ICC Pre-Trial Chamber II Confirms Charges against Former LRA Commander

On March 23, 2016, International Criminal Court (ICC) Pre-Trial Chamber II, composed of judges Cuno Tarfusser, Marc Perrin de Brichmbaut, and Chang-Ho Chung, confirmed all 70 charges that Prosecutor Fatou Bensouda brought against former Lord’s Resistance Army (LRA) rebel leader Dominic Ongwen.

The charges include attacks against the civilian population in Northern Uganda, murder and attempted murder, torture, cruel treatment, enslavement, pillaging, destruction of property, persecution, and other inhumane acts that were allegedly committed in the internally displaced person (IDP) camps of Pajule, Odek, Lukodi, and Abok. The court also confirmed charges related to sexual and gender based crimes and the conscription and use of child soldiers.

In their decision, the judges explained that the purpose of the confirmation of charges process is “to determine whether the case as presented by the Prosecutor is sufficiently established to warrant a full trial.” Accused persons like Ongwen therefore benefit from this process in as far as it ensures that the charges brought against them are “sufficiently supported by the available evidence” and that they are “clear and properly formulated.” However, as was noted by the judges, the level of evidence required at this stage is lower than that required when the case proceeds to trial. (At the trial stage, in order to convict, the prosecution must submit evidence that proves beyond reasonable doubt that Ongwen committed the crimes charged.)

In arriving at their decision, the judges were informed by the prosecutor’s evidence, which included oral and written witness statements and records of intercepted LRA radio communications. The prosecutor’s evidence included witness statements of  48 civilians who were abducted by the LRA, interview transcripts of 40 LRA insiders of various ranks, witness statements of 16 members of the Uganda military or police forces and other individuals associated with the Ugandan authorities. The judges recognized the defense lawyers’ concerns on the reliability of some of the witness testimonies but said that this is an aspect that can be covered at the trial stage.

The judges categorized the conflict that took place between the LRA and the Government of Uganda as a non-international armed conflict. One of the requirements for such a conflict to exist is that it must involve organized armed groups. From the conclusions drawn by the judges, the conflict in question took place between the Uganda People’s Defense Force (UPDF), which is the regular Ugandan military, and the LRA, which was an organized armed group with a sufficient degree of structure to enable it to plan and carry out military operations for a prolonged period of time.

Although they acknowledged the defense submission that Joseph Kony, the leader of the LRA, occasionally by-passed the rebel group’s chain of command, the prosecution managed to produce evidence clearly showing that the LRA’s hierarchical structure was still effective.

On the charges related to sexual and gender based crimes, the judges agreed with the prosecutor’s decision to charge Ongwen with “forced marriage” under the category of other inhumane acts. They rejected the defense position that the crime of forced marriage is subsumed by the crime of sexual slavery. The judges drew a distinction between charges related to forced marriage and those related to sexual slavery. Guided by the jurisprudence of the Extraordinary Chambers in the Courts of Cambodia and the Special Court for Sierra Leone, they noted that unlike sexual slavery, forced marriage implies a relationship of exclusivity between the husband and wife and can lead to disciplinary consequences for breach of this exclusive arrangement. The fact that such “marriage” is illegal and not recognized by Uganda is irrelevant.

The judges found that seven of the eight women who testified that Ongwen directly committed sexual and gender based crimes against them were credible witnesses. The judges, however, noted discrepancies in Witness P198’s testimony and concluded that there are no substantial grounds to believe that Ongwen committed the alleged crimes charged against her. The judges also criticized the failure of the prosecutor to identify the inconsistencies in this witness’s testimony in the early stages of the proceedings.

As proof of Ongwen’s involvement in the abduction of children under the age of 15, the judges relied on the prosecution’s evidence showing that Ongwen used children as escorts, ordered their abduction for use as child soldiers, supervised their military training, and coordinated and deployed LRA units that included fighters under the age of 15.

The judges were not persuaded by the arguments of Ongwen’s lawyers that he acted under duress because the threats he allegedly faced could not, among others, be categorized as having been beyond his control.  According to the judges, Ongwen could have chosen not to rise in hierarchy and expose himself to increasingly higher responsibility to implement LRA policies, but he decided otherwise. Evidence brought before the court showed that he “shared the ideology of the LRA, including its brutal and perverted policy with respect to civilians it considered as supporting the government.” The judges further provided guidance on the limits of duress: it should not be used “to provide blanket immunity to members of criminal organizations which have brutal systems of ensuring discipline as soon as they can establish that their membership was not voluntary.”

On Ongwen’s commanding authority, the judges found that there was overwhelming evidence that he had effective command and control or authority and control over his subordinates and he therefore had control over the acts they committed.

Given that the judges confirmed every charge against Ongwen, all victims who participated in the confirmation of charges phase of the proceedings will continue to participate at the trial phase. Currently, there are 2,026 victims who have been granted the right to participate in the proceedings at the ICC, but additional victims may apply to participate at the trial.

In the coming months, a new chamber at the ICC will be constituted to preside over the trial of Ongwen. The new trial chamber will then set a date for the start of the trial.

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