In the Courtroom / ICC developments January - March 2018

Ongwen disrupts hearings as Prosecution presents witnesses

The trial of Dominic Owgwen entered its 14th month in January 2018 with resumption of witness testimonies as part of the Prosecution’s case.

Ongwen, alleged brigade commander of the Lord’s Resistance Army (LRA) in Northern Uganda, has pleaded not-guilty to 70 counts of war crimes and crimes against humanity. These alleged crimes – carried out between July 2002 and December 2005 – include attacks on internally displaced people (IDP) camps, commission of sex crimes, and conscripting child soldiers.

In the first witness testimony of 2018, a former LRA child soldier recalled being part of an LRA attack on the Pajdule IDP camp in October 2003, where his father and sister lived. The witness testified to mass killings, including decapitation of IDPs, the burning of homes, and looting of food and livestock; approximately 150 men, women and children were killed. The witness said that he was abducted by the LRA in 2002 and eventually served under the command of Ongwen. The Defence suggested that he did not know details about the command structure of his brigade.

An officer in the LRA testified that Ongwen participated in an attack on the Lukodi IDP camp and  addressed LRA fighters prior to it. The witness stated that he was in charge of collecting food for the sick-bay and was stationed just outside Lukodi camp.

Another witness stated, during his testimony, that he was abducted at the age of 12 years old in September 2002 and served as an escort to a commander that he believed to be serving under Ongwen. He recalled being selected to carry out the attack on Pajule IDP camp alongside boys of the same age. When questioned by the lawyer for one of the groups of victims in the trial, the witness said that he was injured from the caning he received by the LRA and was shot once. He said that he did not receive any counselling or psychological support after he returned home.

Similar testimonies were given by many of the witnesses throughout trial. One stated that he was personally told by Ongwen that he carried-out the attack on Odek barracks where civilians were killed. Another witness recalled his escape from the LRA, stating that the LRA would usually attack the villages of escapees, serving as a deterrent for fighters thinking of fleeing. He also recalled Ongwen’s reluctance to leave the LRA because of the ICC arrest warrant issued against him.

In March, Trial Chamber IX allowed the Legal Representatives for Victims to call seven witnesses. The witnesses - four expert witnesses and three participating witnesses - include, two survivors of the attack on the Lukodi IDP in 2004; one survivor of the attack on the Abok IDP camp, also in 2004; one expert on issues related to children and youth, particularly child soldiers (not named); Teddy Atim, who will testify about the impact of conflict on victim communities; Seggane Musisi, a Makerere University professor who will testify about Acholi culture in relation to conflict; and Daryn Reicherter, a Stanford University professor who will testify about the impact of sexual and gender-based crimes on a community.

A point of contention was the Trial Chamber’s refusal to accept three proposed witnesses by the Legal Representatives for Victims because they would highlight evidence that is not within the scope of charges against Ongwen; these witnesses would have highlighted the “sexual violence against men and boys and the desecration of bodies.” The Representatives for Victims subsequently requested that this decision be reconsidered. 

Tensions in the Trial Chamber were at a high on 19 March when Ongwen disrupted hearings during an expert witness testimony. The disruption occurred in a private session where Gillian Clare Mezey, a forensic psychiatrist, was testifying on the mental state of Ongwen based on extracts of testimony from previous prosecution witnesses. Judge Bertram Schmitt called the incident “severe and serious.” Judge Schmitt said the Chamber would invoke Article 63(2) if Ongwen refused to attend court on Tuesday or if there was a slight disruption in the proceeding; this would mean that Ongwen would have to follow the hearing via video-link from the detention center.

On resumption of the expert witness testimony, Mezey concluded that Ongwen did not have a mental illness while in the LRA. The defence challenged this conclusion by drawing attention to a report of court-appointed psychiatrist, Joop T. V. M. de Jong; de Jong had concluded that Ongwen was suffering from a depressive disorder. Mezey disagreed, saying that this was, “…a hypothesis and speculation on the part of Professor de Jong.”

Gbagbo & Blé Goude: Future of Trial in question after Prosecution wrap-up witness testimonies

The future of proceedings against Laurent Gbagbo and Charles Blé Goudé are in question after the Prosecution wrapped-up its case with the conclusion of testimony by the last expert witness. Seeking a clear link between Prosecution witness testimonies and the crimes charged, the Trial Chamber invited Prosecutor Fatou Bensouda to submit a brief on the issue.

Laurent Gbagbo and Charles Blé Goudé are charged with four counts of crimes against humanity, including murder, rape, and other inhumane acts, or – in the alternative – attempted murder and persecution. The accused allegedly committed these crimes during post-electoral violence in Côte d’Ivoire between 16 December 2010 and 12 April 2011.

