By Tom Maliti
When International Criminal Court (ICC) Prosecutor Fatou Bensouda rises next week to make her closing statement in the trial of Dominic Ongwen, she will ask Trial Chamber IX to find Ongwen guilty of all charges because, in her opinion, the evidence shows Ongwen was an effective commander in the Lord’s Resistance Army (LRA), who committed the crimes he has been charged with. This is despite Ongwen suffering serious injury and being arrested within the LRA. By Tom Maliti
In her closing brief dated February 24, Bensouda has addressed the defense case that disputes the evidence against Ongwen. Bensouda has argued that the defense were mistaken in their case or failed to provide evidence to disprove the specific charges Ongwen faces.
“Mr. Ongwen was in a position of authority and had effective command and control over his subordinates during the charged period. He mobilised his authority and power in the LRA to secure compliance with his orders and cause his subordinates to carry out the conduct underlying the charges in this case. This allowed him to exert control over the crimes charged, and to prevent or repress any misconduct by his subordinates if he wished to do so,” said Bensouda.
Bensouda filed her 200-page closing brief following the closure of the trial of Ongwen. The trial began in December 2016, and Presiding Judge Bertram Schmitt formally declared the submission of evidence closed on December 12, 2019. This was after the defense gave notice that they had closed their case on December 6, 2019. The prosecution closed their case in April 2018, and the two legal teams representing victims closed their cases in May 2018.
As the defense phase of the trial neared its end, Presiding Judge Bertram Schmitt scheduled hearings, starting March 10, during which Trial Chamber IX will listen to closing statements. Judge Schmitt also set February 26 as the deadline for all legal teams to file their closing briefs. The judge later adjusted this date to February 24.
The prosecution charged Ongwen with 70 counts of war crimes and crimes against humanity he is alleged to have committed as an LRA commander 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, which specify how an individual is criminally liable for the crimes that 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 camps for internally displaced people (IDP); 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).
In her closing brief, Bensouda said records of intercepts of LRA radio communications by Ugandan security agencies show LRA leader Joseph Kony promoted Ongwen several times between July 2002 and December 2005. She said this was as an indication of the position and authority Ongwen had in the LRA to commit the charged crimes.
“On 27 September 2003, Kony singled Mr Ongwen out from among commanders in Sinia [brigade] for praise as a hardworking commander,” said Bensouda, referring in a footnote to a logbook of LRA radio communications intercepts of the Internal Security Organization, Uganda’s internal intelligence agency.
Bensouda said Ongwen was promoted through three ranks to Brigadier-General, from Major, between July 1, 2002 and December 4, 2004. During this period, Bensouda said Ongwen was also promoted twice in the LRA’s command structure to become commander of Sinia brigade, from commander of Oka battalion.
She said these promotions occurred during the same period when Ongwen suffered a serious injury and was arrested within the LRA. She said the defense have argued that Ongwen’s injury on or around November 9, 2002 made him inactive into 2003 including the time of the October 10, 2003 attack on Pajule. She said the defense argued during this inactive time Ongwen had no control over his fighters.
“The fact that Mr Ongwen was in sickbay during a certain period does not mean that he was incapable of securing compliance with his orders and causing his subordinates to carry out the conduct underlying the charges in this case. That is because a) Mr Ongwen retained control over a number of Sinia fighters, and b) Mr Ongwen was operational again by at least 6 December 2002,” said Bensouda.
She said around April 20, 2003 Ongwen was briefly arrested reportedly over contact with “a senior UPDF [Uganda People’s Defense Forces] commander, Salim Saleh”. Bensouda said the defense argued that Ongwen was under arrest and did not have command of any fighters for most of 2003, including the time of the attack on Pajule in October 2003.
“Here too, the Defence is mistaken. This is evident from the fact that Mr Ongwen was a) back in action two days after his arrest, b) promoted to second-in-command of Sinia Brigade in September 2003, c) an influential commander by the time of the attack on Pajule, playing a key role in the attack, and d) promoted and remained active after the Pajule attack,” said Bensouda.
She disputed the defense’s argument that during the attacks on Pajule, Odek, Lukodi, and Abok the civilians who were killed died in the crossfire between LRA fighters and the UPDF or government-backed militias. Bensouda said that during these attacks the LRA deliberately targeted civilians and provided, for each attack, a table of scores of civilians she said the LRA deliberately killed. The tables include names of the civilians and a sentence describing how and where they were killed. Camp leaders, who recorded the deaths a day or more after the attacks, provided some of the names.
