Polite Hypocrisy? The Rocky Road Ahead for Biden and the ICC

Posted on March 5, 2021 by Mark Kersten
Joe Biden to make third run for White House

If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.

Finally, the Trump administration is gone, and its vicious attacks on the International Criminal Court (ICC) are over. But before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?

All signs point towards a return to piecemeal engagement, where Washington uses the Court when it suits its interests and undermines it when it does not. Biden has said the U.S. is “back”. But on international justice, there’s a need to be different – and better.

A tumultuous relationship

The relationship between the US and the Hague-based Court has always been tumultuous. While the US has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the Court and also been affected by it.

President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.

When George W Bush came to power, he immediately embarked on a hostile campaign against the Court. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised the US President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorisation, which meant Washington could use military force against the Court, led the law to be nicknamed “the Hague invasion act”.

The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the Court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.

When the Obama administration took over, it stated its intent to “positively engage” with the Court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with the Court. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.

During the Obama years, American cooperation was invaluable for the Court. By sharing evidence and ensuring that the Court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.

But the Obama administration’s partial engagement with the Court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the Court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the Court’s reach, while those that lacked US support were readily investigated by ICC.

Then came Donald Trump. The Trump administration was hostile towards the Court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the Court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court.”

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Posted in Donald Trump, International Criminal Court (ICC), International Criminal Justice, United States | Tagged | 6 Comments

Can Colombia’s Special Jurisdiction for Peace be considered slow? A preliminary comparative study of trials for international crimes

Posted on March 3, 2021 by Mark Kersten

Shoshana Levy is a lawyer in International Criminal Law and International Humanitarian law, expert on transitional justice and on Colombia’s transition to peace. The opinions expressed in this article are solely her own.

SJP President Eduardo Cifuentes, Former SJP President Patricia Linares, ICC Prosecutor Fatou Bensouda and ICC Deputy Prosecutor, James Stewart. (Photo: ICC website)

The Special Jurisdiction for Peace (SJP), Colombia’s transitional tribunal was set up to prosecute the perpetrators of crimes committed during the armed conflict between the FARC-EP guerilla and the Colombian government. Its slow pace is raising skepticism among some sectors of Colombian society. Almost three years after its official creation, the SJP has not yet handed down its first sentence. In a deeply polarized sociopolitical context, Colombian President Iván Duque has repeatedly expressed ardent criticism regarding the pace of the SJP, declaring that it “can no longer provide excuses for not acting with greater speed”. But given its mandate and the immense scope of its jurisdiction, is the SJP’s work actually slow?

The widest temporal jurisdiction for a transitional criminal tribunal

The SJP has jurisdiction over the serious Human Rights and International Humanitarian Law violations committed prior to the signing of the Peace Agreement in December 2016 and in the context of the armed conflict in Colombia. The war was one of the longest-lasting contemporary armed conflicts to date. 

The outbreak of violence in Colombia was reported in 1948, while the official creation of the FARC-EP guerrilla dates back to 1964. With a temporal jurisdiction covering over half a century of internal armed conflict, this transitional tribunal has by far the most ambitious scope of all courts with similar mandates. In comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in 1993 and covered crimes committed since 1991. As for the International Criminal Tribunal for Rwanda (ICTR), it only examined the crimes committed during the year of the genocide in 1994. Likewise, the Special Court for Sierra Leone (SCSL) had a one-year temporal jurisdiction, and the Extraordinary Chambers in the Courts of Cambodia (ECCC) covered violations committed during the two-and-a-half-year period of Democratic Kampuchea.

In addition, the Special Jurisdiction for Peace does not solely aim to establish individual criminal responsibility. Rather, it seeks to interrogate large numbers of violations and their context, in order to shed light on the patterns of behavior and internal policies of both the FARC-EP and the Colombian military and identify the circumstances that promoted or facilitated them. It is the first time that such a deep and broad analysis has been carried out by the Colombian judiciary, allowing contextual elements to be legally characterized. As a result, “crimes against humanity” and “war crimes” can be named as such, and their perpetrators prosecuted correspondingly. 

