ICC Delays Ongwen’s Hearing as Prosecutor Seeks to Amend Charges

The confirmation of charges hearing against Ugandan rebel commander Dominic Ongwen at the International Criminal Court (ICC) has been postponed until January 21, 2016.

Earlier scheduled for August this year, the hearing was postponed after prosecutor Fatou Bensouda informed judges that she needed several months to re-establish contact with witnesses and collect new evidence, including that related to potential new charges against the Lord’s Resistance Army (LRA) commander.

Mr. Ongwen, who was indicted in 2005, reportedly surrendered in the Central African Republic (CAR) earlier this year and was transferred to the court in The Hague, where he faces three counts of crimes against humanity and four counts of war crimes. The alleged crimes were committed in 2004 in northern Uganda, where the LRA conducted a brutal campaign against unarmed civilians between 1988 and 2006 when they were driven out of the country.

The group led by Joseph Kony has since continued to kill and brutalize civilians in the Democratic Republic of Congo and the CAR.

However, contacting witnesses and validating evidence gathered a decade ago will require several months of work by the prosecution before the case can be presented to pre-trial judges. In fact, in her application to delay the confirmation hearing, Ms. Bensouda indicated that she was considering fresh charges against Mr. Ongwen and suggested that January 31, 2016 was the feasible date for presenting her evidence to the confirmation hearings.

Ekaterina Trendafilova, the Single Judge of pre-trial chamber II, agreed with some of the prosecutor’s assertions in a ruling issued last Friday. Judge Trendafilova noted that witnesses interviewed about ten years ago may no longer wish to cooperate with the court or may have died. It was thus “reasonable and prudent” for the prosecutor to request additional time to contact and re-interview those witnesses and to reassess their current security situation.

The prosecutor intends to re-investigate and contact at least 32 “core” witnesses who had been interviewed for the case against Kony and his four co-accused at the time the arrest warrants were issued in 2005. Since then, the prosecutor had only maintained intermittent contact with some witnesses during 2010 and 2013.

The judge noted that for almost ten years after an arrest warrant was issued, Mr. Ongwen remained a fugitive, and it seemed unlikely that he would choose to voluntarily appear before the court. She recognized that the prosecutor, who had a growing work load, was thus “compelled” to prioritize and was unable to update the evidence on the then-dormant case against the LRA leaders.

The judge also determined that because the case against Mr. Ongwen had been severed from that of Kony and others, “it is only natural that the prosecutor requires some time to review and process the evidence in light of the new contours of the present case.”

The defense opposed postponement of the confirmation hearing, arguing that it would seriously impair the rights of the accused. The defense contended that the prosecutor had ten years to complete the investigation and that Mr. Ongwen should not suffer undue delay to his trial because of the prosecutor’s inactivity. Furthermore, the defense argued that the prosecutor could continue her investigation and disclosure of documents to the defense post-confirmation.

However, the judge stated that she could not identify any prejudice to the rights of the accused as the prosecutor sought only a five-month postponement from the date she had earlier set. Judge Trendafilova also stated that the post-confirmation investigation argument assumed the case would go to trial, and it ignored the need for the prosecutor to have sufficient evidence to convince judges to confirm the charges.

Other reasons given by the prosecutor for seeking a postponement included the need to recruit speakers of the Ugandan language Acholi and to translate documents into the language the accused speaks and understands. The prosecution also had to review 17,791 pieces of evidence already collected totaling 94,620 pages before disclosure to the defense.