Appeals Chamber Rejects Defense Bid to Challenge 41 Counts Against Ongwen

The Appeals Chamber of the International Criminal Court has rejected a defense submission challenging the decision of Trial Chamber IX to decline to dismiss 41 of the 70 counts of war crimes and crimes against humanity Dominic Ongwen has been charged with.

In a unanimous judgment released on Wednesday, the Appeals Chamber said Trial Chamber IX was correct in its March 7 decision in determining the defense had had ample time to file its challenge to the 41 counts of war crimes and crimes against humanity. The Appeals Chamber said the trial chamber was also correct in finding that the defense motion was time-barred according to the ICC’s Rules of Evidence and Procedure.

“The Appeals Chamber recalls that the duty to act in a diligent and expeditious manner applies to all those involved in the proceedings, including the accused person. In this case, even though he could have raised much earlier specific and concrete objections concerning the charges as confirmed by the Pre-Trial Chamber, Mr. Ongwen waited until February 2019 to file the Defects Series which set out for the first time those specific challenges,” read the judgment.

“Therefore, the Appeals Chamber finds that the Trial Chamber was correct when it determined that no concrete objection or challenges were made at the commencement of the trial, such as those raised in the Defect Series, despite the fact that Mr Ongwen had ample opportunity to do so.

“The Trial Chamber was also reasonable in determining that Mr Ongwen did not advance any reasonable justification for raising challenges to the Confirmation Decision before the Trial Chamber more than three years after that decision was issued and after the Prosecutor presented her case at trial,” read the judgment.

The defects series the judgment referred to is the motion Ongwen’s legal team filed on February 1 of this year. The defense submitted the motion in four parts in an effort to meet the 20-page limit set in ICC regulations for filing motions. As the motion was in four parts, the defense referred to it as the “defect series,” a name all involved in the trial have adopted.

Pre-Trial Chamber II confirmed 70 counts of war crimes and crimes against humanity against Ongwen on March 23, 2016. When his trial began on December 6, 2016, Ongwen pleaded not guilty to all the charges.

The Appeals Chamber observed in the judgment that the defense had four occasions when they could have filed challenges to the charges against Ongwen. The first was after December 21, 2015 when Ongwen received the Acholi translation of the document containing the charges filed by the prosecution. The second was when Trial Chamber IX set October 28, 2016 as the deadline for filing any motions that needed to be resolved before the trial began. The third was on the day the trial began, December 6, 2016, when Presiding Judge Bertram Schmitt asked the defense if they had any objections to raise. Finally, the fourth was when a complete Acholi translation of Pre-Trial Chamber II’s decision confirming the charges was registered on record on December 13, 2017.

In the judgment, the Appeals Chamber observed the defense neither made concrete objections on those four occasions nor raised any objections at all.

Wednesday’s judgment of the Appeals Chamber does not address the merits of the arguments the defense raised in the defect series about Pre-Trial Chamber II’s decision confirming the charges against Ongwen. Trial Chamber IX also did not address whether there were any defects in the confirmation of charges decision. The main issue either chamber addressed was when the defense should have raised its defects arguments.

“Mr. Ongwen is entitled to advance the arguments presented in the Defects Series in his final submissions before the Trial Chamber, and eventually before the Appeals Chamber, should a conviction be entered and an appeal lodged against it. In this regard, the Appeals Chamber notes that in the past, convicted persons have raised on appeal challenges to the formulation of charges,” the judgment read.

The Appeals Chamber issued its judgment on Wednesday after the defense filed four grounds of appeal on April 11 against Trial Chamber IX’s March 7 decision on the defects series. The prosecution filed its response on April 23 asking the Appeals Chamber to reject the defense’s appeal. One of the legal teams representing victims in the trial also filed their response on April 23, similarly asking the Appeals Chamber to reject the defense’s appeal.

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