Ongwen Trial to Open in December but Defense Cites Challenges

Former Lord’s Resistance Army (LRA) senior commander Dominic Ongwen’s trial for a record-setting 70 counts of war crimes and crimes against humanity will open this December 6 in The Hague, according to a statement issued by the International Criminal Court (ICC). Proceedings will commence with opening statements during December, while the presentation of the prosecution case will start on a date yet to be decided in January 2017.

Ongwen’s trial will set a record for the number of charges against an accused at the ICC and for the largest number of witnesses called by the court’s prosecutor. The defense has cited challenges arising from the enormity of the case and the large amount of evidence yet to be disclosed by the prosecution.

At a status conference last week, the prosecution said it had nearly 120 witnesses, of whom 70 would be called to give live testimony. The prosecution would request judges to admit previously recorded testimony of up to 45 witnesses who have already testified at the court. Under Rule 68(2)(b) of the court’s Rules of Procedure and Evidence, if a witness who gave the previously recorded testimony is not present before the court, judges may allow the introduction of that testimony if it is not related to the acts and conduct of the accused.

Defense lawyer Charles Achaleke Taku said last week that, because Ongwen is charged for various forms of criminal liability, his lawyers have to conduct investigations on what seems to amount to “hundreds of charges.” He also spoke to the issue of disclosure, stating, “Considering the manner in which the disclosure is occurring and the difficulties which the prosecutor himself has informed the court that she is encountering, three months is inadequate for the defense to investigate.” This was after the prosecution committed to complete all disclosure in early September and suggested a December opening date for the trial.

Another defense lawyer for Ongwen, Thomas Obhof, said that if the OTP disclosed to the defense half of the outstanding material that amounts to approximately 25,000 pages, it would take one person four years and five months to review this material, working on the 21.75 days per month, 37.5 hours work per week estimate provided by the prosecution.

Nonetheless, in yesterday’s order setting the trial opening date, judges affirmed that a disclosure deadline three months prior to the commencement of trial is sufficient notice for the defense. At the start of last week’s status conference, Presiding Judge Bertram Schmitt stated that although Ongwen faces the most charges ever for an accused before any international court or tribunal, “the number of charges does not only, and in this case not even predominantly, determine the magnitude of the case.”

According to the judge, more important are the factual allegations that lie behind the charges. He said the trial would deal with six sets of factual issues, four alleged attacks on camps for internally displaced persons, charges concerning sexual and gender-based crimes, and charges concerning child soldiers. “That still makes this case a considerable case, but nobody in this courtroom needs to be overwhelmed or intimidated by its scope,” added Judge Schmitt.

Last March, judges confirmed all 70 charges brought by the prosecution against Ongwen. The alleged crimes were purportedly committed against internally displaced persons in northern Uganda between 2002 and 2004. They include attack against the civilian population, murder and attempted murder, rape, sexual slavery, torture, cruel treatment, and outrages upon personal dignity. Others are enslavement, forced marriage as an inhumane act, persecution, destruction of property, pillaging, and the conscription and use of children under the age of 15 to participate actively in hostilities.

The defense has requested the prosecution to disclose not only material related to Ongwen but also from investigations into other suspects or possible suspects, including from the Uganda army and government. It argues that, since judges in the confirmation of charges ruling indicated that government forces committed some crimes, the Uganda government is unlikely to offer assistance to defense investigators.

Ongwen served under LRA leader Joseph Kony, whose rebel fighters wreaked havoc in northern Uganda for nearly two decades. Charges and arrest warrants were initially issued against Ongwen, Kony, and three other senior rebel commanders in 2005. Upon surrender in the Central African Republic in 2015 and his transfer to the court, the case against Ongwen was severed from that of Kony and others. The court terminated proceedings against two of the accused after confirming their deaths.

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