Danya Chaikel joins JiC for this fourth installment in our ongoing symposium on the trial of Dominic Ongwen and the prosecution of child soldiers. Danya is a lawyer and independent legal consultant specialising in international criminal law and human rights. She has worked for organisations such as the International Criminal Court and the International Bar Association. She has also written about the Ongwen case in relation to the Rome Statute’s child Soldier crimes for OSJI, in ‘The ICC’s Child Soldier Provisions: Time to Close the Three-Year Gap‘. For a list of contributions to the symposium, see here.

Dominic Ongwen during proceedings at the International Criminal Court (Photo: ICC)

The trial of Dominic Ongwen, the child soldier turned commander in the Lord’s Resistance Army (LRA), could end up being the longest ever adjudicated before the ICC and threatens to jeopardise Ongwen’s right to be tried without undue delay. An unprecedented 70 counts of war crimes and crimes against humanity and seven modes of liability must be tested at trial. But the vast bundle of charges represents a dramatic turnaround in the OTP’s investigative approach and could make it one of the most effective trials to date for victims. Current efforts by ICC judges to make trials more efficient couldn’t come at a better time.

About those 70 Counts

On 23 March 2016, the ICC Pre-Trial Chamber confirmed 70 counts of war crimes and crimes against humanity against Dominic Ongwen. At first look the Chamber’s robust approval of so many charges seems unusually high and impractical, since it could lead to an even longer protracted trial than usual. It will take the Court years to plough through the enormous volume of evidence (documentary, testimonial, forensic, digital, and so on) which the Prosecution and Defence will need to submit in support of their cases.

The multifaceted charges allegedly took place in Northern Uganda between 2002 and 2005 and can be broken down into six main parts: the first four cover separate gruesome armed attacks of the Pajule, Odek, Lukodi, and Abok internally displaced person camps (counts 1-49); the fifth part describes heinous sexual and gender-based violence (SGBV) crimes directly committed by Ongwen. This includes forced marriage and his rape of girls as young as 10 years old (counts 50-60 which are based on the account of seven women victim witnesses) as well as also SGBV crimes indirectly committed by Ongwen (counts 61-68); and the sixth section includes child soldier crimes (counts 69-70).

To put this in some perspective, Ongwen’s number of counts is strikingly higher than all other ICC cases that have reached the trial stage. In the other nine ICC cases with confirmed charges (excludes Bemba et al), the average number of counts has been only six. The ICC’s first trial, against Thomas Lubanga, involved a mere six confirmed counts (all child soldier crimes) and the trial phase lasted three years. In the Court’s most recent trial to conclude, Jean-Pierre Bemba Gombo faced just five counts (crimes of murder, rape and pillaging) and his trial phase lasted over five years. As yet another comparison, at the ICTY Radovan Karadzic faced 11 counts and his trial phase lasted five and a half years.

It’s easy to assume that Ongwen’s trial will last years on end since the charges cover such an enormous range of crimes including: civilian attacks; murder; attempted murder; rape; sexual slavery; forced pregnancy; forced marriage as an inhumane act; torture; cruel treatment; outrages upon personal dignity; destruction of property; pillaging; the conscription and use of child soldiers; enslavement; persecution; and other inhumane acts. Seven potential alternate modes of liability are also thrown into Ongwen’s charging mix, which is again the most that any ICC accused has every faced: direct perpetration; indirect perpetration; indirect co-perpetration; ordering; aiding or abetting; in any other way contributing to the commission or attempted commission of the crimes; and command responsibility. The judges, parties and participants have an incredibly daunting task ahead of them.

The New OTP Investigative Strategy at Work

Why did the Prosecution decide to bring so many charges against Ongwen in the first place, and why were they largely confirmed? Under the leadership of the previous Prosecutor, Luis Moreno Ocampo, the arrest warrant in 2005 only listed seven counts. The 900% increase in charges requested by Prosecutor Fatou Bensouda 10 years later and within the same year that Ongwen was surrendered to the Court is thus quite extraordinary. In fact, the increase coincides with the OTP’s new investigative strategy, one that has brought on far more robust investigations before the charging phase. The OTP explains in its 2016-2018 Strategic Plan that it had: shifted its policy away from “focused” investigations to “open-ended, in-depth investigations”; asked for and received extra resources for more effective evidence gathering; and aimed to be trial-ready as early as possible and no later than by the confirmation of charges hearing.

