The question of whether Dominic Ongwen fathered 12 children during his time with the Lord’s Resistance Army (LRA) was the subject of the November 27 hearing at the International Criminal Court (ICC).
Ate Kloosterman, a DNA expert, told the court he conducted two separate tests on samples from 12 children and Dominic Ongwen to determine the paternity of the children. He said the results showed that 11 of them are most likely Ongwen’s children. Kloosterman said the tests showed the probability of this to be 99.9 percent.
The question of paternity in the trial of Ongwen, a former LRA commander, may be relevant because Ongwen has been charged with two counts of forced pregnancy as a war crime and as a crime against humanity. These two counts are part of a total of 11 charges of sex crimes Ongwen allegedly directly committed. In total, Ongwen has been charged with 70 counts of war crimes and crimes against humanity for violation he is alleged to have committed in northern Uganda. He has pleaded not guilty to all counts.
Paul Bradfield questioned Kloosterman on behalf of the prosecution and he began by asking Kloosterman about his background.
Bradfield then showed Kloosterman two reports he prepared for the Office of the Prosecutor (OTP) and asked him to confirm they are the reports he wrote. Kloosterman did and Bradfield asked him whether he objected to the reports being used as evidence in the trial of Ongwen. Kloosterman said he did not.
Trial Chamber IX allowed Kloosterman, whose witness number is P-414, to testify under Rule 68(3) in a December 5, 2016 decision. To meet the requirements of this provision of Rule 68, Kloosterman had to be present in court, not object to his statement – or in this case reports – being used as evidence and be available for questioning by lawyers and judges.
Once Bradfield concluded the Rule 68 procedures, he asked Kloosterman some questions to clarify some parts of his reports. Bradfield asked Kloosterman about the chain of custody of the samples he received from the OTP. Kloosterman said they received the samples sealed.
Bradfield also asked Kloosterman about a 2006 report he wrote in which he analyzed DNA samples from six children and the remains of a man who was not identified in open court. He said his conclusion was that the dead man was not the father of the six children.
Thomas Obhof, a lawyer for Ongwen, then cross-examined Kloosterman. Obhof questioned him about the accuracy of the type of tests he did.
Obhof also asked him why he relied on the DNA database of African-Americans with the Federal Bureau of Investigations of the United States. Kloosterman said there was no DNA database available in Uganda and Netherlands does not have a DNA database of black people. Kloosterman said this database was important to help determine the genealogy of the DNA samples the Netherlands Forensic Institute received from the OTP.
Obhof then asked whether the samples Kloosterman analyzed could show what kind of a relationship the parents had.
“Does the genetic profile show anything about whether the intercourse was consensual or not?” asked Obhof.
“No. Even if it would be from artificial insemination, I would not see the difference,” replied Kloosterman.
The two counts of forced pregnancy Ongwen has been charged with relate to prosecution witnesses P-101 and P-214. Ongwen is alleged to have made the two his “wives” and raped them. The charges involving P-101 are from two pregnancies she had between July 2002 and June 2004. The charges involving P-214 stems from her pregnancy in 2005.
The defense and prosecution have agreed that Ongwen is the father of two children with P-101 and one child with P-214. This part of a July 1, 2016 submission on agreed facts the defense and prosecution filed jointly.
Witness P-101 and P-214 have not testified during Ongwen’s trial, which began in December 2016. However, they testified between September 2015 and November 2015 before the Single Judge of Pre-Trial Chamber II with the prosecution and defense present to question them.
Pre-Trial Chamber II did not require them to appear before the chamber during the confirmation of charges hearings. Under Article 56 of the Rome Statute, the ICC’s founding law, Pre-Trial Chamber II accepted their testimony before the Single Judge as part of the record of the confirmation of charges proceedings. That testimony was used to confirm the sex crimes charges against Ongwen.
In an August 10, 2016 decision Trial Chamber IX also used Article 56 to admit the testimony of P-101 and P-214 and five other witnesses as evidence of the sex crimes Ongwen has been accused of committing. A redacted summary of the testimony of these seven witnesses forms part of the March 23, 2016 decision confirming charges against Ongwen.
Kloosterman concluded his testimony after about an hour on November 27. Cyprian Ayoo testified next on November 28.