Judges of the International Criminal Court (ICC) have rejected a defense request to be allowed to file a motion for the court to consider acquitting Dominic Ongwen of some of the charges against him.
Trial Chamber IX unanimously decided on July 18 against the defense request saying Ongwen’s lawyers had failed to convince them that granting their request would make the trial fairer for Ongwen or expedite the proceedings.
The judges said the issues the defense raised to include in a potential no case to answer motion did not justify allowing such a motion. Among the issues the chamber analyzed in their decision were the pillaging charges and charges relating to a Lord’s Resistance Army (LRA) attack on the Pajule camp for internally displaced people (IDP) in October 2003.
Ongwen has been charged with 10 counts of war crimes and crimes against humanity for his alleged role in the attack on Pajule IDP camp. He has also been charged for his alleged role in the Abok, Lukodi, and Odek IDP camps; sex crimes; and conscripting child soldiers.
In total, Ongwen has been charged with 70 counts of war crimes and crimes against humanity that allegedly took place between July 2002 and December 2005 in northern Uganda. He has pleaded not guilty to all counts.
Last Wednesday, Trial Chamber IX said a no case to answer motion was unnecessary to determine whether the prosecution presented evidence Ongwen was allegedly involved in pillaging the Abok, Lukodi, Odek, and Pajule IDP camps. The chamber said the defense would have an opportunity to make their legal arguments on the matter.
“The Request in this respect is tantamount to asking for the Chamber’s understanding of the applicable law prior to its judgement. The Chamber sees no justification for making such an advance determination in the present proceedings,” the judges said.
Trial Chamber IX’s Presiding Judge Bertram Schmitt has previously given guidelines on how the chamber will treat evidence presented before it. Judge Schmitt said in his initial directions on July 13, 2016 that generally the chamber will consider issues, such as whether evidence is admissible, relevant, or has probative value, at the end of the trial.
Judge Schmitt said one reason for doing this is that by the end of the trial, judges will have heard all the evidence and will be better placed to consider such issues. During the prosecution and victims’ phase of the trial, Judge Schmitt has repeated his initial directions whenever the issue of the quality or relevance of evidence has come up.
On the evidence on the Pajule attack, Trial Chamber IX said that even if the defense persuaded them Ongwen was not involved in planning the attack this would not affect the “scope of the trial.”
The judges explained:
Mr Ongwen is charged with attacking Pajule under several alternative modes of liability, not all of which necessarily require him to be involved in a common plan or be in a position of authority. In other words, the Defence’s proposed arguments in relation to Pajule would not lead to removing any of the charges related to this alleged incident.
They said the defense’s repeated reference to the challenge of defending against 70 counts of war crimes and crimes against humanity and seven modes of liability was not reason enough for filing a motion of no case to answer.
“It is more the factual scope of a case – rather than the number of legal characterisations within it – that drives the time and resources needed during trial.
“Properly formulated charges can be sub-divided in different ways, meaning that the number of charges is not necessarily a good indicator of a case’s complexity or the burdens of the defence in meeting it,” the judges said.
The fact that Trial Chamber IX has made its decision on the defense request does not mean the matter rests there. The defense have the option of asking the chamber to allow them to appeal that decision. Trial Chamber IX can allow or reject such a request to appeal. It is not automatic that because the chamber rejected the defense’s request to be allowed to file a no case to answer motion that the chamber will also reject a defense request to be allowed to appeal such a decision.
On June 1, 2017, Trial Chamber VI allowed the defense of former Congolese rebel leader Bosco Ntaganda to appeal its decision to decline the defense request to file a no case to answer motion. Trial Chamber VI made this decision in an oral ruling referred to in the notice of appeal the defense filed on June 14, 2017. The Appeals Chamber rejected that appeal on September 5, 2017.
If the defense opts to ask Trial Chamber IX to allow them to appeal the chamber’s decision, the matter may only be resolved after the court’s summer recess. The ICC began its recess on Friday and it continues until August 13.