Judges: Defense Experts Did Not Find Ongwen Mentally Unfit for Trial

Trial judges at the International Criminal Court (ICC) have said defense psychiatric experts have implicitly found Dominic Ongwen is mentally fit to stand trial, but they have also raised concerns about his mental health while at the ICC detention center.

Trial Chamber IX, the three-judge panel that is overseeing Ongwen’s trial, said this ties with the conclusion they reached at the start of the trial in December last year. In their December 16 decision, the judges ordered another expert examine Ongwen to determine what his mental health needs are. The expert, Joop T. V. M. de Jong, has been recommended by the ICC Registry after consulting the defense and prosecution.

The chamber’s decision on having Ongwen’s mental health assessed was made after the judges received a report from Ongwen’s defense lawyers on his mental health written by two psychiatrists appointed by the defense and known only by pseudonyms in public documents. The psychiatrists’ report was submitted to the chamber on December 6, the day Ongwen’s trial began.

That report was submitted in support of an application Ongwen’s lawyer made to suspend the trial until Ongwen’s mental fitness to stand trial is determined. The chamber declined to suspend the trial and instead initiated a process to select an expert to examine Ongwen’s mental state, which Ongwen’s lawyer had asked for if the court chose not to suspend the proceedings.

In his December 5, 2016 application, Krispus Ayena Odongo, listed nine incidents that occurred between September 2015 and November 2016 to illustrate Ongwen’s state of mind ahead of the trial.

Among the nine incidents Odongo listed are: Ongwen threatening to commit suicide on March 30, 2016; Ongwen going on hunger strike for up to five days between September 22-27, 2016; and Ongwen being forcibly removed from his cell at the ICC detention center in The Hague on September 22, 2016.

When the trial opened on December 6 neither the presiding judge, nor the prosecution or defense referred to the details of Ongwen’s situation. It is only when the redacted version of the defense’s application was posted on the ICC’s website that the public was able to know about those incidents.

Ongwen is charged with 70 counts of war crimes and crimes against humanity. Some of the charges Ongwen faces are for his alleged role as a commander with the Lord’s Resistance Army (LRA) between 2003 and 2004 during attacks on the Pajule, Odek, Abok, and Lukodi camps for people displaced by the conflict in northern Uganda. Other charges Ongwen faces include forcibly marrying seven women, who were girls at the time, and committing sexual crimes against them.

The report of the two defense psychiatric experts is not publicly available, but Trial Chamber IX has admitted it as evidence in the trial. In their December 16 decision, the chamber referred to the report several times to make a number of observations, including that the experts did not “state, or even allude to the possibility, that Mr Ongwen is unfit to stand trial.”

Trial Chamber IX said in their December 16 decision:

Mr Ongwen is quoted in the Report as describing to the Defence Experts for example, his ‘steady but rapid promotion’ with the LRA, the fact that ‘all activities carried out in the bush were on the express orders of Joseph Kony’, the modalities of transmission of Joseph Kony’s orders down the hierarchy, his relationship with junior soldiers, the training, ‘brainstorming propaganda’ and disciplinary system of child soldiers in the LRA, the reasons why he eventually left the LRA and his explanations of why he had not done it before.

“In addition, the Report also states that, during meeting with the Experts, ‘Mr Ongwen proudly displayed a note book in which he is writing short accounts of his bush life which he wants to publish for people to read’ and to ‘tell the world the truth about what happened’,” the judges continued in their decision.

“These indications all confirm that Mr Ongwen is able to identify aspects of relevance to the case against him before the Court and provide his version of the relevant events, including to his Defence. In this sense, the Report, rather than suggesting that Mr Ongwen may be unfit to stand trial, all but explicitly confirms the opposite,” the judges concluded.

In his December 5 request, Odongo said the defense began a search for experts in psychology and psychiatry in June 2015. By October 2015, the defense had identified two experts. These experts were not on the list of experts kept by the ICC Registrar, and it was only between December 2015 and January 2016 that the two were admitted to the list, Odongo said in his submission.

Odongo said the defense researched the experts already on the Registrar’s list of experts and determined they were qualified but did not meet the criteria the Ongwen defense was looking at.

“The Defence’s main focal point were: 1) experience with child soldiers/former child soldiers, 2) language skills, 3) experience with PTSD (post-traumatic stress disorder) and other mental diseases or defects associated with persons in conflict, 4) knowledge of the LRA (Lord’s Resistance Army), 5) international exposure if an expert was not from the EAC (East Africa Community), and 6) years practiced. These were not the only factors, but major indicators for the Defence,” Odongo said in his submission.

Between February 2016 and May 2016, one of the experts met with Ongwen at the ICC detention center every other working day. The specific dates of the expert’s sessions with Ongwen have been redacted from the public version of Odongo’s application. The expert is also not named in the public version and is only identified as D26-0041. Odongo said the defense disclosed the identity of the two experts to the prosecution and lawyers for victims on August 19, 2016 during a meeting between them and informed the trial chamber about this meeting on August 28, 2016.

The expert, D26-0041, met with Ongwen several times after May 2016, but, again, the specific dates are not given in the public version of Odongo’s application. The two experts also met Ongwen several times on dates not specified in the public version of the defense application. The other expert is only identified as D26-0042.

“The Experts did not rely solely on their interviews with Mr Ongwen. In pursuit of a proper medical diagnosis, the Experts interviewed four (4) persons known to Mr Ongwen in and around the relevant periods of his life. The Experts also relied upon reports from the Defence about Mr Ongwen’s actions whilst at the ICC-DC,” Odongo said in his submission.

“Finally, the Experts reviewed psychiatric and psychological reports generated by the ICC-DC medical officers, but they do not rely upon those reports because the reports do not contain anything new or unknown to the experts, even though the reports did confirm the Experts’ findings,” Odongo continued.

The prosecution’s written response to Odongo’s application was filed as confidential and is not available to the public. On December 7, however, senior trial lawyer Benjamin Gumpert did make oral submissions on the matter at the end of the prosecution’s opening statement.

“Essentially, the Prosecution submit, the law requires a demonstration not that mental illness made him (Ongwen) think that killing civilians and raping young girls was right, but that it had destroyed his ability to distinguish between unlawfulness and lawfulness, to tell right from wrong,” Gumpert said.

“But Dominic Ongwen did have the capacity to tell the difference between right and wrong. His own words, shortly after his surrender, broadcast on Ugandan television demonstrate that fact,” Gumpert told the court on December 7, 2016. (The full submission can be found on pages 49-51 of the transcript of December 7, 2016.)

Odongo applied to Trial Chamber IX to be allowed to appeal the chamber’s decision on Ongwen understanding the nature of charges against him. Odongo also applied to be allowed to appeal the chamber’s decision ordering a medical examination of Ongwen. The prosecution asked the chamber to reject both requests in responses the prosecution filed on December 16 and January 3.

The chamber rejected both defense applications in decisions made on January 3 and January 12.

This does not mean this is the end of the issue of Ongwen’s mental health. The defense gave notice on August 9, 2016 that it would be filing a submission under Article 31 of the ICC’s founding law, the Rome Statute. This article covers grounds on which an accused person before the ICC can be found not to be criminally responsible for crimes committed.

The defense’s notification referred to Article 31(1)(a), which covers the issue of a person’s mental capacity at the time crimes were committed. This particular notification is not publicly available, but the defense referred to it in the December 5 application. The defense is yet to file the submission.