is the word 'diary' better than the word 'blog'? probably not.

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Oh shit, in the time of legal language.

I wonder whether anyone at the ICC (International Criminal Court) paused and said, “oh shit!” when Dominic Ongwen turned himself in. On the one hand, probably no one at the ICC thought they would ever get to prosecute a commander of the Lord’s Resistance Army, so Ongwen in custody is a real opportunity. But on the other hand, here’s a guy who is a victim of many of the same crimes of which he is accused as perpetrator. He was abducted at a young age (some say 10, some say 14), brutally indoctrinated into a violent way of life, and forced into combat. He became so good at the violence that he was promoted up the chain of command and later charged with abducting and enslaving children and turning them into soldiers. Does his status as victim mean anything for how we judge his status as alleged perpetrator? International criminal law doesn’t really know how to deal with that distinction at present. It can find Ongwen guilty of individual criminal responsibility for various acts with which he is charged (if prosecutors can pull together a solid enough case to make the argument successfully). But law doesn’t really have a way of acknowledging the wider context. This is in part because of the difficulty of mixing agency and childhood, partly because of the narrowness of legal conceptions of culpability, and partly a question of time itself—how law makes an account of time.

International law doesn’t charge children with crimes for the same reason domestic law doesn’t—there are widespread (though also widely varying) beliefs about agency and responsibility that do not find children capable of making certain kinds of legal/ethical decisions. But what happens when someone has always lived in a state lacking the will or ability to protect some or all of its people, was abducted at a young age and brutally forced into a life of violence, and then 20 years later is charged with serious crimes—of which he is also a victim? At what point did he pass the line between too young to be responsible and old enough to have known better? I am not saying that Ongwen doesn’t deserve to be charged with any crimes. It’s more like: I’m wondering whether any part of contemporary international criminal law is capable of looking squarely at what the case of his guilt or innocence is really about, beyond whether he did certain terrible violent things.

I’ve said this is about time. The question about ‘when did he pass the line between too young to be responsible and old enough to have known better?’ may seem like a simplistic question, one that does not bring up interesting problems of time. But, as Jean Améry points out, “we find time in aging.” We may be taught to understand clock and calendar and think that’s what time is, but only once we are faced, truly, with what cannot be undone do we understand, maybe, that time is not only a form of measurement but also a question directed at us, a lived inner sense that does not correspond to clock time. For Améry, this matters most for those who have entered old age. But I would apply it to the case of the child soldier whose childhood, we might like to say, was stolen. Améry writes that when youth project themselves into a future, it is not really time but space, the creation of worlds, that they intend. For them time is full of possibility. He adds: “But for those who have nothing or just a little or only something inessential to expect, who climb down into the past with its deep well, they stay quietly in their place.” Time confines them. It is easy to see this happening to just about anyone whose past should have been otherwise if the world were fair, if you take the time to look. What does it mean, then, if someone who is young can no longer project a future, a space for creation of worlds, but instead is detained in a form of time that limits rather than expands? What is that child’s, or that adult’s, lived inner sense of time?

Erin Baines asks: “What agency is available to individuals who are raised within a setting of extreme brutality?” That is a question about time and aging framed in the register of legal culpability. Ongwen’s case before the ICC will be involved in deciding some of the legal questions around that in coming years. But that will be only part of the story, even about the legal questions.

So, in my imagination, there were probably at least a couple of people at the ICC who were totally like all “oh shit!” when Ongwen turned himself in. Or maybe every single person was just excited to get to try to make such a case.

I hope to find some helpful way of writing about this case at some point. Aging, responsibility and time are all tied up here, and I want to figure out some way to make that clear. I aim to do this while acknowledging both the tremendous amount of agency children do have (some children choose to join militias because that option is safer than remaining behind, or because they want to combat the forces that killed their families) and to the differing ideas cultures have about maturity (in some cultures it isn’t a number like 15 or 18 that makes an adult but community judgment of a person’s growing capacities). If we took the time to look at this case (and the 1000s others like it) more closely, we might even learn some things about our own ideas about what makes a child a child, an adult an adult, and any human being responsible for their actions. The problem is, many of us might not like what we find if we look there!

5:57 p.m. - December 04, 2015

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