The SJP has opened seven “macro cases” which, instead of focusing on one specific perpetrator, deal with reiterated patterns of conduct, including kidnappings committed by the FARC-EP (macro case 01), extrajudicial killings and forced disappearances committed by public forces (macro case 03), recruitment and use of child soldiers (macro case 07), systematic targetting of political opponents (macro case 06) and a range of violations committed in specific regions particularly affected by the armed conflict. As of January 2020, the Jurisdiction declared having examined over 60,000 criminal facts within these macro cases.

A transitional tribunal set up to deliver innovative restorative justice 

All international criminal tribunals established so far have relied on retributive grounds, where victims’ participation and right to redress were minor. The Peace Agreement signed by the FARC-EP and the Colombian Government on 1 December 2016, one of the most comprehensive peace agreements worldwide, provides for the “centrality of the rights of the victims”. The SJP created by the Peace Agreement is thus fundamentally different from other international criminal tribunals and courts established thus far, as its end is primarily restorative.

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Posted in Colombia, International Criminal Court (ICC), International Criminal Justice, Special Jurisdiction for Peace | 2 Comments

Justice in Conflict Celebrates 10 Year Anniversary!

Posted on February 22, 2021 by Mark Kersten

Dear readers, followers, friends,

Justice in Conflict is ten years old!

It was way back in February 2011 that this blog came to life, in the midst of the Arab Spring and the International Criminal Court’s intervention into Libya. I was a young PhD student who probably seemed too confident while struggling with a mild case of imposter syndrome. What better thing to do than start a blog!

It might seem cliché, but I could never have imagined then what the blog would become. I imagined it as a place where I would direct my spare energy and develop my thoughts on international criminal and transitional justice, as well as conflict and peace studies. I did not give much thought or have much aspiration that it would become much more. But it did.

That is in large part thanks to all of the readers who have engaged with the blog along the way. I owe a great deal to many people. Kevin Jon Heller was the first person to welcome me and the blog, with this “Welcome to the Blogosphere” post in February 2011. Others also welcomed JiC with open arms, and I have had such rich and engaged conversations on the politics and law of international criminal justice because of it. One thing that I have found particularly rewarding is that JiC became the place where other writers and observers wanted to publish and share their thoughts and their knowledge with our community. 

Perhaps more than anything else, the blog opened doors for me to people, discussions, and opportunities that I otherwise never really dreamed of. I owe so much of that to my father, Gregory Kersten. As I wrote last year, he was the inspiration behind the blog. My dad rightly identified a young man with unspent energy and angst who needed an outlet. Without him, JiC would never have taken off.

JiC changed my life and I have changed alongside it. The blog started during my first year of my PhD studies. Since then I have worked for numerous NGOs, written a book that i goes to the heart of the subject of the blog, and now find myself back at law school, trying to identify new ways and tools to address political violence and mass atrocities. The blog has been a constant, a sort of journal where, to paraphrase, Joan Didion I wrote to learn what I think.

What I think now is that I am very fortunate to have learned along the way from all of you who have contributed with a post, a comment, a conversation, or a friendship. 

For that I will be forever grateful.

Thank you for coming along for the ride. Here’s to another 10!

Mark

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Victims and Perpetrators: Reclaiming the victim narrative from Dominic Ongwen

Posted on February 11, 2021 by Mark Kersten

Anushka Sehmi joins JiC for this contribution to JiC’s symposium on the life and trials of Dominic Ongwen. Anushka is a member of the external team of lawyers led by Joseph Manoba and Francisco Cox, representing 2,564 victims participating in the case against Dominic Ongwen before the International Criminal Court. The views below are provided in a personal capacity.

Resident of Northern Uganda during an ICC outreach event in Lukodi (Photo: ICC)

Warning: This article details acts of severe violence that some may find disturbing.

An especially long and hot day comes to an end in Gulu town, in northern Uganda. The sun is just starting to set. The unceasing gusts of wind leave a fine brown film of dust on my laptop. I promise myself to clean it once I get back to the hotel. My colleagues and I have just finished interviewing several victims participating in the case of Dominic Ongwen at the International Criminal court (ICC) in order to establish whether they would be interested in presenting evidence as witnesses in the trial.

