By Tom Maliti
International Criminal Court (ICC) prosecutors said on Tuesday that as a commander of the Lord’s Resistance Army (LRA), Dominic Ongwen willingly committed the war crimes and crimes against humanity he is alleged to have had a role in more than 15 years ago.
Senior trial lawyer Benjamin Gumpert and trial lawyers Adesola Adeboyejo and Colin Black spoke on behalf of the prosecution on the first day of closing statements before Trial Chamber IX. Presiding Judge Bertram Schmitt and Judges Peter Kovács and Raul Cano Pangalangan are the judges of Trial Chamber IX.
“We are not here to deny that Dominic Ongwen was a victim of abduction,” said Gumpert. “But the defense line that this should somehow make him immune is untenable.”
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 he was abducted.
Gumpert said that in international criminal practice the “phenomenon” of a victim-perpetrator may be new, but “for those who practice criminal law at the national level it is mundanely familiar.” He gave the example of people who are charged with sexual crimes are often found to have been victims of sexual abuse themselves.
“It’s a tragedy … no one disputes that. But then no one suggests they are relieved from criminal responsibility. It can’t be that such people have a lifetime pass to commit crimes just because crimes were committed against them some time in the past,” said Gumpert.
“The prosecution has proved what Mr. Ongwen did and why the law must hold him accountable. If he is then convicted, the question of his victimhood is one that may have to be considered again on the day of sentencing,” said Gumpert.
The prosecution has charged Ongwen with 70 counts of war crimes and crimes against humanity alleged to have been 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 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).
During their submissions on Tuesday, Gumpert, Adeboyejo, and Black addressed what the prosecution disputed in the defense’s closing brief, which was filed on February 24. The prosecution filed their closing brief on the same day, and a public redacted version is available. A public redacted version of the defense’s closing brief is not yet available.
Reliance on intercepted radio communications
As part of his presentation, Gumpert spoke about the questions the defense raised on the quantity, reliability, and credibility of intercepted LRA radio communications. Three Ugandan security agencies intercepted and kept records of those intercepts of LRA communications. The prosecution presented the intercepts as evidence during the trial together with testimony from Ugandan security agents, who conducted and recorded the intercepts.
According to Gumpert, the defense said they were unable to understand most of the 600 cassettes of audio recordings that the prosecution disclosed to them.
“They complain that we have, to use the slang, cherry-picked the best parts,” said Gumpert, referring to the evidence the prosecution presented during the trial.
Gumpert said the prosecution also disclosed about 22,000 pages of material related to the intercepts. He said he could have had a court officer cart in the documents, but he noted, “I am not in a theater.” Gumpert said these materials included logbooks of the intercepts from the Uganda People’s Defense Forces, the Internal Security Organization, and the Uganda Police.
The prosecution, Gumpert explained, made these disclosures to all legal teams in the trial because the material could be relevant to their cases. He observed that the defense made “significant use” of the intercept evidence to make their case about Ongwen’s injury in late 2002, providing him an alibi for some of the charges.
“The prosecution observes that they can’t have it both ways,” said Gumpert.
Gumpert stated the prosecution went “to pains” to provide guides to the intercept material so that anyone could easily find a specific item. He showed the court tables provided to all legal teams that matched a logbook entry to the relevant audio recording. He said the prosecution also disclosed translated transcripts of the audio recordings.
“If we weren’t in the dog-eat-dog world of the courtroom, I might be hurt by the inaccurate and unfair criticism by the defense,” said Gumpert.
Sexual and gender-based crimes
Before Gumpert spoke about the intercept evidence and other issues the defense raised in their closing brief, Adeboyejo addressed the sexual and gender-based crimes Ongwen is alleged to have committed himself. Adeboyejo began by reading a disturbing excerpt of the September 18, 2015 testimony of a former “wife” of Ongwen, Witness P-227, in which she described Ongwen forcing her to have sex with him.