The Prosecution’s last witness, Professor Hélène Yapo Etté, completed her testimony on 19 January 2018. The Court also deliberated on an amicus curiae request by African Lawyers and Democrats Without Borders (ADASF). The ADASF requested to intervene in the proceedings, under Rule 103 of the Rules of Procedure, in favour of the defendants; the prosecution, defence, and Legal Representative for Victims had all rejected this request. Judge Cuno Tarfusser stated that the Chamber would decide on this issue “in due course.”

In February, the Trial Chamber invited Prosecutor Fatou Bensouda to submit a brief clarifying the link between Prosecution witness testimonies and the charges against Laurent Gbagbo and Charles Blé Goudé. The order states, “At this stage, in accordance with its statutory powers and responsibilities and with a view to meeting its obligation to ensure the fairness and expeditiousness of the trial, the Chamber considers it indeed necessary to invite the Prosecutor to file a trial brief containing a detailed narrative of her case in light of the testimonies heard and the documentary evidence submitted at trial. More specifically, she should indicate to the Chamber in which way she thinks the evidence supports each of the elements of the different crimes and forms of responsibility charged.”

The brief was submitted to the Trial Chamber on 19 March.

Ntaganda: Defence concludes its case and Trial Chamber rejects proposals to hold closing statements in the Congo

The beginning of 2018 saw the final stages of the defence’s case in the Ntaganda proceedings; the Defence closed its case after calling 19 witnesses. A proposition was made during this period to hold the closing statements of the proceedings in the Democratic Republic of Congo (DRC). However, this proposal was rejected by the Judges after deliberating on the issue.

Ntaganda is alleged to be the Deputy Chief of Staff and Commander of the Forces Patriotiques pour la Liberation du Congo (FPLC) and is charged with 13 counts of war crimes and 5 counts of crimes against humanity committed between 2002-2003 in the Ituri region of the DRC. He has pleaded not-guilty to all charges.

In one of the last witness testimonies given for  the Defence, a trader in the Ituri province during the 2002-2003 ethnic conflict  challenged the testimony previously given by prosecution witnesses, alleging the occurrence of  non-consensual sexual relations in Ntaganda’s militia. Prior to the testimony, the Prosecution challenged the presentation of the defence witness’ testimony on the grounds that it was irrelevant.The Court over-ruled this challenge, stating that the proposed evidence was “of relevance and significance” to the determination of the truth.

For the remainder of their witnesses, the Defence relied on prior recorded testimonies of six  witnesses; a move which was accepted by the Trial Chamber under Rule 68(2)(b) of the Rules of Procedure. The Judges accepted the testimonies on the basis that they did not relate to Ntaganda’s acts and conduct, and that the limited scope of the testimonies meant that they could be challenged through alternative means of cross-examination. The testimonies relate to the age of some soldiers who allegedly fought for Ntaganda’s Union of Congolese Patriots (UPC), which relate to the charges against Ntaganda, specifically the enlisting and use of child soldiers in armed conflict and the rape and sexual slavery of child soldiers by members of the UPC.

The Defence team for Ntaganda voiced their support for an earlier decision by Trial Chamber VI, indicating that it would consider holding closing statements in the Bunia region of the DRC, or in a location proximate to it. The move was considered desirable because it would “be the place closest to the persons most interested.” However, after deliberating on the issue, the Trial Chamber decided to abandon the idea, citing security concerns and organisation issues. The Trial Chamber  previously abandoned a similar proposal on the holding of opening statements in the Ituri region.

Court Issues Appeals Judgements in three separate cases

The Appeals Chamber issued three separate judgements in the Bemba et al, Katanga and al-Mahdi cases.

In Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, the Appeals Chamber decided on the ICC’s first case on administration of justice relating to witness tampering.

In the Prosecutor v Ahmad Al Faqi Al Mahdi, The Appeals Chamber issued a judgement on appeal by the Legal Representative of Victims against a Reparations Order by the Trial Chamber.

In the Prosecutor v. Germaine Katanga, faced with an appeal by Germain Katanga, the Legal Representative for Victims (LRV) and the Office of Public Counsel for Victims (OPCV) against a reparations order issued by the Trial Chamber, the Appeals Chamber issued a judgement in which it rejected the appeals lodged by both Mr. Katanga and the OPCV.

A detailed analysis of these judgements has been carried out by the Coalition for the ICC, and can be accessed here.

Much of this information orginated on the website of the International Justice Monitor.