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.
Mentally 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 everyone well.
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.
Dismiss 52 Counts
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 rights.
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 judgement.
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 Ocama, who served as clerk to the spirits, and Kristof Titeca, a lecturer at the University of Antwerp.
Kony Allegedly Ordered the Killing of His Deputies
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.
Ongwen did 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 villages.
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.
This was first published on the International Justice Monitor.