“He told me to come into the house, so I went in … He lay down, and he asked me to lie down as well. When I lay down, I lay down with all my clothes on. He asked me to undress … he undressed as well. He asked me to spread open my legs. He took hold of his penis .. and he put it in my vagina … I started crying … He asked why I was crying. He told me if I continued crying, he showed me his gun. I felt like my whole body was being torn apart. When he was having sex with me, he was actually having sex with me in the anus. He had sex with me for a very long time,” Adeboyejo said as she read the excerpt of Witness P-227’s testimony.
Adeboyejo said during P-227’s testimony the defense only challenged her testimony relating to the anal penetration. Adeboyejo said the defense did not challenge most of the evidence that Ongwen’s former “wives” gave, but they said Ongwen was not guilty of charges of sexual and gender-based crimes.
Seven former “wives” of Ongwen testified against him during the pre-trial phase in September and November 2015. Their testimony was admitted as evidence in the trial under Article 56 of the Rome Statute.
“They argue that he [Ongwen] did not intend to commit these crimes … They also argue that he was acting under duress,” said Adeboyejo, referring to the defense’s closing brief.
She said the testimony of Witness P-226, also a former “wife” of Ongwen, made “untenable” the defense’s argument that Ongwen did not intend to commit sexual and gender-based crimes. Adeboyejo said Witness P-226 was seven years old when she was abducted, and she was assigned to Ongwen’s home as a ting ting, a term used in the LRA for girls who did household chores and acted as babysitters.
“As a ting ting, P-226 was made to carry out domestic chores such as fetching water, digging gardens … There is no doubt this was her role. She was not challenged about it,” during her testimony, said Adeboyejo.
She said after some time LRA leader Joseph Kony sent his escorts to get Witness P-226, but Ongwen refused to release her.
“He hid her under his bed. Mr Ongwen was not under any duress. He was boldly defying Kony. He hid her for a whole month until he could transfer her to another location,” in what was then Sudan, said Adeboyejo, referring to Witness P-226’s September 15, 2015 testimony. “Eventually he [Ongwen] raped her when she was 10 years old.”
Attacks on IDP camps
Black was the last of the prosecution team to speak on Tuesday. He addressed what the prosecution disputed in the defense’s closing brief about the attacks on the four former IDP camps.
“Nowhere in the defense’s closing brief do they appear to dispute that the LRA attacked the Pajule camp. They don’t dispute that Mr. Ongwen was present at the RV [rendezvous] before the attack. On all of those points it seems the parties agree,” said Black.
He also highlighted that the prosecution and defense agreed that in November 2002 Ongwen was injured in the leg, and in April 2003 he was placed under arrest in the LRA. Black said the prosecution disputed that this injury and arrest was an alibi for Ongwen not having a role in the October 10, 2003 attack on Pajule.
Black said that according to the intercept evidence Ongwen reported to Kony in December 2002 he had ambushed a vehicle on the Kitgum-Gulu road.
“My point is simply that Mr. Ongwen’s presence in a sick bay did not mean that he was inactive, that he had lost authority,” said Black.
He said two days after his arrest on April 20, 2003 Ongwen reported on radio to Kony that he had forgotten the location of a cache of arms.
Black also spoke about the defense’s assertion that Ongwen could not have taken part in the attack on the Odek IDP camp because he was at a different location. Black said there are audio recordings in evidence in which Ongwen is heard reporting what happened during the attack on Odek. He said five prosecution witnesses identified Ongwen’s voice when the audio recordings were played in court during their testimony.
“The defense hasn’t addressed any of those voice IDs in their closing brief,” said Black. He added that a defense witness, Francis Oceng, a former LRA radio operator, also recognized Ongwen’s voice when the audio recordings were played to him.
“All these witnesses heard Mr. Ongwen in his own words, in his own voice accept responsibility for these attacks,” said Black. He also spoke about what the prosecution disputed in the defense’s closing brief about the attacks on Lukodi and Abok.
“We would ask you to convict Mr. Ongwen on all counts,” said Black when he concluded his submissions.
The two legal teams representing victims in the trial of Ongwen will make their closing statements on Wednesday.
This article was first published by International Justice Monitor