Rupturing Official Histories in the Trial of Dominic Ongwen

Continuing our symposium on the trial of Dominic Ongwen and the prosecution of child soldiers, Adam Branch joins JiC for this piece on how the Ongwen trial fits within the dominant narratives of the war. Adam is a Lecturer in the Department of Politics and International Studies at the University of Cambridge. He is author of Displacing Human Rights: War and Intervention in Northern Uganda (Oxford, 2011) and Africa Uprising: Popular Protest and Political Change (Zed, 2015; co-authored with Zachariah Mampilly). From 2011-2014, he was Senior Research Fellow at the Makerere Institute of Social Research in Kampala, Uganda.

Col Michael Kabango of the UPDF stands with Dominic Ongwen shortly after coming into Ugandan custody (Photo: AP)

Col Michael Kabango of the UPDF stands with Dominic Ongwen shortly after coming into Ugandan custody (Photo: AP)

Every international criminal trial is a contest between competing narratives constructed by the prosecution and the defense, between contrasting histories and the moral and political judgments made of the actors in those histories.

The Ongwen trial, of course, has received notoriety because of an inescapable tension that has produced precisely such contrasting narratives: Ongwen’s status as a so-called “victim-perpetrator.” The defense, in an effort to absolve Ongwen of the very possibility of criminal responsibility, has focused on the first part of the dichotomy, while the prosecution, fearful of having the ground swept out from under the trial of anyone who could be cast, even in part, as a victim, has emphasized the second.

Here, I turn to another pair of contrasting narratives espoused by the prosecution and defense: their divergent portrayals of the violence used during the war. These narratives can illuminate unexpected possibilities for justice arising from the trial, I believe, irrespective of what the final decision is concerning Ongwen’s guilt or innocence.

When the ICC first got involved in northern Uganda in the mid-2000s, there was already a firmly established discourse on the conflict. According to this dominant narrative, the LRA was, in a word, ‘‘bizarre,’’ and LRA violence defied understanding. LRA motivations were summed up in the endlessly iterated declaration that the rebels had “no clear political agenda but want the country governed in accordance with the Ten Commandments.” The Ugandan government, for its part, was portrayed as waging a desperate struggle against the LRA in a well-intentioned, though short-handed, effort to protect civilians. And so the government’s violent counterinsurgency was cast unambiguously as humanitarian and rational, the LRA’s violence as inhuman and beyond comprehension.

This narrative of an evil LRA and a good Ugandan government was instrumental to the massive regime of Western intervention into the conflict. It also suited the Ugandan government fine: being a favorite of foreign donors and an enthusiastic participant in the US War on Terror, Uganda used the narrative of a terrorist LRA without a political agenda as an excuse for refusing peace talks, for securing Western support, and for pursuing an endless “military solution” without regard for the civilian consequences. The narrative even allowed the government to forcibly displace the entire civilian population of Acholiland – over a million people – into horrific internment camps, which led to a massive humanitarian crisis. Uganda’s Western donors, instead of denouncing these acts as war crimes, were complicit with them as they managed the camps on behalf of the government.

When the ICC intervened over ten years ago, it made its move on the back of this narrative. The Ugandan government effectively became a partner in the investigation against the LRA instead of being itself a target of investigation for possible crimes. Meanwhile, the LRA was denounced as a “criminal organization” with no political agenda by then Chief Prosecutor Luis Moreno-Ocampo.

At Ongwen’s confirmation of charges hearing in January, however, the Prosecution’s story had changed. The Prosecution had reversed its portrayal of the LRA and now insisted categorically that the LRA always had a clear political agenda, a firm organization and hierarchy, and a strategic rationality to its violence. In the words of prosecutor Benjamin Gumpert, the LRA “aimed to overthrow the government of Yoweri Museveni, the President of Uganda, then as now.” No mention was made, as it had been a decade earlier, of the Ten Commandments or Kony’s spirits. Instead, because the prosecution is seeking to convict Ongwen under the doctrine of command responsibility, because war crimes require a real war and not irrational violence, and because crimes against humanity need to be “part of a widespread or systematic attack,” the prosecution has had to turn the LRA into a regular rebel group with a regular political agenda.

