Judges Decline a Third Defense Request for a Medical Examination of Ongwen

The possibility of Dominic Ongwen testifying in his own defense has been the subject of a ruling at the International Criminal Court.

On October 1, Trial Chamber IX unanimously declined to order a medical examination of Ongwen to determine whether he is capable of deciding if he wants to testify. The chamber’s decision followed a request by the defense.

This is the third request made by the defense for a court-appointed expert to examine Ongwen since his trial began in December 2016. The chamber partially accepted the first defense request, which was made at the start of the trial. Following that request, Trial Chamber IX ordered a psychiatrist to examine Ongwen to determine his current medical needs. At the start of this year, Trial Chamber IX declined a second defense request for a similar examination.

To date, the defense has not indicated, at least publicly, that Ongwen was going to testify in his trial. However, the possibility of Ongwen testifying has been the subject of formal submissions that resulted in the October 1 decision.

In their most recent request, the defense wanted the chamber to invoke Rule 135 of the ICC Rules of Procedure and Evidence. This rule provides for a trial chamber to order a medical, psychiatric, or psychological examination of an accused person. The rule says the trial chamber can do so on its own initiative or at the request of the defense or the prosecution. It provides for a trial to be adjourned if a trial chamber finds an accused person is not fit to stand trial.

In the decision, the chamber said the defense argued three points in support of their request: a December 2016 psychiatric examination the chamber ordered; a February 2019 report of the medical officer at the detention center Ongwen is being held; and the medication Ongwen is taking.

The chamber said it already considered the December 2016 report in its January 16 decision declining to have a court-appointed expert examine Ongwen to determine whether he is fit to stand trial. The chamber observed that in the February 2019 report the defense refers to, the medical officer concluded Ongwen was medically fit to stand trial but remained “cautious of about his [Ongwen’s] individual circumstances.”

As for the third reason the defense gave to justify its request, the chamber observed that the defense did not show whether the medication Ongwen is taking has any side effects that would impair his ability to decide if he should testify. Instead, the chamber observed, the defense pointed out “their possible existence.”

“In summary, the Chamber finds that there are no indications which give rise to an order for a medical examination pursuant to Rule 135 of the Rules. Accordingly, the Chamber rejects the Request,” wrote the judges.

Before reaching this conclusion, the chamber referred to a report defense mental health experts wrote in which they addressed the question of whether Ongwen was able to make a decision to testify. The chamber said the experts made a recommendation on the issue even though this was not part of the terms of reference the defense gave them.

“They [the defense experts] advise that ‘caution’ should be exercised in case Mr Ongwen testifies. They do not give any indication that the accused would not be able to testify (or take a decision whether to do so) but seem to be motivated by a concern for his state of health in the framework of his rehabilitation,” the chamber said.

“Should the accused decide to request leave to testify and should this leave be granted the Chamber will, of course, follow the advice provided by the Expert Witnesses and exercise all necessary caution during the accused’s testimony,” the chamber said.

All the submissions to the chamber on this issue were filed as confidential. In its October 1 decision, the chamber ordered that all parties make public redacted versions of their submissions available within five days of the decision. The defense submitted a public redacted version of their request on Thursday last week. The prosecution filed their public redacted version on Wednesday last week. The Legal Representatives for Victims filed their public redacted version on Thursday last week. The Common Legal Representative for Victims filed their public version on Monday.