Ongwen’s Confirmation Hearing Starts

On Jan. 21, almost a year after his first appearance before the pre-trial chamber of the International Criminal Court (ICC), Dominic Ongwen, alleged Brigadier General of the Lord’s Resistance Army (LRA), appeared before the court to determine whether there is sufficient evidence for the case against him to proceed to trial. The hearing is scheduled to last until January 27, 2016.

In the original redacted arrest warrant issued by the court in July 2005, Dominic Ongwen was charged with three counts of crimes against humanity and four counts of war crimes allegedly committed in the Lukodi camp for internally displaced persons (IDPs). However, in September 2015, the prosecutor announced that Ongwen would be charged with an additional 67 charges.

During today’s opening session, the lead trial lawyer said that there are a total of 70 charges against Dominic Ongwen—34 crimes against humanity and 36 war crimes. Of those:

  • 10 charges concern crimes committed in the Pajule IDP camp;
  • 13 charges concern crimes committed in the Odek IDP camp;
  • 13 charges concern crimes committed in the Lukodi IDP camp;
  • 13 charges concern crimes in relation to the attack on the Abok IDP camp;
  • Eight charges concern sexual and gender based crimes; and
  • Two concern crimes concerning the conscription and use of children under the age of 15 to participate in hostilities.

As a security measure for witnesses, 11 other charges are confidential. While they are known to the legal teams and the judges, they were not read out to the public. The defense has agreed to this arrangement for the time being, but it was noted during the hearing that those charges may be need to made public if Ongwen is committed to trial.

When charging an accused person, the prosecutor also needs to indicate how the accused participated in the commission of the crime. This, in law, is referred to as the “mode of liability.” In Ongwen’s case, the prosecutor argued that he could be liable on the basis of command responsibility, ordering, indirect perpetration, and indirect co-perpetration.

From the onset, the prosecution informed the judges that any reference to “Northern Uganda” in its submissions covers a wide area that includes the districts of Lira, Apac, Pader Gulu, Kitgum, Soroti, Katakwi, and Kaberamaido.

Touching on a sensitive aspect of this case, the prosecution acknowledged Ongwen’s dual status as both a perpetrator and a victim, but noted that “this is no reason to expect that crimes can be committed with impunity.” According to the prosecution, Ongwen made a deliberate choice to remain with the LRA and continue committing atrocities even when he had the option to lay down arms.

As proof of the LRA’s operations and Ongwen’s role, the prosecution relied in part on intercepted LRA radio conversations transmitted to the court by Ugandan authorities. The prosecution acknowledged some of the challenges presented by the material evidence—for example, collection by rudimentary means in the context of an armed conflict, challenges in record keeping, and inconsistent corroboration. The trial lawyer argued that notwithstanding these challenges, this evidence is reliable because it was collected by trained professionals and was “distinct and independently compiled.” In his words, “the evidence was collected for intelligence purposes to fight a war rather than prosecution. It is free of bias or suspect motivation.”

Some of the prosecution’s witnesses in this case are former LRA fighters, including some who were under Ongwen’s command. To prove the atrocities allegedly committed by the LRA, the prosecution also mentioned the participation of top LRA leaders Joseph Kony and Vincent Otti in radio phone-in programs on local radio station Mega FM, in which Kony and Otti referred to LRA attacks.

In relation to war crimes in Northern Uganda, the prosecution categorized the conflict between the LRA and the government of Uganda as a non-international armed conflict, defined as “protracted armed violence between Government authorities and organized armed groups.” The prosecution also submitted that the LRA was an organized and hierarchical armed group, which had a commanding authority known as the “Control Altar,” rank structures, and a system of transfers and promotions. It was a disciplined body with rules to be followed, had sophisticated communication tools and weapons, and also planned operations involving hundreds of fighters as part of organized and frequent attacks.

The prosecution alleged that Ongwen was one of the most senior commanders in the LRA, who gradually rose through the ranks.

On allegations of sexual violence, the prosecution noted the challenges faced by the victims of such crimes, such as the brutality they were subjected to by the LRA. In particular, the prosecution mentioned the specific harm suffered by victims of forced marriage, who are referred to as “LRA wives” and often regarded with suspicion and sometimes hostility upon return to their communities.

Other crimes mentioned in the prosecution’s submissions included torture, persecution, child conscription and use of children in hostilities, and murder. All these crimes were committed largely against unarmed civilians in Northern Uganda on grounds that they were supporting the government.

In the coming days, the prosecution will continue with its submissions followed by the victims’ lawyers and finally the defense.

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