Shameless Self-Promotion: ICC Justice at Warscapes

Posted on January 23, 2017 by scott

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 January 16, 2017 by scott

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.

Shameless Self-Promotion: at Warscapes

Posted on March 3, 2016 by scott

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.

Acholi Opinions of Ongwen’s Arrest

Posted on February 17, 2015 by scott

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.

Ongwen’s Indictment and Lukodi

Posted on January 30, 2015 by scott

The ICC has released the un-redacted version of Dominic Ongwen’s indictment [pdf] for war crimes and crimes against humanity. It appears that the incident at the center of his indictment was the Lukodi Massacre in 2004.