Kjell Anderson: The Trial of Dominic Ongwen & the Complexity of Victim-Perpetrators

In this episode of Not to Forgive, but to Understand, we speak with Kjell Anderson, jurist, social scientist, and expert on mass violence, about the complexities of victim-perpetrators through the case of Dominic Ongwen. We explore the intersection of international law, transitional justice, and the challenges of categorizing perpetrators who were victims themselves. From the use of neuroscience in Ongwen’s trial to the broader implications for legal justice, this conversation critically examines the limitations of binary thinking in international criminal law.

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00:00:00 – Introduction

00:01:43 – Who is Dominic Ongwen, and why has scholarly interest in him surged in recent years?

00:05:22 – How does Ongwen’s case compare to Primo Levi’s ‘Grey Zone’ concept of victim-perpetrators?

00:10:35 – Why is embracing complexity in scholarship crucial, especially in legal and historical analysis?

00:15:33 – How does the binary nature of trials impact cases involving victim-perpetrators?

00:20:27 – How was neuroscience evidence used in Ongwen’s trial, and was it handled effectively?

00:27:51 – Why is the legal system often perceived as pure, despite its inherent chaos?

00:35:24 – How did Ongwen’s beliefs in magic influence his actions, and why do Western tribunals overlook such factors?

00:46:08 – Does international transitional justice reflect colonial dominance, or are we in a post-colonial era?

00:48:22 – What makes your research unique, and what gaps did your book address?

00:52:03 – What major insights did you gain from studying Ongwen’s case?

00:54:00 – Was the ICC’s judgment on Ongwen fair, and what are its implications for future cases?

00:58:01 – What common misconceptions exist about child soldiers?

01:01:43 – Given the limitations of legal institutions, are international trials truly just, or are they often predetermined?

