Mark A. Drumbl joins JiC for this post on the Ongwen verdict. The post is part of our ongoing symposium on the life and trials of Dominic Ongwen. Mark is the Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law.
So, what to say? First, the obvious. Judges were presented the victim-perpetrator continuum, this marriage within Dominic Ongwen of oppressed and oppressor. And they – the judges, summoning the voice of the law – rejected it. Predictably, they starkly and deliberately underscored the perpetrator side. Much was emphasized about free will, Ongwen’s choices, and how he elected to exercise his agency. Judges deflated the victim side, strikingly so. Their voice was one of certitude, not circumspection. All of which suggests what I had long thought, namely, that the International Criminal Court (ICC) is not an institution comfortable with such ambiguities, whether real or imagined. So I predicted five years ago, and so it proved to be. In a sense this is judgment as anti-climax. No surprises here.
Law spoke, loudly, and eschewed any silences or pauses. The loudness, however, does not reflect confidence. It reflects insecurity. Confidence would have suggested open engagement with the ambiguity. Herein lies a difference between the ICC, today, and the Israeli Kapo trials, back in the 1950s, and about which I have written elsewhere. Kapos were persecuted concentration camp detainees who formed part of the administration of the camps, who lorded tremendous power of life or death over others, who were thrust into those positions, had them fall into their laps, or schemed in the moment to acquire them. The Israeli courts were prepared to acquit Kapos in some instances. These judges were prepared, not always, but at times, to own their discomfort with judging oppressed persons who oppressed those weaker and meeker than them – all adults at all points in time – and recognized, maturely, that they were being asked to assess defendants and actions that lay beyond the usual remit of penal law. They did not wish the complexities away in a binary reductionism. The results were gnarly, unsatisfying, vacillating verdicts that triggered self-reflection, contestation, and mature introspection. And ultimately it was determined that such prosecutions were futile. And so, they (were) ceased.
But the Israeli courts were ordinary courts. As such, they were a going concern. They had work to do, plenty of it, because there were plenty of fish in their sea. Such is not the case with the ICC. It demands so much attention and constant validation, but, truth be told, it struggles to find fish – whether big, small or middling – that it actually can prosecute. So, it clings on, as it did here, and makes the case suit its needs, to balm its fears, rather than the other way around. Likely the mature, confident thing to do would have been to hesitate a bit, not insist so much, perhaps not prosecute at all.
Now we have a former child soldier convicted in the solemnity and seriousness of a vaunted and vaulted one-of-a-kind court designed to prosecute those most responsible world-wide for atrocity. Yes, this man hurt many others. No one denies it. Had the ICC wished to convict, however, a more honest track would have been to explicitly say: this man is broken, he was kidnapped at the age of ten, brutalized and beaten so he brutalized and beat others, he raped and killed so many and so cruelly, but we just don’t care about his childhood, we just don’t care about his victimization, we don’t care about his neurological development – all we care about is what he did, regardless of why, and tout comprendre c’est tout pardonner, and we refuse that for reasons that have nothing to do with him, as perpetrator, but instead with us, as judges, hungry for a role, and for the victims, achingly deserving of redress.
Instead, the judgment leaves us with an artifice of sorts. We have a man who had no childhood, shoehorned into one box, a reductionism of sorts.
All of this, of course, means judges here departed materially from what judges posited in Lubanga. There, in Lubanga, we were solemnly told that child soldiering forever leaves scars, it mars indelibly; those children, there as witnesses, were desecrated, could never function properly, regardless of their age always remained child soldiers, and their childhood defined their adulthood. But not Ongwen. He is an exception to all that.
It may be that Prosecutors gesture towards the sentencing hearing as the proper place to speak of these victim-perpetrator ambiguities. That seems to be the drift of things. So, then, the victim-perpetrator continuum devolves into a quantification calculus, perhaps, of 28 versus life, of 18 versus 19, of 30 versus 20. That seems hollow to me. Too easy. The continuum could reappear in an appeals process. It might return on subsequent motions for conditional release. Law, touted for its finality, is anything but final in this instance. The Ongwen case has a long life of its own, reaching back to 2005 and extending many more years ahead. All of which means plenty more spaces for Ongwen to remain as a cause célèbre.
Whether right or wrong, the point remains that in pursuing this case the ICC continues its trajectory of specializing its judicial efforts on rebels who lost their rebellions, mostly in Africa, and its path of successfully prosecuting implicated mid-level characters. This, too, is fine; these characters have committed terrible crimes. But is it not fair to wonder whether this is what was intended on that euphoric day, July 17, 1998, when all this formally began?