Among the crimes prosecutors charged Ongwen with are sexual and gender-based crimes he is alleged to have committed himself. The charges are based on the testimony of seven women who were Ongwen’s former “wives.” They testified in September and November 2015 during the pre-trial phase, and the trial chamber later admitted the record of their testimony as evidence in the trial under Article 56 of the Rome Statute.
Bensouda said there was no dispute that Ongwen had “wives,” including the seven witnesses who testified. She said during the trial, several prosecution and defense witnesses corroborated the testimony of the women who testified under Article 56. She said many of those witnesses were former LRA fighters, subordinates of Ongwen or “wives” of other LRA commanders.
Bensouda explained, “the evidence of witnesses during the trial confirmed the evidence of the seven victim witnesses, that Mr Ongwen confined and controlled the movement of his ‘wives’; subjected them to domestic servitude; subjected them to acts of a sexual nature; denied them the freedom to consensual marriage and to observe the rituals of marriage; demanded of them an exclusive conjugal alliance; and subjected them to forced pregnancies.”
Response to Ongwen’s Affirmative Defense
The trial of Ongwen is the first time a defendant at the ICC has raised an affirmative defense. An affirmative defense is where an accused person argues there were conditions or circumstances beyond their control that makes them not responsible for the crimes he or she has been charged with. Article 31 of the Rome Statute provides for such a defense. The defense presented evidence that Ongwen had a mental disease or defect, and he cannot be held responsible for the crimes he has been charged with. This defense is provided for under Article 31(1)(a).
In her closing brief, Bensouda said two defense psychiatrists diagnosed Ongwen with dissociative identity disorder, post-traumatic stress disorder, and major depressive disorder in their first report submitted in 2016. She said in their second report submitted in 2018, they added dissociative amnesia and obsessive-compulsive disorder to their diagnosis of Ongwen’s mental health.
“They suggest these disorders amount to grounds for excluding his criminal responsibility for some of the charged crimes because they “interfered with his ability to distinguish right from wrong” and rendered him unable to control his behaviour or to refrain from taking part in those crimes,” said Bensouda.
She said the defense psychiatrists testified in court that their brief did not include the sexual and gender-based crimes Ongwen has been charged with, so the mental disease defense does not extend to those crimes. Bensouda said that the defense psychiatrists did not specify how Ongwen’s mental state affected his conduct during the remaining crimes he is alleged to have committed.
“The Defence Experts, throughout the course of their frequent examinations and report writing, failed to take any adequate precautions to exclude the possibility (the Prosecution says the reality) of malingering on the part of Mr Ongwen. The symptoms they recorded are sometimes incoherent, and their diagnoses are flawed and inconsistent,” said Bensouda.
She also dismissed the case the defense made that Ongwen acted under duress, another affirmative defense provided for in Article 31(1)(d).
“The Prosecution accepts that conditions of life in the LRA were difficult, and that Mr Ongwen likely endured physical and psychological hardship early in his LRA tenure.
“However, the evidence, including Mr Ongwen’s own statements, demonstrates that, as time went on, he became loyal to Kony and the LRA’s mission and was largely motivated by the benefits he received as he rose in rank, including increasingly powerful positions, praise from his superiors, the admiration of his comrades, respect from his subordinates, relatively better life in the bush including greater physical and food security, and women and girls to have sex with and to perform his household chores.
“Any hardship or threats endured by Mr Ongwen during the charged period did not rise to the level required by Article 31(1)(d),” said Bensouda.
In conclusion, Bensouda described Ongwen as “a pivotal figure in the LRA’s campaign of terror across northern Uganda in the early 2000s.”
“He planned, directed, and reported with enthusiasm upon persecutory attacks which left dozens dead and destroyed the livelihoods and hopes of thousands of others. He presided over a regime of human misery whereby children were forced to become murderers and sex slaves. His treatment of the women and girls under his control set the tone for the behaviour of his subordinate officers and fighters. During the course of trial, he has sought to hide behind excuses involving mental illness and duress, which have been exposed as false,” said Bensouda.
“For the reasons discussed above, and based on all the evidence, the Prosecution requests that the Chamber find Mr Ongwen guilty on all counts,” concluded Bensouda.
This article was first published on the International Justice Monitor