By Tom Maliti
Judges of the International Criminal Court (ICC) have adjourned the trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), for two weeks to allow his lawyers have doctors assess Ongwen’s health.
Presiding Judge Bertram Schmitt, together with Judges Péter Kovács and Raul C. Pangalangan of Trial Chamber IX, agreed to adjourn the trial to January 28. Hearings were supposed to resume on Monday, January 14 after a nearly two-month break.
The judges made the decision via email late on Friday, January 11 following a defense request for adjournment that was made a day earlier, on January 10. In their Friday email, the judges said they would provide the reasons for granting the defense’s request for adjournment later, which happened the following Wednesday.
In their redacted decision, Trial Chamber IX said they granted the adjournment, “solely in order for the accused to receive any necessary medical treatment ….”
The judges also ordered the medical officer of the detention center where Ongwen is held to report by January 23 whether Ongwen will be able to attend the hearing scheduled for January 28. Trial Chamber IX said they were not ordering an additional examination of Ongwen but asking the medical officer to report back on what they find during their routine work.
Trial Chamber IX, however, did decline to grant the defense request that their mental health experts examine Ongwen under Rule 135 of the ICC Rules of Procedure and Evidence. This rule provides for a trial chamber to order a medical, psychiatric or psychological examination of an accused. The rule says that a trial chamber can do this on its own initiative or at the request of the defense or the prosecution. It also provides for a trial to be adjourned if a trial chamber finds an accused person is not fit to stand trial.
In its decision on Wednesday, Trial Chamber IX said the issue of whether Ongwen is fit to stand trial was raised in December 2016 and at the time the chamber determined he was fit to stand trial. The judges said the defense did not present any new information in the request for an adjournment they made last Thursday to persuade the judges to change that decision.
“Nothing indicates that the accused (Ongwen) does not understand the testimonies of the witnesses, the overall meaning and importance of the proceedings or that he cannot communicate with his counsel. During the proceedings, the Chamber has repeatedly observed that the accused called his counsel during the testimony of witnesses in order to instruct them, frequently in reaction to answers provided by the testifying witness.
“The Chamber was able to see that the accused reacted to the testimony of witnesses, giving all indications that he followed its content and could process what was being said in court,” the judges said.
They emphasized that they are “aware of the medical condition of the accused and a finding that there is no need to appoint an expert under rule 135 of the Rules must not be construed as a finding that the accused does not need medical attention.”
An indication of this is the change in the schedule of hearings since the defense phase of the trial began in September last year. Whenever there was a block of hearings during the prosecution phase of the trial these hearings took place Monday through to Friday, with few exceptions. Hearings were held in blocks of two to four weeks during the prosecution phase of the trial that ran between December 2016 and April last year.
This schedule of holding hearings Monday through to Friday has changed during the defense phase. To date hearings have been held with a day’s break, usually on Wednesday or Friday.
This change followed a defense request made on August 29 in which they said that Ongwen would not be able to sit through five consecutive days of hearings and said he would need a break on Wednesday. The reason or reasons for this were redacted from the public version of the request.
The prosecution opposed this request. Single Judge Bertram Schmitt said in a September 5 decision that the break did not have to be on a Wednesday and the schedule of hearings would depend on the flow of the evidence the defense was presenting.
On September 10, the defense asked for leave to appeal the Single Judge’s decision. The prosecution opposed the request. On September 24, Judge Schmitt declined to grant the request.
This article was first published on the International Justice Monitor.