Day Three of Ongwen Confirmation of Charges Hearing

Dominic Ongwen, an alleged brigade commander in the Lord’s Resistance Army (LRA), is charged with 70 counts of crimes against humanity and war crimes. On January 25, the court convened for a third day to hear submissions from the Office of the Public Counsel for Victims (OPCV), who are representing 592 victims; the external legal representative for victims, who are representing 1,434 victims; and Ongwen’s defense team.

A large part of the submissions today focused on Dominic Ongwen’s status as a child soldier within the LRA. Both the OPCV and the external legal representatives for victims disagreed with the defense argument that Ongwen is not criminally responsible for his actions because he was recruited into the LRA as a child. The OPCV lawyer, in her remarks, noted that this argument is “totally unfounded in fact and law” and “disrespectful to the suffering of victims.”

While recognizing that some victims indeed sympathize with Ongwen on account of his abduction, the external legal representative for victims noted that victims still want him to face justice for the crimes he allegedly committed against them as an adult. The external legal representatives said that his abduction cannot be used as an “excuse” to support impunity.

The defense, however, called on the judges to carefully consider the issue of child recruitment into hostilities because a decision to put Ongwen on trial for the crimes he allegedly committed as a child may discourage children in similar circumstances from returning home. Defense counsel told the court that because of the LRA’s strict policy against defiance by its recruits, Ongwen was forced into a life of criminality – his only two choices were “compliance” or “certain death.” Out of fear and spiritual indoctrination at such a tender age, the defense argued, Ongwen had to strictly follow and implement the instructions of senior LRA commanders, such as Joseph Kony, who had recruited him.

The victims’ lawyers also disputed the defense argument that Ongwen acted under duress because he willingly remained an active commander within the LRA. The defense team countered this narrative by highlighting a number of occasions when Ongwen unsuccessfully tried to leave the LRA. According to defense lawyer Krispus Ayena, Ongwen voluntarily surrendered himself to United States forces in January 2015.  Ongwen’s lawyers argued that the international community and the Government of Uganda had the responsibility to protect Northern Uganda populations and children like Ongwen who were abducted and forced to join the rebel ranks.

The victims’ lawyers agreed with the prosecutor’s finding that crimes against humanity and war crimes were committed in Northern Uganda. They also welcomed the prosecutor’s decision to expand Ongwen’s charges to include thematic crimes, such as sexual and gender based crimes as well as crimes related to the conscription of children and their use in hostilities. The external legal representatives particularly reminded the court of the positive impact that such an expansion has on recognizing the broader impact of the LRA conflict on other parts of Northern Uganda, such as the Lango and Teso sub-region.  The victims’ lawyers also commended the move by the prosecution to consider the different ways in which Ongwen is said to have participated in the commission of the atrocities that he is accused, for example, by commanding others, ordering, indirect perpetration, and indirect co-perpetration. Ongwen’s defense team asked the court to disregard the concept of indirect co-perpetration, which is not provided for in the Rome Statute.

Furthermore, the defense described the decision to charge Ongwen with a large number of counts as unfair. In their view, it is inconceivable that Ongwen could have committed more crimes than the LRA leader Joseph Kony, who according to a Justice Hub chart (that was used for illustration purposes), is charged with only 33 counts. Ongwen’s defense team requested the judges to refrain from confirming numerous and cumulative prosecution charges that are based on the same facts.

Turning to the priorities of the victims represented in this case, victims’ lawyers noted that more than anything, victims want the International Criminal Court (ICC) process to establish the truth regarding what happened during the conflict. They want the story of their suffering to be told by their legal representatives. Victims represented by external legal representatives, for example, informed their lawyers that as innocent civilians they were caught in the middle of the conflict between the Government of Uganda and the LRA.  They suffered at the hands of Ongwen, other LRA commanders, and even the Ugandan army. While admitting that it is indeed too early in the process to discuss reparations, the external legal representatives for victims emphasized that victims are in urgent need of physical and psycho-social support as well as economic support. Some of the victims they represent have expressed concern about  the likelihood of Dominic Ongwen’s release and his possible return to the LRA.

The OPCV reported to the court that its clients do not understand why the prosecution’s case is limited to atrocities committed between July 2002 and December 2005. From their accounts, many of them suffered atrocities beyond December 2005.

The confirmation of charges hearing is taking place before Pre-Trial Chamber II at The Hague-based ICC. The hearing will continue tomorrow with the defense making its final submissions.

 

 

 

 

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