International Justice Monitor

A project of the Open Society Justice Initiative

Defense Argues Ongwen Mentally Unfit as ICC Trial Opens

Dominic Ongwen pleaded not guilty before the International Criminal Court (ICC) at The Hague on Tuesday to charges of war crimes and crimes against humanity, arising from his alleged role in attacks carried out in northern Uganda between 2002 and 2005.

Ongwen also pleaded not guilty to charges of rape and other sexual crimes against seven girls, and to charges of conscripting children into the Ugandan rebel group, the Lord’s Resistance Army (LRA). Ongwen was first a battalion commander and later a brigade commander in the LRA during the period covered by the case.

Altogether, Ongwen is facing 70 counts of crimes against humanity and war crimes.

After a court officer read out the charges against him, Ongwen told the judges that he understood what was in the document being presented, but not the charges against him.

“I did understand the document containing the charges, but not the charges, because the charges I understand as being brought against the LRA and not me. The LRA is Joseph Kony and not me,” Ongwen said, in response to a question from Presiding Judge Bertram Schmitt. (The court officer read out the redacted version of the counts given in the confirmation of charges decision because the full version contains the names of protected witnesses).

Judge Schmitt then asked him whether he had read the Acholi translation of the charges and whether he understood those charges.

“Yes, I did receive the charges in Acholi but I reiterate it is the LRA who abducted people in northern Uganda. The LRA committed atrocities in northern Uganda. I am one of those against whom atrocities were committed,” replied Ongwen.

After Ongwen’s response, the three judges of Trial Chamber IX took a recess of about 15 minutes to consider what Ongwen had said. When they returned, Judge Schmitt said the chamber was satisfied that Ongwen understood what the charges against him were. He said the chamber reached this conclusion because the charges Ongwen is facing are the charges he faced at the pre-trial phase in January this year, when he had confirmed that he understood them.

Judge Schmitt then asked Ongwen how he wished to plead to the charges.

“In the name of God, I deny all these charges in respect to the war in northern Uganda,” Ongwen replied.

“You therefore plead not guilty to all the charges?” Judge Schmitt asked him.

“Yes,” answered Ongwen.

Tuesday’s hearing began with Trial Chamber IX making an oral ruling that turned down a defense application to have the trial suspended until the chamber determines whether or not Ongwen is mentally fit to stand trial.

Judge Schmitt said the chamber received the defense application just the previous day, (Monday, December 5) raising four issues: that the defense wanted the opening statements to be postponed; that defense experts had determined Ongwen was not able of understand the charges he is facing; that the chamber should appoint experts to verify the conclusions of the defense experts; and that the chamber should appoint experts to assess whether Ongwen is mentally fit to stand trial.

However, Judge Schmitt said the defense had not provided the chamber with the experts’ report on Ongwen’s mental condition. He noted that the defense had failed to file its arguments before an October 28 deadline for pretrial applications, despite being aware of most of the facts as of October 21, and had not even requested an extension of that deadline. He also said that the defense received  a preliminary report from their experts on November 15, but they did not file an application on the issue of the mental state of their client until the last possible moment.

“The chamber will not permit such tactics in the strongest terms,” said Judge Schmitt.

The presiding judge said the chamber ordered the registry to make recommendations, by December 13, on experts who could be asked to assess Ongwen’s suitability to stand trial. Judge Schmitt said the parties should make any submissions on the registry’s recommendations by the same date.

Once the chamber concluded ruling on the defense application and hearing Ongwen taking his plea, Judge Schmitt invited ICC Prosecutor Fatou Bensouda to make her opening statement.

Bensouda gave an overview of the prosecution’s case against Ongwen using a video, photographs and excerpts of transcripts of a radio interview to illustrate her points. Bensouda gave details of some attacks against civilians that the LRA is alleged to have carried out, including at the four camps for displaced persons that form part of the charges against Ongwen. The attacks Bensouda described occurred during the period covered by the charges and others did not.

In her overview of the prosecution’s case, Bensouda sought not to raise expectations about the trial of Ongwen, who is the first LRA leader to be tried at the ICC. Few high-ranking individuals in the LRA have been tried either in Uganda or elsewhere for their role in the two-decade conflict that ravaged northern Uganda.

“In the course of the trial, light will inevitably be shed more generally on the situation in northern Uganda a decade and a half ago. But there will be many events, many crimes, many perpetrators of crimes and many victims who will receive only limited attention or none at all,” said Bensouda.

“The prosecution has to make choices guided by the evidence readily available and to limit the scope of the cases it brings. Our efforts will be to ensure that this trial will establish the truth and nothing but the truth with regard to the charged crimes. We cannot hope to write, in this trial, a comprehensive history of the conflict in northern Uganda,” she continued.

Another issue Bensouda addressed in her statement is the fact Ongwen himself was forcibly conscripted into the LRA before he became a commander.

“People following the case against Dominc Ongwen may do so with mixed emotions. They will feel horror and revulsion at what he did, but they will also feel sympathy. The evidence of many of the child victims in this case could be, in other circumstances, the story of the accused himself,” Bensouda said.

“We are not here to deny that Mr. Ongwen was a victim in his youth. We will prove what he did, what he said and the impact of those deeds on his many victims,” said Bensouda.

She argued Ongwen had several opportunities to leave the violent life of the LRA. Bensouda said he could have ordered the troops under his command to march with him to the nearest Ugandan army barracks to surrender. Or, she said, he could have deserted the LRA.

“After all, as the commander, he did not have to fear the brutal canings or peremptory execution which he himself ordered for unsuccessful escapees. He was often separated by several days’ or weeks’ march from any higher LRA authority. Battalion commanders in his Sinia brigade did indeed escape during this time,” Bensouda said. She also argued Ongwen could have accepted the amnesty the Ugandan government offered LRA fighters in the early 2000s.

“The circumstances in which he himself was abducted and conscripted into the LRA many years before may perhaps amount to some mitigation of sentence in the event that he is convicted of these crimes. They cannot begin to amount to a defense, or a reason not to hold him to account for the choice that he made; the choice to embrace the murderous violence used by the LRA and to make it the hallmark of operations carried out by his soldiers,” Bensouda said.

During her presentation, Bensouda mentioned that three other LRA leaders for whom arrest warrants had been issued are believed to be deceased. These are Vincent Otti, Raska Lukwiya and Okot Odhiambo. Lukwiya and Odhiambo had been declared dead and their cases closed by the court but Bensouda’s Tuesday statement would be the first time Otti is described as deceased in an official statement at the ICC. He is suspected to have been killed many years ago but the ICC to date still describes him as being at large on its website.

When Bensouda concluded giving the overview of the prosecution’s case, senior trial lawyer Benjamin Gumpert then spoke in some detail on the charges against Ongwen.

Gumpert will continue with the prosecution’s opening statement on Wednesday.

3 Comments
  1. This is a good initiative of summarising the proceedings of Dominic Ongwen for quick consumption

    • Thanks Anthony. We hope it will become particularly useful for people following the trial in Uganda and elsewhere, after the initial coverage of the opening subsides. Jonathan Birchall/Open Society Justice Initiative

  2. Thank you for this simple, clear and straightforward summary.

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