The lead lawyer representing Dominic Ongwen in his trial at the International Criminal Court (ICC) has spent six months seeking details about the death of Vincent Otti, former deputy leader of the Lord’s Resistance Army (LRA).
Krispus Ayena Odongo has described information about Otti’s death as “key” to Ongwen’s duress defense. Since January this year, Odongo has filed multiple submissions asking Trial Chamber IX to compel the prosecution to disclose all the information they received from the Uganda People’s Defense Forces (UPDF) about the killing of Otti.
The prosecution received the information after making a request for assistance (RFA) to the Ugandan government on November 23, 2007 for any details it may have about Otti’s death. That specific request is referred to in court documents as RFA 24. Odongo’s initial application on January 16, 2018 asked the chamber to compel the prosecution to disclose all requests for assistance the prosecution had made to Ugandan authorities and the responses they received.
The series of the submissions on this matter led Uganda’s Attorney General William Byaruhanga to write to the ICC and invoke an article of the Rome Statute that deals with national security interests of a member state. The submissions also led ICC Prosecutor Fatou Bensouda to unilaterally agree as a fact of the case that LRA leader Joseph Kony ordered the killing of Otti in 2007. Bensouda did this in an effort to close the matter.
Ongwen, a former LRA commander, has been on trial since December 2016 and is facing 70 counts of war crimes and crimes against humanity he is alleged to have committed between July 2002 and December 2005. Ongwen has pleaded not guilty to those charges.
His lawyers have said they intend to argue that any crimes Ongwen is alleged to have committed were carried out under duress. They have said Otti’s fate shows the kind of duress commanders in the LRA were under. Otti served as deputy LRA leader for several years before his presumed death in 2007.
Requests for Information Denied
Odongo’s initial submission on the matter was to the three judges of Trial Chamber IX but was later delegated to the Single Judge of the chamber, Bertram Schmitt. Each trial chamber designates a Single Judge to handle procedural matters and manage the submission of evidence.
In his final decision on the matter, Judge Schmitt said there were two reasons not to disclose the identity of the UPDF informant. He said in his June 1 decision that beyond what was already disclosed to the defense, the informant did not have any other specific information relevant to a duress defense for Ongwen. The disclosure Judge Schmitt referred to was a redacted transcript of a sound recording the UPDF made available to the prosecution that was given to the defense as well as a copy of RFA 24.
“Further, no defense need be prepared towards establishing Joseph Kony’s implicit threats of lethal violence over his subordinates. This fact, including the specific detail that it was Joseph Kony who caused the death of Vincent Otti, is conceded by the Prosecution through its Proposed Stipulation,” said Judge Schmitt.
“Accordingly, the Single Judge finds that the Informant’s identity is not material to the preparation of the Defense,” he said.
Judge Schmitt said the other reason for not disclosing the identity of the informant was because Uganda’s Attorney General William Byaruhanga had written to the court and said such a disclosure would harm Uganda’s national security interests. Byaruhanga referred to Article 72, which lays out provisions on how the ICC manages disclosures that an ICC member state says will harm their national security interests.
“The Single Judge does not consider any undue prejudice is caused to the Defense by such a ruling in view of the information at issue, noting the Proposed Stipulation and that the other information related to the Informant (namely RFA 24 and the transcription of the Sound Recording) has already been provided to the Defense,” said Judge Schmitt.
He also said that the prosecution’s initial failure to disclose the specific request for assistance has been addressed by the prosecution’s proposed stipulation and other disclosures they have made since. Judge Schmitt said he considered this, “ensures the fair and expeditious conduct of the proceedings.”
The stipulation that Judge Schmitt referred to was made by Bensouda in a May 7 filing in response to the letter the Ugandan Attorney General wrote.
“At a time approximately two years after the charged time period, Joseph Kony caused his deputy, Vincent Otti, to be killed. This is consistent with the implicit threat of lethal violence which Joseph Kony held over his subordinates if he considered that they had disobeyed or disrespected him. One person who spoke with Joseph Kony at about this time understood from their conversation that Joseph Kony was accepting his responsibility for the death of Vincent Otti,” is the stipulation Bensouda proposed in her submission.
The charged time period Bensouda referred to is July 2002 to December 2005, when Ongwen allegedly committed the war crimes and crimes against humanity he has been charged with.
On June 8, the defense did seek leave to appeal the Single Judge’s June 1 decision. He declined the request on June 26.
Throughout the submissions and decisions on the matter, the prosecution and Judge Schmitt have made the point that Otti’s killing is believed to have occurred outside the time frame of the charges against Ongwen and therefore may have little value in Ongwen’s trial. The defense, however, has emphasized that the information is relevant to the duress defense they wish to present for Ongwen.
Questioning Witnesses About Otti’s Death
The defense has not only pursued information about Otti’s death in submissions. They have also questioned in detail any prosecution witnesses who had any details about Otti’s death. In March last year, Thomas Obhof, one of Ongwen’s lawyers, questioned Witness P-205 on what he knew about Otti’s death. Then in September last year, Odongo asked Witness P-233 about what he knew about Otti’s death.
Both Witness P-205 and Witness P-233 told the court they did not participate in or witness the killing of Otti but described to the court the events leading up to Otti’s death. The witnesses, however, gave differing accounts of why they believed Kony ordered Otti’s killing.
To date, however, Otti is still officially wanted by the ICC—as is Kony—under an arrest warrant issued in 2005. Ongwen was also wanted under the same arrest warrant before he surrendered in Central Africa Republic and was handed over to ICC officials in December 2014.
Raska Lukwiya and Okot Odiambo, two senior LRA commanders who also were wanted under the 2005 arrest warrant, have had their cases terminated after their deaths were confirmed. Lukwiya’s case was terminated in July 2007 and Odiambo’s was closed in September 2015.
Those cases were terminated after their bodies were recovered and DNA tests were done. Pre-Trial Chamber II decided to terminate the cases after considering other information such as family members identifying the bodies or witnesses confirming Lukwiya’s and Odiambo’s deaths.