Transcript

0:00

But beyond that, I think there was a fair airing of facts, and I think the judges followed the rules that were set out before them and assess the evidence that was set up before them. You know, having said that, there are all these kind of limitations in the trial process itself. So is it fair in a legal sense? Probably. Is it fair in an ethical sense? I don't know. Kjell Anderson is a jurist and social scientist specializing in human rights, mass violence and atrocities. His research explores the motivations of perpetrators of international crimes, the criminology of genocide and transitional justice. In this conversation, we discuss his work on the Dominic Ongwen trial at the International Criminal Court and the complexities of victim-perpetrators in legal and scholarly discourse. Let's begin with some of the descriptions that or some of the quotations that you've mentioned in your work. And let me begin by reading three of them. So the first one is, “Dominic Ongwen wasn't a bad person. He was a person who cared about people, but that was when he was still having a lower rank”. That is the one of the first witnesses you quote from. The second witness says, “Dominic Ongwen was somebody who committed atrocities. He ruined civilians, properties. He also used civilians in a very bad manner. I cannot say he was kind. I do not see any kindness”. And the third witness, the third interviewee goes on to say, “He,[Dominic Ongwen] was a balanced man, very balanced. I saw a kind of fatherhood in him.” Now, my very first question to you is who is Dominic Ongwen and why has there been an obvious surge in scholarly interest in him in the last few years? Yeah, I mean, who is Dominic Ongwen? That's kind of the subject of my whole book, but I have a forthcoming book on Dominic Ongwen, but I don't kind of answer that question in a simple way. It's not because he's extraordinary. I mean, in some ways he's extraordinary because obviously he's had this very specific experience, rather, of being someone who was abducted when he was nine years old and becoming a child soldier and then becoming a commander, then obviously being prosecuted and convicted by the International Criminal Court. But at the same time, you know, I've been working on perpetrators for a while. I'm not sure how long, but for quite a while. And yeah, perpetrators are people. I mean, it's a very simple thing to say, but it's the reality. So that means they're subject to the same, you know, roughly the same motivations as other people in the same foibles as other people. So they're also not unidimensional. You know, they're not only bad and they're not only perpetrators, they're different things to different people in a way that is also kind of the approach of my whole book is to kind of look at Dominic Ongwen through the through the eyes and through the experiences of other people, both in terms of the trial, but maybe even more so in terms of people that I spoke with who knew Dominic Ongwen. So he is all of the above. In fact, he is all those things and you know, so I would hear many positive accounts of him from people who were in the LRA who experienced him in a certain way. They might experience him as obviously he's a very adept commander. And, you know, when you're in an armed group like the Lord's Resistance Army, you actually want to be under an adept commander. I mean, in as much as you want to be there at all, because they can help keep you alive, to be perfectly blunt. So, you know, some of the other commanders are quite incompetent. So Dominic Ongwen was seen as somebody who was relatively safe. And I think that's part of the reason why he was often, I think, well-liked within the LRA. He was also seen, I think, by many as a less brutal disciplinarian than some others. Having said that, he could certainly be a brutal disciplinarian at times. So, again, that's a matter of perspective and especially the difference, I think, between, you know, being an insider and being an outsider. So people who were were outside of the group and outside of the norms of the group were treated often with great brutality. But that was not necessarily seen as bad, I suppose, by those who were who were in the group. You've made mention of Professor Erin Baines work in your book and Erin Baines is very relevant to the case of Dominic Ongwen because she was among the team who drew up the amicus curiae report on Dominic Ongwen back then. She comes up or she coins the term complex perpetrator to define Dominic Ongwen and other child soldiers. How different is this concept from Primo Levi's ‘Grey Zone’, which he evoked back then to speak about the victim-perpetrator or the perpetrator-victim. Basically the notion that you can't just affix a label on someone and say he's a perpetrator or she's a perpetrator and this other person is a victim, because very often people take on various roles at the same time. So similarly, Dominic Ongwen has taken up various roles as a child abductee and then later on as a child soldier. And then of course when he attained the age of maturity, he went on to perpetrate many other forms, of crime and criminal wrongdoing. So how are these two concepts different I think they are similar. They're not identical in the sense that every situation of perpetration, I think has to sort of be taken on its own merit in a sense, you know, and you actually do have to look a lot of the context. So I think in general when we look at perpetrators, I still think there's room for a lot more nuance. I mean, there's a lot better scholarship, I think coming out on, perpetrators. Now, a lot of people are doing, you know, micro-level fine grained scholarship. But at the same time, I think the kind of elements of victimization are present for more perpetrators than we think. But at the same time, I certainly wouldn't say that that's present for every perpetrator. So when we talk about complexity and I know that Alette Smeulers has worked on perpetrators for years as well, she she as well as Barbora Holá. I think they had the term compromised perpetrator, which was basically describing the same thing or a similar thing as a complex political perpetrator, which is a perpetrator who's also a victim. And in a way, that's kind of I think you almost have to take that in terms of a scale or a matter of degree, you know, in terms of individual circumstance. But when Primo Levi, of course, he was writing about concentration camps, Nazi concentration camps and death camps specifically, so he was thinking of people like the Sonderkommando and the Kapos and people like that who were Jews, who were working, you know, in quotation marks. Well, I guess they were working in concentration camps, but obviously they also faced, you know, kind of inevitable death just by virtue of their Jewishness. So, they were, I think, certainly also perpetrators. And it's such a touchy subject to talk about even today. But I taught at Bergen-Belsen, I don't know, in a few years ago now, but I was kind of amazed. The reason I mention this, I was kind of amazed and really fascinated by the Kapos and learning more by the Kapos. But in Bergen-Belsen, by the end of the war, many, many Kapos were lynched by the prisoners like I don't even know how many, but hundreds. I'm talking. So there was a mass lynching of Kapos, which was kind of spontaneous mob justice. And you had some Kapos who were, I think, very entrepreneurial, you know, that they were doing more than just sort of using that position as sort of a coping strategy to make their situation better, to put off death. I mean, there were Kapos who were who were actively seeking to kill other prisoners, you know, in some specific circumstances. So even kind of the Kapo phenomenon, I think you almost need to differentiate, you know, by individual, even though you can look at kind of this structure. So that's obviously what Primo Levi was referring to in a concentration camp is obviously a highly structured, highly coercive environment. And if you compare that, then you transpose that into the Lord's Resistance Army, which Erin Baines was writing about. You know, there are some similar characteristics. Sometimes the LRA and other rebel groups are presented as sort of wild groups where anything goes. But I think a lot of that is rooted in Orientalism, to be frank. And I think I think there are not at all wild groups. They're actually highly structured, highly rule oriented groups. Obviously, they have a very different set of rules that they're implementing. It's still not a concentration camp. Like there's more, there's more flux and there's more flexibility than you would find in a concentration camp. So I think