The prosecution and lawyers representing victims are all opposed to the International Criminal Court (ICC) allowing Dominic Ongwen’s lawyers to file a motion to have Ongwen partially or completely acquitted of the charges against him.
According to International Justice Monitor, they have all argued[prosecution and lawyers] there is no legal justification for Ongwen’s lawyers to be allowed to file a no case to answer and judgement of acquittal motion because the arguments they have made do not reach the threshold given in previous decisions of the court.
On July 12, the prosecution filed their response to the defense request to file a no case to answer and judgement of acquittal motion. The Office of the Public Counsel for Victims filed their response the same day, as did lawyers representing a second group of victims in the trial of Ongwen.
In their responses, the prosecution and the lawyers for victims have also described the reasons the defense has highlighted for dismissing some of the charges against Ongwen as either “wrong,” “flawed,” or “grossly unsubstantiated.”
“The Prosecution also submits that, even assuming arguendo that one or more of the grounds identified by the Defense were to succeed, there is no concrete indication of how that would actually streamline the Defense case.
“For example, based on summaries provided, not a single witness on the Defense witness list is expected to speak only about pillage. Consequently, eliminating those charges would not affect the number of witnesses called,” said Prosecutor Fatou Bensouda in her submission.
Bensouda was referring to the defense argument that they should be allowed to file a no case to answer motion because Ongwen has been charged with pillaging, but the prosecution had failed to prove the charges.
Ongwen has been charged with 70 counts of war crimes and crimes against humanity that allegedly occurred between July 2002 and December 2005 in northern Uganda.
He has been charged for his alleged role as a former commander of the Lord’s Resistance Army (LRA) in attacks on camps for internally displaced people in Abok, Lukodi, Odek, and Pajule. He is also alleged to have been involved in sex crimes and conscripting child soldiers. Ongwen has pleaded not guilty to all counts.
In their July 5 submission, the defense argued pillaging, in the jurisprudence of the ICC and international criminal tribunals, referred to property that belonged to an “enemy” or “hostile” party. The defense said in the case of the LRA, the enemy would have been the Uganda People’s Defence Force (UPDF).
Joseph Manoba and Francisco Cox, lawyers representing one group of victims, said in their submission the defense rely on the September 26, 2008 decision to confirm charges against former Congolese rebel leaders Germain Katanga and Mathieu Ngudjolo Chui to back their interpretation of what pillage means in the ICC’s jurisprudence.
Manoba and Cox go on to say the defense “appears to misstate” what Pre-Trial Chamber I said in that confirmation decision.”
“The Chamber’s comments go on to make clear that in referring to ‘adverse party’ it does not refer to combatants, indeed specifically using the term ‘villagers’ to describe the owners of the property in question,” the lawyers said in their submission.
In response to the defense argument that the prosecution’s failure to call some witnesses on its initial list to testify about the attack on Pajule exposed a flaw in the prosecution case, Bensouda said there was an explanation for that.
“Another ‘reasonable inference’ which the Defence overlooks, and which reflects reality, is that the Prosecution shortened its presentation of evidence because it was satisfied that it had already proven its case, without additional witnesses,” said Bensouda.
She also challenged the defense’s submission that the witnesses who testified about Ongwen’s alleged role in the Pajule attack only placed him at a meeting during which the attack was planned, but Ongwen did not say anything during that meeting. Bensouda referred to other testimony those witnesses – P-309 and P-330 – gave.
She also said other witnesses testified about Ongwen’s alleged participation in the attack. The witnesses she referred to in footnotes to her submission were P-144, P-372, and an Acholi chief, Rwot Oywak.
After laying out her arguments against the defense’s request to be allowed to file a no case to answer motion, Paolina Massidda, principal counsel of the Office of the Public Counsel for Victims, said the defense did not meet the requirements to trigger such a motion.
“Rather, the Defence’s allegations, or, at least, the examples it provided, appear particularly unclear, grossly unsubstantiated and far too insignificant to warrant an extensive review of the extensive body of evidence presented at trial by the Prosecution during one year and half.
“Accordingly, granting the Request shall not only be antithetical to the fair and expeditious conduct of the proceedings but also extremely prejudicial to the legitimate interest of the participating victims in this case who wish that the trial proceeds expeditiously,” said Massidda.