I testified at the trial of one of Joseph Kony’s commanders. Here’s what the court didn’t understand.

Thanks to Holly Porter for suggesting this intriguing guest post from Kristof Titeca, of the University of Antwerp. Originally published in The Monkey Cage at The Washington Post on 17^th January

Otim (a pseudonym) is a former child soldier of the Lord’s Resistance Army, the Ugandan rebel movement led by Joseph Kony. On the battlefield, Otim believed spirits rendered him bulletproof. They spoke to him in dreams and allowed him to see the future, albeit a limited one with no hope of escape. When the bullets finally hit Otim, he could see only one explanation: He had disobeyed Kony’s spirits.

Kony’s command over his soldiers extends into the realm of metaphysics: He claims to be possessed by a range of spirits. Spirit possession has a long history in Northern Uganda, but Kony’s soldiers believe him to be possessed by particularly powerful spirits, allowing him to predict the future, heal the sick and read minds — qualities that intimidate many combatants like Otim, who were abducted at young ages.

In my research on the LRA, I have interacted with Otim for several years. His experiences may help us understand the story of another LRA soldier abducted as a child: Dominic Ongwen, who is now on trial for 70 counts of crimes against humanity and war crimes at the International Criminal Court (ICC). Kidnapped at the age of 9, Ongwen rose through the ranks of the LRA to become a senior commander. Much media attention has been given to the question of the responsibility of child soldiers: Should a former child soldier be held responsible for his actions after experiencing unspeakable trauma? Much less attention has been given to another striking issue of the trial, the role of spiritual elements: Is the ICC able to judge or understand the impact of the spiritual beliefs within the LRA?

Spiritual actions and their impacts have taken centre stage in the trial, more particularly in the duress argument that is put forward by Ongwen’s defense attorney. Ongwen, the defense argues, had no choice but to follow Kony’s orders. He was abducted and indoctrinated as a child. As an adult, he was under continuous threat. Those caught escaping were killed, and those who managed to escape risked their families being killed.

And this is also where the spirits come in: Kony’s use of the spirits, the defence argues, allowed him to control Ongwen’s mind.

This is not an outlandish argument. Research shows that many LRA soldiers never even contemplated escape because the spirits could reveal their secret hope to Kony. During the trial, a variety of witnesses have been called to testify about the spirits and their effects.

But to what extent is the ICC equipped to judge a defendant like Ongwen, for whom metaphysical experiences are key to motivations and actions?

Having worked on this issue for more than a decade, I was called as an expert witness to testify about these spiritual elements in the LRA. I was not alone: In previous months, a number of Ugandan witnesses were called in to discuss spiritual issues, including former rebels and a traditional healer, called an “ajwaka.”

The prosecutors didn’t bother to cross-examine any of the Ugandan witnesses on this subject. Although they and I described similar phenomena, the prosecution chose to effectively ignore their messages and cross-examine me — suggesting a Western scholar posed more of a threat to their case than did Ugandans with direct experience of spirit possession.

This highlights a central challenge for international criminal trials. They have a limited ability to fully and fairly

consider non-Western norms of belief and behavior. Research shows that international criminal tribunals have “proved deaf to an enormously important system of local magical belief” and are drawing on “an unrealistic Western norm,” according to anthropologist Tim Kelsall.

Moreover, researchers know that participants at trial — whether victims’ representatives, witnesses or prosecutors — draw from their own disciplinary and cultural tool kits, with very different ideas about what constitutes knowledge and how to authenticate it.

This also became clear in the Ongwen trial. While questioning me, the prosecutor referred to the courtroom as a “forensic” setting and appealed to “the laws of science,” as well as the “laws of biology, chemistry, physics” to establish the objective truth. Yet research on religion, magic and warfare uses a different method. Instead of probing for “factual truth,” it is concerned with the meanings and functions of these metaphysical manifestations and these beliefs’ impact on behaviour — and is less interested in establishing causality and apportioning responsibility. A legal approach, by contrast, seeks clear patterns of causality between isolated variables and focuses on the “objective” way in which this knowledge was achieved.

In other words, and linking back to Otim’s example from above, a “forensic” approach would check whether Otim was actually bulletproof because of the spirits; the other approach would want to understand the impact of Otim’s spiritual belief on his behaviour.

By juxtaposing the role of spirits with the “laws of biology, chemistry, physics,” the prosecution lawyer indeed suggests that metaphysical phenomena cannot be considered in a courtroom. This tells us two more things. First, the ICC is culturally quite distant from these phenomena. In her book “Fact-Finding Without Facts,” law professor Nancy Combs shows how cultural and linguistic influences affect the ways facts are transmitted and understood in international criminal trials. By declining to cross-examine Ugandan witnesses about spirits, the prosecutor suggested their reality was too distant and not relevant enough to merit inquiry.

Second, this also shows the difficulty in framing belief in spirits and the impact on behaviour into applicable legal categories of international criminal law. Kelsall’s previous research for the Sierra Leone Special Court has shown the divide between the legal worldview, on the one hand, and on the other, the people they are trying and the victims they claim to represent. In other words, people’s belief in spirits and how that affects their behavior is not sufficiently reflected in the court’s ruling.

Further, indigenous voices on these practices are considered difficult or impossible to fit into legal categories, while outsiders — such as Western scholars — are accepted as translators into legal settings. This adds to the distance between these trials and indigenous knowledge.

In sum, the Ongwen trial shows how international justice is fraught with difficulties. While international law claims to apply universal justice, it is underequipped to deal with integral parts of the worldview of many of the people it tries and relies on for testimony. It remains to be seen how willing and able the ICC will be to take spiritual beliefs into account in its rulings.