The Ugandan cases are the oldest cases before the ICC, having lain dormant for 10 years, because of the suspects being unavailable.880 The decision to investigate the situation in Uganda was based on a referral by the Government of Uganda in December 2003. The Pre-Trial Chamber II granted the OTP’s application for warrants of arrest against five top Lord’s Resistance Army (LRA) leaders on 8 July 2005.881 These arrest warrants were issued for the arrest of Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen for
873Prosecutor v Bosco Ntaganda ‘Warrant of arrest’ (22 August 2006) ICC-01/04-02/06.
874 Prosecutor v Bosco Ntaganda ‘Decision on the Prosecutor’s application under article 58’ (13 July 2012) ICC- 01/04-02/06.
875 Idem at para 2.
876Prosecutor v Bosco Ntaganda ‘Decision pursuant to article 61(7)(a) and (b) of the Rome Statute on the charges of the Prosecutor against Bosco Ntaganda’ (9 June 2014) ICC-01/04-02/06, para 5.
877Global Justice ‘What’s happening in the ICC Ntaganda trial’ available at
https://ciccglobaljustice.wordpress.com/.../whats-happening-in-the-icc-ntaganda-trial/ (accessed on 25 July 2016).
878Prosecutor v Bosco Ntaganda ‘Decision pursuant to article 61(7)(a) and (b) of the Rome Statute’ at paras 36, 74 and 97.
879Human Rights Watch ‘ICC: Trial of Bosco Ntaganda for Congo crimes’ available at
https://www.hrw.org/news/2015/09/01/icc-trial-bosco-ntaganda-congo-crimes (accessed on 26 July 2016).
880 Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, ‘Decision severing the case against Dominic Ongwen’ (6 February 2015) ICC-02/04-01/05, para 8.
881 See for example, ‘Warrant of arrest for Dominic Ongwen’, (8 July 2005) ICC-02/04. The situation in Uganda was assigned to Pre-Trial Chamber II on 5 July 2004 by the Presidency.
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war crimes and crimes against humanity. The ICC terminated the case against Raska Lukwiya on 8 January 2010, following confirmation of his death.882 The ICC has withdrawn the case against Kotok Odhiambo, whose death has also been confirmed.883 The arrest warrants against Joseph Kony and Vincent Otti, whose deaths’ are not yet confirmed, are still outstanding.884
4.3.1 Dominic Ongwen Case.
Ongwen’s case is unique as it will be the first time that the ICC will try an accused for the gender-based violence crime of enslavement. Ongwen was the brigade commander of the Sinia Brigade of the LRA.885 The warrant of arrest issued against Ongwen contained four counts of war crimes of murder, cruel treatment of civilians, intentionally directing an attack against a civilian population and pillaging, and three counts of crimes against humanity of murder, enslavement and inhumane acts of inflicting serious bodily injury and suffering, committed on or about 20 May 2004.886 Ongwen was charged under article 25(3)(b) of the Rome Statute as being
‘criminally responsible and liable for punishment’ for soliciting or inducing the above crimes.887 After years in hiding, Ongwen surrendered to ICC custody on 16 January 2015. He was transferred to the ICC’s Detention Centre on 21 January 2015. The case against Ongwen and his co-accused was separated on 6 February 2015.888
The Pre-Trial Chamber II had recommended to the Presidency that the hearing be held in Uganda so as to bring the proceedings closer to the communities affected by Ongwen’s acts, and also as it would contribute to a better perception of the ICC on the African continent.889
882Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, Dominic Ongwen ‘Public decision to terminate the proceedings against Raska Lukwiya’ (11 July 2007) ICC-02/04-01/05.
883 New Vision ‘ICC withdraws arrest warrant against LRA’s Okot Odhiambo’ available at
www.newvision.co.ug/new_vision/.../icc-withdraws-arrest-warrant-lras-okot-odhiamb (accessed on 25 July 2016).
884 International Criminal Court ‘Message from the Prosecutor of the International Criminal Court, Fatou Bensouda, calling for defection by the LRA fighters’ available at https://www.icc-cpi.int//Pages/item.aspx?name=160401-otp- stat (accessed on 25 July 2016).
885 Warrant of arrest for Dominic Ongwen (8 July 2005) ICC-02/04, para 10.
886 Ibid.
887 Rome Statute, art 25(3)(b).
888Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen ‘Decision severing the case against Dominic Ongwen’ (6 February 2015) ICC-02/04-01/05, para 8.
