Pre-Trial Chamber II at the International Criminal Court (ICC) convened for a fourth day to listen to submissions by Dominic Ongwen’s defense lawyers. Ongwen is a former brigade commander of the Lord’s Resistance Army (LRA), who is charged with 70 counts of war crimes and crimes against humanity. Today’s session also included closing statements from the prosecution in response to the issues that have been raised by the other legal teams in the case. Parts of the defense submissions were made in closed session for security reasons.
The defense submissions challenged the prosecution’s allegations that as a commander within the LRA, Dominic Ongwen wielded the necessary authority to direct the plans of the rebel group. Defense lawyer Thomas Obhof informed the court that it was Joseph Kony, the leader of the group, who wielded control over the LRA forces. The alleged organized LRA structure reported by the prosecution was therefore far from the reality of how LRA operations were run, according to the defense. It was Kony who was the final decision maker, not commanders like Ongwen.
In his response to this defense assertion, lead prosecutor Benjamin Gumpert, while recognizing that Kony was indeed a powerful leader, noted that he did not act alone but rather with the support of his brigade commanders such as Ongwen. He also disagreed with the defense position that the LRA was simply a “loose criminal gang” without the necessary command structures.
The defense discussed Ongwen’s abduction as a child and the impact this had on him and the decisions he made as a member of the LRA. Defense lawyer Michelle Oliel argued that Ongwen lost any sense of childhood because he was abducted at such a young age. The constant threats posed by Joseph Kony to Ongwen’s life were present “not only at the time of his abduction but even as he rose in the ranks within the LRA,” she added. According to Oliel, Ongwen acted under duress and feared for his life and the life of his family.
Mr. Gumpert, however, responded that there was never any such threat to Ongwen’s life. On the contrary, he rose through the ranks within the LRA on account of his “murderous efforts.” Additionally, Ongwen must first and foremost admit his participation in the attacks in order to successfully claim that he acted under duress. In Gumpert’s words, “duress is not a get out of jail free card.”
Responding to statements by victims’ lawyers alleging that Ongwen could have followed in the footsteps of other abductees who escaped from the LRA and that his failure to do so shows that he was not under any form of duress, the defense said that escaping from the LRA was not as simple as this. Oliel urged the court to look at this issue more holistically in light of the indoctrination that child soldiers have to undergo upon their abduction. The LRA’s spiritual indoctrination had a profound impact on young abductees by shaping their beliefs and perceptions of right and wrong at such a tender age. Unlike the prosecution, which asserts that such factors should be considered at the sentencing stage, Ongwen’s defense team told the court that such a decision unfairly concludes that Ongwen willingly committed the alleged atrocities. Gumpert reiterated that Ongwen’s status as a child soldier did not serve as a “license” for him to carry out acts of violence without being committed to trial. The prosecution emphasized that Ongwen is under trial for the crimes he committed after attaining the age of 18.
The defense also highlighted some of the inconsistences in the prosecution’s evidence, particularly contradictions in prosecution witness statements and inconsistencies in the data of the Ugandan security agencies that was relied upon to prove Ongwen’s involvement in the refugee camp attacks. They requested the court to take note of these inconsistencies because they fail to prove Ongwen’s involvement in the different attacks.
The defense team further criticized the prosecution for allegedly failing to properly investigate all aspects of the case against Ongwen. Obhof noted that even with the challenge of limited resources, the defense team was able to find individuals in Uganda with evidence that may clear Ongwen of some of the charges.
In its case, the prosecution states that Ongwen, together with other LRA commanders, planned some of the internally displaced persons (IDPs) camp attacks and that although he did not personally participate in the actual attacks, he is still criminally responsible. This in law is an example of a “mode of liability,” a theory on how a crime was committed. The defense requested the court to disregard this mode of liability because it is not provided for under the Rome Statute. Mr. Gumpert, however, argued that to do so would defeat the purpose of the ICC, which was established particularly to deal with crimes committed under such circumstances, that is, by leaders who instruct their subordinates to commit atrocities without necessarily being present at the time of the attacks.
The defense also challenged the prosecutor’s decision to try Ongwen with different crimes on the basis of the same facts because of the negative effects this may have on his right to a fair trial. In response, the prosecution reminded the court that this is within its prerogative and that it is for the chamber to decide which charges to confirm. While responding to the report of the Office of the Public Counsel (OPCV) lawyer that the atrocities suffered by some victims are not covered by the case, the lead prosecutor noted that the prosecution’s decision to expand the charges to 70 was informed by such concerns. However, the reality is that the prosecution must also consider other issues, such as the efficiency of the proceedings as well as the rights of the accused person.
In relation to other offences charged, in his remarks, the prosecutor urged the court to charge Ongwen with the crime of “forced marriage” as a standalone crime.
Tomorrow will be the final day of the confirmation of charges proceedings with the prosecution responding to questions that have been posed by Judge Marc Perrin de Brichambaut. One important question relates to whether the Office of the Prosecutor is aware of the investigative and legal measures that were undertaken by the Uganda government following the IDP camp attacks. This will be followed by closing statements by the victims’ lawyers and the defense.