By Susan Kendi
Dominic Ongwen lead lawyer has requested the International Criminal Court to dismiss the charge of enslavement since the pleading of the charged crime is defective.
In a court record filed on January 10, 2020, Ongwen’ lawyers argue that there is no difference between enslavement and sexual slavery in accordance to the law. The defence said that charging and pleading both charges, brings about legal confusion which prejudices their client’s right to fair trial.
In their argument the defence lawyers cited that, “Historically slaves had sexual obligations in addition to forced labour obligations. Labor-intensive slavery (‘chattel slavery’) and sexual slavery are therefore not mutually exclusive…In all respects and in all circumstances, sexual slavery is slavery.”
The defence lawyers made a reference to two cases held at the ICC, the Bosco Ntaganda and Germain Katanga trials where the forced marriage charge was included under the crimes of sexual slavery and not as two exclusive crimes.
According to the Ongwen lawyers, the interpretation of the trial chamber did not help understand the words “acts of sexual nature.”
The Victims lawyers have responded to the defence request in a submission dated January 14, 2020 and asked the Trial chamber IX to dismiss the request.
This is not the first time that the defence have asked ICC judges to dismiss charges that Dominic Ongwen has been charged with. Ongwen lawyers have filed two separate requests in February and September 2019 asking the Judges to dismiss a total of 52 counts of crimes that Ongwen is facing at the International Criminal Court terming them “defective.”
On February 1, 2019 the defence lawyers asked the Court to dismiss more than half of the charges against their client, Ongwen.
In a four-part motion explaining the shortcomings in the 104 page-long confirmation of charges decision against Ongwen, the Defence asked the Trial Chamber IX to dismiss 14 counts that Ongwen is charged with. However, adding up the various defects in the motion for dismissal, the charges that the Defence lawyers want dismissed total to 41 counts of war crimes and crimes against humanity.
The series format was adopted by the Defence to remain within the 20-page limit set out in the ICC regulations and for “clarity and expediency of the proceedings.”
The prosecution and victims’ lawyers were allowed by the chamber to file a 65-page limit each responding to the issues raised in the motion by the defence and the request for charges dismissal with a deadline set for February 25, 2019.
The Trial Chamber IX Judges dismissed the submissions for being “untimely” since it was filed years after the confirmation of charges decision was made. The Judges also put no considerations on the merits and demerits made by the defence.
The defence team appealed the decision and the appeal chamber unanimously confirmed to the Trial chamber’s ruling adding that the defence can raise the matter of the defective charges while making their closing statements.
On September 20, 2019, the defence filed another motion alleging errors in the confirmation of charges decision with regards to 11 counts of sexual and gender-based crimes that Ongwen is charged with. Ongwen lawyers further argued that the “lack of specificity in the allegations continues to impact on Mr Ongwen’s fair trial rights and the conduct of the Defence presentation of evidence.”
The Trial Chamber IX rejected the defence motion once again in their October 8, 2019 decision terming it “untimely” and adding that they were not convinced by the arguments the defence gave for filing the motion considering they had dismissed a similar motion in February 2019.
So far, Ongwen lawyers have asked the Court to dismiss a total of 53 charges against their clients in their February 2019, September 2019 and most recent January 10, 2020 motions. The counts include 41 counts of war crimes and crimes against humanity, 11 counts of sexual and gender based crimes and 1 request to dismiss the charge of enslavement respectively.
The chamber has also backdated the deadline for submission of closing briefs to February 2020, a decision that was issued eight days after the defence request for the court to reconsider and postpone the date of the closing statements.
Ongwen is facing 70 counts of war crimes and crimes against humanity which include: murder and attempted murder, sexual slavery, forced marriage, torture, enslavement, conscription of children below 15 years of age, pillaging, destruction of property among other crimes allegedly committed in Northern Uganda against the population living in Pajule, Lukodi, Odek and Abok IDP camps.
Background on the trial
The Former Lord Resistance Army Commander, Dominic Ongwen surrendered to the ICC in January 2015.He was transferred to the court’s custody the same month following an arrest that had been issued by the Court.
The confirmation hearing of Dominic Ongwen charges was held between January 21 and 27, 2016 and the trial began on December 6, 2016.
On December 6 and 7, 2016, the prosecution and legal representatives of the victims made their opening statements before judges of the International Criminal Court (ICC).
The first group of 4107 victims is being represented by Joseph Akwenyu Manoba and Francisco Cox whereas the second group of 1,502 victims, who did not select a lawyer, are being represented by Paolina Massidda from the office of the public counsel for victims at the ICC and Jane Adong.
The prosecution’s case ran between January 2017 and April 12, 2018 with 69 witnesses testifying in the trial and on April 13, 2018, the ICC prosecutor Fatou Bensouda informed the Court of the completion of the prosecution’s presentation.
The legal representatives of victims concluded presenting their evidence on May 24, 2018.The victims’ phase opened on May 1, 2018 when the team presented its first witness V-1. The Court heard seven witnesses during this phase, four experts and three participating victims; a counsellor, a teacher and Victim V-2. The witnesses testified on the impact the 30-year-conflict between the LRA and the Ugandan People’s Defence Force had on the population in the northern part of the country and the victims’ suffering.
On June 3 to 9, 2018, the three judges, prosecution, defence and the legal representatives of the victims in the trial visited Pajule, Lukodi, Odek and Abok IDP camps which are the “charged attack sites in the case” and met with community leaders from the area.
On September18, 2018, the defence gave its opening statement and on October 1, 2018 Ongwen lawyers called their first witness.
Over 50 defence witnesses have testified in the case against Ongwen.
January 10, 2020-Defence motion on the request for dismissal of the charge of enslavement:
January 14, 2020- Victims’ lawyers’ response to the Defence motion:
October 2019 ruling
February 1, 2019 defect motion series
Part 1 of the four part defect series: https://www.icc-cpi.int/CourtRecords/CR2019_00586.PDF
Part 2 of the four part defect series: https://www.icc-cpi.int/CourtRecords/CR2019_00588.PDF
Part 3 of the four part defect series: https://www.icc-cpi.int/CourtRecords/CR2019_00589.PDF
Part 4 of the four part defect series: https://www.icc-cpi.int/CourtRecords/CR2019_00590.PDF