By Tom Maliti
To date, 52 defense witnesses have testified over the
course of 67 days of hearings during the International Criminal Court (ICC)
trial of Dominic Ongwen, a former Lord’s Resistance Army commander. The defense
has been presenting its case as to why Ongwen should be acquitted of all
charges against him.
Throughout the defense phase of the trial, Ongwen’s legal
team has presented evidence and made legal arguments that they believe should
convince Trial Chamber IX to dismiss 62 out of the 70 counts of war crimes and
crimes against humanity Ongwen has been charged with.
During the hearings, Ongwen’s lawyers have laid out what
they say is an alibi for one set of charges against Ongwen. They have
questioned witnesses about the personality of Ongwen to offer Trial Chamber IX
a portrait of his character during his time in the LRA. Ongwen’s lawyers have
also adduced evidence that they have argued shows he was under duress and
cannot be held responsible for the crimes he has been charged with.
Below are highlights of the defense case so far. These
highlights are not a judgement about the quality or strength of the evidence or
legal arguments the defense have presented. It is for the judges of Trial
Chamber IX to make such assessments in due time.
unfit to stand trial
The defense argued twice
that Ongwen is not mentally fit to stand trial. The first time was at the start
of the trial in December 2016. The judges declined that request but ordered a
court-appointed psychiatrist examine Ongwen to assess his current mental health
needs. In January
this year, the
defense made a similar submission. The judges again declined their request but
ordered a two-week postponement of the trial for his health to be assessed by a
medical officer at the detention center where Ongwen is held.
The Character of Ongwen
Several witnesses were
asked to describe Ongwen’s character. Some described
him as playful. Some
said he had a good rapport with his juniors and mingled with them from time to
time. Others said he treated
Two witnesses were
categorical that Ongwen did
not participate in the October 10, 2003 attack on the Pajule camp for internally
displaced people (IDP). These two witnesses told the court they participated in
that LRA attack. Three other witnesses, who either survived the attack or
participated in it, told the court they
did not see Ongwen during the Pajule attack. Ongwen has been charged with 10 counts of war
crimes and crimes against humanity in connection with the Pajule attack.
Outside the courtroom,
Ongwen’s legal team filed two separate submissions in February and September this year asking the judges to
dismiss in total 52 of the counts Ongwen has been charged with. The defense has
argued those 52 counts are defective and therefore Ongwen was not clear what he
was defending himself against. They argued this was against his fair trial
Trial Chamber IX has dismissed both submissions for being
filed years after the decision confirming the charges against Ongwen was made.
The judges did not consider the merits or demerits of the submissions the
defense made. The Appeals Chamber upheld the trial chamber’s decision
concerning the first submission on defective charges. However, the Appeals
Chamber also said as the substance of their submission was not assessed the
defense can raise the issue of defective charges in their closing statements.
This is the first trial at
the ICC where the defense is raising what is called an affirmative defense. In
this case the defense is arguing that Ongwen
was under duress and should not be held responsible for the crimes he has been charged
with. This line of defense is so new that Ongwen’s lawyers filed a submission
asking the judges to guide them on how much evidence they need to present (the
burden of proof) and what threshold that evidence needs to meet (the standard
of proof). The judges deferred a decision on the matter until they make their
According to the defense, the duress Ongwen suffered was
not limited to the period covered by the charges against him, which is between
July 2002 and December 2005. The defense have presented evidence that the
duress started from the time Ongwen was abducted and initiated into the LRA and
continued throughout his time in the rebel group. The belief in spirits in the
LRA; the alleged killing of senior commanders; the violent initiation into the
LRA; and the threat of death for disobeying rules or attempting to escape are all
elements of the duress the defense say Ongwen suffered and that they have
adduced evidence of.
Kony on Trial
The elements of the duress argument Ongwen’s lawyers have
presented hinge on the evidence they have presented of the power of LRA leader
Joseph Kony. In short, the defense have put Kony on trial and laid all the
charges against Ongwen at Kony’s feet.
The Spirit World of the LRA
Ongwen’s lawyers have
adduced evidence that LRA members believed Kony talked to spirits and those
spirits directed where the LRA attacked and allowed Kony to see and know what
LRA members were doing whether Kony was in their proximity or not. All former
LRA members who testified were questioned about this belief in spirits. Key
witnesses on this issue were Jackson
served as clerk to the spirits, and Kristof
lecturer at the University of Antwerp.
Kony Allegedly Ordered the Killing of His
Part of the duress defense
Ongwen’s lawyers have pursued is the deaths of Otti Lagony, Okello Can Odonga,
and Vincent Otti. Some witnesses said these deaths had a chilling effect on LRA
members. At the time of his death in 1999, Lagony was considered Kony’s deputy.
Odonga was a senior LRA commander who was killed with Lagony. Vincent Otti was
Kony’s deputy until his widely reported death in 2007. In response to questions
from the defense several witnesses testified they knew or heard Kony
ordered the killing of Lagony and Otti. No witness who testified at the ICC
saw or participated in the killing of either Lagony or Otti.
Violent Initiation into the LRA
Most former LRA members who testified talked about a
violent initiation into the rebel group. Some said they were caned “to beat the
civilian out” of them. Others testified about how they were forced to bludgeon
to death fellow abductees who tried to escape. Those who were abducted in the
1980s and early 1990s testified about a record being kept when they were
abducted of their name and the village they came from. They said they were told
that if they escaped the LRA would attack their village as punishment. Ongwen
was abducted in 1987.
attempt to escape
Florence Ayot, former
“wife” of Ongwen, testified that Ongwen
tried to escape the LRA in 2003 when he was a commander. She said he was demoted,
disarmed, and put under arrest. She also said Ongwen and her were warned if
they tried again to escape and succeeded the LRA would kill everyone in their
During the trial is the judges have either noted that the
defense have made late submissions or they have decided to dismiss defense
submissions because they were filed late. The judges made this observation when
Ongwen’s lawyers first raised the issue of whether he is mentally fit to stand
trial on the eve of the opening of the trial. The judges dismissed the
submissions alleging 52 counts were defective because they were filed more than
three years after the decision confirming the charges against Ongwen.
The defense is calling
two mental health experts, who are scheduled to testify next week. These experts
will be presenting evidence that the defense believes will show Ongwen was
mentally ill or had a mental defect during the period he is alleged to have
committed the 70 counts of war crimes and crimes against humanity he has been
charged with. This is the second affirmative defense Ongwen’s lawyers have
raised, and Trial Chamber IX has described this upcoming evidence as of “high
importance.” Again, this is the first time such a defense is being presented at
a trial at the ICC.
was first published on the International