Shameless Self-Promotion: ICC Justice at Warscapes

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

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

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.

Watching The West Wing: Teachers and Courts

I am midway through a weeks-long marathon of watching The West Wing. When I was young, my parents watched the show, and I often watched it with them. Most evenings I watched whatever prime time drama my parents were into, and my wife and I recently began to run through the whole show on Netflix. Aaron Sorkin’s tendency to plant teachable moments throughout what is a fairly fast-paced and often context-riddled dialogue – notorious both in The West Wing and The Newsroom – does two things: teach the intricacies of American politics, both complex and simple, to an audience that may not yet know the details of a filibuster or censure or pardon, and allows those who do know feel a sense of being an “insider” as they follow the main characters down familiar hallways.

Coincidentally, Alyssa Rosenberg at The Washington Post is also watching the show this summer, and wrote a smart piece on the personal politics of the show, focusing on the fact that the main characters’ “positions on policy are — at least initially — determined by their personal attachments.” She argues that “it’s an ingenious way to make viewers feel attached to policy debates. But it also lets the Bartlet administration, which was never terribly liberal in the first place, be guided much more by emotion than any particular partisan theory of government.” I suggest reading her article, as it looks at the show’s focus on personal relationships and on its discussion of media and personal lives.

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But I have something else I’d like to focus on. In watching the senior staff of the Bartlet administration debate education, drug policy, war, and terrorism, I’m becoming more and more convinced that The West Wing obscures more than it reveals. While the script frequently teaches its audience about the inner workings of the White House and American politics in general, the descriptions and definitions it provides often preclude the viewer from making up her own mind about those very issues. The ideas proposed – recruiting more teachers, supporting international justice, decriminalizing marijuana, selling weapons to repressive regimes, etc. – are introduced not to educate but to show the viewer which one is right (or at least practical, for the latter two realpolitik situations).

The West Wing‘s take on the post-9/11 world is something I’ll have to set aside for another day (that subject will take much, much more time), but here I’m going to outline two specific scenes in seasons 2 and 3. I’m halfway through the show, so it’s very likely that more of these posts are coming. Without further ado, The West Wing, Teach for America, and the International Criminal Court.

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