The defense for Dominic Ongwen have asked judges at the International Criminal Court (ICC) to dismiss 41 out of the 70 counts of war crimes and crimes against humanity Ongwen has been charged with.

In a motion filed on Friday, February 1, Krispus Ayena Odongo asked Trial Chamber IX to dismiss more than half of the charges against Ongwen because the document that is the basis of those charges is defective. Odongo argued the defects mean Ongwen was not given notice of all the charges against him, which negatively affected how he prepared his defense and, ultimately, his fair trial rights.

The defense phase of Ongwen’s trial started in September last year. To date, the defense has presented 15 witnesses. The prosecution concluded its case in April last year after presenting 69 witnesses. Lawyers for victims called seven witnesses who testified in May last year.

Ongwen is on trial for crimes he is alleged to have had a role in as a commander of the Lord’s Resistance Army (LRA). The crimes are alleged to have taken place between July 1, 2002 and December 31, 2005.

The motion that Odongo filed last Friday is not a single document. He filed it in four parts because he said he wanted to stay within the 20-page limit set in ICC regulations, and he did not want to ask for permission to file a lengthier single document that would be unwieldy. Odongo has given the motion the title of the “Defect Series” and divided it into Part I, Part II, Part III, and Part IV.

He said Pre-Trial Chamber II’s decision confirming the charges did not specify Ongwen’s role in relation to some of the charges. Odongo said the decision also did not define Ongwen’s intent when allegedly committing those crimes he has been charged with. In the language of the Rome Statute, the ICC’s founding law, these are the modes of liability.

Odongo said there are counts Ongwen has been charged with that are broad and have many elements to them, but the decision confirming the charges does not specify which of those elements apply to him. He also said the count of forced marriage does not exist in the Rome Statute.

“In plain language, does the CoC [Confirmation of Charges] Decision articulate or ‘make out’ the elements of the crimes and modes of liability charged against Mr Ongwen and support each element with factual allegation?

“Especially in this case of 70 charges and eight modes of liability against one defendant, Mr Ongwen, it should be obvious that detailed notice, as mandated by the Article 67(1)(a) of the [Rome] Statute, is required to conduct the trial in a fair manner. However, the CoC Decision falls far short of this,” Odongo said in the motion.

Pre-Trial Chamber II issued its decision confirming the charges against Ongwen on March 23, 2016. Six days later, the defense filed a request for leave to appeal the confirmation of charges decision. That request was rejected. Odongo said the motion filed last Friday is different from the request made on March 29, 2016.

He said, “The arguments of defects in the pleading of charges and modes of liability have not been previously litigated. In the appeal of the CoC Decision, the Defence raised an issue of the sufficiency of the reasoning of the CoC Decision.”

Odongo acknowledged the motion could be seen as late because almost three years have passed since the decision confirming the charges against Ongwen was issued. He said he filed the motion because Trial Chamber IX declined to allow the defense to file a no case to answer motion. He also said that Ongwen’s fair trial rights supersede any questions about procedure or timeliness. Odongo quoted a decision and the practice of the International Criminal Tribunal for Rwanda (ICTR) to back up his argument on the last point.

In the motion, Odongo asked Trial Chamber IX to only dismiss 14 counts Ongwen has been charged with. He does not explicitly ask the chamber to dismiss 41 counts. However, adding up the different defects detailed in the motion for dismissal, Odongo in essence asks the chamber to dismiss 41 counts of war crimes and crimes against humanity.

He may not list all the counts he is asking to be dismissed, but Odongo does offer another reason why he wants the chamber to dismiss some of them.

“Especially in light of the Trial Chamber’s denial of the Defence’s request to file a no-case-to-answer motion, there is a need – which should be obvious – to streamline the plethora of charges and modes of liability against a single accused in this case. Dismissal of defective charges and modes of liability based on notice and jurisdiction provides an avenue to pare down the ‘charge sheet’,” Odongo said in the introduction to Part IV of the Defects Series.

The 14 counts of crimes against humanity and a war crime Odongo has asked Trial Chamber IX to dismiss are persecution, forced marriage, enslavement, and conscription of child soldiers. This is in Part IV of the motion.

Odongo said charges like that of persecution are broad. Odongo has described persecution as a “catch all” crime because it has several underlying elements such as attacks on civilians and torture. He said other charges, such as forced marriage, does not exist in the Rome Statute, so Ongwen cannot be charged for such a crime.

Part II and Part III of the motion focuses on the role Ongwen is alleged to have played in the crimes he has been charged with, that is his mode of liability. Odongo has said in his motion that five modes of liability that Ongwen has been charged with are defective and should be dismissed.

The charges that Odongo wants dismissed relate to the following modes of liability:

• That Ongwen is alleged to have either directly committed a crime or indirectly committed a crime or indirectly committed a crime together with someone else (Rome Statute Article 25(3)(a));
• That Ongwen is alleged to have ordered others to commit a crime (Article 25(3)(b));
• That Ongwen is alleged to have contributed in any other way to a crime being committed by a group of persons acting with a common purpose (Article 25(3)(d)(i) and (ii));
• That Ongwen is alleged to have had control and command over a group but failed to prevent them from committing a crime (Article 28(a)).

The defects that Odongo has identified in relation to these modes of liability relate to the charges for attacks on the former camps for internally displaced people of Abok, Lukodi, Odek, and Pajule.

The modes of liability that Odongo has identified as defective also apply to the sexual and gender-based crimes that Ongwen has been charged with, but Odongo does not argue whether those defects apply to those specific crimes. The only defects he has identified in relation to sexual and gender-based crimes are the counts of forced marriage and enslavement.

In effect, Odongo is asking Trial Chamber IX to dismiss 27 other counts of war crimes and crimes against humanity in relation to the attacks of the former IDP camps of Abok, Lukodi, Odek, and Pajule.

This leaves 29 counts of war crimes and crimes against humanity Ongwen has been charged that Odongo is not contesting. He is not contesting these counts either because he has not found the charges themselves defective or because he has not found defective the modes of liability Ongwen has been charged with under those counts.

These are eight counts of war crimes and crimes against humanity in relation to the attack on Pajule; and two counts of attempted murder as a war crime or as a crime against humanity in relation to the attacks on Abok, Lukodi, and Odek. Also, Odongo has not identified defects in 15 counts of sexual and gender-based crimes.

The Single Judge of Trial Chamber IX, Bertram Schmitt, on Wednesday granted the prosecution’s request that they be allowed a 65-page limit to file a response to the defense motion. Judge Schmitt said the same limit applied to the lawyers for victims and gave February 25 as the deadline to file responses to the defense motion.

Judge Schmitt observed the defense did contravene an ICC regulation on page limits even if the motion was filed in four parts, but he noted this was “for the well-intentioned purpose of improving readability.” He declined to grant the prosecution request that the motion be dismissed because it exceeded the page limit provided in ICC regulations.