One of the people we interviewed, Peter (pseudonym) describes in detail how he was abducted from Abok IDP camp in June 2004 by Dominic Ongwen’s Sinia Brigade. At the time, he was at home sleeping in the hut that he shared with his siblings and parents when the camp was attacked by the LRA. All he remembers is being woken up to the sounds of screams and gunshots. His parents and siblings were nowhere to be seen. Laden with a large bucket of salt that had been looted from the camp, Peter was forced to march long into the night along with the other camp residents who had also been abducted. Peter was 12 years old at the time and had been attending Abok Primary School prior to the attack. 

He described how, from the moment of their conscription, the new abductees were taught to live in terror. Punishments were inflicted publicly (and sometimes collectively), as a means of terrorising other recruits. Aspart of his initiation into the LRA, Peter was beaten every day with a cane in order to “remove the civilian” from him. After enduring two weeks of these beatings, Peter and others who had been abducted commenced their formal training.

During the interview, Peter pauses and then hesitantly mentions that one of his fellow abductees tried to escape after two weeks. The boy in question was around 15 or 16 years old. The would-be escapee was found by senior commanders in the group and dragged in front of a tree, near where Peter and two other boys who had been recently abducted were standing. The choice was simple: either beat this boy to death or be killed.

“I was scared. The boy was brought to me because I was the youngest.” 

Peter and the other two boys complied with the order and, using the wooden sticks they had been given as part of their training, hit the boy on his head repeatedly, eventually killing him. All he could think of at the time was that he would be killed if he did not comply with this order. The boy’s body was dragged away by two other abductees on the orders of one of the commanders. Tragically, this was not the only time Peter was forced to kill someone in this manner; it happened several times during his two years in the Sinia Brigade. 

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Posted in Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged | 1 Comment

The moral and legal correctness of Dominic Ongwen’s conviction

Posted on February 10, 2021 by Mark Kersten

Paul Bradfield joins JiC for this post on the Ongwen verdict. Paul is an Associate Researcher at the Irish Centre for Human Rights at NUI Galway. He previously worked for the Office of the Prosecutor from 2013-2018. The views expressed here are entirely his own. The piece is part of our ongoing symposium on the life and trials of Dominic Ongwen.

Dominic Ongwen during the reading of his verdict at the International Criminal Court (Photo: ICC)

Tragic as it was, Dominic Ongwen’s conviction was correct, both morally and legally. His crimes demanded accountability. As we reflect on the complexities of this case, it’s important that we do so with full reference to the facts of the case. And to those who reject this judgement as legally deficient or morally unjust, we must also ask them to specify what is their alternative – can it really be argued that once someone reaches a certain level of victimhood, that no accountability should be permitted? 

From 2012-2013, I had the privilege to live in Gulu, northern Uganda, working on human rights and transitional justice issues. Living among the Acholi people was a defining time in my life. Their decency, humility, and kindness is unparalleled. I saw first-hand how the people of the north were grappling with the legacy of war. Debates around amnesty, accountability, traditional justice and reparations were very contentious then, and continue to be now. 

A few years later, I found myself working for the Office of the Prosecutor (OTP) when Dominic Ongwen was unexpectedly surrendered to the court. I worked on the trial for four years until the close of the Prosecution case. Watching the trial judgement was the culmination of years of dedicated work by many people. A large team of lawyers, investigators, witness support, IT staff, translators, transcribers, security, drivers and others all deserve recognition for bringing justice to thousands of participating victims.

Since Ongwen was apprehended, his own victim status has been a central feature of the case. His prosecution went against the grain of mass amnesty on the ground. Over 13,000 ex-LRA rebels have received amnesty since 2000. In Uganda, opinions are understandably mixed. My recent PhD fieldwork also bore this out, with ex-LRA rebels that I met essentially divided on whether he should be prosecuted or not. Diverging views were also evident in the communities I visited.

