Scott Ross

“This trial is about the violence and misery that blighted the lives of millions of people living in northern Uganda.” This was how Chief Prosecutor of the International Criminal Court Fatou Bensouda began her opening statements last month in the case against Dominic Ongwen, until recently a commander in the rebel Lord’s Resistance Army. To be sure, Ongwen’s trial at The Hague will address instances of terrible violence inflicted on the people of northern Uganda. The list of charges stretches nearly seven pages of the trial’s transcript and includes murder, enslavement, forced marriage, rape, conscription of children, and numerous other war crimes and crimes against humanity. But the trial is as much about one man as it is about the thirty years war that began in Uganda in the 1980s and continues today on the margins of Central African Republic and the Democratic Republic of the Congo. Ongwen is now at the center of debates over justice and reconciliation in this conflict as his trial moves forwards.

Ongwen is on trial at the International Criminal Court (ICC) in The Hague, facing seventy charges of war crimes and crimes against humanity for his role as a commander in the LRA. This landmark case promises to shed light on the conflict in northern Uganda and will be another test of the young international justice institution. Ongwen was taken into custody in Central African Republic in January 2015. According to Ongwen, he left the rebel group after being conscripted into it almost thirty years earlier, surrendering to state forces in Central African Republic. Others have claimed he was captured. After being taken into custody and transferred to the ICC, Ongwen’s charges were confirmed last January and the Court held opening statements in the case on December 6 and 7. The  trial continued  on January 16 and is ongoing.

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. 

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Concerns about justice aside, the courtroom is a place that produces a history. Trials have, through their examination of evidence and production of witness testimonies, always created a narrative of what happened, when, and who is responsible, from Eichmann’s trial in Jerusalem to the trials of torturers in post-conflict Argentina to the daily transcripts typed up at every county courthouse. The case of Dominic Ongwen will be a chance for histories to be told, challenged, and recreated for a war that is often represented in very different ways. While the trial has only just begun and we have yet to hear the extensive arguments and testimonies of the case, he opening statements, which occurred last month, and the confirmation of charges a year ago, offer a glimpse of what is to come.

In his ethnography of life in northern Uganda during the height of the war, anthropologist Sverker Finnström outlined what he called the “official discourse” of the war–one which painted the rebels as uniquely evil and without clear objectives, an apolitical force of terror. In contrast, the government was depicted as a well-intentioned but under-resourced force for good, an ally in the Global War on Terror, and a state that needed help in bringing peace to its population. In such a narrative, built over time by state officials, the media, humanitarians, donor states, and the United Nations, certain facts (such as Kony’s supposed desire to govern Uganda under the Ten Commandments) become the center of attention while others (like the LRA call for multi-party elections when Uganda was a one-party state) fade away.

Take, for example, prosecutor Ben Gumpert’s statement during the confirmation of charges describing LRA violence against civilians. While listing the very real effects of LRA massacres, abductions, and raids on civilians, Gumpert said that the LRA “attacked and burnt the camps into which villagers had been forced as a protection measure because of earlier attacks.” The state does not explicitly appear in this account at all, nor does its role in forcing the population into camps. The prosecutor relegates the act of displacement into the passive tense, no less.  Compare this to Chris Dolan’s account of the same camps. He notes that, in one village, “only a few hours after giving people four days notice to move to the camp, the UPDF began shelling areas they wanted cleared.” In another, “the army started firing artillery and using helicopter gunships against those who refused to move.” During the formation of the IDP camp at Odek, one of the four camps Ongwen is accused of later attacking, people were given four days to move away from the main road. That first evening, armored personnel carriers rolled into the village as government soldiers bombed civilians, driving them into the “protected camp.” In the official discourse, state violence against civilians disappears, while rebel violence is highlighted. This is not unexpected in the trial of a rebel leader, but it nonetheless elides the role of state violence in the broader narrative being created. Unsurprisingly, the prosecution at times follows the official discourse closely; after all, much of the evidence presented in the confirmation of charges hearings by the prosecution had been gathered by the Ugandan military as a part of its counterinsurgency.