Today, it is the defense that argues that the LRA had no agenda, that it was entirely under the religious control of Kony, that it had no real organization and no chain of command, and that it was little more than a criminal gang – all of this in an effort to absolve Ongwen of responsibility for war crimes. Defense council Krispus Ayena Odongo repeatedly insisted that the LRA was held together only by Kony’s religious control and terror. And so the defense has adopted what had been Uganda’s and the West’s earlier official portrayal of LRA: that its violence was meaningless.

The irony of this new alignment is that, during the war, the argument that the LRA had a political agenda that needed to be taken seriously was heard mostly among peace activists (and some academics), the very group that largely opposed the ICC’s prosecution of the LRA leadership. Today, the ICC prosecution has adopted the position of the people who fought against the court’s intervention in the first place, while the defense proclaims the political bankruptcy of the LRA, employing the discourse that played such a destructive role during the war and legitimated the ICC’s original involvement.

While the prosecution’s portrayal of the LRA has changed, its partnership with the government, and the legitimacy it implicitly grants to government violence, has not. During Ongwen’s hearing, the prosecution appeared to go out of its way to establish the government’s innocence, without the defense even raising government crimes as an issue. And as the prosecution’s presentation of evidence made clear, substantial Ugandan government support has been indispensible to building the ICC’s case against the LRA. The prosecution continues to represent the Ugandan government as waging a justified counterinsurgency against tough odds, the same dominant narrative proclaimed by the government and Western donors during the war.

But these two portrayals – of a political LRA and an innocent government – do not fit together neatly. For, by granting a coherent political agenda to the LRA, the prosecution raises – and then has to ignore – uncomfortable questions that unsettle the image of a righteous Ugandan government that the prosecution depends upon. For instance, where did the LRA’s anti-government agenda come from? Did it resonate with the Acholi population and reflect widespread grievances? If so, what role did government violence against civilians play in shaping those grievances? Why did the government not provide effective protection to the camps? Did the government itself create or sustain the conditions under which the LRA was able to commit its violence and so many young men decided fight with the rebels rather than returning to the squalid camps to which civilians had been condemned? And, if the Ugandan government is also responsible for crimes, what does that mean for the prosecution’s reliance upon the Ugandan government’s support and cooperation in Ongwen’s trial?

If the defense were to raise these questions about government responsibility, new possibilities for justice might open up. Ongwen’s trial could be used to contest the prosecution’s narrative and to place LRA violence in the context of the violence and crimes committed by those benefiting from the trial – both the Ugandan government and Western donors. This could destabilize the prosecution’s case through a “trial of rupture” strategy, while also giving voice to the demands for impartial justice that the ICC has systematically silenced for over a decade. The difficulty for the defense, however, is its own reliance on a narrative that denies any political agenda to the LRA. Thus, the defense would need to prevent its portrayal of the LRA as an irrational, criminal gang from being used to justify the Ugandan’s government’s violence and Western intervention, just as that portrayal had been used for so many years during the war.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Symposium, Uganda and tagged . Bookmark the permalink.

6 Responses to Rupturing Official Histories in the Trial of Dominic Ongwen

  1. el roam says:

    Thanks for the post . I find it hard to digest that post with all due respect . First , we can’t find in the post , the slightest legal basis , or jurisprudential one . The author of the post , seems to relate , between political agendas , and criminal liability , but there is no such think basically !!

    Motives , and political agenda , are not element of crimes in the Rome statute . There is no need to prove , any of them , in order to convict someone as an international criminal .

    One should always remember, what makes a crime, international one, is not the nature, not the scale, In sum, not the context necessarily, but rather : shield granted or incapacity of the national authorities, to prosecute properly the perpetrators. So, even with or without , nothing to do with it finally !!

    Take the case of Al Mahadi ( Mali ) : it was sufficient for the prosecutor , to believe that , those holy religious sites , been destroyed by him ( factually ) in order to prosecute him ( article 8(2)(b)( ix) to the Rome statute ) Motives , hasn’t changed !!

    War or not, crimes against humanity for example, got nothing to do, with wars, or political rivalry necessarily, but the conduct itself.
    Only in terms of defense in prosecution , one may raise Article 33 to the Rome statute ( ” Superior orders and prescription of law ” ) all , if an order , prima facie legal , given , then , perpetrator may have good defense , yet :

    Defense against war crimes , but , nothing to do paradoxically , with war , but war crimes !

