Trial Chamber IX has declined to conditionally release Dominic Ongwen from the International Criminal Court (ICC) detention center while he awaits judgment. According to judges, Ongwen’s lawyers did not prove that his circumstances had changed in order to justify releasing him.
The judges said in their unanimous April 17 decision the reasons Ongwen’s lawyers gave in their request for conditional release – that Ongwen was a victim and had been separated from his family – did not convince them to agree to such a request.
“The two arguments advanced by the Defence – the accused’s status as an alleged victim and the fact that he is separated from his family in detention – are not new facts that arose at this stage of the proceedings,” said the judges.
Judges Bertram Schmitt (presiding), Péter Kovács, and Raul C. Pangalangan, who form Trial Chamber IX, are presently deliberating on the evidence presented to them during trial hearings. Ongwen’s trial began in December 2016 and concluded in March this year when the different legal teams made their closing statements.
Ongwen is on trial for crimes he is alleged to have committed as a commander of the Lord’s Resistance Army (LRA) in northern Uganda between July 2002 and December 2005. He has been charged with 70 counts of war crimes and crimes against humanity. He has pleaded not guilty to all counts.
Ongwen has been held at the ICC detention center in The Hague since January 2015. For close to 10 years Ongwen had an ICC arrest warrant issued against him. He was brought to The Hague after he surrendered to a militia group in January 2015 in the Central Africa Republic. He was eventually handed over to authorities of the Central Africa Republic who in turn gave him to ICC officials on the strength of the July 8, 2005 ICC arrest warrant. Proceedings against Ongwen could only start with him present in court because the ICC does not conduct cases when a suspect or accused person is absent.
In their April 17 decision, Trial Chamber IX also dismissed Ongwen’s lawyers’ proposal that the “Acholi Cultural Institution” could supervise him if he was released.
“It is the Chamber’s impression that the Defence suggests that the accused could be placed in his home area, while awaiting judgment. The Chamber is of the view that this heightens the chances that the accused might not appear at trial or abscond,” the judges said.
“Noting also that the Defence has not made any submissions in practical terms and has not specified the conditions it suggests to be imposed on the accused, the Chamber deems unsuitable the envisaged release to the supervision of a cultural institution over which the Court has no control,” said the judges.
“Accordingly, it does not see in this scenario the possibility of any conditional release that could adequately mitigate the risk of absconding,” the judges said.
The defense asked Trial Chamber IX to consider conditionally releasing Ongwen in their February 24 closing brief. Then, on February 26, the chamber asked the other legal teams to respond to that request. The prosecution, the Common Legal Representative of Victims (CLRV), and the Legal Representatives of Victims (LRV) filed their responses as confidential. These submissions became public when the chamber ordered they be reclassified in its April 17 decision. The prosecution, the CLRV, and the LRV all opposed the request for Ongwen to be released conditionally. The CLRV and the LRV are two legal teams representing more than 4,000 victims registered to participate in Ongwen’s trial.
Together with the issue of whether to conditionally release Ongwen, Trial Chamber IX asked the different legal teams to give their views on the separate matter of the communications restrictions imposed on Ongwen since June 2015. The judges also asked the defense to respond to those submissions.
The prosecution, the CLRV, and the LRV all said the restrictions should continue to ensure the safety of witnesses. The defense asked the judges to lift the restrictions.
Trial Chamber IX granted the defense request and ordered the restrictions lifted. The judges said they acknowledged the concerns raised about safety of witnesses. They said if witnesses were called to testify in the future, those witnesses would be limited in number and the risk to them would be reduced.
“Additionally, The Chamber notes that there have been no incidents related to any alleged witness interference since 2016,” the judges said.
The chamber also said the restrictions were no longer necessary because there has been a protocol in place since November 11, 2015 that gave certain protections to prosecution and defense witnesses. The chamber further observed that the Regulations of the Registry laid out how the defense could get in touch with a prosecution witness.
In a June 8, 2015 order, the Single Judge of Pre-Trial Chamber II, Cuno Tarfusser, imposed temporary restrictions on Ongwen’s non-privileged communications after there were suspicions he was trying to influence individuals who had “information relevant to the case.” Judge Tarfusser did not identify the individuals, but it later emerged during the trial that they were former “wives” of Ongwen.
Judge Tarfusser would later make permanent and modify that order in an August 3, 2015 decision after receiving submissions from the prosecution and defense on the matter.
The restrictions Judge Tarfusser imposed on Ongwen prevented him from contacting any of his former “wives.” They also included limiting the number of hours in a month Ongwen had non-privileged communications, and the ICC detention center was required to record all of his non-privileged communications.
In a June 24, 2015 decision related to the restrictions, Judge Tarfusser described, without naming names, how Ongwen was suspected to have tried to influence individuals the prosecution at the time described as “potential prosecution witnesses.”
The prosecution used this description because in June 2015 they had not issued the Document Containing the Charges (DCC), which would be the basis of hearings Pre-Trial Chamber II held to determine whether to confirm the charges against Ongwen.
In the June 24, 2015 decision Judge Tarfusser said no legal team contested that in early June there was a meeting in Uganda under the auspices of a Ugandan non-governmental organization in which these individuals participated. Judge Tarfusser also said it was not contested that Ongwen called the participants of that meeting from the ICC detention center and spoke to five of them.
During the defense phase of the trial more details of that meeting emerged. The prosecution said it took place on June 2, 2015 at the office of the Justice and Reconciliation Project in Gulu. The prosecution said this when cross-examining defense witness Florence Ayot, a former “wife” of Ongwen’s, in September last year.
Ayot said in her testimony on September 27 she was present at that meeting whose participants were Ongwen former “wives.” Ayot said during the meeting Ongwen called one of them, Agnes Aber, and then Aber’s mobile phone was passed around for Ongwen to speak to the other women present, including herself.
When cross-examined by senior prosecutor Benjamin Gumpert, Ayot denied she tried to influence the other former “wives” not to harm Ongwen’s case. She also denied she reassured Ongwen that his former “wives” would not testify against him.
In September and November of 2015, eight of Ongwen’s former “wives” testified before Judge Tarfusser about sexual and gender-based crimes Ongwen is alleged to have committed against them. In March 2016, the three-judge Pre-Trial Chamber II accepted the testimony of seven of these women as credible and confirmed the charges against Ongwen related to them. The transcript of the testimony of the seven former “wives” of Ongwen is part of the evidence Trial Chamber IX is deliberating on.