Ongwen’s abduction was tragic. This was readily acknowledged in the OTP’s opening statement (at p.35). However, Ongwen was on trial for things he did as an adult, with significant authority and independence as a Brigade Commander. He was no Kapo. He had the chance to walk away from the horror of his crimes, but made a conscious choice to stay in his position of power. At a notable encounter with the UPDF, religious leaders and others during peace talks, he was offered the chance to defect and allow his child soldiers their freedom, but he refused (at p.83).

I was often intrigued by some of the commentary around the case, and now the judgement. There is a certain degree of cognitive dissonance apparent within it. Philosophical or legal examination of difficult cases such as Ongwen’s should not merely be emotional, abstract exercises. It must be grounded in a full canvassing of all the relevant facts, the arguments of the parties, the applicable procedures, and most importantly of all: the evidence. 

For example, if you read academic journal articles on the Ongwen case, you will find there is a near-complete absence of detailed discussion or analysis of the actual evidence – the allegations, the crimes, the witness testimony, or what Ongwen is actually accused of doing. His actions are too easily brushed over. When interrogating the victim-perpetrator dilemma in this case, it is necessary to examine both aspects in detail. 

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Posted in Child Soldiers, Dominic Ongwen ICC, ICC Prosecutor, International Crimes Division (Uganda), International Criminal Court (ICC), International Criminal Justice, Kwoyelo Trial, Lord's Resistance Army (LRA), northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | 1 Comment

Beyond the Ongwen Verdict: Justice for Government Atrocities in Uganda

Posted on February 9, 2021 by Mark Kersten

Sarah Kihika Kasande joins JiC for this post on the need for justice for atrocities committed by Ugandan military forces in Northern Uganda. Sarah is a human rights lawyer and the Head of Office of the International Center for Transitional Justice in Uganda. The post is part of JiC’s ongoing symposium on the life and trials of Dominic Ongwen. For all of the other contributions, see here.

A Uganda solider at the destroyed palace the king of the Rwenzururu, following the massacre by UPDR forces in Kasese town in 2016. (Photo: 2016 James Akena/Reuters)

Dominic Ongwen’s conviction will provide a measure of justice to victims, but questions about atrocities committed by the Ugandan People’s Defence Forces (UPDF) remain unresolved.

The Good Justice

On February 4, 2021, the Trial Chamber of the International Criminal Court (ICC) convicted Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), of 61 counts of War Crimes and Crimes Against Humanity including, murder, attempted murder, torture, enslavement, outrages upon personal dignity, pillaging, destruction of property and persecution; committed in the context of the attacks on the IDP camps of Pajule, Odek, Abok, and Lukodi.

Ongwen was also found guilty of all 19 counts of sexual violence, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity. It is the first time that the court has convicted an accused person for the crime of forced pregnancy. The judgment further advances jurisprudence on accountability for sexual offenses. Sexual violence was a defining feature of the conflict between the LRA and Uganda’s government. It is therefore significant that Ongwen has been convicted of the highest number of counts of sexual violence preferred against an accused person at the ICC. Dominic Ongwen was also found guilty of the crime of conscripting children under the age of 15 into the Siniya brigade and using them to participate actively in hostilities.

Ongwen’s verdict was delivered nearly 16 years after the ICC unsealed warrants of arrest against the top LRA commanders. It is the first time that a perpetrator from the situation of Northern Uganda has been convicted. The judgment paves the way for the victims who have waited for almost two decades to obtain a measure of justice and reparations. Unfortunately, many of the victims did not live long enough to witness the historic judgment due to the delay. Some of them succumbed to the injuries that they sustained during the war. This underscores the importance of speedy justice. 

For the first time in the court’s history, ICC Judge Bertram Schmitt thoughtfully read out the names of the known victims of the crimes committed during the attacks on the four IDP camps. By naming the victims of these crimes, the trial chamber beyond establishing whether the prosecution had met the burden of proof required for Ongwen’s conviction to centering victims and their suffering. 

The Mixed Justice

Ongwen is no ordinary convict. He was robbed of his childhood following his abduction by the LRA  at the age of nine as he was on his way to school and forcibly conscripted into the LRA as a child soldier. He rose through the ranks to become a commander of the Siniya brigade, one of the 3 LRA brigades. Some individuals believe Ongwen is a victim of the government’s failure to protect the people of northern Uganda. David Ojok, a resident of Coorom, Ongwen’s village said:

I blame the government for his abduction because they (government) failed to protect him. If the government had protected him, Kony would not have had the opportunity to abduct him and train him.

