Dominic Ongwen’s defense team have asked Trial Chamber IX to make one of three determinations when they write their judgement for atrocities he is alleged to have committed in northern Uganda more 15 years ago.
On Thursday last week, the defense asked the judges to find Ongwen not guilty of the crimes he has been charged with at the International Criminal Court (ICC) because the prosecution failed to prove their case beyond reasonable doubt.
Alternatively, the defense asked the judges to immediately suspend, or in legal terms, stay the proceedings against Ongwen. The defense argued in their closing statement that such an extreme measure so late in the proceedings against Ongwen was necessary because his trial could not be considered fair. The trial of Ongwen began in December 2016 and submission of evidence was closed in December last year.
Ongwen’s lawyers Krispus Ayena Odongo, Charles Taku, and Beth Lyons made the defense’s closing statement on Thursday. They addressed Presiding Judge Schmitt and Judges Peter Kovács and Raul Cano Pangalangan, who form Trial Chamber IX.
Lyons, who spoke on the issue of fair trial rights, described the violation of Ongwen’s human rights as “egregious.” She said his fair trial rights had been violated repeatedly over the past four years, from the time he surrendered in the Central Africa Republic in January 2015 through to the trial hearings that concluded in December 2019.
“Now, when we suggested [in the defense closing brief] that the court declare an immediate stay of proceedings … this was not suggested without thought or seriousness. It was suggested based on our analysis looking at the last few years,” said Lyons.
“It was impossible to piece together the constituent elements of a fair trial,” said Lyons.
The third determination the defense asked Trial Chamber IX to make was, if they convicted Ongwen, they should consider sentencing Ongwen to only a few years in prison because he had already been “in prison” for the 27 years he was in the Lord’s Resistance Army (LRA). The defense also asked the judges to order that Ongwen serve any sentence they determine under the charge of Acholi elders in line with the complementarity principle provided for in the Rome Statute, the ICC’s founding treaty.
Ongwen is an Acholi, and he was a commander in LRA’s Sinia brigade when he is alleged to have committed 70 counts of war crimes and crimes against humanity between July 2002 and December 2005. He has also been charged with eight modes of liability. These are provisions in the Rome Statute that specify how an individual is criminally liable for the crimes he or she has been charged with. Ongwen has pleaded not guilty to all counts and modes of liability.
The crimes Ongwen has been charged with fall into three categories: attacks on what are now former IDP camps; sexual and gender-based crimes; and conscription of child soldiers. Ongwen is alleged to have had a role in attacks on the Pajule IDP camp (October 10, 2003); the Odek IDP camp (April 29, 2004); Lukodi (May 19, 2004); and Abok (June 8, 2004).
A rebel group, which later on became known as the LRA, abducted Ongwen in 1988. Different accounts given during the trial hearings have Ongwen being between nine and 14 years old at the time he was abducted. This lack of clarity on how old he is is not unique to Ongwen. Many witnesses who testified during Ongwen’s trial were also unable to accurately state their age. One reason for this is whatever records of their births that may have existed were lost during the northern Uganda conflict that lasted for 20 years between 1986 and 2006.
Ongwen as a Victim
On Thursday, Odongo described the northern Uganda conflict as “steeped in mysticism and spiritualism” and said the prosecution failed to consider this when preparing their case against Ongwen. He said the prosecution chose to ignore the effect of spiritualism on Ongwen’s mental health. Odongo said that when the prosecution challenged the mental health defense Ongwen presented, they should have looked beyond the charged period of 2002 to 2005.
“They have totally forgotten that it was the cumulative effect of what he went through immediately after his abduction up to the time of his escape and surrender to this court,” that affected his mental health, said Odongo.
He said Ongwen was abducted at a young age and “brutalized” to become a “fighting machine.”
“He is a victim just like other former soldiers who managed to escape and are now participants in this courtroom as victims. Your Honors, whichever way this case is decided Mr. Ongwen is entitled to any or all relief given to the other victims. He is a victim. And this point, Your Honors, is not contested by the prosecution,” said Odongo.
He said the prosecution conducted “shoddy” investigations and prosecution investigators depended on a Ugandan military officer, Colonel Ocira, to act as an intermediary and find witnesses for them.
