Prosecution experts to challenge Ongwen's mental incapacity defence
The prosecution is wrapping up its case against Dominic Ongwen, a former commander of the Ugandan Lord’s Resistance Army almost a year after the trial started at the International Criminal Court (ICC). In the coming weeks they will call three experts who have assessed whether Ongwen suffered a mental disorder at the time of the alleged atrocities which destroyed his capacity to understand he committed crimes.
The trial of Dominic Ongwen is that of victim turned victimizer. At a young age Ongwen was kidnapped by the Lord’s Resistance Army (LRA), the notorious Northern Ugandan rebel group known for its cruelty. He was conscripted as a child soldier, subjected to harsh treatment and deprived of a normal life. Ongwen climbed the LRA ranks and became commander of a unit called Sinia Brigade. In January 2015, after more than twenty years in the bush, Ongwen surrendered to a local militia in the Central African Republic. Through US forces, Ugandan military and CAR authorities he was handed to the ICC. On 21 January 2015 he arrived at the detention centre in The Hague.
The ICC charged him with 70 counts of crimes against humanity and war crimes which include attacks against civilians, murder, torture, enslavement, forced marriage, rape, sexual slavery, pillaging, destruction of property, persecution and the conscription and use of child soldiers. Ongwen clearly himself suffered at least one of the crimes for which he faces trial: conscripting child soldiers.
It is worth highlighting, the Office of the Prosecutor (OTP) tells IJT, that Ongwen has not been prosecuted for his conduct while he was under the age of 18 because the ICC can’t charge minors. Instead, says the OTP, he is on trial for crimes he allegedly committed years later, between the ages of 28 and 32 (the prosecution’s interpretation of his age, contested by the defence).
The prosecution still has to counter the likely defence strategy to question Ongwen's mental state at the time of the alleged crimes. One day before the trial started on 6 December 2016, his defence lawyers asked the judges to halt the opening statements and to order a psychiatric and/or psychological examination. The defence itself had commissioned two mental health experts to examine their client. After "many meetings" with Ongwen these experts had concluded that he did not understand the charges and was "not fit to stand trial".
The judges however rejected the defence’s request, deciding that Ongwen’s fair trial rights were not violated and that he "understands the nature of the charges". They noted that the psychiatric reports by the two defence experts actually confirmed this.
There have been, nevertheless, concerns about Ongwen’s mental health. Lead counsel Krispus Ayena Odongo listed several incidents in his filing to the chamber. Around 30 March 2016 Ongwen had threatened to commit suicide "because a phone call to his family in Coorom was disconnected" by the ICC detention centre. On 22 September 2016 he had to be forcibly removed from his cell. He then started a hunger strike protesting against the refusal of detention centre staff to let him talk to his children and his forcible removal from his cell.
To ensure his ongoing health during the proceedings, the chamber decided to appoint Joop de Jong, an expert in the field of psychiatry, psychotherapy and epidemiology. This professional had to make a psychiatric diagnosis as to any mental condition or disorder that Ongwen might suffer and to provide recommendations on measures to address such problems at the detention centre.
The trial went ahead. Out of the 116 witnesses the prosecution’s case is relying upon, in total 65 witnesses have testified live. Of the remaining 47, seven already testified at the pre-trial stage while the other 40 witness' statements have been introduced in written form. Now the prosecution is wrapping up. In the coming weeks --from 19 March until 13 April-- three experts will testify in court focusing on Ongwen’s mental health at the time of the crimes charged. They are specialised in forensic psychiatry (expert 1 identified as P-0446); transcultural psychiatry & child and adolescent psychiatry (expert 2 indentified as P-0445) and clinical (neuro-)psychology and psychotherapy (expert 3 identified as P-0447). When each of them appears in court their identities will be disclosed, the OTP says.
The reason why the prosecution commissioned these three experts to make an assessment is because Ongwen’s lawyers have indicated they will attempt a mental incapacity defence. Article 31(1)(a) of the Rome Statute says that "a person shall not be criminally responsible if," at the time of his or hers conduct, that 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".
As Ongwen has refused to be examined by the prosecution experts, the three have had to base their assessment on medical reports by the two defence experts and reports requested by the chamber, medical records from mental health professionals who treated Ongwen at the ICC detention centre, documentary evidence including videos of Ongwen speaking at the time of his surrender and during courtroom proceedings, intercepts of allegedly Ongwen reporting on attacks during the charged period, and relevant excerpts from witness testimonies.
Much of this delicate and crucial matter has been handled confidentially. But the OTP did disclose in a filing that the three experts concurred in their principle findings that there is "insufficient psychiatric evidence on record" to conclude that at the time relevant to the charges Ongwen suffered a mental disease or defect which "destroyed his capacity to appreciate the unlawfulness or nature of his conduct, or his capacity to control his conduct to conform to the requirements of law".
When it is the defence’s turn to present its case, the lawyers will likely call their mental health experts as witnesses as well. These experts had, however, already come to a different conclusion saying Ongwen "was not aware of the wrongfulness of any actions during his time in the bush". And that he is "not criminally liable for his actions while he was in the bush".
The judges thought that last remark, presented to the court in December 2016, was "inappropriate". They stressed that the determination of whether Ongwen is criminally responsible is not up to mental health experts (even though they were asked to give their opinion ), but falls "exclusively" within "the competence" of the chamber. The question whether Ongwen’s mental health affects his liability, will be answered when the judges render their verdict.