Ongwen at the ICC and the Possible ‘Guilty Plea’: A Response to Alex Whiting

By Sergey Vasiliev –

In his two noteworthy posts on Dominic Ongwen’s possible ‘guilty plea’ at the ICC, Alex Whiting addresses the potential benefits of such a plea for Ongwen himself, for the LRA victims, and for the Court, and reflects on the way in which the plea could (and should) be encouraged by the Office of the Prosecutor. There is much to agree with in Alex’s thoughtful discussion of the policy considerations in favor and against guilty pleas and plea bargaining in international criminal tribunals generally and the potential advantages of a consensual outcome in the Ongwen case in particular. I fully subscribe to his point on the need for the OTP to start developing a solid and transparent policy with regard to plea bargaining as soon as possible, which might facilitate consensual settlements in the future. His suggestions regarding the character and principles of such policy are a good basis for deliberation. The OTP and Trial Chambers should—and undoubtedly will—draw upon the experience of the ad hoc tribunals in developing their approach, while taking into account the specificities of the ICC procedure. A workable and meaningful policy cannot be defined in abstracto – it should allow a degree of flexibility, and adjustments will have to be made in light of the ICC’s own experience. It is to be hoped that the Court’s (unavoidable) learning curve will be steeper than that of its predecessors and less marred by controversies and uncertainties that plagued the practice of uncontested trials and eventually led to its abandonment in the ICTY and ICTR.

Having exchanged a number of tweets with Alex on the subject of Ongwen’s plea, I’d like to use this more fitting format to add a few remarks and touch upon points on which we seem to have a different perspective, if not disagree. First, a preliminary comment regarding the ICC’s specificities is in order, which goes to my reasons for putting ‘guilty plea’ in quotation marks when it comes to the ICC. The differences between the institute of guilty pleas at the ICTY and ICTR (Rules 62bis and 62 respectively) and its ICC analogue—the admission of guilt (Art. 65 ICC St.)—are more than nominal. This makes interchangeable use of these terms in the ICC context undesirable. Before the ad hoc tribunals, which followed a common law arrangement more closely in this respect, a guilty plea found to satisfy the criteria of validity and accepted as such by the court, automatically led to a judicial finding of guilt and conviction. (This did not make the judicial discretion in establishing whether the prerequisites for acceptance of a guilty plea are met disappear, and such discretion has been exercised differently by various Trial Chambers and over time). The bottom line, however, is that in case of a valid guilty plea, the trial is obviated and the case transitions swiftly to the sentencing stage.

The ICC procedure is more complex in that it provides a wider menu of options: in case the conditions of eligibility are met (Art. 65(1)-(2) ICC St.), an admission of guilt can indeed be treated as a performative act of auto-conviction by the accused – but it does not have to be (Art. 65(4) ICC St.). An ICC Trial Chamber has wider leeway in defining the route to be followed upon a valid admission and may decide not to abbreviate the process if a more complete presentation of facts is required in the interests of justice, including those of victims. It may mandate the prosecution to present evidence in addition to that forming part of the factual basis for the admission or even remit the case to another Chamber for the continuation of a contested trial under ordinary procedures (Art. 65(4) ICC St.). While it remains to be seen how Article 65 will be applied, as a matter of law this nuance of the ICC consensual procedure is essential. Referring to admission of guilt as ‘guilty plea’ may lead one to lose sight of the multiple options associated with the former device and the fact that it does not necessarily put an end to the trial process. In particular, while a non-contested mode of proceedings may indeed save significant resources (which is the main rationale and the only tangible benefit of guilty pleas after all), it becomes too easy to overestimate the cost-efficiency of this solution. Whereas in fact, even if Ongwen admits guilt, some or even all witnesses may still need to be called.