there are similarities and I think there are differences. But I think, yeah, in a way they're trying to get at a similar phenomenon, which is people who are clearly both victimized and perpetrators, and that is more common than we think. But at the same time, certainly not every perpetrator falls into that category. Thank you. So still on the subject of complexity, we are a generation of scholars who are well aware of the limitations of binary or categorical thinking or what some might call the either/or dichotomy. What is the value of the opposite of that which is admitting variance and complexity in our work? And I say this specifically because I was really marked by some of the passages in your work. I'm just going to quote two of these sentences. The first one where you say, I quote, “The more I explored Ongwen story, the less certain I was of achieving any moral satisfaction”. The second one I quote again,“The objective truths of the trial are no less distorted than the emotional truths in my interviews”. How important is therefore the concepts of complexity and variance to scholarship into our thinking? I think in general. I think it's really important and I think, you know, it's a tricky one because on the one hand, you don't want to kind of enter into an absolute moral relativism. If that's not a contradiction in terms, in the sense that that everything is just complex and we never know who the good guys or the bad guys are, you know, quote unquote, or we don't know. And that, you know, when you boil that down to its most essential form, does that mean we don't know what's good and what's bad? You know. But of course, when we relate it to human beings, human beings aren't essentially good or bad or they aren't essentially good or evil. So then you do need that nuance. And then if you obviously approach cases like Dominic Ongwen’s, I think that's totally inescapable. You know, even in their opening statement in the trial, the prosecution was already speaking of mitigation of his sentence, which I think is, you know, maybe not unheard of, but quite unusual that the prosecution is almost watering down its own argument from the start, I mean, from one perspective. But at the same time, the prosecution knew that this was going to be an issue. You know, whether it's a legal issue or it's more of a kind of contextual issue that shapes what's happening in the courtrooms. So they anticipated that. And I mean, to give the prosecution some credit, I think they also genuinely themselves believed that this was a complicated case, because when you have somebody who's abducted, as you know, around a nine year old boy, he might have been slightly older. But in the end, the trial found nine years old because they they didn't have, you know, proof otherwise. But, yeah, a nine year old boy abducted on his way to school. Nobody says he wasn't a victim. Nobody. You know. So the victims counsel who are, of course, are by nature a very pro-victim. They also say he was a victim. But then the point of contention become sorry. You know, at what point was he not a victim or how did that victimization impact what was to come later? So I think that nuances is crucially important. And I think it's very much inherent to his case. And I think it's okay and important to be comfortable with being uncomfortable, you know? And as I'm writing this, I'm also uncomfortable in the sense that it's, you know, on the one hand, he was very clearly a victim. But if I swing the other direction and say he never did anything wrong or none of what he did was wrong, that's also problematic. And I've also spoken, you know, to his victims, you know, sitting face to face. And of course, also I've read the trial transcripts of some of the horrific stories told by victims. So I think they're actually not mutually exclusive. Both things are true at the same time that he suffered horrific violence and then went on to commit horrific violence himself. So these are two ideas that for a lot of people, maybe for myself as well, sit somewhat uncomfortably together. But at the same time, that is the reality of the situation. And in a sense, they're not contradictory. I mean, even in her opening statement, then prosecutor Fatou Bensouda, I'm slightly paraphrasing here, but only slightly, but she said kind of men can do cruel things and cruel men can do kind things, which of course is very much true. But a lot of people don't seem to be comfortable accepting that or even kind of facing that. It's more comforting, I think, to be sitting in a very clear victim, perpetrator binary, where we just look at Dominic Ongwen as an adult and as somebody fully responsible. And none of the horrific things he endured had any impact on what he did later, but that's not logical. So let's talk about this in terms of the impact of this categorical approach to thinking, the binary approach to thinking, how does that play out in a scenario where we're talking about a trial and a victim perpetrator? Why? I say this is because trials are set up to be categorical in nature. And the reason I say that is simply because you have either a verdict of guilty or not guilty. So how did you feel, if at all, that the trial system suffered from certain limitations when it came to the trial of a victim, perpetrator or complex perpetrator, Yeah, there are tons of limitations. I mean, by nature of the trial itself, even by nature of the jurisdiction of the court and the procedural rules of the court. Of course, the ICC has jurisdiction over people, over the age of 18. So if you ask people in the in the prosecutor's office or maybe even the judges, you know, why is Dominic Ongwen responsible when he suffered all these things as a child, they say, we just we didn't charge him for anything he did below the age of 18. You know, at the time of the charges, he was, I don't know, in his early twenties or something like that. So that's the very that's the very simple answer. Of course, it's not a very satisfactory answer, especially when you delve into things like developmental psychology that, yeah, if you suffer extreme trauma and he suffered extreme trauma. So this is not, you know, him seeing one bad thing. I mean, that's bad enough, but he really suffered extreme trauma. Without going into the details right now. So, I mean, most people who study trauma and who study things like post-traumatic stress and even post-traumatic stress is kind of a probably an overly and reductionist way of looking at trauma in general. But, yeah, they basically all say, you know, the amount of trauma that you suffer and kind of the dose of trauma, to put it in very simple terms, is usually related to the impact it has on you both then as well as later on. So this is certainly something that impacted him. I mean, trauma even even changes your brain. I mean, changes the actual physicality of your brain and the way your brain is able to to do things like impulse control and all these things, not to mention, you know, taking a more sociological perspective and just looking at the effects of growing up in this very extreme environment. All those things had a tremendous effect on him. He was never involved in any form of violence, you know, as far as I could ascertain before he was abducted by the Lord's Resistance Army, he was raised in a relatively happy, relatively secure household. I mean, even in the context of civil war in Uganda, in the north at that time, he had good parents. They weren't overly disciplinarian or overly permissive, as far as I can tell. I mean, in short, he had a pretty ordinary childhood, all things considered. So everything that led him to that place happened after he was abducted. So when you sort of then attach to the trial process. Trials don't really actually deal with childhood socialization or things like that. They just okay, we're looking at, you know, the elements of crimes. What was he charged with? Did he is there evidence that he committed those acts? Can those acts be linked to him? You know, and then you could get, obviously, the different theories of criminal responsibility. The only place that sort of comes in is things like sentencing. You know, obviously where you have these broader factors that can be considered in mitigation. And the court actually did consider it. And they, you know, by their own logic, they knocked five years off his sentence. So they were they would have sentenced him to 30 years and they sentenced him to 25 years instead is basically what they had said themselves. So but that doesn't you know, that's sort of approaching it at the margins, that's approaching it at the edges. It's actually ultimately deemed not relevant for