According to the International Justice Monitor (IJM), noted that Ongwen was in the position of authority and hand effective command and control over his subordinates during the period under which he is charged.
The International Criminal Court (ICC) Prosecutor, Fatou Bensouda, wants the Trial Chamber XI to find LRA former commander Dominic Ongwen guilty of all the charges of war crimes and crimes against humanity brought against him.
In her closing brief dated February 24, Bensouda observed that Ongwen was an effective commander in the Lord's Resistance Army (LRA), who committed the crimes he has been charged with despite him suffering serious injury and being arrested within the LRA.
She, according to the International Justice Monitor (IJM), noted that Ongwen was in the position of authority and hand effective command and control over his subordinates during the period under which he is charged.
"He mobilized his authority and power in the LRA to secure compliance with his orders and cause his subordinates to carry out the underlying charges in this case. This allowed him to exert control over the crimes charged, and to prevent or repress any misconduct by his subordinates if he wished to do so," she said.
Bensouda filed her 200-page closing brief following the closure of the trial of Ongwen. The trial began in December 2016, and Presiding Judge Bertram Schmitt formally declared the submission of evidence closed on December 12, 2019.
This was after the defense gave notice that they had closed their case on December 6, 2019. The prosecution closed their case in April 2018, and the two legal teams representing victims closed their cases in May 2018.
As the defense phase of the trial neared its end, Presiding Judge Bertram Schmitt scheduled hearings, starting March 10, during which Trial Chamber IX will listen to closing statements. Judge Schmitt also set February 24 as the deadline for all legal teams to file their closing briefs.
The prosecution charged Ongwen with 70 counts of war crimes and crimes against humanity he is alleged to have committed as an LRA commander between July 2002 and December 2005 in northern Uganda.
Ongwen has also been charged with eight modes of liability. These are provisions in the Rome Statute, the ICC's founding treaty, which specify how an individual is criminally liable for the crimes that he or she has been charged with. Ongwen has pleaded not guilty to all counts and modes of liability.
The crimes Ongwen has been charged with fall into three categories: attacks on what are now former camps for internally displaced people (IDP); sexual and gender-based crimes; and conscription of child soldiers. Ongwen is alleged to have had a role in attacks on the Pajule IDP camp (October 10, 2003); the Odek IDP camp (April 29, 2004); Lukodi (May 19, 2004); and Abok (June 8, 2004).
In her closing brief, Bensouda said records of intercepts of LRA radio communications by Ugandan security agencies show LRA leader Joseph Kony promoted Ongwen several times between July 2002 and December 2005. She said this was an indication of the position and authority Ongwen had in the LRA to commit the charged crimes.
"On 27 September 2003, Kony singled Ongwen out from among commanders in Sinia [brigade] for praise as a hardworking commander," she said, referring in a footnote to a logbook of LRA radio communications intercepts of the Internal Security Organization, Uganda's internal intelligence agency.
Bensouda said Ongwen was promoted through three ranks to Brigadier-General, from Major, between July 1, 2002, and December 4, 2004. During this period, she said Ongwen was also promoted twice in the LRA's command structure to become commander of Sinia brigade, from the commander of Oka battalion.
She said these promotions occurred during the same period when Ongwen suffered a serious injury and was arrested within the LRA.
"The fact that Ongwen was in sickbay during a certain period does not mean that he was incapable of securing compliance with his orders and causing his subordinates to carry out the conduct underlying the charges in this case. That is because Ongwen retained control over a number of Sinia fighters, and he was operational again by at least December 6, 2002," she noted.
She said around April 20, 2003, Ongwen was briefly arrested reportedly over contact with Salim Saleh, a senior UPDF commander.
She rubbished the defense claim that Ongwen was under arrest and did not have command of any fighters for most of 2003, including the time of the attack on Pajule in October 2003, noting that after two days of arrest Ongwen was back in action and promoted to second-in-command of Sinia Brigade in September 2003.
She also disputed the defense's argument that during the attacks on Pajule, Odek, Lukodi, and Abok the civilians who were killed died in the crossfire between LRA fighters and the UPDF or government-backed militias.
Bensouda said that during these attacks the LRA deliberately targeted civilians and provided, for each attack, a table of scores of each civilian killed. The tables include names of the civilians and a sentence describing how and where they were killed. Camp leaders, who recorded the deaths a day or more after the attacks, provided some of the names.