Ongwen Trial Begins Tomorrow in The Hague

Dominic Ongwen, a former leader of a Ugandan rebel group,  goes on trial this week facing the most charges of any accused who has appeared before the International Criminal Court (ICC) to date.

Ongwen is on trial for 70 counts of war crimes and crimes against humanity that Pre-Trial Chamber II confirmed on March 23 this year. The charges against him stem from his role between July 2002 and December 2005 as a unit commander and leader of one of the four brigades that made up the Lord’s Resistance Army (LRA).

Uganda, which in recent years has become a harsh critic of the ICC, asked the court in December 2003 to investigate and try the leadership of the Lord’s Resistance Army for their role in the conflict in northern Uganda.  This was the first referral to the ICC by a member state.

The crimes for which Ongwen has been charged with include separate attacks on four camps for people displaced by the conflict between the LRA and the Ugandan military. These attacks are alleged to have taken place between October 2003 and June 2004 at the camps of Pajule, Odek, Lukodi, and Abok.

The prosecution alleges that Ongwen committed sexual crimes against seven girls, who between 1996 and 2005 were abducted by the LRA and forced to be Ongwen’s wives for several years. He is also charged with further counts of sexual crimes in his capacity as a commander and with two counts of conscripting children into a conflict.

The evidence the prosecution intends to present to Trial Chamber IX is broadly made up of five categories of witnesses and records of LRA radio communications intercepted by Uganda’s Internal Security Organization, military, and police.

In total there are 115 prosecution witnesses but only 65 of them will be called to testify in the trial, according to the Single Judge of Trial Chamber IX, Bertram Schmitt. The judge said this in his first decision on the conduct of the proceedings that he made on July 13. (The Single Judge refers to the judge chosen by his fellow judges to handle procedural and other matters presented to a chamber.)

The witnesses the prosecution will call to testify include survivors of the attacks on the four camps for internally displaced people (IDPs); LRA insiders; members of Uganda’s military or police; and expert witnesses. The fifth category of witnesses, the seven women who were girls when they were allegedly forced to be Ongwen’s wives, already testified before the Single Judge of Pre-Trial Chamber II in the presence of the prosecution and the defense between September and November 2015.

On September 6, the prosecution filed a detailed account of its case in the form of a pre-trial brief.

The prosecution has estimated that they will require about 400 hours to present their case to the trial chamber. Judge Schmitt accepted this estimate in his July 13 decision.

Going by the practice of the ICC where a single day’s hearing runs for about four and a half hours, excluding breaks, then the prosecution’s estimate means the trial hearings can be expected to run for 88 days. This is without accounting for the court’s own recesses and the practice of the ICC to conduct hearings in batches of two to three weeks and then breaking for a week or more before resuming hearings.

Judge Schmitt determined that the defense will be given equal time to question the prosecution’s witnesses, meaning another 400 hours. The lawyers representing the victims in this case may also question prosecution witnesses, if they apply to do so to the chamber and the chamber accepts their application.

This week, only the prosecution and the lawyers representing victims will make opening statements. The prosecution has estimated they will spend five hours making their opening statements. Judge Schmitt allocated the lawyers presenting the victims two and a half hours to make their opening statements.

The defense notified the trial chamber via email on November 21 that they will make their opening statement when they present their case once the prosecution has concluded their presentation of evidence. The defense notification of when they will make their opening statement is contained in a footnote in a November 25 joint application by the lawyers representing victims.

This is an option Judge Schmitt gave the defense and the lawyers representing victims in his first decision on the conduct of the trial proceedings. However, the two legal teams representing victims have separate approaches on when it is best to present opening statements. After earlier criticism in how the trial chamber approached legal aid to the legal representatives of victims, this brought the issue of the participation of victims in the Ongwen trial to the forefront once again.

Manoba and Cox asked the trial chamber in a November 21 application made jointly with Massidda and in another joint application made on November 25 to allow them to present their opening statement after the prosecution’s case because on September 26 and November 4 an additional 1,167 victims they represent were granted status to participate in the trial, and they had not had time to consult them ahead of the opening date of the trial. Manoba and Cox already represent 1,434 victims in the trial.

The lawyers said they wanted to be able to consult their new clients before making an opening statements in order to best represent their views and observations. Judge Schmitt, declined that request on November 28 and said they had to make their opening statement at the start of the trial, together with Massidda.

Opening statements will begin on Tuesday, December 6, at the seat of the ICC in The Hague, the Netherlands. International Justice Monitor will be publishing regular reports on the trial events here.