Kristof Titeca joins JiC for this second post in our ongoing symposium on the life and trials of Dominic Ongwen. Kristof is an Associate Professor at the Institute of Development Policy, University of Antwerp. He has written ‘Rebel Lives. Photographs from the Lord’s Resistance Army’.
Military strategist von Clausewitz first coined the term ‘the fog of war’, as a metaphor for the ambiguities of violent conflict. As he coined it in his seminal work ‘On War’: “War is the realm of uncertainty; three quarters of the factors on which action is based are wrapped in a fog of greater or lesser uncertainty”. In other words, there never is a clear view of the battle, it is always incomplete and distorted. This fog is not only present for military strategy and battle tactics, but also in the very basic ways in which a war is understood – by both insiders and outsiders. They are murky events, involving multiple actors with often unclear and shifting motives. Particularly for those living through wars, it often is hard to make sense of them, giving rise to multiple, often vastly differing understandings – depending on the side somebody is on, or what information is available. This fog is not only present during wars, but also in their aftermath – in the ways conflicts are remembered, instrumentalized, or historicised.
All of this is particularly relevant for war crimes trials. In order to speak justice, these trials are faced with a double challenge: they do not only need to find the ‘truth’ amidst this fog in the motives and actions of its participants; they also need to fit this truth into a judicial framework. In doing so, they are faced with a number of challenges, which I would like to discuss, by looking at the trial of former Dominic Ongwen, former commander of the Lord’s Resistance Army (LRA) at the International Criminal Court (ICC).
First, a few caveats: I am no expert on international justice, and hence on the literature on these issues. I am first and foremost an expert on the LRA, which I have been studying closely for the last 20 years. My writing has to be understood in this context, as well as by virtue of my position as an expert witness in the Ongwen trial.
The thickness of the fog of war
For the population affected by the war in Northern Uganda, the war was a murky affair. There were gruesome attacks by the LRA, but also the social torture of the IDP camps, and the abuses by individual Ugandan soldiers. There also were many rumours about the interests of Ugandan political and economic elites in continuing the war – exemplified by the ghost soldier scandals and by the rumours of Kony being informed beforehand of certain looming attacks that he then managed to escape. And, there were the various geopolitical interest in the war, such as the support of the LRA by Khartoum, largely in response to Ugandan President Yoweri Museveni’s support to the Sudan People’s Liberation Army.
How to shed light on this fog? Before attempting to establish guilt, one has to agree on a basic understanding of the conflict. Decades of research in and on the conflict have tried to do just that and have resulted in excellent sets of books which unpack the conflict in its various dynamics and manifestations: by focussing on the conditions of the IDP camps, the impact of the ICC or Western interventions, the cosmology of the conflict, the ambiguous nature of abductees and returnees, including one of Joseph Kony’s wives, and so on.
Academic research is one thing, speaking justice is another: how does the International Criminal Court establish ‘truth’ in these circumstances? This isn’t only a question of conducting investigations, but also of tapping into the existing debates and materials in trying to do so. As a result, much of the aforementioned research did play a role in ICC proceedings and was used by both sides of the trial to make their respective points. Similarly, a number of the authors of the above monographs (such as Tim Allen, Adam Branch or Evelyn Amony) acted as expert witnesses in the trial, as did many other experts (such as psychiatrists Emilio Ovuga and myself). This didn’t mean the trial reflected a consensus about the knowledge on the LRA conflict, something which manifested itself in various ways. First, there was a clear selection bias in which debates the parties wanted to engage with, and which not. Both parties wanted to look at the conflict in a particular way. This wasn’t only done in the way experts witnesses were selected, and evidence brought in; but also in the ways questions were asked and not asked. In doing so, the defence and prosecution wanted a clear vision on some aspects of the conflict.
A clear example of this is the ‘politics’ of the war, and the way in which the Ugandan government was involved in the conflict. For example, the defence argued how government militias in the attacks on Pajule, Odek, Lukodi and Abok, civilians were killed in the crossfire between the LRA on the one hand, and the government & local defence units on the other hand. In doing so, they referred to a locally shared understanding of the involvement of the Ugandan government in the conflict. The most direct way in which this issue was tackled this was done by Adam Branch, who discussed the more explicitly political aspects of the war, such as the factors contributing to its longevity. He discussed, among other things, the economic motives of army officials in the war, such as the ‘ghost soldiers’ which allowed the military to profit significantly from the continued war by collecting the salaries of deceased troops. He also discussed the conditions of the IDP camps, and the ways in which these were perceived politically. In other words, he provided a deep-dive into the ‘thickness’ of the fog of war. Interestingly, the Office of the Prosecutor refrained from asking questions on this issue to Branch, signalling that it was not considered part of their understanding of the conflict and that they didn’t want this understanding to be legitimised at trial.
Epistemology on trial
Second, the trial also was very much about the validity of findings. Debates on what constitutes science and objective and reliable knowledge entered the court room in various ways. These epistemological debates were very much held in a ‘pure’ form, covering what counts as valid findings and methodologies. But they also touched on the role of culture: how can objective understandings of cultural phenomena be established?