Second, while I agree that Ongwen’s ‘guilty plea’ is a hypothetical possibility that is worth reflecting on – and facilitating, as far as the OTP is concerned, I find this discussion (but not the need to develop an OTP policy) to be a little premature at this point, for both material and formal reasons. In other words, whether the admission of guilt materializes specifically in this case depends on future developments and circumstances which cannot be assumed or predicted with any degree of certainty, given the present stage of his case and the little information we have about Ongwen’s intentions regarding his defence strategy. Unlike Alex, I am not sure what to make of his pre-transfer statements while in the UPDF camp claiming, among others, that Joseph Kony has no vision and LRA no future and calling upon its members to come out of the bush. It may be tempting to infer from this Ongwen’s readiness to cooperate with the ICC by providing information that implicates other indictees or even the possibility of an admission of guilt in his own case, but I beg to differ. As far as I know (and I stand to be corrected), not a single word he said prior to his transfer that is on the public record concerned LRA crimes or his own and other leaders’ responsibility for them. The same goes for responses he gave to Single Judge Trendafilova of the Pre-Trial Chamber during his initial appearance – a pro forma hearing that has purposes other than receiving a plea (Art. 60(1) ICC St. and Rule 121(1) ICC RPE).

I risk being proven wrong sooner than I think, but at present there appear to be equal chances that Ongwen will choose not to cooperate at all or that, if he does otherwise, such cooperation would not take the form of an admission. As for the latter, he could still agree to provide information on the LRA generally or evidence against Kony and others while insisting on his own innocence and without incriminating himself (that doing so might be extremely difficult is another issue). He could agree to some of the alleged facts (Rule 69) without admitting that he is culpable in relation to the crimes attributed to him – for example, he would probably have no interest in denying some aspects of his personal biography. But the fact that Ongwen holds a grudge against Kony, knows much, and could become a star insider witness in the future ICC’s Ugandan case(s), if any, does not mean that he will not contest his own guilt, especially that such other case(s) might be reactivated well into his (possible) trial or even after its conclusion, when he can be better prepared to talk.

What position Ongwen will eventually adopt in relation to the charges and whether he would admit guilt cannot be known in advance. This is a matter of his personal choice defined by his psychological attitude to the accusations and the rational balancing of pros and cons of an admission. What considerations will prevail is a matter we can only speculate about. His decision will of course be assisted by legal advice he will receive from his lawyer and may have received from Hélène Cisse, his duty counsel for the time being. Nor should one discard occasional influence of other people he may be interacting with – e.g. candidate defence counsel, his fellow detainees and visitors in the ICC Detention Centre, etc. Importantly, Ongwen’s position will also depend on what the OTP has to offer in exchange for cooperation. One option is to promise him to withdraw (some of) the charges. The OTP may do so by unilateral decision before the confirmation of charges hearing (Art. 61(4) ICC Statute) or, thereafter, subject to the permission of the Pre-Trial Chamber or the Trial Chamber (see Art. 61(9) ICC St. and ICC-01/09-02/11-696). At the moment, the OTP is considering the addition of several charges, which remain unknown to the public (ICC-02/04-01/15-196-Red2, para. 41). The OTP could also promise Ongwen to recommend a lower sentence to the Trial Chamber in its sentencing submissions in case he delivers on his part of the deal. But in this respect the OTP must tread with extreme caution lest it would step on a slippery slope of deception.