“Instead of combing the affected areas of northern Uganda for credible witnesses, it is obvious from the nature of witnesses you saw in this courtroom that they basically went and sat in the comfort of their hotel rooms in Gulu and collected only evidence from government security agents,” said Odongo.
“How you can rely on evidence collected by a colonel working for a government which would go to any extent to ensure that somebody is found guilty?” said Odongo.
Attacks on IDP Camps
Taku, who spoke after Odongo, said the charges against Ongwen concerning the attacks on IDP camps should be dismissed.
He said the prosecution acknowledged that in the charges against Ongwen, the precise location of the RVs held ahead of attacks was not provided, and Ongwen was not required to take a plea on that point. RVs in the LRA refers to rendezvous or meetings held before or after an attack.
“In that case, Your Honors, if you believe the prosecutor, we urge that the crimes related to planning and other crimes that were alleged to have occurred at the RV should be dismissed as a matter of law because the location is not known and the prosecutor said it does not matter. Therefore, they could not have occurred in the abstract,” said Taku.
He said the attacks Ongwen is alleged to have had a role in were carried out by more than one brigade. Taku said that Ongwen, whether as Oka battalion commander or as Sinia brigade commander, could not have controlled other brigades. He said it is only LRA leader Joseph Kony who had such control.
“Mention of Dominic Ongwen alone, without bringing the spotlight on these other brigades who are in the task force makes the case to collapse,” said Taku.
Ongwen’s Affirmative Defense
Lyons spoke after Taku and one of the issues she addressed was the mental disease or defect defense Ongwen’s legal team have presented under Article 31(1)(a) of the Rome Statute. She said the defense had asked the chamber to elaborate what burden of proof they required to satisfy because the Rome Statute was not explicit on the issue. Lyons said the chamber’s decision to not address the issue until they write their judgement hampered their defense because without knowing what burden of proof they needed to satisfy they did not know what evidence needed to be presented in court.
“So, we don’t have the legal guidance on this from the trial chamber and essentially we are operating in what seems to us as a legal quagmire which prejudices Mr. Ongwen’s right to a fair trial,” said Lyons.
She said another difficulty the defense faced was a mental disease defense required going back to the time when the alleged crimes were committed. Lyons said despite this the defense was confident the psychiatrists they called to testify had made the case.
Lyons said, “Based on their expertise and their interviews with the client [Ongwen], their interviews with other sources, their review of the materials they were able to access at the detention center … clearly, in our view, make out the case under 31(1)(a).”
Odongo spoke again, after Lyons finished her submissions. He told Trial Chamber IX that the defense had a proposal for them if they found Ongwen guilty and chose to convict him.
Odongo said the proposal was the judges should, “Please release him [from detention] and send him to serve part of his sentence under the supervision of Acholi traditional leaders [in Uganda]. And this does not in any way contradict the Rome Statute.”
He said what the defense was proposing was not explicitly provided for in the Rome Statute, but, “the principle of complementarity empowers you to think outside the box.”
This is the first time at the ICC that a defense team who have argued their client is not guilty have also made a closing statement in anticipation of a possible guilty verdict. In the trials of Thomas Lubanga; Germain Katanga and Mathieu Ngudjolo Chui; Jean-Pierre Bemba Gombo; and Bosco Ntaganda their defense lawyers have stuck to making arguments why their clients are not guilty when presenting their closing statements. It is only when their clients have been convicted that the lawyers have made submissions on the sentence their client should serve.
There is only one case at the ICC where defense lawyers have said anything about sentencing before their client was convicted. This was in a guilty plea agreement the defense and prosecution reached in the case of a former Malian Islamist leader Ahmad Al Faqi Al Mahdi. The agreement was reached days before Al Faqi’s confirmation of charges hearing in February 2016, but it was only made public ahead of his trial in August 2016.
With the defense concluding their closing statement, the trial of Ongwen has nearly concluded because the prosecution and legal teams representing victims had already presented their closing statements. According to guidelines set out in the fourth edition of the Chambers Practice Manual issued in November 2019, the judges of Trial Chamber IX have up to 10 months to write and deliver their judgement.