ICC prosecutors have said that though the accused is a victim of abduction, it should not be used to make him immune to the crimes he committed.
Prosecutors in the case against former Lord's Resistance Army commander, Dominic Ongwen, have told the International Criminal Court (ICC) that the rebel leader willingly committed war crimes and crimes against humanity he is alleged to have had a role in more than 15 years ago.
According to the International Justice Monitor, while appearing for the first day of closing statements before the Trial Chamber IX, a team of prosecution lawyers said that though the accused is a victim of abduction, it should not be used to make him immune to the crimes he committed.
"We are not here to deny that Dominic Ongwen was a victim of abduction but the defence line that this should somehow make him immune is untenable," said senior trial lawyer Benjamin Gumpert.
The prosecution trial team also included Adesola Adeboyejo and Colin Black. They made their statements on Tuesday before presiding Judge Bertram Schmitt and Judges Peter Kovács and Raul Cano Pangalangan.
According to Ongwen and his lawyers, the LRA abducted him in 1988 when he was just 14 years.
Gumpert explained that in international criminal practice the phenomenon of a victim-perpetrator may be new, but for those who practice criminal law at the national level, it is mundanely familiar.
"It's a tragedy … no one disputes that. But then no one suggests they are relieved from criminal responsibility. It can't be that such people have a lifetime pass to commit crimes just because crimes were committed against them sometime in the past," he told the court.
"The prosecution has proved what Mr Ongwen did and why the law must hold him accountable. If he is then convicted, the question of his victimhood is one that may have to be considered again on the day of sentencing," he added.
Ongwen was charged with 70 counts of war crimes and crimes against humanity alleged to have been committed between July 2002 and December 2005 in northern Uganda.
The crimes fall into three categories; attacks on 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).
He is also charged with eight modes of liability. These are provisions in the Rome Statute, the ICC's founding treaty, that specifies how an individual is criminally liable for the crimes he or she has been charged with. Ongwen has pleaded not guilty to all counts and modes of liability.
During their submissions, Gumpert, Adeboyejo, and Black addressed what the prosecution disputed in the defence's closing brief, which was filed on February 24.
Reliance on Intercepted Radio Communications
In the defence brief, Ongwen's lawyers questioned the quantity, reliability, and credibility of intercepted LRA radio communications that prosecution presented before the court.
In his presentation on Tuesday, Gumpert said though the defence accused them of cherry-picking parts of the recordings, the prosecution presented about 22,000 pages of material related to the intercepts.
These materials included logbooks of the intercepts from the Uganda People's Defense Forces, the Internal Security Organization, and the Uganda Police.
"I could have had a court officer cart in the documents, but I am not in a theatre," he said.
He said that the prosecution went to great lengths during the trial to provide guides to the intercepted material so that anyone could easily find a specific item.
"If we weren't in the dog-eat-dog world of the courtroom, I might be hurt by the inaccurate and unfair criticism by the defence," he stated.
Sexual and Gender-based Crimes
While addressing the issue of Sexual and Gender-based crimes, Adeboyejo read to the court a disturbing excerpt of the September 18, 2015 testimony of a former "wife" of Ongwen, Witness P-227, in which she described Ongwen forcing her to have sex with him.
She said during P-227's testimony the defence only challenged her testimony relating to the anal penetration but did not challenge most of the evidence that Ongwen's former "wives" gave.
Seven former "wives" of Ongwen testified against him during the pre-trial phase in September and November 2015. Their testimonies were admitted as evidence in the trial under Article 56 of the Rome Statute.
Adeboyejo said the testimony of Witness P-226, also a former "wife" of Ongwen, made "untenable" the defence's argument that Ongwen did not intend to commit sexual and gender-based crimes.
She noted that P-226 was seven years old when she was abducted, and she was assigned to Ongwen's home as a ting ting, a term used in the LRA for girls who did household chores and acted as babysitters.
She said after some time LRA leader Joseph Kony sent his escorts to get P-226, but Ongwen refused to release her.
"He hid her under his bed. Mr Ongwen was not under any duress. He was boldly defying Kony. He hid her for a whole month until he could transfer her to another location," in what was then Sudan. Eventually, he [Ongwen] raped her when she was 10 years old, she said, referring to P-226's September 15, 2015 testimony.
Attacks on IDP Camps
Black while addressing the issue of attacks on IDPs, noted that the defence's closing brief do dispute that the LRA attacked the Pajule camp and that Ongwen was present at the RV [rendezvous] before the attack.
He said that according to the intercept evidence Ongwen reported to Kony in December 2002 he had ambushed a vehicle on the Kitgum-Gulu road.
Black also spoke about the defence's assertion that Ongwen could not have taken part in the attack on the Odek IDP camp because he was at a different location.
He argued that there are audio recordings in evidence in which Ongwen is heard reporting what happened during the attack on Odek.
He said five prosecution witnesses identified Ongwen's voice when the audio recordings were played in court during their testimony.
"All these witnesses heard Mr Ongwen in his own words, in his own voice accept responsibility for these attacks," said Black. We would ask you to convict Mr Ongwen on all counts," he said.