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Notes from "Whose Justice?"

Notes from the event "Whose Justice?: Reframing the ICC's Dominic Ongwen Trial" at Columbia University on March 20, 2017.

Note: these are my notes from the event and thus are not direct quotations from any of the speakers.

Participants: Stephen Lamony (moderator), Mark Drumbl, Alex Whiting, Ketty Anyeko
[Opiyo Oloya was unable to make the event due to a family emergency.]

Stephen Lamony: Ongwen’s victimhood is well established. So what is the trial for?

Alex Whiting: The case isn’t about his victimhood, it is about whether he committed the crimes. Law has a fairly narrow purpose in this regard.

Mark Drumbl: International trials that cost a lot of money and take many years to argue are not narrow things limited to the guilt of one alleged perpetrator. It’s much more than a technical proceeding about who did what and why. In a sense different from Adolph Eichmann (on trial in Israel in 1961), the Ongwen case explodes law. Here we have someone kidnapped at the age of 9 and a half (according to the defense) who is victim of many of the same crimes he is charged with committing. We really need an alternative narrative of what these proceedings are trying to do. I think we need an expressivism of law, a focus on story-telling, and a didactic or pedagogical moment where it becomes clear that atrocity is the product of ordinary people caught in extraordinary circumstances. We need to be able to see that both victims and perpetrators are imperfect, that both are capable of being good and of harming others. Sentencing at the ICC claims to be about gravity of crimes and individualization of harms, but that’s part of the problem in a case like this. Legal argumentation in a courtroom is a zero sum game. The defense calls him a child; the prosecution calls him a perpetrator. Where is the space for the story in between those names?

Ketty Anyeko: I’ve talked to a lot of victims and civil society leaders about how long these trials take, and the delay in getting them started. People in Uganda want the trial to end so they can be compensated. Some don’t understand that compensation is not necessarily tied to the outcome of the trial. Plus, there are many different perspectives on what the right way to proceed is. Some say that Ongwen is like a tree grown in a dark house. He will never be like other trees because of what happened to him. Others think that local methods of truth-telling and acknowledgement of wrong such as mato oput would be better suited to addressing what he has done. Others admit that everyone failed to protect children during the war, and want to know how to deal with that. And others want nothing to do with any kind of forgiveness because, for them, what Ongwen did is outside the realm where that would be possible. Everyone wants reparation of some kind, some help in rebuilding what was destroyed.

Whiting: I want to return to what I said about the purpose of this case. Law—even domestic law—is full of stories where people are both victims and perpetrators. Think of cycles of domestic abuse or child abuse. This case has to be about whether Ongwen did the things he is accused of doing and therefore will go to jail. Plus, there are 4100 victims being represented at the trial who, if he is convicted, will get justice for what happened to them.

Anyeko: I’ve heard people ask what putting one person on trial—even if it was Kony—would get for their destroyed region. They want reparations because they are poor and they want to be able to move on. But I should also mention that there are difficulties of adapting mato oput to some of the crimes child soldiers have committed.

Drumbl: I think it’s sleight of hand to say that international criminal justice is a technical legal function. What is the interplay with local and domestic mechanisms and how do we determine that when local processes don’t easily map onto western legal procedures or ideas? Also, how does the existence of 4100 victims map onto defendants’ rights to due process? Finally, law depends on its consistency and predictability, but so far this isn’t happening with regard to international rulings on child soldiers. In Lubanga the court ruled that child soldiers aren’t capable of agency and so Lubanga is guilty. In Ongwen the same court is arguing that Ongwen had agency and thus is responsible.

Lamony: How can justice be achieved, for Ongwen, and also for all the victims?

Anyeko: There needs to be more attention to structures and conditions that were in place even before the war. All of that created the situation where Ongwen had the choices he had. Gender, race, poverty, these are all factors in what was possible for him. We can’t see that if we look at it only from a formal standpoint. There are people in Uganda watching the trial proceedings and asking, “why is he wearing a suit?!” What they mean is: “He killed people. Why is he wearing nice clothing? He is in the developed world and I am still here.”

Whiting: Mark called what I said technical but whether Ongwen is legally guilty or not is tremendously important. No matter how traumatized you are by what life throws at you, you’re still responsible if you murder and torture people. Law has to hold that standard. Those are still crimes. Like I said, there are perpetrators who are also victims all over the world. It is very common. I’d like Mark to say what he thinks should happen, concretely, in the Ongwen trial.

Drumbl: Well, first, let’s admit that amnesties in Uganda were important to emptying out the LRA. You can’t say it’s ordinary to prosecute Ongwen when so many others got amnesty. It isn’t exactly as common as the cyclical abuse structure you describe. I worry about how the violence of the government is left unaddressed by this case. I want the ICC to have an honest conversation about Ongwen. He’s not an adult child and he’s not the devil. How can we be honest about that. I’d also like us all to recognize that the majority of child soldiers in the world are not in Africa, that many escape rather than being held for long periods of time, that many are girls, that most are 15-17 rather than under 10 years old. There is too much imagery out there of extremely violent very young African boys. It doesn’t get the full story.

[Audience question re: Ongwen’s capacity for responsibility.]

Whiting: Duress is a narrow category. It means real physical duress at the time of the crime and proportional to the crime. Ongwen can run that defense but he was violent for a ten year period during which he did not escape. Instead he became a commander.

[Audience question re: could Uganda be required to develop the impacted region.]

Drumbl: When countries self-refer cases it sometimes parlays a political conflict into an ICC problem. That’s another reason why international tribunals are always about more than law. Without this particular political game there would be no Ongwen trial.

Whiting: Law forces you to make a decision. It’s not that courts are political, it’s that they are weak and exist in a political world.

Anyeko: Still, those who have been victimized by the government are left out of this process. They won’t see justice. The government didn’t just directly harm some people, it built the conditions where many people were not protected for a very long time. Many in Uganda say that even though it was the LRA that harmed them, the government needs to pay reparations because they didn’t step in to stop the LRA. But also, many citizens in African states look to the ICC because they know their states won’t protect them.

[Audience question re: how to integrate child soldiers back into society given how they were raised.]

Drumbl: We tend to think about child soldiers either as faultless passive victims or as irredeemable damaged goods. We need to be able to see the grey area between those extremes. We need to stop thinking therapy fixes everything. We need to give them education and social skills and drop training. That will help overcome recidivism. And we need to note that many ex-child soldiers do not see themselves as victims.

Anyeko: There are rehabilitation centers doing this work. The psycho-social support they offer is good. However, sometimes when there are many returning soldiers, the centers aren’t able to keep them for as long as is necessary, and then the treatment usually fails. There is not always enough services to meet demand. And then there are those who return to their villages. Sometime elders don’t give them agency over what will happen to them. It matters what they think about the processes they go through because these processes are about what is going on in their minds—whether the approach is prayer, therapy, education—it’s all mind work. Sometimes too many adults are deciding what kids need and not listening.

6:20 p.m. - March 26, 2017


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