Next to the legal implications of the admission (waiver of trial rights, e.g. Arts 66 and 67(1)(d) ICC St.), the core thing Ongwen must be made to understand is that the Trial Chamber holds ultimate discretion and is not bound by inter partes agreements on amendment of charges or penalty reduction (Art. 65(5) ICC St.). The OTP cannot guarantee Ongwen that its request to withdraw charges or impose a lower sentence would be granted. Unless Ongwen is moved largely by a desire to lift the burden of the (alleged) guilt off his shoulders regardless of the adverse consequences, it would be imprudent for him to take any bargain offer seriously and at face value. The paradigmatic precedent is the ICTR case of Jean Kambanda, the former prime minister of Rwanda during the 1994 genocide. He was the first ICTR defendant who pleaded guilty to most serious charges only to receive a life sentence despite his voluntary and extensive cooperation with the prosecution. I imagine there are many defence counsel out there who would shudder at the prospect of Ongwen becoming the ICC’s Kambanda. They would be moved to strongly advise him not to place himself in the precarious situation of being the ‘first’ one to test Article 65, absent a degree of certainty the previous institutional experience can bring. In this light, the policy that Alex proposes that the OTP should formulate and convey to the judges and defence from early on might indeed help alleviate some of the defence concerns and encourage defendants to take the Article 65 route. It is important to realize though, as Alex rightly points out, that for the accused it can hardly ever become a failsafe, i.e. completely predictable and risk-free, system.

The second reason why the question of Ongwen’s ‘guilty plea’ at this moment is putting the cart before the horse might seem technical, but it is essential to note. Articles 64(8)(a) and 65 and ICC Rule 139 make it clear that an admission may only be made before the Trial Chamber at the commencement of trial. While the ICC practice has varied, with some Trial Chambers (erroneously, in my view) soliciting a plea at the first status conference rather than when opening the trial, an admission can under no circumstances be made prior to the confirmation of charges and committal of the person to trial. In the pre-confirmation stage, there are no formally defined and judicially certified charges in respect of which an accused could admit guilt; there is not even a figure of accused in the formal sense of the word (Articles 60-61 consistently refer to ‘person’, who becomes ‘accused’ when and if the charges are confirmed). An admission of guilt implies acceptance of the legal aspect of the charges, supporting materials and evidence, and underlying ‘essential facts’ (Art. 65(1)(c) and (2) ICC St.). Legal labels may be modified by the Trial Chamber in accordance with the infamous regulation 55 (which I’d better refrain from addressing here). But the function of the decision confirming charges is to fix the factual basis of the charges (material facts) and to delineate the scope of both the trial and the Trial Chamber’s judgment, which ‘shall not exceed the facts and circumstances described in the charges and any amendments to the charges’ (Art. 74(2) ICC St.). Before the factual allegations encompassed within the charges are formally set, it would of course be impossible (and absurd) for the person to admit to anything. So if Ongwen wishes to admit guilt, he will have to wait until he is committed for trial – if he is committed.

This does not mean that bargaining cannot start already in the pre-confirmation. The ICC’s legal framework does not limit the timing for discussions between parties on matters related to a possible admission of guilt. They may hold consultations about the factual and evidentiary basis for the charges and work jointly towards an agreement on evidence under Rule 69, whether for the purpose of the confirmation (see e.g. Banda and Jerbo joint submission, para. 5) or with view to final consensual settlement. Given the limited purpose of the confirmation, there is nothing to be gained by the person at that stage, but the OTP would still be able to benefit from the person’s waiver of Article 61(6) rights. The prosecutorial job at the confirmation would become easier— and the overall duration of the respective proceedings shortened—if the person were to agree to refrain from objecting to the charges, challenging the prosecution evidence, and presenting evidence. Still, this does not relieve the OTP from its burden of showing ‘sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’ (Art. 61(7) ICC St.). The PTC must be convinced that the case against Ongwen is strong enough in order to confirm the charges and to send him for trial. The Chamber may choose not to take any inter partes agreements on facts and evidence for granted (see e.g. ICC-02/05-03/09-121-Corr-Red, paras 43-47). While Ongwen’s admissions of facts and evidence might go some way to helping the OTP discharge the burden, they will likely be found to fall short if unsupported by other evidence or if that evidence is too weak or deficient (the amount and kind of evidence required to meet the sufficiency threshold is not an issue on which the ICC jurisprudence is most consistent or settled). The PTC’s function is not merely to rubberstamp the charges, and Ongwen’s potential cooperation with the OTP prior to confirmation in itself does not mean the charges will be confirmed.

