Dominic Ongwen at the start of his ICC trial (Photo: Flickr/ICC-CPI)

Defence tactics exposed in Ongwen case at ICC

06 December 2016 by Stephanie van den Berg, The Hague (The Netherlands)

The first day of the trial of former LRA commander Dominic Ongwen did not exactly go as planned for ICC prosecutor Fatou Bensouda. Whereas usually the opening of a case gives a podium to the prosecutor who can make sweeping statements about the responsibility of the accused for the atrocities they are charged with, in this case the Ongwen trial started with the defendant and his defence strategy squarely in the spotlight.

''It is the LRA who abducted people in northern Uganda; LRA killed people in northern Uganda; LRA committed atrocities in northern Uganda and I am one of the people against whom the LRA committed atrocities. It is not me, Dominic Ongwen personally, who is the LRA,” Ongwen told the court when asked if he understood the charges.

But his argument that he did not understand the charges because – essentially – he did not understand why he was charged, was dismissed by court. Ongwen though, sitting throughout taking intensive notes while listening to the translation into his native Acholi language, was able to cast himself as the victim. This way he’s getting right to the heart of what makes the case so difficult for the ICC; how to deal with a former child soldier who was therefore a victim of the LRA himself but who nevertheless climbed the ranks of the organisation and as an adult allegedly went on to commit atrocities for that same organisation. [IJT-174] But against a mountain of seventy different prosecution charges including many for forms of sexual and gender based crimes such as forced marriage, sexual slavery and rape, Ongwen’s ‘victimhood’ arguments will be severely tested.

Is Ongwen responsible for his actions and to what extent?

The defence had already tried, at the confirmation of charges hearing, to get the charges dismissed claiming ‘duress’. In the Rome Statute a person's criminal responsibility can be excluded if the alleged criminal conduct was “caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person”. But the crimes would have to be “necessary and reasonable” to avoid the threat and the accused “should not intend to cause greater harm than the one sought to be avoided”.

Judges already ruled in March that defence could not use the duress defence to dismiss the charges before a case was even brought and said it was a trial which would determine if and to what extent Ongwen could be held criminally responsible for the charges. In addition, the judges considered that there was no evidence of a threat of imminent death or continuing or imminent serious bodily harm. The disciplinary measures the defence claimed he had feared, were not “imminent”, the court ruled.

“Duress is not regulated in the ICC Statute in a way that would provide blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline as soon as they can establish that their membership was not voluntary,” the judges said. In addition, they found that the circumstances in which Ongwen found himself were not beyond his control because it was possible to get out as “escapes from the LRA were not rare”.

Defence tactics rejected

The defence has made it clear it will still try to raise a duress defence during the trial. But from what emerged during the opening of the trial, they will also try and get Ongwen declared psychologically unfit to stand trial. Under the Rome Statute someone cannot be held criminally responsible if “the person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law”.

In a last minute Hail Mary pass the defence had lodged a motion attempting to get a stay in proceedings and an order to psychologically or psychiatrically assess Ongwen. According to their preliminary expert reports – which were not provided in full to the court – Ongwen “does not understand the charges” and “was not aware of the wrongfulness of his actions during his time in the bush”. But judges dismissed the request with an emphatic no, declaring that they “will not permit such tactics” and noting the defence “elected to wait until the absolute last minute it could” to file the request.

ICC faces a dilemma

Whatever happens at the trial, expect many psychological evaluations and a lot of back on forth on the extent to which Ongwen as a victim-turned-perpetrator could be held responsible for his actions. Where is the line between too young to be held responsible and old enough to know better? And indeed, how does a child abducted at a young age and forced to fight as a child soldier in a brutal organisation such as the LRA ever learn to develop a 'moral compass'? Will time alone do it?

Unlike many other cases the easy part of the ICC's first Uganda case might be determining that the crimes charges were committed by the accused. The much harder part will be the legal but also largely moral dilemma for the judges of how much of a mitigating circumstance Ongwen's childhood should be.

So far in the Lubanga and Katanga cases [IJT-173]  the court has had to deal with child soldiers only as victims that fit into a neat narrative of evil warlords forcing helpless children to fight for them. Ongwen will be a long and complicated case where there are no such easy explanations.