Lawyers representing victims in the trial of Dominic Ongwen told the International Criminal Court (ICC) that the victims see the trial as the start of healing for them because they had given up hope on getting justice for the suffering they went through during the northern Uganda conflict.
The lawyers also told the court on Wednesday that it was “disrespectful” for Ongwen’s defense lawyers to argue in their closing brief that Ongwen was also a victim of the atrocities the Lord’s Resistance Army (LRA) committed, so he therefore should not be held responsible for the crimes he has been charged with.
“The fact that Mr. Ongwen was abducted at a young age does not absolve him for acts committed as an adult. Not all victims become perpetrators and criminals,” said Paolina Massidda, the Common Legal Representative for Victims.
Massidda represents a group of 1,502 victims registered to participate in the trial of Ongwen. Most of the victims Massidda represents were residents in the former Pajule camp for internally displaced people (IDP) in northern Uganda.
“What this trial is about is the conduct of Mr. Ongwen as an adult and the actions he chose to take or not take,” said Massidda.
According to Ongwen and his lawyers, the LRA abducted him in 1988. During his initial appearance at the ICC, Ongwen said he was 14 years old at the time. Other witness testimony and Ongwen’s lawyers have said Ongwen was between nine years old and 11 years old when the LRA abducted him.
The prosecution has charged Ongwen with 70 counts of war crimes and crimes against humanity he is alleged to have committed between July 2002 and December 2005 in northern Uganda. Ongwen has also been charged with eight modes of liability. These are provisions in the Rome Statute, the ICC’s founding treaty, 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).
Before Massidda made her closing statement on Wednesday, Joseph Akwenyu Manoba and Francisco Cox spoke on behalf of the 2,601 victims they represent. The victims Manoba and Cox represent were residents of the Odek, Lukodi, and Abok IDP camps. Manoba and Cox are formally known as the Legal Representatives for Victims.
“The trial of Mr. Ongwen marks the beginning of a significant phase of recovery from the past,” said Manoba.
“Your Honors, before the commencement of the trial most victims had resigned themselves to the outlook that there would be no justice in their lifetime for the grave violations they had endured during the conflict between the government of Uganda and the LRA. During this time three of the five LRA suspects under investigation [at the ICC] were reported to have been killed in the bush. In this period a significant number of victims had died from the misery of the aftermath of the crimes,” said Manoba.
The five LRA suspects Manoba was referring to are Ongwen; LRA leader Joseph Kony; his former deputy Vincent Otti; and former senior commanders Raska Lukwiya and Okot Odhiambo. The ICC originally indicted all five of them under one arrest warrant in 2005. The case against Lukwiya was terminated in July 2007 when the ICC confirmed his death. The case against Odhiambo was terminated in September 2015 when the ICC confirmed his death. Otti’s death has been widely reported in the media, but he remains officially a fugitive from the ICC because the court is yet to confirm his death.
Manoba said the victims had thought none of the top LRA commanders would ever be tried following the different developments in the ICC case. He said that changed when Ongwen appeared before the ICC and for the first time in Uganda’s history, a court process against an LRA commander began.
“They have never been interested in finding a scapegoat. The victims have been interested in a process that seeks to establish the truth,” explained Manoba.
“For the victims the process of truth telling was and remains essential to their understanding of what it means to get justice,” said Manoba.
During his statement, Manoba quoted several witnesses who testified during the trial to emphasis what victims underwent during LRA attacks or their living conditions in the IDP camps, among other issues. He quoted Witness P-280 who testified in June 2017 about the attack in Abok during which his father and brother were shot. Manoba also quoted the May 2019 testimony of Otto Ishaa Amiza, a water engineer, who described the conditions in the IDP camps in northern Uganda.