culpability. So the core issue of the trial, you know, is he responsible for these things in a criminal sense? It's basically irrelevant for that because it's stuff that happened beyond the period of the charges. So that's a very reductionist approach. You know, and obviously, when we contrast a criminal trial with with something like restorative justice or different modes of transitional justice, and there are a lot of different scenarios there, there are a lot more nuanced ways of approaching things than just did you do it. Did you not do it? So this this kind of adversarial binary context obviously is very limiting in terms of how the the parties can approach the case and in terms of what the outcome is for Ongwen ultimately. So a few conclusions that we can draw from what you said is, first of all, that, yes, the trial system is reductive. It does reduce a person's label as being either guilty or not guilty. The leeway that the tribunal has, if you're a complex perpetrator or if they want to be a bit more lenient towards you because of the matrix of causes involved, then they would try. That would probably be a play up in the context of sentencing. Having said that, I still want to go back to something you mentioned just now, which is about introducing elements of neuroscience in the trial. So when I studied this particular trial, the ice I mean the ice at the ICC, the International Criminal Court, what I found out was that it was groundbreaking. It was novel in the sense that it was one of the first times in which neuroscience evidence was used in such detail in a trial of this stature. So could you tell us more about the use of neuroscience evidence in that particular trial and whether you felt that it was approached adequately? I know it wasn't approached adequately, but that's that's kind of my short answer. But it is a very tricky one. And, you know, in writing this thing, I've also been learning about kind of forensic, I guess, the forensic practice of psychiatry and psychology and, how that differs from from the actual practice of psychiatry and psychology and that forensic application of psychiatry, I mean, especially in terms of expert testimony, is also very reductionist, needless to say, because basically, I mean, what it ultimately boils down to, of course, is that the judges are interpreting the law. So the judges aren’t actually really interpreting, you know, whether Dominic Ongwen has condition A or condition B, although it kind of seems like they are they're obviously looking at, you know, Article 31 of the Rome Statute, you know, whether they are basically whether it destroyed his ability to to tell right from wrong or control his actions, you know, in kind of a simple boiling it down, what it says about mental illness in the Rome Statute. So yeah. So then of course, you have all these different experts coming in. I think you had six or seven experts in total testifying in the trial, both in terms of his mental state at the time of the commission of the crimes and, of course, fitness to stand trial today, which are separate issues. But both both were brought to bear in terms of the trial itself. So, I think when you sort of try to assemble a narrative in terms of what they said in the trial, it's not very coherent. It doesn't really make a lot of sense, but in a sense it doesn't have to be very coherent because, of course, if you're a prosecution expert, you're essentially just trying to rebut what the defense is saying or try to exclude the possibility of a mental defect or disease that could exclude criminal responsibility, which is actually very narrow, as I was saying, under the Rome Statute. So you could be, you know, in simple terms, you could be very mentally ill and still not meet the standard of the Rome Statute. So then if you look if you go more into kind of neurology and neuropsychiatry and those kinds of things, actually looking at the brain, I mean, it also came in the trial, but it was kind of again, it was kind of bits and pieces and it wasn't very coherent because they're not really looking, you know, in detail at his socialization. They also weren't really looking at the development of his brain. And that's also quite speculative. It's all quite because obviously there's no longitudinal aspect to they're not examining him at nine years old. And then, you know, as a 20 year old commander and then again once he's out of the LRA. So they're they're looking at, you know, things like witness testimony and witness statements in terms of what he was like at that time, which is very, very limited, actually. And then they're doing things like psychometric testing. But then, you know, there's a kind of extrapolation back to, you know, if he has these symptoms now, did he have those symptoms at the time? And then you have to kind of link that to witness testimony. So it's it's very it's actually a very incoherent I'll be honest with you, in kind of the version of PTSD and a lot of these conditions that came up in the trial that you get is also very reductionist and very, very simplified from the way that psychologists and psychiatrists actually use it. I mean, I can give you an example. You know, the defense experts during the trial, they were sort of I guess they were cross-examined, I guess would be sort of the right where they were rebutted by their prosecution experts after their testimony. And they were basically saying both the experts, as well as the prosecution themselves were saying, well, your assessment of Dominic Ongwen changed over time. You know, this shows inconsistency. This shows that you don't really know what you're talking about. And the defense expert said that that's normal. You know, that's what happens when you're when you're meeting a patient and you're having conversations with a patient, you know, over over months and over years that actually your assessment of them does change as you learn more about them. And it does change also as as they change, I suppose. But that in the forensic context, that's seen as an indication of unreliability, but in fact it's not unreliability, it's just the practice of psychiatry and also the way that individuals change over time. So what sort of period are we talking about? Are you referring to 2015, the trial stage? And then there was 2022 the appeal. I would have to go back and check but they first met him I think 2015 - 2016, something like that would be when they first met him. So obviously they've continued meeting him because that's also the thing with the defense psychiatrist is that they're not only and this was kind of raised as problematic in the trial, they're not only assessing him, but they're actually treating him in a sense as well. So actually, they've been meeting him, I guess, for at least five years. I suppose they're not meeting him anymore because now he's been transferred to Norway. There's also a psychiatrist in the detention center there. I mean, there are a lot of people involved. So there are detention center psychiatrist who are also writing reports. Some of those reports also made their way into the trial, even though they're not, you know, court experts per say. And then, of course, the chamber had its own expert, but the chamber expert was just dealing with fitness to stand trial, not with, you know, the exclusion of criminal responsibility. And then there were, I think, three prosecution experts and two or three defense experts I'm forgetting now. So this is a lot of psychiatrists. They're all using different methods and actually they're reaching different conclusions. So, I mean, like the chamber expert said that he had the worst case of PTSD he'd ever seen, and he's somebody who was an expert specifically on PTSD. So he in the context of of wars and kind of post-conflict environments, and then, of course, the prosecution expert said he doesn't have PTSD. I mean, none of the prosecution experts. So with all of this in mind, there’s evidence which contradicts itself not just experts, different forensic experts, we also have the same person sometimes contradicting themselves in terms of the evidence they give about a person. And you justify it for very good reason that it's because the expert witness may have gotten to know the defendant better over time, for instance. This is just one of the means in which trial is, when you look at it up and close, you realize that it is more complicated than we imagined. You realize that it is more chaotic after all. As a legal scholar, why is the tribunal system or the legal system believed to be a pure institution, by many? And why is it, in truth, not? In my book, I use the phrase the romance of legal formalism. And what I mean by that is that I think there's an intrinsic appeal to the idea of a process that's very systematic and very formal where evidence is tested according to, you know, agreed upon rules. And there's an adjudicator there or several adjudicators there who are to interpret the way the rules are applied. I mean, being judges, of course. So there is something attractive about that. And I think courts also take for themselves kind of the imprimatur, that they're the ones who decide what's true and what's false. And obviously there's some value in that. I mean, to be clear, I mean, it's a very extensive fact finding process. I mean, if you look at the Ongwen trial, I think the prosecution interviewed at least a thousand people, you know, many of whom, of course, did not up testifying in the trial. And the defense also interviewed very many people. And then we're talking about tens of thousands of pages of discovery of document and some in the case of the Ongwen trial. There were a lot of radio intercepts, for example. So that's where, you know, different security organs of the Ugandan state were basically intercepting, communicate patterns in the LRA. And then they were transcribing what they heard into these logbooks, and that was a whole thing. So there's tons of evidence, in other words, and it's all examined systematically. Having said that, I found errors, you know, in some of the evidence, you know, not to go into it in detail, but sometimes the Court gets things wrong. Sometimes witnesses, of course, contradict themselves. Sometimes they say things in court and they say something different to me, you know, And I don't really delve into that in the book, especially because, you know, sometimes we're dealing with protected witnesses, which I don't want to mess with for obvious reasons. And it's not that people are lying, but it is, you know, people's memories change over time and their impression of things changes over time also, as they're engaged with the court. The court misses stuff, the court gets things wrong, you know, like, for example, sometimes they say somebody was Dominic Ongwen's sister, and it was actually his cousin. That's something repeated many times in the trial, also repeated many times in newspapers and articles about the trial and about Dominic Ongwen. And the reason for that is basically because in the Acholi culture that sometimes these words are used somewhat interchangeably. So sometimes the way they use relational words in terms of, you know, who's an uncle, who's a brother, it's used differently than we use it in Western countries. So the court also misunderstood that. And that's not a major error. That's obviously not affecting the outcome of the trial, but it's just kind of an example. So there's but there's also kind of a there's a deeper level kind of an ideological epistemological, to use a big word underpinning to all of that as well, to the idea of judicial fact finding and kind of the purity of the judicial fact finding and the purity of the court, which, as you said, is actually a lot more chaotic than a lot of people think, which isn't really a critique. It's just the fact that these are human beings, you know, interacting for months and for years within essentially one room in The Hague. I mean, that's a lot of what we see happening in terms of the trial process itself. So the results are also a process of that interaction and of people's strengths and also people's flaws at the same time. So that kind of elevation of judicial fact finding is also dismissive of other knowledge systems and other methodologies for gathering information, whether it's somebody like me who's, a you know, basically a social scientist who's out interviewing people or whether it's, you know, Acholi beliefs and Ugandan beliefs themselves in the way they approach things like spirituality, for example, and kind of how they see the world is very different than how people see the world sitting in a courtroom in The Hague and they certainly privilege, you know, this knowledge system. And the court is kind of it's kind of predicated on that. Right? It's not the court doesn't kind of have multiple knowledge systems. It's got one knowledge system and one kind of way of assessing information, essentially. It doesn't look at other kind of cosmologies or anything like that. And maybe it couldn't maybe a court couldn't or shouldn't do that kind of thing. But at the same time, yeah, it is inherently just kind of one form of truth telling, which is quite limiting. Of course. It's also yeah, it's also limited just by the again, by jurisdiction, which is kind of a kind of a dry thing to talk about. But they're just talking about, you know, stuff that relates to him and I mean Dominic Ongwen and they're only talking about stuff that relates to the period of the charges, which was 2002 - 2005. He was in the LRA for much, much longer than that, you know, for 20 something years. So why did the prosecution choose those years? I mean, that's kind of a complicated discussion, which has to do with the pragmatic considerations, but also just with legal jurisdiction and consideration. But that already is quite limiting. So for example, if you're also trying to tell the story of the LRA or of the war in the north, just based on one trial, it's going to be a super limited story, which a lot of people forget again, because you're not dealing, for example, with Raska Lukwiya because Raska Lukwiya is dead. So his name comes up in the trial, but he's not on trial. And it's just because he's dead, you know, And there are many people who died before these five individuals were charged as well by the ICC. So, you know, when I speak to people in the office of the prosecutor, why did you charge Dominic Ongwen? You know, sometimes they're quite honest with me, especially former people. And they say, well, we had, you know, a few weeks, we had a month, we had whatever, six weeks to find some names at that time because we needed to start prosecuting people and we found the best evidence on him in that time. And it could have easily been somebody else, but it wasn't somebody else, which doesn't mean that he didn't commit the crimes. But it is international justice is defined by it, by this selectivity. That's the way the whole system functions. So there's an element of randomness there as well. So you just spoke about magic, about the importance of magic in Acholi culture. And I think I have also seen various passages in your work that address these matters. I want to go to something that again, involves the tribunal and the system that Dominic Ongwen was subjected to, because criminal responsibility, as we know, relies heavily on the accuse agency or involvement or culpability in the crime. In other words, the court must assess causal factors involved that led in the commission of that crime. You mentioned in your book, as I said, you talk about, you know, the importance of magic to that culture, that specific culture that Ongwen and Joseph Kony came from. And you also mentioned that involvement of magic in the orders that were passed down by Joseph Kony to the soldiers, to his underlings in the LRA. You also mentioned the impact of magic on the thinking of even Dominic Ongwen, when you dug into his background. So in a typical Western tribunal system that Ongwen was subjected to, there is no place for these beliefs and their influence and the understanding of their influence on agency, on personal responsibility, and ultimately on criminal liability. How fair, therefore, are these trials? Yeah, they're fair according to their own internal logic. So there's an element of fairness there. But I mean, the few times that Dominic Ongwen spoke in the trial, I mean, from his perspective, which, isn't the gospel truth either, it's again another perspective, another truth. But he was kind of baffled by the frameworks that were being applied to him because he said, why? Why wasn't I also protected by these same rules? Which is actually also technically true. I mean, the fact that he was abducted was a human rights violation committed by the Ugandan government. I mean, they didn’t abduct him, but they failed to protect him, you know, under a human rights law. They have an obligation also to protect and to prevent human rights violations. And they failed in that obligation. And that's how he became a criminal. You know, paradoxically. I mean, the way that spirituality was dealt with in the trial was, I think, one of the most fascinating aspects. And it was something that to me the court got completely wrong, but I'm not sure if we can expect otherwise, you know, so the basic conclusion reached by the Chamber was that