by Stephanie van den Berg
Instead of shying away from the elephant in the room at Thursday’s confirmation of charges hearing of accused Lord’s Resistance Army commander Dominic Ongwen, the prosecution tackled one of the most sensitive points of the case head on: that Ongwen was himself abducted and forced to become a child soldier.
Senior trial lawyer Benjamin Gumpert told the courtroom and a packed public gallery that the prosecution brings its charges “with sorrow and anger” acknowledging that Ongwen suffered trauma and brutalisation by other commanders of the LRA. But in an attempt to cut off the likely defence that Ongwen acted under duress, the prosecution went on to stress that he had the chance to walk away on several occasions but didn’t. Gumpert went on to describe Ongwen as “the tip of the spear” of the LRA. He added that LRA leader Joseph Kony held him up as an example to other commanders.
“The prosecution rightly went there straight away, explaining that it might seem to be a paradox but that it is not uncommon for victims to become perpetrators”, Carrie Comer, the representative of victims right’s watchdog FIDH said.
“I would be shocked if his lawyer didn’t try the defence of duress. Still, I think his status (as an ex-child soldier) could only be used in mitigating the sentencing,” she added.
Under the ICC’s Rome Statute, a person cannot be held criminally responsible for his or her acts if they acted under duress “resulting from a threat of imminent death” or serious bodily harm, but it also gives a provision that “the person does not intent to cause greater harm that the one sought to be avoided”.
Ongwen faces 70 charges of war crimes and crimes against humanity including murder, rape, torture, sexual enslavement and the recruitment and use of child soldiers.
At the hearing on Thursday, he looked dapper in a grey suit with a purple shirt, leaning forward frequently to follow the hearings intently, sometimes with a slight smile.
Interest in Uganda
While the interest in The Hague was mainly from media, international organisations and diplomats in the public gallery, the case was also being closely followed in Uganda. The ICC, in cooperation with local NGOs, organised several screenings, mostly in Northern Uganda, where the crimes took place. There were also a number of television stations transmitting the proceedings live on this first day, said Sharon Nakandha, a Ugandan lawyer who was following the case in The Hague.
“There was not a lot of interest in the case beyond Northern Uganda until today”, she said. One of the things highlighted by Ugandan commentators is the fact that the prosecution seems to rely largely on evidence gotten from the Ugandan authorities.
“The conflict has two sides and government soldiers are alleged to have also committed crimes, yet the bulk of the evidence the prosecution is relying on is from government entities and institutions”, Nakandha explained.
Timetable for the proceedings
On Thursday, it was only the prosecution which gave its presentation, which is scheduled to continue through Friday. Then next week, the representatives of victims will be able to present their case. There are over 2,000 victims who have been approved as parties to the case, and their number is expected to rise if the judges approve the extensive additional charges the prosecution wants to bring.
Finally, the defence will present its case. In a video presentation put together by the ICC, Ongwen’s lawyer, Krispus Ayena Odongo, said the charges against his client were not substantiated.
“Our expectation is to get all the charges dropped,” he said.
- Forgiveness in Northern Uganda: “I expected Dominic Ongwen to get amnesty like me”
- The ‘Ongwen split’- victim or perpetrator
Lead image: ICC media centre where journalists followed the first day of the Ongwen case (Photo: Stephanie van den Berg)
Stephanie van den Berg is editor-in-chief of the International Justice Tribune.