889Prosecutor v Dominic Ongwen ‘Recommendation to the Presidency to hold the confirmation of charges hearing in the Republic of Uganda’ (10 September 2015) ICC-02/04-01/15, paras 3-4. The recommendation is under rule 100(2) of the Rules of Procedure and Evidence. Rule 100(2) provides that ‘An application or recommendation changing the place where the Court sits may be filed at any time after the initiation of an investigation, either by the Prosecutor, the defence or by a majority of the judges. Such an application or recommendation shall be addressed to the Presidency. It shall be made in writing and specify in which State the Court would sit. The Presidency shall satisfy itself of the views of the relevant Chamber.’ Article 3(3) of the Rome Statute also provides that ‘The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.’
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However, the confirmation of charges hearing took place from 21 January to 22 January 2016 not in Uganda but at The Hague. If it had taken place in Uganda, it would have been the first time that the ICC had applied its positive complementarity concept, that is, ‘a proactive policy of cooperation aimed at promoting national proceedings’.890 By applying this concept the OTP encourages ‘genuine national proceedings where possible, including in situation countries’.891 The OTP has expanded the complementarity principle laid down in the Rome Statute by recognising positive complementarity as a second dimension to complementarity.892 The first dimension is the admissibility test under Article 17 of the Rome Statute, that is, ‘how to assess the existence of national proceedings and their genuineness, which is a judicial issue’.893 The Office of the President of Uganda put out a statement as to why Uganda could not try Ongwen, despite hopes that the case would be heard in Uganda. The statement read that although the Ugandan government had established ‘the International Crimes Division of the High Court which was mandated to try international crimes’, Ongwen had to be tried by the ICC as his offences were cross-border offences.894 It also stated that Uganda had already referred the situation concerning the LRA to the ICC.895 This shows that although a domestic court may be established to try international crimes within the ICC’s jurisdiction, other factors have to be taken into consideration as to why it would not be feasible to try these crimes at a domestic level.
As the number of charges against Ongwen multiplied from seven to 70 counts by December 2015, the Pre-Trial Chamber II confirmed the charges on 23 March 2016.896 The war crimes charges were rape, outrages upon personal dignity, sexual slavery, cruel treatment and torture, whilst the crimes against humanity charges included rape, torture, enslavement, sexual slavery, forced marriage as an inhumane act, persecution and other inhumane acts.897 The Pre-Trial Chamber was differently constituted to the Pre-Trial Chamber in the Bemba case, and held a
890 ICC-OTP, Prosecutorial Strategy 2009-2012, (1 February 2010), para 16.
891 Idem para 17.
892 Idem para 16.
893 Ibid.
894 See Office of the President, Republic of Uganda, ‘Statement by the Government on the Dominic Ongwen case’
available at https://www.mediacentre.go.ug/.../statement-government-dominic-ongwen-case (accessed on 25 July 2016). The statement was written by Uganda’s Attorney General, Hon Peter Nyombi (MP) on 2 February 2015. The crimes committed by the LRA are not limited to Uganda, but also extends to South Sudan, northeastern Democratic Republic of Congo and the Central African Republic.
895 Ibid.
896 Prosecutor v Dominic Ongwen ‘Decision on the confirmation of charges against Dominic Ongwen’ (23 March 2016) ICC-02/04-01/15.
897 Ibid.
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different view regarding the application of article 61(7) and cumulative charging. The Chamber held that article 61(7) of the Rome Statute mandated the Chamber:
[t]o decline to confirm charges only when the evidence does not provide substantial grounds to believe that the person committed the charged crime and not when one possible legal characterisation of the relevant facts is to be preferred over another, equally viable. When the Prosecutor meets the applicable burden of proof, the Chamber shall confirm the charges as presented.898
The Chamber in effect was agreeing with the prosecution’s argument in Bemba’s case.899 In other words, the Pre-Trial Chamber must confirm charges when the prosecution has met the applicable burden of proof. Declining charges should not be on the grounds that a ‘possible legal characterisation of the relevant facts is . . . preferred over another’.900
With regard to cumulative charging, the Pre-Trial Chamber rejected the argument of the defence that ‘cumulative charging should be avoided as there exists the possibility to “re- characterise crimes at trial”’.901 Though it agreed with the ‘distinct legal element’ principle regarding cumulative charging, the Pre-Trial Chamber differed from the Bemba Pre-Trial Chamber regarding the requirements of regulation 55.
The Pre-Trial Chamber stated that:
Regulation 55 provides for a procedural remedy to situations in which the evidence heard at trial warrants a modification to the legal characterisation of the facts confirmed by the Pre-Trial Chamber. This provision does not address or otherwise concern situations in which the same set of facts could constitute simultaneously more than one crime under the Statute, i.e. those situations warranting cumulative charging or cumulative convictions.902
The Pre-Trial Chamber confirmed all 70 counts against Ongwen on 23 March 2016.903 The trial began on 6 December 2016.