When Manoba concluded his presentation, Cox spoke about the consequences of the conflict on the lives of victims. He quoted the May 2018 testimony of Witness V-2 to show how victims were stigmatized and to show how families were affected by the separation caused when their children were abducted. He also quoted the May 2, 2018 testimony of Vincent Oyet, a long-serving teacher at Lukodi Primary School, to show education remained disrupted long after the LRA attacks ceased in northern Uganda.
“Your Honors, victims have followed closely the proceedings … they travel huge distances to meet with our team. They are grateful that this is the only justice they will get for the crimes they have suffered. They see the act of giving statements to this court as the beginning of the healing process,” said Cox.
“For most of the victims the opportunity given by the court to be represented has been a first of its kind for them and is greatly appreciated,” said Cox, though, he observed that the evidence the prosecution presented, “did not fully portray the suffering of the victims.”
He said some of the victims he and Manoba represent told them that during LRA attacks, men were raped as well as women.
Cox said the victims “have put faith in these proceedings and in this court. They have seen the evidence presented to Your Honors and believe it’s compelling. And that should result in a conviction on all charges. That conviction, Your Honors, will be the first step towards reconciliation amongst the community, the reparation of the harm they suffered as individuals but also as a community.”
When Cox finished his closing statement, Massidda made hers. She spoke about the sexual and gender-based crimes Ongwen has been charged with as well as the charges of conscripting child soldiers. Massidda quoted several witnesses, both victims and experts, to make her argument that the evidence presented during the trial established that the crimes had been committed and Ongwen had a role in those crimes. Massidda also challenged Ongwen’s defense that he had a mental disease or defect during the years he is alleged to have committed the crimes.
Massidda then spoke about a proposition the defense made in their closing brief that if the judges should find Ongwen guilty of the crimes he has been charged with, then he should be under the authority of the Acholi elders and be subjected to mato oput. Massidda said she was aware that this was not provided for in the Rome Statute, “but my point is that request is contrary to the interest of the victims in this trial.”
She said the Acholi community used mato oput to resolve inter-clan disputes, such as if someone had killed a person from a different clan.
“It [mato oput] was never intended to deal with mass atrocities nor with killings during the time of war. Not all victims participating in this trial are Acholi and for them such rituals may not be meaningful. They want a court of law to establish that Mr. Ongwen is guilty of the crimes they have suffered from and the acknowledgement by Mr. Ongwen of their suffering,” said Massidda.
“Victims consider that the liability of Mr. Ongwen has been established beyond all reasonable doubt and ask the chamber to declare the accused guilty of all crimes,” concluded Massidda.
Krispus Ayena Odongo, Ongwen’s lead lawyer, immediately rose to object to what Massidda said.
“The submissions of Ms. Massidda goes far beyond her mandate as counsel for victims. It is the duty of the prosecution to challenge, to prove the guilt of the accused, and it is not the role for counsel for victims. That is what her submission amounts to,” said Odongo. He asked the court to expunge Massidda’s closing statement from the record. Charles Taku, one of Ongwen’s lawyers, also rose to object to what Massidda had said.
Presiding Judge Bertram Schmitt asked Massidda to respond to what Odongo and Taku said.
“All the points that I have raised related to their [victims] interests. This is a core interest of our clients,” said Massidda.
“The objection is overruled, and there will be no expunging of the record,” said Judge Schmitt, adding the judges of Trial Chamber IX had consulted on this issue. The other judges are Peter Kovács and Raul Cano Pangalangan.
Judge Schmitt said closing statements are not “this has to be underlined, they are not evidence.”
“The presentation of evidence has long been closed. In fact, closing statements are arguments and counsel are to be given latitude in making them,” said Judge Schmitt.
“You can be sure that the chamber understands this distinction,” said Judge Schmitt before he declared the day’s hearing adjourned to Thursday.
On December 12 last year, Judge Schmitt declared the submission of evidence in the trial of Ongwen closed.
The defense will make their closing statement on Thursday.
The closing brief of the Common Legal Representative for Victims, Paolina Massidda, is available here.