By Tom Maliti
The defense of Dominic Ongwen, who is on trial at the International Criminal Court (ICC), have asked judges to change the schedule of hearings for June to accommodate Ongwen’s mental health needs.
Ongwen’s lead lawyer, Krispus Ayena Odongo, said in a May 7 filing that he was making the request after the judges of Trial Chamber IX unexpectedly cancelled most of the hearings scheduled for May. The canceled hearings were scheduled to take place on May 2 – 3 and between May 6 – 10.
Odongo said five days have been added to the June schedule of hearings. These are June 13 – 14; June 17 – 18; and June 20. He said the trial had previously been set to continue between June 4 and June 7 and then take a break until June 24.
“Although, the Defense does recognise that the Trial Chamber has accommodated the ICC-DC [Detention Center] Medical Officer’s recommendation that Mr Ongwen does not sit in Court on Wednesdays, given that he is still mentally unstable, no break in between the witness blocks in June will cause him to suffer undue stress and adverse mental health effects,” Odongo said.
“As the Schedule negatively affects Mr Ongwen’s health and limits preparation time, he will be unable to consistently and effectively provide instructions to counsel,” said Odongo.
Ongwen is on trial for 70 counts of war crimes and crimes against humanity he allegedly committed as a commander of the Lord’s Resistance Army (LRA) in northern Uganda between July 2002 and December 2005. He has pleaded not guilty to the charges. Ongwen has been on trial since December 2016.
Joseph Akwenyu Manoba and Francisco Cox, who represent one group of victims in the trial, asked Trial Chamber IX to dismiss the request of the defense. Manoba and Cox are formally referred to as Legal Representatives of Victims (LRV) in court filings.
“The LRVs submit that Defense assertions regarding the detrimental effect of the addition of 5 hearings days in June on Mr Ongwen’s mental health are not supported by any concrete information and appear to be speculative,” said Manoba and Cox in their May 10 response to the defense request.
“The LRVs are aware that they are not privy to all information relating to Mr Ongwen’s health. However, it is evident that the Chamber has taken care regarding Mr Ongwen’s health while making scheduling decisions: for example by ensuring that Mr Ongwen is able to have a break in the middle of each hearing week, as recommended by the ICC-DC Medical Officer,” said Manoba and Cox.
They pointed out that Ongwen would only be expected to be in court for two days between June 7 and June 14 under the changed schedule. They also observed only one hearing has been held between April 8 and the next hearing scheduled for May 20.
“The LRVs wish to reiterate that the victims they represent are greatly concerned with the slow pace of the proceedings, especially during the Defense’s presentation of its case. Although the LRVs understand that there are circumstances justifying a slower pace of the proceedings, the victims remain perturbed and worry that the proceedings may grind to a halt entirely,” said Manoba and Cox.
During the prosecution phase of the trial between December 2016 and April 2018, hearings were usually held in blocks of two to four weeks with weekends being the only breaks. Since the defense phase began in September last year, hearings days have been more spread out and there are usually no hearings on Wednesday.
Ongwen’s mental health has been the subject of litigation and hearings since his lawyers issued a notice in August 2016 that they intended to present evidence that Ongwen suffered a mental defect or illness during the period he is alleged to have committed war crimes and crimes against humanity and therefore cannot be held responsible for those crimes. His lawyers issued this notice under Article 31 of the Rome Statute, the ICC’s founding law.
Separate from the issue of his mental health while he was an LRA commander, Ongwen’s lawyers have also argued he is not mentally fit to stand trial. The first time they asked the court to rule on this issue was on the first day of the trial in December 2016. On that day, December 6, 2016, Trial Chamber IX ruled Ongwen was fit to stand trial. Almost two weeks later Trial Chamber affirmed this ruling after receiving reports from defense mental health experts and submissions on the issue.
This year, Trial Chamber IX has postponed hearings twice because Ongwen has needed medical care. On March 29, a hearing previously scheduled for that day was postponed so Ongwen could get medical treatment. Similarly, the chamber postponed the opening of the trial this year at the request of the defense to allow Ongwen’s medical needs to be attended to. The trial was scheduled to open on January 14 but ended up being postponed until January 31.
This article was first published on the International Justice Monitor.