Interestingly, the abovementioned body of academic knowledge and its individual scholars were used for different arguments by the different parties in the battleground of the proceedings. For example, an edited volume by Allen and Vlassenroot on the LRA was used by a number of witnesses in ways which were helpful to both parties’ argument. Yet, doing so also revealed some tensions in the uses of this scholarship. One example is the chapter of Ben Mergelsberg in the Allen & Vlassenroot volume, entitled ‘Between two worlds: former LRA soldiers in northern Uganda’. Tim Allen, as the first prosecution witness, and in response to the senior prosecutor’s questions, relied a number of times on this chapter in his testimony in January 2017, and on the interviews conducted by Mergelsberg for this chapter. Yet, during another testimony – mine, as a defence witness – in November 2018, the same prosecutor called into question the very epistemological basis of this chapter – by calling into question Mergelberg’s qualifications, as well as the validity of his findings including, for example, his case-study selection and the statements of key informants he cited.
This shows an important element of the trial: it was not only about facts as such, but also about what counts as facts, and what does not. In other words, about their epistemological basis: why are certain forms of knowledge considered scientifically valid, and others not? The debate was particularly intense when it came to Ongwen’s psychiatric reports.
An OTP-appointed expert assessed a defence-appointed report as “insufficient or unfounded or contradictory, or sloppy in almost every aspect and does not fulfil the criteria of a professional forensic report according to the current state-of-the-art.” When questioned on this, the expert argued that the work did not “respect the way … the professional duties that should have been taken”. The expert argued how a wrong method was used, with conclusions which are not justified. The methodology used and conclusions are considered to be – in the words of the expert: “dubious is maybe a bit too hard; I think it is not justified”. Similarly, another OTP-appointed expert considered the conclusions of court- and defense-appointed psychiatrists as ‘speculative’ and a ‘hypothesis’ which had not been tested. One senior prosecutor called evidence of a psychiatrist ‘nonsense’.
These critiques were countered by the defence, which challenged the ‘sloppiness’ comments. They argued how validity could be established without the psychometric tests, as they were able to directly interact with Ongwen for an extended period of time. They also argued how they did not write for a scientific audience, and hence had to write in different ways.
In other words, debates on what constitutes validity were particularly intense in the debates around the psychiatric health of Ongwen. Yet, it is important to keep in mind is that also within particular disciplines – be it political science, sociology or psychiatry – there are diametrically opposed views on what constitutes the ‘right’ way to do science (e.g. between quantitively and qualitative-oriented, or between positivist versus other traditions). This debate can be instrumentalised, or politicised, by either side for whichever agenda. The defence-appointed psychiatrist mirrored this by saying: “Psychiatry is one of the disciplines of medicine that is full of controversy. Theories are coming up every now and then. Every theorist presents their idea as the ideal idea to replace idea B.”
Spirits on trial: culture and epistemology
Epistemology also entered the trial in another way. As I have written previously, a particularly interesting aspect of the trial is the way in which cultural aspects were taken into account. ‘Culture’ looms over much of the discussions of the trial: on the nature and function of ‘marriage’ in the LRA, or on the role of spiritual aspects in the LRA. Similar to the debates at the Sierra Leone Special Court, there were debates on whether the practice of ‘stone bombs’ was factually true or not. According to the Office of the Prosecutor, a forensic approach was needed: it needs to be presented as a ‘fact’; otherwise, the risk that it is used as an excuse for atrocities is too significant. Doing so, however, reflects how the standards of evidence of international criminal law are rooted in a particular scientific worldview, and enlightenment philosophy: judicial decision-making has to deal with objective ‘facts’ which are ascertained into specific scientific traditions. Yet, disciplines such as anthropology or sociology are embedded within a different epistemological basis, which focuses on the contextual understanding of these events, their emic understanding, and the way in which they influence actions. Similar, positivist reasoning in other trials has evoked the criticism of failing to properly understand local cultural practices (at the Sierra Leone Special Court), or of acting too much from their own cultural ‘tool kits’, ultimately impacting the fairness of the trial (at the Singapore War Crime Trials).
In sum, the Ongwen trial also reflected the different epistemological and ontological differences between the different actors and parties: actors have a very different idea on what constitutes ‘truth’, and which route should be taken to achieve this truth. Epistemology, and the existing body of work on the LRA conflict, emerged as part of the politics of the trial. In doing so, the trial has not only helped to shed further light on particular aspects of the conflict, but it also has actively sustained particular aspects of the fog surrounding the LRA war.
Important post. Relative epistemology is important per se. Very correct. However, one should bear in mind two concepts:
As a matter of fact, the law, considers not once, an offender as victim. Victim per se. Not only for being a victim while an offense perpetrated, but, he is punished, and severely so many times, simply for deterring others. Or, for offending or harming, social values. Protected values. That is the law. Lawmakers are aware of it. They take it to consideration.
It does happen, that “cultural enclaves” are formed in certain state or culture. Simply by migration for example. One family member, may beat to hell, a woman(another family member). In the eyes of such woman not once, it is normal. Even desirable. So, no one can expect, in western society let alone, not to punish him (the beating person). Their cultural views( of the victim beaten, and the person beating) wouldn’t change nothing in the eyes of the law or one prosecutor.
Second, and in accordance, it is accepted and consensual in Customary international law, that some offenses, are “jus cogens”, means, no matter circumstances, no matter domestic law, no matter any sort of relativism:
The prohibition is total. No stipulation is allowed.
So, this is a very well known phenomenon, not ignored by law. Surly not, international law.