The defense of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), wants the International Criminal Court (ICC) to acquit him of at least some of the charges levied against him.
Krispus Ayena Odongo, Ongwen’s lead lawyer, said this in a request he made on July 5 to Trial Chamber IX to allow him to file a no case to answer and judgement for acquittal motion.
Odongo made the request because the ICC’s founding law, the Rome Statute, does not have a specific provision allowing such a motion, and he has to ask the trial chamber for leave to file such a motion.
The trial of Ongwen is now in the defense phase after the prosecution and victims concluded presenting their cases. The prosecution formally notified Trial Chamber IX on April 13 they had finished presenting their evidence after the last of 69 prosecution witnesses had testified. The last witness for victims testified on May 24.
In his request, Odongo identified two categories of reasons for filing a no case to answer and judgement for acquittal motion. Odongo said these would not be the only reasons he would provide the chamber if he is allowed to file the motion. Odongo also identified four broad grounds for having the charges against Ongwen completely or partially dismissed.
“The Defence underscores the appropriateness of adopting a procedure for no case to answer motion in the present case considering the volume of the charges against Mr Ongwen.
“Even a partial acquittal of some charges would greatly streamline the Defence case by limiting the scope of its case to only those charges for which the prosecution would have shown a prima facie case.
“The time alone saved through such a procedure would compensate the amount of time taken to defend against all the 70 counts against Mr Ongwen,” said Odongo.
The 70 counts of war crimes and crimes against humanity Ongwen has been charged with are alleged to have occurred in northern Uganda between July 1, 2002 and December 31, 2005. The charges against Ongwen include attacks on four camps for internally displaced people (IDP), sex crimes, and conscripting child soldiers. He has pleaded not guilty to all counts.
In his application, Odongo has argued the court should dismiss the 10 counts of war crimes and crimes against humanity that Ongwen has been charged with for his alleged involvement in an October 10, 2003 LRA attack on the Pajule IDP camp.
Odongo said one reason to do this is the prosecution had withdrawn witnesses who were supposed to back-up claims that Ongwen was involved in planning and implementing the attack on Pajule. He said two other witnesses, who did testify in court, said Ongwen was present at a meeting where senior LRA commanders discussed the Pajule attack, but they did not hear Ongwen say anything at that meeting. Odongo identified the witnesses as P-309 and P-330.
Another reason Odongo argued for dismissing the charges relating to the Pajule attack is that the Ugandan security agencies’ intercepts of LRA radio communications only had the then deputy LRA leader, Vincent Otti, reporting back to LRA leader Joseph Kony about that attack.
Ongwen’s lawyer also argued pillaging charges against his client were defective. The pillaging allegedly occurred during attacks on the Abok, Lukodi, Pajule, and Odek IDP camps. Odongo said pillaging in the jurisprudence of the ICC and international criminal tribunals requires the property that was allegedly pillaged belong to an enemy or hostile party. He said the prosecution did not present evidence to show this.
Another issue Odongo raised was that Pre-Trial Chamber II did not explicitly define some of the charges the chamber confirmed against Ongwen. Odongo said the chamber also did not identify the evidence supporting each count it confirmed against Ongwen. To support his argument, Odongo has used a separate opinion Judge Marc Perrin de Brichambaut wrote that is annexed to Pre-Trial Chamber II’s decision confirming charges against Ongwen, which Judge de Brichambaut also supported.
“It is not for the Defence to guess against which conduct it must defend. Mr Ongwen has the right not to be called to answer a charge unless there is sufficient and credible evidence of his implication in the offenses which he is charged,” said Odongo.
He also questioned whether the prosecution had presented evidence that Ongwen was a senior commander in the LRA. Odongo said the prosecution withdrew eight witnesses from testifying, two of whom Odongo said had been in the LRA longer than Ongwen.
“The only reasonable inference to be drawn from this, is that the Prosecution, in its assessment, determined that their proposed witnesses were not going to support the flawed theory of their case.
“This is particularly with regards to Mr Ongwen’s alleged position and stature within the LRA during the charged period, as well as his participation, if any, in the crimes charged,” said Odongo.