nobody really believed in this stuff. You know, I'm simplifying, but that's basically what they said. And how did they reach that conclusion? They reached it, of course, based on the witnesses who testified in the trial. And if you actually delve into the witness testimony, you see that some of them actually did say they believed in it, but that was kind of discounted or other one said, I don't know. And that was taken as, okay, they don't believe in it, you know, But if you look at the nature of belief itself, is belief, something that never fluctuates is belief, something that's the same in every context and every time? Of course, it isn't. So I mean, it was really interesting, the testimony of Kristof Titeca, he was a development studies professor in Belgium, and he was testifying especially on these spiritual aspects, and he was a witness for the defense and because the defense was arguing, of course, this formed part of duress and maybe part of mental illness as well, but certainly part of duress, that, you know, people couldn't leave the LRA because they thought Joseph Kony could read their mind. I mean, for example, and they thought that Kony can make himself much smaller, like shrink himself down and monitor them. And many kind of magical powers, of course, including channeling spirits. So they were after he testified that he was being cross-examined by the prosecution and also not cross-examined, but asked questions as well by the judges at the same time. And so he would say things like, you know, the LRA, they believe that a stone could be turned into a grenade, could be turned into a bomb. And of course, this was kind of derived also from Alice Lakwena of this this woman who was kind of the precursor of the LRA. So, yeah, he would say stuff like that. And then the judges would ask him, but can it really, can you really turn a stone into a grenade? And he would say, well, no, but he was kind of baffled by this question. And so what the prosecution argued and what the judges also found is that this stuff was essentially untrue. So it doesn't matter which course is coming from the perspective of social scientists is kind of ludicrous. You know, when you talk to a believer, whatever belief you're talking about, all that matters is whether they believe it, you know, you can look at it maybe from a scientific perspective, maybe your cosmological perspective, if you're saying God exists and you're trying to prove that he does or doesn't exist, maybe that's another perspective. But in terms of, you know, how it impacts the behavior of the believer, all that matters is that they believe and that belief isn't the same all the time. So it made it so that made no sense. And that was really a good example of kind of a privileging again, of this this kind of Western epistemology that the judges were kind of saying, of course, Joseph Kony could have read minds. I mean, that's not possible, is it? You know, But at the same time, you know, the reason I say they got it badly wrong, I mean, there are a few reasons for that. And one is because I you know, I've interviewed I'm not sure how many, but probably more than 60 former LRA, almost all of them spoke about spiritual things. Sometimes I asked about it, sometimes I did ask about it. They almost all spoke about it. Some of them said they still believed it. You know, 15 years after leaving the group, some of them said, I didn't really believe that stuff too much. Anyway, but definitely most of them believed it, you know, and that's not just my own interviews. It's also reading literature from other people who've done some of whom done, you know, a lot more interviews than I have, like Kristof Titeca, obviously, he's also interviewing Erin Baines or many other people. So the court reached the conclusion that basically went against all that literature saying that they didn't really believe any of that stuff. And then the other part that was problematic is of course just looking at the testimony itself, what happens if you take somebody way out of their context, you know, being being an Acholi person, living in Acholi land, living in northern Uganda, and you place them in this courtroom, which is a very weird environment if you're not used to that environment. And I spoke to a couple of people who testified, and that's what they told me. They told me, like some of them told me I'd never seen an escalator before or the food they gave me for breakfast was so weird. You know, I'd never had food like that. And it was so cold, you know, the roads were so smooth. I've never seen roads like that before. Kind of like half jokingly. But really, it was a very for a lot of them, it was a different, very foreign environment. And then you're in the courtroom and they're saying, did you really believe those things? You know, judges who are not from your culture, not at all, from that worldview? And some people were kind of like, well, not really. And also years later. So that's a very strange way to kind of test spiritual belief and to kind of ascertain the verity of spiritual belief if you can even do such a thing. So yeah, I don't know if it would have changed the result ultimately, but I think the trial clearly they did not understand the way spirituality actually works in the LRA and that it was important for many people, but also that it was it fluctuated. It was more important at certain times than at other times. It was more important for some people than for other people. But the idea that nobody really believed I just don't buy it because it kind of militates against everything that people have told me, essentially. So that's something I think the court got wrong and I think they weren't well equipped to get it right. I think they tried in a way because they did like the judges did ask these questions like they seemed to be interested, especially Schmitt the head judge seemed to be genuinely interested in understanding, but it's kind of it's almost tokenism because they're interested. But then in the end, they say, none of that really matters. So let's get back to the law. You know who cares about, you know, learning about Cen or about, you know, different spirits or none of that really ultimately matters. So Just to give some context to the audience, I thought of reading a passage from your work on page 25 where you speak about these examples of magic. So I quote “A former LRA bush wife explains,‘There is no drinking alcohol and smoking. You can sneak away and go and drink somewhere else afar. But if you do during a crossfire, a stray bullet will hit exactly in your mouth. Or if he that is, Kony, says in this period there should be no sexual intercourse between a man and a woman. If you do the straight bullet will hit on your private part’, if the spirit dictates a certain number of soldiers should go into battle, then the excess number of soldiers beyond this dictate may be killed. Sometimes commanders even intentionally send excess soldiers into battle when they wish to get rid of them.” So this the extent of belief in magic and everything to do with the spiritual aspects of it were present in that society. And I think overlooking them, just because we are faced with this trial system that is completely foreign to what is going on over there is definitely unfair to the case as a whole. I think that is a certain conclusion, a definite conclusion we can make about the matter. Something else I talk about in the book that I thought about a lot is kind of what are the limits of the insider perspective? Because clearly there's an imposition of another perspective on these people who were in the group. You know, they don't share that perspective. They don't share that normative system. They don't understand to some extent that normative system, and especially Dominic Ongwen personally, that wasn't the reality that he lived in. You know, his sense of right and wrong was shaped by a very different set of rules. But at the same time, you know, can we really take the rules of the insiders as being authoritative? Because sometimes those rules are very abusive, to put it bluntly. Is this a sign of the continuation of colonial dominance over these culture, or do we live in a so-called post-colonial system today? Yeah, I mean, obviously it was a frequent critique made by many African and the former prosecutor I mean, the prosecutor who started actually, that's not true that she wasn't the prosecutor who started the the Ongwen case, but she was the one who spoke at the opening. And that's Fatou Bensouda, who, of course, is herself African. And her rebuttal to that critique was always the victims are also African. So it's also a valorization of the African