Thread by @Kjell_Anderson

🧵I've now had a look at the sentencing briefs in #Ongwen, which offer some new perspectives. (Victims: icc-cpi.int/CourtRecords/C…; Prosecution: icc-cpi.int/CourtRecords/C…; and Defence: icc-cpi.int/CourtRecords/C…). The starkest contrast seems to be between the victims and defence. #ICC

The victims (who submitted a joint brief) are recommending a life sentence, the prosecution 20 years, and the defence 10 years (if #Ongwen is not released to undergo Mato Oput).

The Victims' brief is categorical in condemning #Ongwen, arguing that "no mitigating circumstances apply in the present case" and that victims fear that once Ongwen is released, he would "rejoin the LRA...and perpetrate crimes against the communities once again." #ICC

The Victims' brief also highlights several horrific witness testimonies relating to sexual violence, such as witness P0226, as indicative of particular cruelty as an aggravating factor in sentencing.

The Victims' brief characterizes duress and mental illness as "rejected allegations" and gives them no further consideration as potential mitigating factors. #Ongwen #ICC

Finally, the Victims deem #Ongwen's abduction not to be a mitigating factor (see below) and note that Ongwen did not "express any interest" in Mato Oput or other reconciliation initiatives (which often require an admission of culpability)

Shifting to the #ICC Prosecution brief, the Prosecution takes a much softer line than the Victims, already arguing in paragraph 2 that #Ongwen's abduction warrants a reduction in sentence:

The Prosecution details gravity and aggravating factors (similar to those laid out by the Victims): the cruelty of the crimes, the defencelessness of the victims, and persecutory motives in targeting civilians perceived as collaborators with the Ugandan government. #Ongwen #ICC

Discriminatory motives form part of the crime of persecution (which #Ongwen was convicted of) so they cannot also constitute an aggravating factor.

Duress "falling short of the grounds for excluding criminal responsibility" is rejected as a factor in mitigation by the Prosecution who argues "there is no evidence that the crimes of conviction were caused by any threat.."
#Ongwen #ICC

The really interesting parts of the prosecution brief deal with #Ongwen's personal circumstances, and the prosecution argues forcefully for mitigation due to his experiences as a child abductee in the LRA, described as "genuinely complex":

The Prosecution adds, however, that "The Chamber must balance any understandable sympathy with Mr Ongwen’s misfortune at a young age with respect for those he victimised as an adult."
#Ongwen #ICC

Ultimately, the Prosecution recommends a 20 year sentence, which they argues is 1/3 less than what they would ask for without consideration of #Ongwen's personal circumstances. #ICC

Finally, the Prosecution recommends that Ongwen receive medical treatment and be able to continue his education. (isn't this normal for ICC detainees?) #Ongwen #ICC

The Defence narrative shifts far less than the Prosecution narrative in the sentencing brief, with the defence still implicitly rejecting the "victim-perpetrator" label, though they do cite Bensouda's use of this phrase. #ICC #Ongwen

The defence refers to #Ongwen as a "mentally disabled defendant" and maintains that there have been a range of fair trial violations (including the failure of the court to translate the judgment to Acholi before the sentencing process)

The Defence brief describes the LRA as "nothing short of a religious cult funded by the Government of Sudan." #Ongwen #ICC

The Defence brief also argues that "Ongwen is the only person placed on trial at an international tribunal, international court or internationalised/hybrid court to have been abducted and served as a child soldier."(not sure if true: "X" was tried at E. Timor Tribunal as a minor)

The Defence outlines in some detail #Ongwen's self-improvement in the ICC DC from language lessons, to socializing, to psychological treatment, to spiritual counselling. #ICC

The Defence also argues that #Ongwen should either be given credit (as "time served") for his period of captivity in the LRA, or that this should be considered in mitigation. During his entire time in the LRA Ongwen was under duress. #ICC

#Ongwen's mental illness is also argued to be a mitigating factor: [he] "likely experienced traumatic events that resulted in symptoms of mental disease or defect and contributed to substantially diminished mental capacity at the material time." #ICC

#Ongwen, the Defence argues, truly believes in Kony's spirits. He reported on his dreams to Kony, and prays daily now to "protect himself" from Kony's spirits. #ICC

Ongwen is said to be the patriarch of his family, w/ 20 children (approx.), and the Defence argues he should be released to take care of his family. The Victims counter that his "wives" form part of his crime (forced marriage) rather than a positive personal circumstance.

Finally, the defence recounts many circumstances of #Ongwen rescuing or assisting people during his time in the LRA and concludes that he is a "good man" and that he should undergo Mato Oput rather than retributive justice. #ICC

My best guess is that #Ongwen's sentence will be in the range of 15-20 years. The Victims' call for a life sentence seems unlikely, as does the Defence call for release to Mato Oput/rehabilitation. The sentencing process has brought forth new perspectives, but will be brief. #ICC

He may not have been abducted, however. It's difficult to even find records for the Special Panels. X was a child soldier/perpetrator for sure and he received a very light sentence (but Ongwen is charged with crimes he committed as an adult)

I also think there are good arguments in favour of duress as a mitigating circumstance (considering #Ongwen's abduction, the execution of senior leaders like Otti, the spiritual beliefs, and the harsh punishment regimes in the LRA) but I don't see the court going that way. #ICC