    The author , has confused maybe , evidentiary elements , or typical distributive occurrences ( like wars , political rivalries ) with : elements of crime , definitions of it !!


  2. Mike says:

    What the author is trying to say is that the prosecutions case is that LRA had a political agenda and the crimes were commited to advance that agenda. The defence is stating that LRA were a lunatic sect/cult acting with no agenda but to kill, kidnap etc. The test as to whether its an international crime is not if it happened but why it happened. Take for example if the mafia kill 500 immigrants to cover up a drug deal the immigrants witnessed that is not an international crime, but if the mafia kill those immigrants as part of a policy to preserve Italian racial purity that is an international crime. In the 1st scenario they are killing people for what they saw, in the second case you are killing people for who they are.

  3. el roam says:

    Mike ,
    Thanks for your comment . Yet , absolutely not correct !! As you know (if you know ) liability in ICC court , is individual one ! No state ,No agenda , nothing ( see article 25 to the Rome statute ) . In such , there is no need to prove , any political agenda or context !! But, that a certain individual, has committed:

    Rape , torture , enslavement and so forth … is Correct, that typically, the context would be: political, geopolitical, war and so forth…. That doesn’t imply necessarily on the burden of proof on the prosecution.
    Take for example , a commander in battle field :

    Has decided to rape a woman, or using chemical weapon, on his own discretion, or torturing:

    The greater context, the geopolitical context, is not an issue, if proven, actually, factually, that he had raped and tortured, he is liable, period !!
    Only in ” apartheid crimes ” , there is certainly need to prove, that in order to maintain a regime of discrimination has been committed (the crime) yet:
    Always always , one individual is to be charged !! here we can have bit of complication , yet , the prosecutor doesn’t need to prove , that the individual , had direct personal interest in certain political agenda , in order to be convicted .

    And if , for example, tortures committed, then , even with no Geo political agenda, would be a matter for the ICC, simply wrong! here I quote article 7 to the Rome statute :

    ” Article 7
    Crimes against humanity
    1. For the purpose of this Statute, “crime against humanity” means any of the following
    acts when committed as part of a widespread or systematic attack directed against
    any civilian population, with knowledge of the attack……”

    End of quotation :

    So, you see , you can act against homosexuals for example , with no geopolitical agenda , no war , nothing , torturing them , and it would become , strict matter for the court !!


  4. el roam says:

    Mike, just to ” accomplish the dish ” with your scenario and analogy :

    If the Mafia would kill 500 immigrants , for what they saw , the mere issue would be , whether they have been granted shield . Because , if the state , where commission made , would grant them shield ( what is typically very rare , since , such agents of the Mafia , wouldn’t be typically , agents of the state ) then :
    It would become certainly , an international issue and crime , you are wrong !!

    Lets go back to that commander forwarded by me above :

    Suppose , as you state , he has simply raped a woman , not involved , killed a witness eye witness , not involved , would he be tried in the ICC ?? of course !! if shield is granted to him !!

    Yet, has he killed witness , uninvolved civilians , raped woman , for who they are ?? for what they are ?? suppose that he had only sexual passion , and wanted to abuse his power or enforce his will , by the weapon he holds , would it matter ?? not at all !!

    He has committed rape, tortures, killing, pillaging, period!!

    As well such Mafia as brought by you !!


  5. el roam says:

    Mike ,

    Just to emphasize it:

    The preamble of the Rome statute reads so :

    ” Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

    Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

    Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

    Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes ….. ”

    End of quotation :

    And understand that : in such case of the Mafia , if shield is granted by state , then :

    What turns it , international crime , beyond the national shield , is the horror or the chilling effect of the crime , which deeply shocks , the conscious of humanity . As such , that would be the point :

    They were taken out ( those immigrants ) because of their status , as helpless people , as weak and vulnerable population , and taken out , and treated as bugs , or stray dogs , being killed so , indifferently , obliviously so , let alone in mass !!

    Certainly so , with all due respect so !!


  6. Pingback: The Prosecutor vs. Dominic Ongwen | Scott Andrew Ross

Leave a Reply to el roam Cancel reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s