Ongwen’s Trial on Course Says ICC Prosecution Official

This article presents an abridged version of an interview conducted with Dahirou Santa-Anna, the international cooperation advisor in the Office of the Prosecutor (OTP) at the International Criminal Court (ICC). Dahirou shares his views on how Dominic Ongwen’s trial is progressing, challenges before and during the trial, and victims’ participation, among others. Dahirou’s overall opinion of Ongwen’s trial is that it has progressed smoothly and is on course to be completed by 2020.

Ongwen is a former commander of the Lord’s Resistance Army (LRA) who is charged with 70 counts of war crimes and crimes against humanity allegedly committed in the former internally displaced person (IDP) camps of Lukodi, Pajule, Odek, and Abok in northern Uganda. Among the 70 counts are charges of sexual and gender-based violence and the use of child soldiers. His trial before the ICC has been ongoing since December 2016.

The interview was conducted by Lino Owor Ogora on behalf of International Justice Monitor.

Lino Owor Ogora (LO): It is close to two and a half years since Ongwen’s trial started. In your opinion, has the trial process gone according to plan?

Dahirou Sant-Anna (DS): It is in the interest of all parties and participants, and particularly the accused and the victims, that a trial goes as expeditiously as possible. One key principle is that trials should be conducted without undue delay. During the court’s outreach activities in northern Uganda, we heard many members of the affected communities expressing concerns about the length of the trial. Though I can understand their expectations, we should recall that Dominic Ongwen managed to evade justice for a decade after the warrant of arrest against him was issued by the ICC in 2005. It is therefore a positive outcome that he is now being tried. If we compare this trial to others that have reached the same stage at the court, it can be said that the Ongwen trial has proceeded relatively fast.

LO: What are some of the challenges you have experienced during Ongwen’s trial and how have you addressed them?

DS: There have been several challenges, some more important than others. For example, before the trial started, the prosecution successfully requested the judges to order restrictions on Mr. Ongwen’s communications, as it was found that there was an attempt to interfere with prosecution witnesses through telephone communications facilitated by third parties, by Ongwen from his location in the ICC Detention Center.

We took a further step in light of the risk that the women concerned – who we consider as forced wives to Dominic Ongwen – might not have been in a position to testify at trial because of their vulnerability and the impact of the interference. We asked the Pre-Trial Chamber to authorize (as provided under article 56 of the ICC’s founding treaty, the Rome Statute) that they provide their testimony before the trial. This request too was granted and Mr. Ongwen’s defense also had the opportunity to cross-examine them.

We also collected a large volume of material, the disclosure of which was challenging in terms of the sheer workload required. However, the prosecution team worked tirelessly and with utmost dedication to review and make the material available in a manner that was fair and open, thus ensuring that the defense was able to fully prepare.

LO: The defense phase of Ongwen’s trial appears to be taking longer than expected compared to the prosecution. What do you attribute this to?

DS: The prosecution case presentation with 69 live witnesses took less than a year and a half to conclude, with some witnesses examined and cross-examined over several days. In the light of the time estimate forecast for the testimony of the 72 defense witnesses, the defense case presentation should be concluded earlier in comparison to the prosecution.

During the prosecution case, hearings were scheduled in blocks of several weeks. This is not the case for the defense case presentation. In fact, in August 2018, the judges scheduled for the remainder of the year four full weeks of court sessions, and three weeks during which there would be hearings on some days and not others. At that point for considerations relating to Dominic Ongwen’s health, on the basis of a medical recommendation, his defense team requested that the seating schedule be amended so that there be no hearing on Wednesdays where the chamber is scheduled to sit for a full week. Thus, for the period October-November 2018, there was no hearing on Wednesdays.  In December, no hearing was scheduled at all. In January 2019, the judges had to adjourn the trial to allow Dominic Ongwen to receive some medical treatment at the request of the defense team. Most recently, following the cancelation of some hearings scheduled for early May, the hearing schedule was readjusted to ensure the recovery of those lost days.

LO: When do you estimate that we can have a ruling in Ongwen’s case?

DS: As you know, the duration of testimony varies from one witness to another, and it would be premature to give an estimate as to when the defence case presentation will conclude. Past testimonies have shown that many defense witnesses could testify within a day or less. If the remainder of the witnesses were to testify according to the same frequency, we could expect the defence case to be concluded by the late autumn (October) and expect a ruling by the end of 2020. But, of course this remains an estimate as everything depends on the vagaries of the trial process.   

LO: How has the ICC ensured victim participation despite the distance between the courtrooms of The Hague and Uganda?

