According to a news statement from the International Justice Monitor,in a motion filed before the ICC on February 1st 2019, defence lawyer 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.
Pre-Trial Chamber II issued its decision confirming the charges against Ongwen on March 23, 2016.
Odongo acknowledged that his notion 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.
Among the 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.
This leaves 29 counts of war crimes and crimes against humanity Ongwen has been charged that Odongo is not contesting.