In convicting and spectacularizing Ongwen, while pursuing its goals of convicting who it can, the ICC also indirectly buoys those it cannot, will not, or lacks the spine to try to convict. While Ongwen faces his reckoning for violence between 2002 and 2005, President Museveni benefits from impunity for his conduct, back in 2002 to 2005, but also in the many years before and after, including just last month, with systemic human rights abuses, a domineered and doctored election, internet blockages, and other forms of repression. But without President Museveni’s nod, the ICC would not have delivered judgment against Ongwen. Mark Kersten has smartly called this President Museveni’s move to keep the ICC on a drip feed of cooperation. Indeed, some justice is better than no justice. Acknowledgement of this trade-off may nonetheless have gone a long way to demonstrate confidence and, I suspect, a little way to speak candidly to the people of Uganda, including young people, whose futures are still to come. The more international criminal law uncovers about Ongwen, indirectly, the more cover it seems to provide to the Ugandan government.
Much has been made of spirituality in the Ongwen case. And the supernatural. Much has been made of the LRA and much has been written about Ongwen. In a book (now reissued in paperback) on child soldiers I co-edited with Jastine Barrett in 2019, we had more chapters about northern Uganda than any other region. All this suggests something more intriguing to me. Something that has received little attention. This something is serendipity and randomness. This is the coincidence, the sheer bad luck, that Ongwen was in the wrong place at the wrong time when he was abducted as a ten-year-old. The sheer bad luck that others were able to carry his weak and straggling body that day such that it was no struggle to kidnap him. The serendipity that he survived the violences upon him. The temperamental serendipity that he came of age in the way he did in the LRA. And the sinuousness(es) of his fallings-in and fallings-out with Kony, his imprisonments, his escape, his capture, and then his ending up in the ICC as the first and likely only LRA convict. I have thought a little but about this, the role of chance, of moral luck as discussed by Thomas Nagel (with a hat-tip to legal philosopher Shannon Fyfe for the recommendation) and how law should talk about it.
Indeed, much of life ‘just happens’, perhaps, and so too with much of atrocity, which tragically is part of human condition. Yet this is not how international criminal law constructs its accused. International criminal law constructs them as plotters and planners, as intentional movers and shakers, as willful and wanton. It needs to construct them this way. After all, courts punish to deter others. Courts punish to ensure that others not make the same patterned choices. The immediate lesson from Ongwen, then, is that little children and adolescents kidnapped into invidious armed groups should try not to become socialized into hurtful adults. They should try to ‘grow up right’, on their own. They should resist. They should act far more respectfully than the adults and authority figures around them. They should be disobedient. This is the conduct immediately encouraged by the Ongwen verdict.
The Israeli Kapo trials, for their part, contritely recognized some of this ‘moral luck’ – they recognized the difficulty of judging someone with the heinous bad fortune of being in the worst possible place at the worst possible time and the wretchedness of being ‘favored’ or ‘empowered’ by their overlords. That did not mean that these courts did not convict, or sentence, but they admitted that they could not fairly (or so sanguinely) explain how such things happen or happened. It made them queasy to bear that responsibility. They were tasked to do what Primo Levi counseled against – namely arrogate to a tribunal the power to judge the ‘grey zone’ – and it filled many of them with woe. They were humble. I did not hear this in the voices of prosecutors or judges tasked with prosecuting Ongwen. Those voices were very categoric and professionally clipped. They were not strained. And it seemed that the more these decision-makers heard, the more they listened to what they wished to hear.
Without comparing Ongwen to any Kapo in what he did, there is cause to wonder about the differences in who was empowered to assess whatever was done. Perhaps in the Kapo case this unease derived from the fact than some of the judging judges themselves survived Holocaust violence. Perhaps it is because this was a national court judging its own people, mediating injustices within a nascent state. Perhaps it is easy for us to imbue Ongwen with so much intentionality – or conversely say he had none, and was powerless and bereft, adrift – because, frankly, most of ‘us’ truly have no damn idea about his life experiences whatsoever, or what those feel like – it is all utterly unrelatable to ‘us’.
To ‘us’, to the judges, to the legal industry of international criminal law, Ongwen is truly the ‘other’. Hence, his trial becomes a bit of a spectacle. Perhaps a jury of actual peers tasked with processing all of this and authenticating it in some sort of judgment would have proceeded differently, and spoken and written in an alternate cadence, even if arriving at a similar outcome.