Still, there are moments when this discourse is upended or subverted. The prosecution, for example, admitted that the LRA had a political agenda--something the official discourse denies. The ICC is unique in that, in addition to the prosecution and defense, victims have legal representation. These representatives serve to ensure that victims’ views and concerns are brought to the attention of other parties in the trial. Pointing out that the prosecution’s role was to convict the accused, representative Paolina Massidda explained that “the core interest of the victims of a proceedings is to effectively exercise the right to truth and justice.” It is in this interest that, when legal representative Francisco Cox spoke on behalf of other victims, he stated that some of them “expressed that these proceedings are the only justice that they might get, that it’s the only fora where their voices will be heard and their stories will be told. They want the truth to be known, the whole truth. And as part of that truth they mentioned while Dominic Ongwen must be held accountable for his crimes, he is not the only one that has committed crimes against them. Other LRA commanders and fighters made them suffer as well as UPDF troops.” State violence appears on the record thanks to the representation of the victims themselves.

If some aspects of the trial might emulate the official discourse of the war, Dominic Ongwen’s own words push back against it. At the opening of the confirmation hearing last year, when the judge asked Ongwen if they could skip reading out the charges, Ongwen replied in Acholi,  saying: “From my point of view, whether the charges are read or not read is all going to be a waste of time. You may speak five words and only two issues are correct. You may speak ten words and only two things are correct.” In doing so, he acknowledged the charges levied against him but rejected their very premise. Likewise, in the opening moments of the trial itself, Ongwen rejected the framing of the Court. When it came time to check that Ongwen understood the charges being brought against him, this time Ongwen said that he did not. When asked to explain, he stated, “The charges I do understand as being brought against the LRA but not me, because I am not the LRA. The LRA is Joseph Kony, who is leader of the LRA… [it] is the LRA who abducted people in northern Uganda. The LRA killed people in northern Uganda. LRA committed atrocities in northern Uganda, and I’m one of the people against whom the LRA committed atrocities. But it’s not me, Dominic Ongwen, personally, who is the LRA.” The judge determined that Ongwen did in fact understand the charges, but was disputing his alleged responsibility. The trial began, but not before Ongwen tried to interject with a question when asked to enter his plea–an attempt denied by the judge. Ongwen then said, “Do you agree that I’m the leader of the LRA? Do you agree that my life was not ruined?” In this outburst, the former rebel likened his trial to “going back into the bush for the second time.” Seeing his prosecution as a second act of violence against a former child soldier, Ongwen rejected responsibility for his alleged crimes.

Over the course of the confirmation of charges and the opening statements of the trial itself, it became clear how the arguments would be laid out by the prosecution. A trial is, first and foremost, about criminal justice. Ongwen’s seventy charges include ten or more each for his role in planning and carrying out attacks at four IDP camps–those at Pajule, Odek, Lukodi, and Abok–as well as twenty thematic charges related to gender-based violence and violence against children, including among others forced marriage, forced pregnancy, rape, and the conscription and use of child soldiers. The trial will center on these charges as the prosecution attempts to prove both that the crimes occurred, and that Ongwen should bear responsibility either as a direct perpetrator or through his commands. But while the trial will require a focus on Ongwen, this does not mean that, as Hannah Arendt once wrote, “all the other questions of seemingly greater import… be left in abeyance.” In fact, many such questions will be brought up, and the trial will have to address broader issues such as Ongwen’s status as a former child soldier, the role of the government in failing to protect the victims of the war, the slow response of humanitarians in providing assistance, and the questions of the camps themselves.

Some of these questions have already been raised. The issue of Ongwen’s background came up again and again in the early stages of the case. Prosecutor Ben Gumpert acknowledged “the tragedy of this case… that not only was Dominic Ongwen the perpetrator of these crimes, he was also a victim.” But, he argued, a history of abuse is “no reason to expect that crimes can be committed with impunity. The Prosecution’s case is that each human being must be taken to be endowed with moral responsibility for their actions. We have a choice as to how we behave. And when that choice is to kill, to rape, and to enslave, we must expect to be held to account.”