victims. And the fact is that some of these situations of mass atrocity have taken place in Africa. I mean, of course that's true. But at the same time, I think there is a question to be asked about whether, you know, an international court like Phil Clark, you know, he wrote his book on the ICC was called Distant Justice, and he chose that title for a reason. And it is distant injustice, you know, so should an international court, which is thousands of kilometers away, you know, implementing rules which might not be very culturally relevant in some cases, and processes which I think are almost always not very culturally relevant, should be the way that we deal with situations like this, especially when you get to, you know, complex political perpetrators to bring it back to, though, because of course, in Uganda they also have their own ways of dealing with harm and dealing with wrongdoing, even even in terms of violence themselves. I mean, beyond the court system, they also have traditional justice mechanisms. There's a tension even in Uganda, of course, between, you know, the the mainstream, whatever you want to call it, court system and these other mechanisms at the same time. So some victims also want that as well, especially in the north, who say that it's more appropriate to have a process where people are allowed to openly speak about the harm that was done to them and the harm that they did, and to kind of try to reconcile those things rather than having this this Western court system. What is unique about your work what research gap did you identify and try to address in your book? Yeah that's an interesting one. I mean, I think I've obviously been working on perpetrators for a while, so that's one of my main areas and something that interests me a lot. And I've done research, I've done interviews with perpetrators in a lot of contexts, you know, from Cambodia to Bosnia to Rwanda, Burundi, Uganda. I'm forgetting a whole bunch, but I've done it in a lot of places. And something that emerged from that pretty quickly when I first started doing that kind of, you know, field research, probably around 2008, I think something like that is that these stories were more complicated than I thought. And, you know, it's kind of a classic realization. I'm not the first one. You know, you could go back to Hannah Arendt and the Banality of Evil. And I don't know if it's quite the same in the Rwandan genocide, because you're dealing with a kind of intimate violence. You're not dealing with a bureaucrat who's thousands of kilometers away like Adolf Eichmann was. But at the same time, you quickly realize that these stories are more complicated than we think and the ideas of, you know, essentially pathological perpetrators often aren't very applicable. They might be applicable with some individuals in some cases. So Dominic Ongwen was kind of the the apex of that because here you had a situation of somebody who was clearly a complex perpetrator, clearly a victim. As I said, nobody disputes that. I've never really heard anybody say that he wasn't a victim, at least at one point. So I thought it would be interesting to do something that was a lot more fine grained, because some of my other work has also been very comparative. And this is very not comparative, you know, because I'm writing about one person, obviously I link him a bit to the broader study of perpetrators. But yeah, it's a very intimate portrait of one individual told largely through people who know him. So I interviewed, I think about 90 people, give or take, and most of them like 80% of those people were people who knew him personally. So these were people who were there when he was abducted, for example, they were people that he abducted and people that he victimized, people that served under him in the LRA, people that were his commanders in the LRA, lawyers working on his case. You know, several of his family members, both from before he was abducted, but also from when he was in the LRA in terms of his wives, but also in terms of the people who raised him in the bush. I interviewed several of them. So I got this very, in a sense, very broad in a sense very narrow perspective, you know, on one individual and the dimensions of one individual. So I think that's actually the value added in my book and in what I've learned through working on this book as well, is that it is actually very nuanced and it is actually a very intimate portrait, even though I don't claim to know everything about Dominic Ongwen. It's a very intimate portrait from people who are telling me what they experienced, what he was like, what their conversations with him were like, what he was thinking, what he was feeling, you know, through their eyes, obviously. And yeah, through him throughout his whole life, basically from when he was a young child to when he was in the LRA to, to nowadays when he's sitting prison. So one of the realizations I mean, you mentioned your experience of studying perpetrators and how you wanted to be more focused in studying, in digging up this project on Dominic Ongwen. What have been the realizations you feel you have gained or that have evolved as you conducted this specific project? it sounds kind of glib to say, but I think it is a lot more complicated than we realize in many cases. And I, you know, his circumstances are somewhat unique, not unique for child soldiers, but unique maybe among, you know, there are different kinds of perpetrators, like somebody who joined the SS is going to be a very different kind of life trajectory, I think, than somebody who's abducted as a nine year old into a group that's kind of cult like in many ways. But at the same time, I do wonder if we applied that kind of really fine grained analysis to every perpetrator. Would we come up with similarly nuanced and complex stories? And I'm not sure. But also the connection to the trial or to trials and to justice themselves, I think I think that's a really interesting and a really key thing also about my work is that kind of juxtaposition from the way the ways that trials understand perpetrators and the way that we understand perpetrators more broadly, because trials are, you know, as I said before, they're sort of they're imbued with a lot of authority and they're imbued with that authority is, you know, both obviously legal authority. But it's broader than it's a kind of epistemological authority as well. It's seen as establishing ultimate truth. But when you start digging deep into the trials themselves, you learn how kind of fraught they are and how contradictory they are and how fragile they are in a sense, you know, how they could have easily gone in different directions and what stories are told and what stories aren't told and what's left out. I think that's true of every trial. Do you deem the judgment handed down to have been fair? First to Dominic Ongwen, and to future complex perpetrators and child soldiers like him? I ask this because we know that judgments handed down by courts as important as the ICC become binding and persuasive precedents for courts across the world. That is actually a tricky one. I think it's fair according to its internal logic, and I don't think that the trial was an unfair trial. You know, through the metrics we usually use to assess fairness in the context of a trial, like I think is his case was heard. I think there were issues with his legal representation, especially his lead counsel Krispus Ayena, which I won't go into now. But But beyond that, I think there was a fair airing of facts, and I think the judges followed the rules that were set out before them and assess the evidence that was set up before them. You know, having said that, there are all these kind of limitations in the trial process itself. So is it fair in a legal sense? Probably. Is it fair in an ethical sense? I don't know. Maybe not. But it's it's difficult to say. I mean, maybe I changed my mind one moment from next, but I certainly think his story is a tragic story. You know, I think whatever way you look at it, I don't think it's a story that should be kind of celebrated in the sense of, you know, vindication or justice being done. I mean, that is true for some victims. And I obviously respect that, that for some victims, the verdict was definitely satisfying, and that's important for those people. But at the same time, it's tragic because of the circumstances in which he was brought into the justice system and how he how he became a perpetrator in the first place. And he's had a terrible life. I mean, to put it bluntly, you know, and you can hear that when he did a couple of times in the trial when he gave unsworn statements that