s law deserves to be copied – not just by a few jurisdictions, but by all.” Indeed, private prosecutions should be an option for the most underprivileged in our society to seek justice.

In the weeks and months that follow, Cuyahoga County’s justice system will be the next battleground for the struggle to hold police accountable. But whether County Prosecutor McGinty’s grand jury finds reason to indict officer Loehmann or not, the people have spoken, and they have asked a judge to issue indictments regardless. Just like in other countries plagued by state violence of one form or another in history, Cleveland now has a chance to move past impunity and towards real accountability.

Acholi Opinions of Ongwen’s Arrest

Posted on by

I’ve written a little bit over the last month or so about Dominic Ongwen’s arrest and the charges he faces. There are a pair of recent publications that shed light on the heated debate over his arrest and trial.

For background: Dominic Ongwen was abducted by the LRA as a young boy and inducted into the rebel group, where he gradually rose in ranks to become a high-level brigade commander. As many have noted, he may be the first conscripted child soldier to be charged with conscripting children, a status that makes his case controversial.

Beyond all of this controversy, many in the Acholi community have long pushed for reconciliation rather than prosecution or military action as a means of ending the war. The radio programs I studied over the last couple of years are just one example of efforts to encourage rebels to demobilize and return home without punishment. The national Amnesty Act is another, and the mato oput traditional reconciliation ceremony is another. There have been numerous efforts at reconciliation that don’t follow the usual retributive justice model. This isn’t to say that these efforts don’t have their own set of critics – they do – but that the question of whether or not Ongwen should face trial at the ICC is complicated.

At the end of January, two pieces were published that speak to the complexity of Ongwen’s arrest on the ground in Acholiland.

First, the Acholi Religious Leaders Peace Initiative, an interfaith group that was created in northern Uganda to address the LRA conflict, issued a press release on Ongwen’s trial which puts the rest of the world on blast:

The question we all need to ask ourselves, is, how did Ongwen Dominic, in the first place, end up in the hands of the LRA? We have been informed from the most reliable sources that Ongwen Dominic was abducted, by force, at the age of ten years old, by LRA. In this context, we believe that there was, of course, some negligence, on the part of the government of Uganda, which had failed to protect numerous unfortunate children of Northern Uganda for years. On the other hand, the LRA that abducted Ongwen Dominic at tender age, and destroyed his humanity completely, by making him to becoming a mere killing machine in its hands, should be held both accountable and responsible for all that Ongwen Dominic did during the LRA captivity all these years. We also think that the international community did not take immediate action to arrest the unbearable situation of the LRA in time. A lot of mistakes have been made even by the international community, who did not have an eye to see us, as human beings here in Northern Uganda. Instead, we have all become ‘invisible people’ in the eyes of the international community.

The press release also argues for Ongwen to undergo traditional reconciliation in Gulu instead of facing trial at the ICC. This statement includes a strong critique of the retributive justice system:

Ongwen Dominic, as a victim of circumstances, should not be punished twice, by humanity. Ongwen Dominic, as a victim of circumstances should not be taken to the Hague in the Netherthelands in Europe. As a matter of course, Ongwen Dominic should have been brought back home, in order, to go through the rituals of ‘Mato Oput’ (Reconciliation), as a cleansing mechanism to all that he went through during his time in the LRA captivity. The cultural justice system of Mato Oput is pro-life and holistic in every respect in life. Unlike the Court system in the world, it brings restoration of the broken human relationships. It also brings a complete transformation in the lives of the two communities involved into violent conflict.

It creates a healing process in the hearts of all those who have been wounded, by the war of insurgency. But above all, it brings new life to all the communities who have been affected by violence and death. In the truth-telling process, there are no denials, no lies, and no deceptions, as it is the case in the Court system. Surprisingly, the Court system, which is punitive or retributive, promotes polarization that only leads into ultimate alienation on both sides.

A week later, the Refugee Law Project, a think tank affiliated with Makerere University, published a report on Ongwen’s trial and leading perspectives [pdf] in Gulu. It includes similar indictments of the Ugandan government for allowing LRA violence to continue unabated in the north:

Most participants argued that Ongwen is a victim and will remain so because it was the Government that failed in its responsibility to protect him, prior to his abduction. Ongwen was abducted in Gulu in 1990, at the age of 10 while on his way to school. Sheikh Musa Kilil said, “It was the responsibility of government to protect such a child, a pupil who was going to school”. Reflecting on who a victim is in the context of the LRA, a former abductee noted, “Victims in LRA conflict are all those who were abducted, those who lost their property, body parts, their lives, loved ones and others who have been forced to kill”. Another participant argued that Ongwen is a victim because; “Ongwen was abducted, destroyed and ruined. He was made a teacher of a system whose motto value is, kill to survive”

These opinions are just a few more examples of how complicated and potentially divisive this trial, which begins in August, will be.