By Tom Maliti
Dominic Ongwen’s lawyers have asked the International Criminal Court (ICC) to dismiss all the charges against him for crimes he is alleged to have committed as a commander of the Lord’s Resistance Army (LRA) in northern Uganda more than 13 years ago.
His lawyers told the court that it is the LRA and its leader, Joseph Kony, who should be facing the 70 counts of war crimes and crimes against humanity that Ongwen has been charged with. Ongwen’s lawyers said this in their opening statements on Tuesday, beginning the defense phase of the trial.
Ongwen’s lawyers said the LRA abducted him when he was nine or 10 years old in 1988 and he was coerced into joining the group. Ongwen remained with the LRA because “he was gripped by the Stockholm Syndrome,” and he felt, “he owed his life to Joseph Kony,” said Krispus Ayena Odongo, Ongwen’s lead lawyer.
“It’s our position (the chamber) should dismiss all the charges against … Mr. Ongwen, who is a victim,” said Beth Lyons, who is another of Ongwen’s lawyers.
“Dominic Ongwen should be sitting on the bench of witnesses to testify against Joseph Kony. He should not be sitting here answering 70 charges,” said Charles Achaleke Taku, another defense lawyer.
Ongwen has been charged for crimes he is alleged to have committed between July 1, 2002 and December 31, 2005. During this period, he is accused of being involved in attacks on four camps for internally displaced people (IDPs). He is also alleged to have committed sexual and gender-based crimes and conscripted child soldiers.
The defense phase of Ongwen’s trial began on Tuesday after the prosecution concluded its case in April and lawyers for victims presented their case in May. The prosecution called 69 witnesses who testified over 142 days. The victims’ lawyers called seven witnesses who testified over seven days.
On Tuesday, Odongo told Trial Chamber IX that it will be faced with a number of questions as the defense presents its case.
The chamber will have to determine “whether the accused qualifies as a victim? Whether his victimhood ceased at any time during his captivity with the LRA?” Odongo said.
He said Ongwen “spent 27 years under the vicious grip of the LRA,” and the chamber would have to determine, “whether the accused, like many of his peers, believed in Kony’s spiritualism? Did it leave him with the presence of mind to act independently … even upon attaining physical adulthood?”
Odongo did speak at some length about Kony and a group of spirits Kony claimed he spoke with. Odongo also said that in the LRA it was widely believed that Kony monitored what everyone in the group did, even when he was not physically present. He said Kony had a network of spies he used to watch LRA members.
“It has been suggested that Mr. Ongwen rapidly rose in rank because of his unique loyalty to Joseph Kony and the LRA. That could not be any further from the truth,” said Odongo.
“The period between 2002 and 2005 saw the death or capture of most of the LRA top commanders,” said Odongo. He listed those commanders as Tabu Ley, Kenneth Banya, Raska Lukwiya, and Onen Kamdulu.
“He was therefore only promoted to fill the void,” Odongo. He said during the time Ongwen was promoted, Kony thought Ongwen was planning to escape.
“He (Ongwen) had to be incentivized to dissuade him from escaping. Joseph Kony used mind games to keep his victims within the LRA. One of the tactics he used was sham promotions,” said Odongo.
When he began his opening statement, Odongo said the defense team had divided the presentation of their case into three parts. He said he would present an overview of the case, Taku would speak on the modes of liability that Ongwen has been charged with, and Lyons would address the issue of fair trial rights.
In his overview, Odongo said the LRA began as a “a pro-people revolutionary army” but it changed over time as the group lost the support of people in northern Uganda and the government changed how it dealt with the northern Uganda crisis.
He said as the population became more hostile to the LRA, the group adopted a “new policy of forceful recruitment/conscription into the LRA.” Odongo said the government also pushed the civilian population into IDP camps, which became the only source of food in northern Uganda. He said this and the government attacking LRA bases in Sudan pushed the group to attack the IDP camps. Odongo said the LRA targeted the IDP camps for food and the arms of the soldiers and militia guarding the camps.
Odongo also said that Uganda’s military deliberately prolonged the northern Uganda conflict.
“It will be shown that the war in northern Uganda became a cash cow and therefore nobody was willing to stop it in a hurry,” said Odongo.
Taku told the court that the evidence the prosecution presented was incomplete and that the defense will bring evidence to disprove the prosecution’s case.
“Dominic Ongwen is being held responsible for crimes of individuals who have not been charged and some of whom have been granted amnesty,” said Taku.
“Without that evidence about those commanders, Your Honors will not be able to ascertain the contribution of Mr. Ongwen himself,” said Taku.
On the issue of Ongwen’s promotions in the LRA, Taku said, “By the time he escaped he had been reduced to a private and this is to challenge the idea of rapid promotion.”
Lyons told the court that when Ongwen pleaded not guilty to the charges against him on December 6, 2016, he did not make an unequivocal statement. She said Ongwen only received a complete translation of the decision confirming the charges against him in mid-December, after he had taken his plea. Lyons also said that the eight modes of liability were not read to Ongwen before he took his plea.
“Modes of liability is important because it explains to the defendant the roles he is alleged to have played in respect of the crimes,” said Lyons. She said it was the defense’s submission that Ongwen’s fair trial rights were violated because the plea he took was illegal.
Lyons also presented other reasons the defense thought showed Ongwen’s fair trial rights have been violated. She argued there was an inequality of arms between the prosecution and the defense. Lyons said the prosecution had a more than 11-year “head start” over the defense in investigating and working on the case against Ongwen. She said the prosecution had more lawyers and personnel than the defense to prepare for trial and argue before the court.
Lyons said Article 31 of the Rome Statute provided grounds for defenses that could be raised but it did not address the standard of proof the defense would be required to meet. She said the defense intended to raise mental disease or defect as one defense for Ongwen’s actions and also raise duress as another defense.
“For this trial chamber, the issue is who should bear the burden of proof for an affirmative defense and to what standard should it be proved?” said Lyons.
“In terms of summing up, we would suggest a two-step approach: the defense raise an affirmative defense and be required to prove the affirmative defense with some evidence and a shift to the prosecution to disprove the affirmative defense beyond reasonable doubt,” said Lyons.
She also spoke about the sexual and gender-based crimes charges Ongwen is facing. Lyons said the defense was aware that arguments about such crimes can be “highly emotional.”
“We trust that the judges will extricate the emotion and look at the facts in the case. We also want the judges to look at the charges in context,” said Lyons.
She said Ongwen, “received his sexual education in the bush from Joseph Kony. We want to say that neither Mr. Ongwen nor the women could refuse (to have sex) without the likelihood of death. Who was forced by whom?”
Lyons said, “both men and women were forced (to have sex) by Joseph Kony. No abductee had any choice. From this we conclude both men and women, boys and girls, they are all victims who suffered harm through these policies of Joseph Kony.”
Lyons said the defense is asking that “the modes of liability and the criminal charges (against Ongwen) should be dismissed.”
When Lyons concluded her submissions, Presiding Judge Bertram Schmitt said the first defense witness will begin testifying on October 1.
This article was first published on the International Justice Monitor.