he's yeah, he's he's unhappy. It's difficult maybe to find insights on his own life because he doesn't have this broader experience. I mean, I think, paradoxically, being involved with the trial has started to give him that broader perspective because he's meeting all these people who obviously are not in the LRA and who have a very different perspective on life and on the world. And he's seeing and experiencing new things even in prison. He's seeing and experiencing new things, you know, whether it's taking piano lessons, learning English or all these things that were denied to him. And ironically, you know, he gets them years later only by being declared, you know, an hostis humani generis, you know, enemy of all humankind in a sense, and somebody who's guilty of crimes against humanity. So in a global sense, his life is very unfair. You know, it's not a it's not a good life. And he yeah, he didn't have much of a chance. But through the lens of the trial in, some sense justice was being done was done. But it's not a just life for him that he's experienced. And you know, I obviously don't want to take away completely his own agency in these things, but I think it's also undeniable, at least from my perspective, it's undeniable that his options were severely constrained through these circumstances that happened to him that were, you know, if you get into the nitty gritty of what happened to him, it's extremely disturbing and extremely violent, as I've kind of alluded to earlier. So, yeah, he suffered a lot as a person and I think he continues to suffer and his victims also suffer at the same time. So it's an unhappy situation and a tragic story and it's a tragic life. And what are some of the prejudices the world has about child soldiers? Well, yeah, he's definitely I guess that was the other part of your question as well was, you know, what kind of precedent does this set? And that's also kind of a paradoxical thing because up until this point, you know, the the ICC has really emphasized the continuing victimization of child soldiers and the impact of child soldiering and the fact that child soldiers were a special case who needed to be treated differently. But a lot of that was actually set aside in the case of Dominic Ongwen or he was kind of the defense called it the Ongwen exception in the sense that he was he was sort of separated from from that experience of victimization and of child soldiering and that his situation was treated as somehow distinct and somehow different than other child soldiers when in many ways it was actually quite typical. So it's difficult to say where the court goes from that. I don't think the court loves probably the idea of prosecuting former child soldiers. I don't think that's there. I don't think that's their ideal scenario in terms of the justice they seek. I think they would have far preferred to prosecute Joseph Kony than Dominic Ongwen. And I think actually if they had apprehended them at the same time, I think Ongwen would have got off much easier actually because he probably would have testified against Kony and that would have been a very different scenario. So yeah, I think in terms of how the world sees child soldiers, I think it's Mark Drumbl who uses the phrase‘faultless passive victims’. So there's an idea that child soldiers on the one hand are are kind of infantilized, which is understandable because they're children. But the idea that they have no agency, that they're always victims on the one side. On the other side, there's a lot of stigmatization of child soldiers that they're you know, that they're really damaged, which, of course, sometimes they are, but not always. But the idea of them being damaged is actually damaging as well in terms of their life after being child soldiers. So, yeah, idea that they're really damaged and the idea that there's kind of no coming back from being a child soldier, all these things can be very damaging. Of course, if you're a woman, if you're in a forced marriage, there's a whole other set of stigma that can come with that. You know, again, from the idea that you're damaged but damaged in a different sort of way, that you can't really be somebody who's marriageable, maybe that you were a slut, even put it in in really crude terms. But that is the terms it's sometimes put into that you did something yourself that was immoral, even though you were forced into a marriage, often as a very young woman or a girl. And of course, the children who are born from those relationships, it's also a huge problem for them, you know, and how they're seen in society. And a lot of people have made efforts to to push back on that in Uganda and in other places. But it's yeah, it's not easy being a being a former child soldier. Yeah the experience is different for different child soldiers but at the same time it's difficult and often really practical things are the biggest issues for a lot of people. You know, like I've been in the bush for ten years, I never went to school. What kind of job can I do now? I've got no money, that's often a huge issue for a lot of them, you know, beyond stigma and anything like that. Often it's just how can I pay my bills and who am I going to be? I think all in all, we have, you know, noted the limitations of the tribunal, the trial system. And one of the typical criticism of tribunals of trials systems that have taken place across the world is that they are trials. Hannah Arendt, the same remark about Eichmann's trial in 1961 when she attended it and she took notes from which we now have these concepts of absence of thinking, banality of evil. So my question is, at the end of the day, we as legal scholars, we look back then all of these trials, these impure institutions that are limited, reductive, that never factor in all the causes that are really involved in assessing criminal responsibility. Can we see that all the trials out there are, in truth show trials where in the way it is quite predictable in most cases. Let's not generalize what sort of outcome there will be when we're dealing with somebody who’s offensive to mainstream morality. International trials especially, maybe less so if it's if it's somebody who's, you know, stealing from a WalMart in Winnipeg or something like that, that's obviously very different scenario. But international trials, I think there are show trials. Show trials is a loaded term because that obviously makes it sound like there's no legitimacy to them. And I'm not necessarily saying that, but they're show trials in the sense that they are trying to show justice being done. And also because of the selectivity of the trials, they are sort of symbolizing the defendants. You know, you have the ICC, they charge five people, the LRA insurgency. None of them, of course, are from the government. They're all from the Lord's Resistance Army. Three of them are dead. One of them is at large. They've been Joseph Kony. Ongwen is the only one actually on trial. So Ongwen comes to signify what the LRA did, you know, in terms of well, in terms of everything, the forced marriage, the abduction of children, etc., etc.. So there is a highly symbolic aspect to that, which goes way beyond, you know, just the culpability of one individual accused person, which I think is also problematic for the defense side of things. So there is there is always this element of of theater and this element of display that I think happens in any of these international trials. It's especially apparent of course, in the opening and closing statements and maybe in the judgment itself, in the reading of the judgment itself, that these people become symbols of, the idea of justice, they become symbols also of victimization and perpetration for an entire conflict or an entire atrocity. So, yeah, in a sense, they are show trials. But of course, when we say show trials, often we think it means that it's all a farce, that there's no actual evidence being assessed. Like if you go to, kind of the communist regimes, for example. And I don't think that's the case here, but they are putting on a show and of course, we've seen that, you know, going way back, whether it's the Nuremberg trial or the Eichmann trial. So there's also this kind of sense of capture and display. You know, we've captured the bad guy, which makes all the rest of us safer. And we're showing you them and we're showing you what they did. So that, I think, is always present. And the marshaling of stigma against that individual is crucial, I think, for the whole process. This is Not to Forgive, but to Understand with our guest, Kjell Anderson. To our listeners, don't forget to, like, subscribe and stay tuned for more discussions.