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.