Whereas many do not deny that he committed horrific crimes, they think that Ongwen should have been pardoned and subjected to Mato Oput, an Acholi Traditional Justice Mechanism that focuses on the confession of wrongdoing, seeking forgiveness, reconciliation, and reparation. 

However, for the victims of Ongwen’s atrocities, the long-awaited verdict recognizes their suffering and the impact of the LRA’s crimes on the war-affected communities.

The Missing Justice

One commonly held view by victims and war-affected communities in Northern Uganda is that Uganda’s government did not do enough to protect them from LRA attacks and atrocities. In the Judgement, the trial chamber acknowledged the persistent failure by the UPDF to protect civilians living in Internally Displaced Peoples camps from attacks. In all the attacks against the IDP camps at Abok, Lukodi, Odek, and Pajule, UPDF soldiers fled, leaving civilians defenseless. The Chamber noted that the protection provided by the UPDF was” insufficient and illusory in many cases.”  This finding vindicates calls for an independent inquiry into the failure by the UPDF to protect displaced populations in Northern Uganda. 

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Posted in Dominic Ongwen ICC, ICC Prosecutor, International Criminal Justice, Lord's Resistance Army (LRA), northern Uganda, Uganda | Tagged , | Leave a comment

Litany of Horrors by LRA Leader: Ongwen Was No ‘Puppet on A String’

Posted on February 8, 2021 by Mark Kersten

Elise Keppler joins JiC for this reflection on the Ongwen verdict. Elise is and associate director in the intentional justice program at Human Rights Watch. The post is part of our ongoing symposium on the life and trials of Dominic Ongwen.

Dominic Ongwen listens as Judges at the International Criminal Court read out the verdict in his case (Photo: ICC/Reuters)

On February 4, Judges at the International Criminal Court described a litany of horrors as they concluded that Dominic Ongwen, a leader of the Lord’s Resistance Army, is guilty of 61 counts of war crimes and crimes against humanity committed in northern Uganda. 

Girls and women had to choose between forced marriage to Ongwen and other LRA fighters, and death. They had no option but to leave babies in the bush so they could carry LRA loads. Abductees were forced to kill other abductees or be killed themselves. They walked barefoot through the bush and “shook with fear” that they would be killed if they could no longer continue.

Ongwen planned and executed attacks on camps for displaced people as Ugandan forces fled the scene. Civilians were shot, burned, and beaten to death. Houses were set on fire and bodies were strewn across the camps.

His actions represented extraordinary brutality and unimaginable disregard for people’s lives. And yet, this was the first time any LRA leader has been held to account for these abuses. 

As a justice advocate, I find it fearfully easy some days to become lost in the jargon of international criminal law and lose sight of what war crimes and crimes against humanity actually mean. But listening to the judges read Ongwen’s verdict, it was impossible not to feel heaviness in trying to take in the terror and destruction that some people cause others, and that they can often do so with impunity. 

The verdict sends an important signal that the gravest crimes should not, and will not, always go unpunished. But it is a reminder that despite the efforts of so many people in so many places to ensure that fair and credible trials go forward before international, hybrid, and national courts, we remain in many ways in the early phases of accountability being the norm in practice for international crimes.

Ongwen’s case should be a beginning, not an end, to holding people responsible for the crimes committed in northern Uganda to account. 

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Posted in Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged | Leave a comment

‘Getting’ an Unforgettable Gettable: The Trial of Dominic Ongwen

Posted on February 5, 2021 by Mark Kersten

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. 

Dominic Ongwen with members of the Uganda PEople’s Defense Forces following his surrender in 2015 (Photo: AFP)

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.