The next day, Ongwen’s attorney, Krispus Ayena Odongo, shifted focus back on Ongwen’s abduction, stating that “the government of Uganda, which had a constitutional mandate to protect him, was either impotent or cared little to do its part to ensure that he was not abducted.” As a result, Ongwen “was left with the devil’s choice because in captivity… it was a matter of choice between either compliance or certain death.” Odongo also pointed to the institution of the ICC and the international community in general and their own failure to intervene in the conflict. Laws against the use of child soldiers were meant to protect children, he argued, and because they failed to protect Ongwen should not mean that the very same laws could now be used to punish him. While the trial will, in the end, hand down a judgement for this one man, the trial’s proceedings will surely shed light on the conflict’s broader implications, from the government’s camp policy to the rebel plan to recruit children for war. Whenever this trial ends, we will be left with a narrative of how the war was fought and why.

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As the bulk of the trial gets underway, observers will watch how evidence is marshaled to describe the conflict and Ongwen’s role in it. Paradoxes abound. Because of Ongwen’s position as a formerly abducted child soldier, every argument about the victimhood of those that Ongwen kidnapped and conscripted could also be applied to Ongwen. If being a child soldier is a crime that forces children to commit horrible crimes through continuous coercion, then Ongwen can be said to himself have been acting under duress. If Ongwen’s decision to remain in the rebel group rather than escape was a voluntary choice, then to what extent were the child soldiers under his command victims of enslavement? And the same goes for the defense: if responsibility lies ultimately with the rebel group’s leader, Joseph Kony, then the oppression and violence that Ongwen doled out while hundreds of kilometers away from his commander must be explained. These questions are more nuanced, of course, but the fact is that Ongwen’s position as victim and perpetrator complicates the task of the determining guilt.

All parties agree that crimes were committed in northern Uganda. The attacks on the four displacement camps that are at the center of the trial are not disputed--these raids saw the murder and attempted murder of dozens of people, the pillaging of those living on the margins of bare life, and the abduction, conscription, and enslavement of civilians. The question will be how involved Dominic Ongwen was in these war crimes, and the extent to which he must bear responsibility If he is found guilty, some level of justice will have been secured. But for the thousands of child soldiers struggling to reintegrate back into their communities, and for the victims of both rebel and state violence who await reparations for their losses, the case is only one part in the broader quest for justice. Justice will also be created, hopefully, through reconciliation ceremonies and community dialogues, in churches and schools, and it can be forged through working together in the rebuilding of homes and lives, and creating new forms of political, economic, and social cohesion in and around Uganda. Part of finding justice will involve producing  a full account of what this war has entailed, a history not only of rebel abductions and massacres but also of state repression and displacement.

In her opening remarks, Chief Prosecutor Bensouda said that “in the course of the trial, light will inevitably be shed more generally on the situation in northern Uganda a decade and a half ago. But there may be many events, many crimes, many perpetrators of crimes, and many victims who will receive only limited attention or none at all.” The trial is supposed to be only about Ongwen and these specific charges. But the trial will inevitably be about so much more. Bensouda admitted that the “we cannot hope to write in this trial a comprehensive history of the conflict in northern Uganda.” But, comprehensive or not, a history is being written right now in the halls of The Hague.

Scott Ross is a doctoral student in Anthropology at The George Washington University. He has written about judicial, military, and media interventions in the LRA conflict for several publications, including Guernica, Justice in Conflict and African Arguments. He tweets at @scott_a_ross, and blogs at Field research in Uganda and the D.R. Congo was funded by the Lindsey Fellowship for Research in Africa and the Coca-Cola World Fund at Yale University and the Lewis N. Cotlow Fund at George Washington University.