The Defense lawyers representing the former LRA commander Dominic Ongwen, have asked Judges to rule on how much evidence they need to present to prove whether the warlord suspect is not responsible for the crimes he has been charged with in the ongoing court trial at the International Criminal Court (ICC).
The defense lawyers’ appeal avers the interest why they expect to present Trial Chamber IX with reasons why Ongwen should not be held responsible for the 70 counts of war crimes and crimes against humanity the prosecution has charged him with.
Article 31 of the Rome Statute, the ICC’s founding law, sets out the grounds an accused person can argue to show they were not responsible for the crimes they have been charged with.
In August 2016, Ongwen’s lawyers told the court that in their submission they would be using two provisions under Article 31: mental disease or defect and duress. They also provided notice of an alibi Ongwen had, however alibis come under different legal provisions at the ICC.
On January 28, 2019, Ongwen’s lead lawyer, Krispus Ayena Odongo, in an application asked Trial Chamber IX to determine who has the burden of proving an accused person is not responsible for the crimes they have been charged with, and what standard of proof they need to satisfy the Court.
He claimed the defense is only required to show there is evidence Ongwen was not responsible for the crimes he is alleged to have had a role in as a commander of the Lord’s Resistance Army (LRA).
He said if the prosecution can’t lay out evidence that shows beyond a reasonable doubt Ongwen was capable or able to commit the crimes he is facing, then the suspect must be acquitted.
“If the Prosecutor cannot do this, the defences under Article 31(1)(a) and (d) succeed and the Accused must be acquitted,” said Odongo.
However, this is the first time since 2002 when ICC begun work where Article 31 has been invoked by a defense team.
And up to now, from the 28th January, 2019 the application was raised, no trial chamber has had to rule on who is responsible for presenting evidence in relation to the provisions of Article 31.
Additionally, no trial chamber has ruled on the level of evidence needed to prove the grounds of defense under Article 31.
A defense of mental disease or defect is covered under Article 31(1)(a) of the Rome Statute. A duress defense is provided for under Article 31(1)(d).
Last Thursday, 7th of February, 2019, the prosecution responded to the defense application arguing that the defense is wrong in framing Article 31 in terms of “burdens” on the parties.
Prosecution team said trial chamber is independently responsible to decide on the grounds whether to exclude criminal liability apply to Ongwen’s case.
They further argued that much as prosecution or the defense may present the chamber with evidence on the case, but the chamber could also independently call its own evidence.
“The Prosecution of course accepts and embraces its obligation under Article 66 to prove the Accused’s guilt beyond reasonable doubt. However, that does not settle the issue stated in the Defence Request,” Fatou Bensouda, ICC Prosecutor said in a response.
She added: “Any ground for excluding criminal responsibility under Article 31 must be based upon a substantial evidentiary basis in the record of the case. The Statute does not say who must present such evidence, although common sense suggests that the Defence will often both have an interest in doing so and be in a particularly good position to do so.”
Meanwhile, victims Lawyers, known as the Common Legal Representative for Victims (CLRV), asked judges to dismiss the application because it is time-barred.
That the defense should have asked the chamber to make a ruling on the issue of burden and standard of proof in August 2016, when they gave notice they were going to invoke Article 31.
“The CLRV underlines that the Defense did not exert due diligence in raising its request at the earliest available opportunity considering that more than two years and half have passed since its notification. Indeed, as is self-evident, the Defence knew about its own intention to raise such defences at the time it informed the Chamber, the Prosecution and the Legal Representatives of Victims,” said Paolina Massidda, the lead lawyer of the CLRV.
Massidda argued that should the Trial Chamber IX chooses to dismiss the defense application, Judges should oblige defense to present evidence to show Ongwen was not responsible for the crimes he has been charged with.
In August 2016, the defense notified that they would be presenting an alibi defense in relation to one set of charges against Ongwen in relation to the October 10, 2003 attack on the Pajule camp for internally displaced people.
Article 31 does not provide for an alibi defense, but it is covered under Rule 79 of the ICC rules of Procedure and Evidence.