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Posted in Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged , | 3 Comments

An Insider Look at Outreach efforts in bringing the proceedings closer to the Victims and Affected Populations in Northern Uganda

Posted on February 3, 2021 by Mark Kersten

Maria Mabinty Kamara joins JiC for this insider account on outreach efforts by the International Criminal Court throughout the proceedings against Dominic Ongwen. The post is part of our ongoing symposium on the life and trials of Dominic Ongwen. Maria is an ICC Outreach Officer who has worked in Uganda, Kenya, and Sierra Leone.

Villagers in Lukodi, Uganda, watch the Dominic Ongwen proceedings at the ICC (Photo: ICC)

‘’No matter how far victims might be from the Court, the ICC endeavours to reach out and engage with them and their communities. People most affected by the crimes have the right to understand, to participate in, and to have a sense of ownership of the justice process’’. 

The statement above encapsulates the International Criminal Court’s goal of establishing an Outreach Programme that engages in a constructive, sustainable, and reciprocal manner with the victims, populations and different stakeholders that are affected by the crimes under investigation and on trial. Outreach promotes access, understanding and ownership of a justice process that is otherwise considered distant and foreign among the people it is designed to serve.  

The Court’s Outreach activities in Uganda commenced in 2006, creating individually simple yet collectively multifaceted channels of communication that harnessed vibrant relationships with victim communities, religious and cultural leaders, the media fraternity, the academic and legal communities and the general public in northern Uganda. As the Court seeks to fulfil its mandate to investigate and prosecute persons who have committed the most serious crimes of international concern, namely genocide, war crimes, crimes against humanity and genocide, it is imperative that its role and judicial activities are understood and appreciated, particularly in communities affected by the crimes under its jurisdiction. Unlike most national and local courts, the ICC is international and it is situated in The Hague, The Netherlands, which is thousands of miles away from the populations in northern Uganda that have been affected by the crimes Dominic Ongwen is accused of. 

After a long and frustrating lull of up to 10 years from 2005 when the arrest warrants against senior members of the Lord’s Resistance Army (LRA) were issued, the arrest and surrender of Ongwen to the ICC in 2015 was a welcome relief that rekindled the communities’ interest for information about the trial. Until the outbreak of COVID-19 in early 2020, that was demonstrated by the enthusiasm and large numbers of people that participate in outreach activities.

With all the proceedings being conducted in the ICC Courtroom in The Hague, the massive interest and participation of victims and affected communities in the trial proceedings expressed through numerous Outreach channels underscores the importance of a robust and inclusive outreach programme that ensures that the judicial proceedings are accessible, meaningful and relevant, promotes understanding of and support for the Court’s work, and manages the expectations of the victims and affected communities. 

Notwithstanding the distance between the ICC in The Hague and the communities whose needs for justice and accountability are being served by the Court, our work connects the communities with the Courtroom, bringing understanding, ownership, and legitimacy of the work of the Court in the four major geographical areas in northern Uganda where the bulk of the victims reside.  

In northern Uganda, our Outreach has made it possible for people living thousands of miles away from the Court to have a meaningful experience of the proceedings. Throughout the trial, we established screening centres in the twenty-five locations that are directly linked to the case and where projections of the trial are held monthly. The monthly screenings are led by community volunteers selected from among the victims and affected communities.

During important and symbolic moments of the trial, such as the opening of the trial, the opening of the presentation of evidences, and closing statements, we organised live video and radio broadcasts of the proceedings, which enabled the victim communities and the public at large to follow the proceedings, bringing the Courtroom to the populations it matters most to. In the course of my engagements with victims and affected communities from different judicial contexts, the most compelling experience of a lifetime was witnessing first-hand with concept of an ‘’ICC Courtroom in every parish’ – an adage created to summarise the access to the Courtroom created in different distant communities across northern Uganda, through our outreach initiatives. 

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Posted in Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Outreach, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Leave a comment

The Fog of War (Crimes Trials): The Politics of Epistemology in the Dominic Ongwen trial

Posted on February 3, 2021 by Mark Kersten

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’. 

Dominic Ongwen, first one from left. Photo taken circa 2002-2003. (c) ‘Rebel Lives. Photographs from Inside the Lord’s Resistance Army’, Kristof Titeca

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. 

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Posted in Dominic Ongwen ICC, Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged | 1 Comment