By Susan Kendi
The International Criminal Court will on April 14 and 15 listen to the oral submissions of the prosecution, defence, and victims’ lawyers in the sentencing of former Lord’s Resistance Army commander Dominic Ongwen.
Judges Bertram Schmitt, Péter Kovács, and Raul Cano Pangalangan will then decide whether to give the Ugandan rebel leader a life sentence or send him to prison for a term of up to 30 years. This is the maximum sentence allowed under the Rome Statute, which set up the court, and which does not allow the death penalty.
The parties to the case will each have three hours to make their submissions while the legal representatives of victims (LRVs) will have one-and-a-half hours.
The prosecution, defence, and LRVs presented their written submissions on April 1, 2021.
In a 51-page joint filing, the victims have requested that Ongwen be sentenced to life imprisonment.
“The vast majority of the victims consulted have expressed the view that Mr Ongwen should be sentenced to life imprisonment. A minority expressed their wish for him to be sentenced to 30, 40, or 50 years of imprisonment. Some victims also wanted Mr Ongwen to be sentenced to death.… They justified their views by referring to the harm they suffered as a result of Mr Ongwen’s actions and the long-lasting consequences of the crimes on them, their families, and their communities. They have underlined that no mercy was shown to the victims by Mr Ongwen and, as a consequence, no mercy should be applied to him during sentencing,” the victims’ legal representatives said.
Referring to the crimes and sentences issued to Bosco Ntaganda, Germain Katanga, and Ahmad Al-Faqi Al-Mahdi, lawyers Paolina Massidda, Joseph Manoba, and Francisco Cox observed that the court’s sentencing practice could be relevant in terms of similarities of the crimes committed.
The prosecution’s submission, signed by Deputy Prosecutor James Stewart, cited Ongwen’s case as “genuinely complex” because he was abducted and served as a child soldier, stating that this could “warrant some reduction in his sentence”.
“The Chamber must balance any understandable sympathy with Mr Ongwen’s misfortune at a young age with respect for those he victimised as an adult. Any reduction in his sentence must be such that the overall term of imprisonment still reflects the gravity of his crimes and the fact that he committed them as a grown man, of sound body and mind, and by his own choice.”
The prosecution proposed a prison sentence of not less than 20 years and that the time Ongwen has served in detention should be considered.
“Although the Chamber could impose a total joint sentence higher than the highest of the individual sentences, the prosecution considers that unnecessary in this case. The prosecution notes in this regard that Mr Ongwen spent more than 25 years in the LRA, immediately followed by pre-trial and trial detention of approximately six years.”
Presenting part of its proposal in the form of a table, the prosecution listed Ongwen’s crimes, number of counts, the recommended sentence without consideration of individual circumstances, and final years of imprisonment. The lowest recommended sentence is eight years for pillaging and destruction and the highest is 20 years for murder, persecution, and in the context of sexual crimes, which include forced marriage, torture, rape, sexual slavery, enslavement, and forced pregnancy.
The prosecution recommended that Ongwen be offered medical care and opportunity to carry on with his education so that, if he is ever freed, he can easily be reintegrated into and contribute to his family and community in northern Uganda.
In a 53-page submission, Ongwen’s lawyers explained why they thought he needed a short sentence.
“Mr Ongwen should be allowed to undergo social rehabilitation and reintegration as soon as possible because he participated in programmes provided by the International Criminal Court Detention Centre (ICC-DC) that encourage social rehabilitation and reintegration, he is young and his family is still in Uganda, and mato oput will facilitate further social rehabilitation and reintegration into his local community,” the defence said.
Ongwen is said to have received mental health treatment, completed educational courses including English, and participated in other programmes that stimulate mental rehabilitation.
According to the defence submission, he communicates regularly with his 15 children and his wives in Uganda in order to maintain a strong relationship with his family. He also strives to support his family despite the distance separating them.
Ongwen’s lawyers requested the court to sentence him to a maximum of 10 years in prison because of the time he spent in the LRA and the time he has been in detention, stating that this would also serve justice to the victims of his crimes.
“Should the Chamber decide to issue a longer sentence, and still affirming that Mr. Ongwen shall go through the Acholi rituals requested of him by Ker Kwaro Acholi and the people of northern Uganda, the Defence argues that the Chamber should sentence Mr. Ongwen to a maximum sentence of 10 years. Mr. Ongwen has suffered his entire life, and to issue anything more, with respect, would not be necessary and still serve justice to the victims,” said Ongwen lawyers.
Ker Kwaro Acholi is tasked with maintaining and enforcing Acholi culture and tradition. The institution speaks for the Acholi people on issues of culture and heritage.
Speaking on deterrence in determining a sentence for Ongwen, the defence lawyers argued that his situation was “too unique and too complex to act as a deterrent to any future persons”.
“…Mr Ongwen is the only person placed on trial at an international tribunal, international court, or internationalised/hybrid court to have been abducted and served as a child soldier. Issuing a lengthy sentence to Mr Ongwen shall not act as a general deterrence. It is the defence’s position that issuing a lengthy sentence shall do the exact opposite; it will encourage former child soldiers to remain in rebel groups or hide in isolation for fear of receiving longer prison sentences for their actions.”
On February 4, 2021, Trial Chamber IX of the ICC found Ongwen guilty of 61 counts of war crimes and crimes against humanity, committed in northern Uganda between July 1, 2002 and December 31, 2005. He had been charged with 70 counts.
The chamber acknowledged that Ongwen had experienced much suffering in his childhood and youth, adding that the judges would evaluate this in a later context.
“This case is about crimes committed by Dominic Ongwen as a fully responsible adult and as a commander of the LRA in his mid-20s,” said Presiding Judge Bertram Schmitt.
To watch multimedia summaries on Ongwen’s trial: