Dominic Ongwen Confirmation of Charges Hearing Concludes

Today marks the fifth and final day of Dominic Ongwen’s confirmation of charges hearing at the International Criminal Court (ICC). As a former brigade commander of the Lord’s Resistance Army (LRA), Ongwen is charged with 70 counts of crimes against humanity and war crimes. The hearing started off with lead prosecutor Benjamin Gumpert responding to questions raised by Judge Marc Perrin de Brichambaut during the last session. Thereafter, the lawyers from the victims and defense made their closing remarks.

On the basis of prosecution witness accounts and the records of Uganda’s security agencies, Gumpert informed the court that some government soldiers were injured and/or killed during the attacks on the internally displaced persons (IDP) camps. However, he noted the difficulty in ascertaining the exact number of soldiers who were injured or killed in some of the attacks, such as the one in Abok. The prosecution also relied on its witness statements to provide estimations on the number of people residing in the IDP camps at the time of the attacks.

The prosecution noted that information on the LRA’s attacks could be intercepted by Uganda’s security agencies. Furthermore, the civilians themselves were instrumental in reporting LRA troops seen in different areas. However, even with such information, it was difficult for government soldiers to foresee the specific attacks that occurred in the IDP camps that are the subject of the prosecution’s case. In Pajule IDP camp, for example, Gumpert noted that there is inconsistent evidence about any advance warnings of an attack. For instance, while one prosecution witness within the Uganda military says that he did not have advance knowledge of any attack on the area, another witness also within the Uganda military said that there were early rumors of an attack.

In the case of Odek, the prosecution noted that the Uganda People’s Defense Force (UPDF) and Internal Security Organization (ISO) log books and LRA intercepted messages did not indicate that the LRA was about to attack the camp. Another prosecution witness also noted that they were not aware of any planned attack on Lukodi camp. Gumpert, however, said that in intercepted LRA communications prior to this attack, Joseph Kony is heard instructing Ongwen to attack the Gulu barracks. The Abok attack, like the others could not have been foreseen by the Ugandan security agencies. Intercepted LRA calls did not specify the areas to be attacked but rather gave general instructions to kill civilians.

Gumpert further reported to the court on the different investigation inquiries that were taken by Ugandan government officials following the different IDP camp attacks. However, he noted that with the exception of the Abok IDP camp attack, which resulted in court martial proceedings, the prosecution is not aware of any other national court proceedings that were undertaken after the attacks.

The prosecution informed the court of its investigation process to unearth the truth regarding what happened in Northern Uganda, including conducting interviews with former LRA fighters, victims who were camp residents at the time, members of former UPDF detachments, former IDP camp administrators, and post-attack investigations teams, among others. Some of the feedback the ICC Office of the Prosecutor (OTP) received included criticism of the behavior of government soldiers. For example, there are reports that soldiers withdrew from some of the camps and left the local population unprotected. Gumpert noted that the prosecution has shared with the defense, some of the exculpatory evidence against Ongwen, that is, evidence that may exonerate or tends to exonerate him from guilt. After these thorough investigations, the prosecution still maintains its position that the charges against Ongwen should be confirmed to trial.

Paolina Massidda, lead lawyer from the ICC’s Office of the Public Counsel for Victims (OPCV), and Francisco Cox, external legal representative for victims, urged the court to disregard the defense argument that Ongwen acted under duress at the time he was allegedly involved in the killing of innocent civilians. Lead defense lawyer, Krispus Ayena, however, noted that contrary to the assertions of victims’ counsel and the prosecution, under the Rome Statute, reliance on the defense of duress does not require Ongwen to enter an admission of guilt.

Responding to previous defense submissions on the role of the LRA’s spiritual indoctrination on the ability of its members to escape,  Cox narrated the experience of a victim he represents who, even with such spiritual indoctrination, was able to escape from the LRA at the age of nine. He also disputed defense arguments that Ongwen was brainwashed as a child. In his submission, he told the court that Ongwen willfully went against the norms that the Rome Statute seeks to protect.

Cox also urged the court to charge Ongwen with the crime of forced marriage as a standalone offense because it is the only opportunity for the court to properly recognize the full harm suffered by victims of such crimes. The unique experiences of the victims of forced marriage that he represents who had to carry out household duties in addition to being forcefully gifted to LRA commanders cannot be properly covered by the other crimes such as sexual enslavement and rape.

Lead defense lawyer Ayena informed the court that the defense is sympathetic to the cause of the affected communities and that with or without Ongwen’s conviction, issues such as reparation programs should be considered. He urged the court to look critically at the evidence produced by the prosecution, particularly the inconsistencies in some of the witness testimonies. He reiterated defense submissions on the absence of a strict command structure within the LRA, the imminent threat of injury or death that Ongwen faced, and his abduction at the age of nine and a half that took away his childhood.

Ayena also stated that the prosecution had failed to prove that the attacks were targeted at civilians. He noted that in all the different situations, the LRA attacks were against the army establishment and that it was only unfortunate that the civilian population came in harm’s way.

Judges will make a decision on which charges, if any, to confirm against Dominic Ongwen in the next 60 days.