This new strategy tackled many serious past deficiencies head on, including: only 63% of the Prosecution’s requested charges being confirmed in the Court’s first 10 years of operation which, according to the OTP, increased to 86% during the period of 2012-2015 due to their revised strategy; the Trial Chamber admonishing  the Prosecution for shoddy investigations in the Court’s first three verdicts (Lubanga, Ngudjolo and Katanga) among other cases; and a narrow charging strategy which didn’t reflect the full range of potential criminality against defendants, such as in the Lubanga case when the Prosecution chose not to bring SGBV charges even though evidence of these crimes peppered the trial proceedings as Prosecution witnesses offered their testimonies.

Ongwen’s 70 counts appear to mark a serious turnaround in the OTP’s investigative working methods and have produced new and improved evidence, which in turn helps to explain the dramatic increase in requested and confirmed charges as compared to previous cases.

Victim Forward

While victims will undoubtedly be frustrated by the length of the upcoming trial, the high number and variety of counts also means the case is more representative of victims and affected communities impacted by Ongwen’s alleged crimes. In turn, the 2,026 victims authorised to participate should, in theory, represent a broader spectrum of victims. This also applies to reparations if Ongwen is convicted since only victims of any specific crimes he is convicted of will be eligible. This has been a major issue in past cases where victims have felt left out of the ICC process. Again in the Lubanga trial, only child soldier victims were eligible to participate or to apply for reparations even though allegations of other crimes, namely SGBV, were revealed throughout the trial.

The 19 SGBV counts confirmed against Ongwen significantly capture the largest number of SGBV crimes ever confirmed by the PTC, and introduce new charges never before adjudicated by the Court, such as forced pregnancy and forced marriage, the latter of which is not an enumerated Rome Statute crime. And this is exactly why cumulative charging is so important – the complex realities and voices of victims of forced marriage (which is not “predominantly a sexual crime”) would have been lost if the crime had been erroneously subsumed under the crime of sexual slavery, as was argued by the Defence. The confirmation decision is a big step towards bringing more accountability for SGBV crimes which have been historically under-investigated and prosecuted.

Ongwen’s Right to be Tried Without Undue Delay

The confirmation of charges decision seems to strike at the heart of the fundamental fair trial right to “be tried without undue delay”. At a recent ICC outreach session in Lukodi, Northern Uganda on 6 April, a community member reportedly asked, perhaps sarcastically, if Ongwen’s trial will last 700 years. However, factors justifying a lengthy trial and which weigh against a finding of undue delay include the seriousness and complexity of the charges, numerous incidents, multiple perpetrators, and crimes committed over several years. These could apply to Ongwen’s case and justify a potentially drawn-out trial, unless of course it last so long that nothing justifies its duration.

While Ongwen’s right to be tried within this century could be in jeopardy, there is a glimmer of a silver lining with the confirmed seven alternate modes of liability. They might prevent the use of the almighty Regulation 55 which has been one of the most hotly contested procedural mechanisms at the Court. Accused persons have been controversially given notice by judges in at least five cases (Lubanga, Katanga, Bemba, Ruto and Sang, and Gbagbo and Blé Goudé) that the facts underlying their confirmed charges, or form of participation, could be legally recharacterized by the judges. In the words of one legal commentator, this has the result that the “confirmation hearing actually confirms nothing”.

Ongwen’s seven alternate modes of liability could reduce the months of inefficient Court time spent on Regulation 55 litigation and delays that marred the Lubanga, Katanga and Bemba trials, and could help protect another significant fair trial right: to “be informed promptly and in detail of the nature, cause and content of the charge[s]”. In the recently published Pre-Trial Practice Manual, judges themselves recommend alternative charges (crimes and modes of liability) when warranted, which should reduce the OTP’s “recourse” to Regulation 55, ensuring that it is “used only sparingly if absolutely warranted”.

The 70 counts come opportunely, at a time when ICC President Silvia Fernández de Gurmendi has made it her top priority to enhance the Court’s efficiency in light of the “perception that [ICC] proceedings are too lengthy and not as efficient and effective as they should be”. Judges of all three divisions have been working “intensely” on coming up with ways to improve the Court’s effectiveness and efficiency with a special focus on the pre-trial and trial relationship. Undoubtedly it will now be a huge procedural test for the Trial Chamber to balance effectiveness with the running of a reasonably efficient trial against Ongwen.