DS: Victims’ participation is an innovative feature of this court’s proceedings. Through their representation by legal representatives they are, as I understand, regularly in contact. The representatives provide victims with updates and get their views and concerns to ensure these are conveyed through legal representation throughout the proceedings. That said, it is worth mentioning that since the early years of the court, the issue of distance between the premises of the court where the hearings are taking place, and the affected communities, has always been an important matter to take into account.  

As a result, in the context of the situation in Uganda and particularly the Ongwen trial, two steps were taken: firstly, through the Field Office, staff of the Victims Participation and Reparation Section of the Registry engaged with the affected communities to inform them of the process and to distribute and collect participation forms. As a consequence, and on the basis of an evaluation by the pre-trial chamber in the Ongwen case, some victims have been granted the right to participate in the proceedings. Secondly, an outreach strategy was developed to bridge the gap created by the distance between The Hague and northern Uganda. These efforts are ongoing. The Office of the Prosecutor has also often participated in community outreach initiatives and other activities aiming to bring the court within the reach of the victims.  

LO: In the event that there is another case from Uganda in future, will the ICC consider holding in situ proceedings (i.e. holding hearing in country)?

DS: The Rome Statute has established that the seat of the court is in The Hague, The Netherlands. However, the judges may decide to hear a case in whole or in part in another State if this is considered “desirable.” Indeed, it is important to ensure that justice is brought closer to the affected communities. However, holding in situ hearings requires a number of preliminary steps, including the views of the parties and participants, an assessment by the Registry, and of course ideally, the unanimous or majority recommendation of the judges.

Additionally, the ICC Presidency has to consult the State where the judges recommend holding the in situ hearings to secure their agreement. So, there are a number of boxes that need to be ticked for an in situ hearing to take place. In 2016, the suggestion was made to hold in situ hearings in relation to the opening of the Ongwen trial. The judges rejected it because of security and logistical considerations, including the fact that some of the judges are also assigned to other situations and cases before the ICC, requiring their presence in The Hague. Should the other suspect in the situation, Mr. Joseph Kony, be arrested for example, and should there be such a recommendation, all the above-mentioned steps would have to be first taken.

LO: Thomas Kwoyelo who is also currently being tried before the International Crimes Division in Uganda at some point requested that his trial be shifted to the ICC. Would the ICC consider taking his case?

DS: ICC cases result from an objective, impartial, and independent investigation carried out by the Office of the Prosecutor at the end of which a warrant of arrest may be issued against one or many suspects. As you are aware, Thomas Kwoyelo is not among the top LRA leaders who were the subject of the warrants of arrest issued by the ICC. The process to issue warrant of arrests and ultimately prosecute an individual at the ICC does not provide for the possibility to shift a trial from the national level to the ICC.

LO: Dr. Phil Clark, author of the book Distant Justice, noted in a recent interview that “the OTP hibernated the situation in northern Uganda for five years because of the difficulties in capturing any of the remaining LRA commanders” and as a result “the difficulty for the prosecution stems from the mixing of these two periods of investigations.” What is your take on his opinion

 DS: It is true that many of the strongest witnesses came from the second phase of investigation after the case was reanimated in 2015, but this is also unsurprising, given that the charges against Ongwen were significantly expanded after further investigation upon his arrest, from seven counts to 70. With the LRA war long since ended, many former rebels had since returned to their communities who were not available to interview in 2004-05 but were available in 2015-16. Bridging the first and second phases of the investigation has not impacted the quality or consistency of the evidence. Witnesses from both the first and second phases of the investigation have testified without any difficulty and corroborated each other. A number of the original investigators are still working in the OTP, and they played a valuable role in re-establishing contact and rapport with legacy witnesses.

 LO: Dr. Clark also noted that Ongwen’s case “has been denied one vital source of information, which is the deep insights of specialists here in northern Uganda, including for the various cultural contexts in which Ongwen is said to have committed these crimes.” What would you say to this?

 It is hard to sustain the argument that local expertise, or the cultural context, has not been adequately taken into account in the course of the Ongwen trial. The prosecution called a Ugandan psychiatrist, Catherine Abbo, as an expert witness. The victims’ lawyers called an academic from northern Uganda, Teddy Atim, to testify. The defence have also called Ugandan experts. Each party to a trial makes independent decisions on how to advance their case and call witnesses they believe are best suited. While it is true that the prosecution did not call an expert witness from northern Uganda to testify on the specific issue of rituals, many prosecution witnesses (close to half) testified about how they went through rituals themselves upon being abducted by the LRA, which included being smeared with shea oil and other more brutal indoctrination techniques. Sometimes, when direct evidence on a topic is so powerful and comprehensive, calling an expert (local or foreign) to testify on the same topic can be extraneous and unnecessary.

Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan since 2006. He is also the Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda

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