Former Ugandan rebel commander Dominic Ongwen is confronting witness tampering allegations, which have prompted a judge at the International Criminal Court (ICC) to order that his lawyers disclose all financial or in-kind payments and promises of money made to potential witnesses.
Judge Bertram Schmitt also ordered Ongwen, the former Lord’s Resistance Army (LRA) commander, to cease direct payments to persons identified as potential witnesses within two days of the ruling.
However, in the August 10 order, the judge rejected a prosecution request to order the ICC Registry to review communications from Ongwen that reference specific individuals and disclose such communications to the prosecution. The prosecution had wanted to review the communications for a possible Article 70 investigation.* According to Judge Schmitt, a pre-trial chamber―and not the trial chamber handling Ongwen’s case―was the appropriate chamber to authorize the request.
Last August, judges placed restrictions on Ongwen’s telephone communications on the basis of information suggesting that he was attempting to influence persons who possessed information relevant to the case.
In a May 2016 report on the “active monitoring” of Ongwen’s telephone communications, the court’s registry informed judges that it had terminated two of his telephone conversations for use of possibly coded language and for contacting unauthorized persons.
Defense lawyers subsequently explained the circumstances of the terminated conversations, stating that in one of them Ongwen was providing advice on how to disperse monies amongst his family members. The money―€1,000, purportedly from savings that he earned at the ICC Detention Center―had been given to defense lawyers to pass on to his family.
In the order delivered yesterday, the judge determined that defense lawyers transferred monies from Ongwen to intermediaries who then “apparently transferred the monies to potential Prosecution witnesses,” without notifying the Chamber or the other participants in the trial.
“Based on the information available, and noting the reasons underlying the existing restrictions on Mr. Ongwen’s telephone communications, the Single Judge is concerned about the possible impact Mr. Ongwen’s payments may have on the testimony of potential witnesses in this case,” stated Judge Schmitt.
While ordering the defense to disclose all payments or promises of money made to potential witnesses, the judge stated that if these witnesses are called to testify in court, they may be questioned on the matter of monies received from Ongwen.
The judge ruled that it may be permissible for Ongwen to support his family indirectly by providing money to the Registry to give to potential witnesses in his family, provided the amount and circumstances of the transfer would not unduly influence any potential witness’s testimony and the prosecution has sufficient advance notice of the transfer.
In its application, from which the ruling stems, the prosecution asked judges to authorize Article 70 investigations, citing several alleged incidents of witness tampering. The prosecution said that during the call terminated by the Registry, Ongwen directed that certain payments be made to prosecution witnesses and potential defense witnesses to “cultivate a relationship” with them. The prosecution argued that Ongwen’s alleged payments to his family were directed towards prosecution witnesses and such payments constituted witness interference.
Ongwen’s trial for a record-setting 70 counts of war crimes and crimes against humanity will open this December 6 in The Hague. The former senior commander of the LRA has been in the court’s custody for just over a year.
In November 2013, charges of witness tampering were made against former Congolese Vice President Jean-Pierre Bemba, who had been in ICC detention since 2008, along with two of his lawyers and two other associates. A verdict in that trial is expected later this year.
*This sentence has been corrected from the original version, which stated the judge rejected a prosecution request to authorize a formal Article 70 investigation.