Nor can the strength of the prosecution’s potential evidence be presumed at this stage. Except for intermittent investigative and analytical activities in the Ugandan case (which, in the OTP’s favourite parlance, was hibernated), no progress has been made in it for a decade prior to Ongwen’s surrender. Not much is known about unique investigative opportunity measures the PTC may have ordered pursuant to Article 56. It is thus not unreasonable to think that the OTP will need to effectively re-investigate the case regarding Ongwen from scratch – and the OTP must ensure that the case is not only confirmation-ready but also trial-ready, giving a reasonable prospect of conviction. Reactivating the case would require the review of all evidence in the OTP’s possession, locating and re-interviewing witnesses (as well as finding new ones), conducting risk assessments and providing for security measures, obtaining permission to disclose evidence obtained under confidentiality agreements, etc. Substantial modifications to the case theory and charges will likely be on the table, too.

The latest update from the OTP about the status of the case says as much, and its request for the postponement of the confirmation hearing until 31 January 2016 comes as no surprise. The reanimation of the Ongwen case is a daunting task that will require huge time and resource investments by the OTP which was caught unawares by the LRA commander’s arrival. Given the ICC’s track record, a long time will pass before the PTC has an opportunity to assess prosecution evidence and even longer before the ‘accused’ Ongwen is invited to react to the charges before a Trial Chamber, if it ever comes to this. Taking previous cases as reference, and provided that no further postponements are requested and granted, three years from now is by no means an unreasonable estimate. Although it is still a rather generous assessment, it is not nearly as optimistic as the impression one gets from an avalanche of news articles over the past month celebrating Ongwen’s imminent ‘trial’ at the ICC.

Third, I do not share the enthusiasm about the amount and quality of (historical) truth and victim-satisfaction that can emerge from the possible admission of guilt by Dominic Ongwen. The motives of those who plead guilty and sincerity of their public repentance are bound to raise questions on the part of victims and the public at large. Post-conviction statements and conduct of some ICTY defendants who pleaded guilty may show that such questions are not unjustified. That guilty pleas are contested less easily or less often than judicial findings entered after full-fledged trials does not mean the greater factual accuracy and truthfulness of the former. Consider that the ad hoc tribunals have themselves not held in high regard the ‘truths’ established in their own previous judgments relying on guilty pleas. They routinely refused to judicially notice underlying facts as ‘adjudicated facts’, i.e. to admit them as settled and not requiring proof, for such facts had not been verified more reliably and thoroughly by means of examination in court and judicial inquiry. As the ICTR held in the Ntakirutimana decision (para. 26), ‘previous findings of the ICTR [do] not include judgements based on guilty pleas, or admissions voluntarily made by an accused during the proceedings. Such instances, which do not call for the same scrutiny of facts by a Chamber as in a trial situation where the Prosecutor has the usual burden of proof, are not proper sources of judicial notice.’

Finally, I am also not entirely convinced that Ongwen’s admission of guilty would signify the ‘victory for the Court and for the international criminal justice project’. I would say, woe to both the Court and the glorious project it incarnates if it misappropriates as its own moral victory a gift of repentance, let alone a concession calculated to obtain lenience by the accused over which the ‘system’ has an upper hand. I will leave it to others and not go into the moral dilemmas involved, especially in the case of Dominic Ongwen – an economically and socially disadvantaged victim-turned-offender rebel commander who was abducted and brutalized as a teenager and spent most of his life in the bush. Leaving these aspects aside, the victorious rhetoric surrounding his surrender to the ICC and the possible admission of guilt would perhaps mean there is little else the Court can show to prove its worth. What about reliable judicial fact-finding and impeccable fairness in contested proceedings instead? These would be a more reliable measure of ‘success’, if it means more than sheer luck or favour. In the end, there are (impressionistic) grounds to doubt that the Erdemović, Plavšić, or Kambanda cases will score highest in the nomination for the ICTY and ICTR’s greatest achievements.