Is a Plea Agreement for Dominic Ongwen a Good Idea?


Statements by Dominic Ongwen shortly after his capture (or was it a surrender?) suggest that a deal might be possible between Ongwen and the ICC Prosecutor: a guilty plea and cooperation in exchange for a more lenient sentence.  In a YouTube video that circulated shortly after Ongwen’s apprehension, a person claiming to be Ongwen explained that he had broken with Kony and urged others to do the same.

For those of you who are still there, you should know that Kony now has no plan that can push the LRA higher. He only wants to be the chief and you to work for him like a slave, for him and his family…. You should leave Kony alone with his propaganda…. I realized that I was wasting my time in the bush. I have studied the LRA and found that the LRA has no future.

At his initial appearance at the ICC, Ongwen spoke only briefly, but he took the opportunity to emphasize the (already much-discussed) circumstance of his apprehension at a young age into the LRA.

My name is Dominic Ongwen… I was born in 1975. I was abducted in 1988 and I was taken to the bush when I was 14 years old up ‘til now I’m before you present at the ICC.

Together these statements suggest a possible way forward: An agreement whereby Ongwen takes responsibility for his own actions and pleads guilty, cooperates against others, and receives mitigation of his sentence for these steps and for his own past as a child soldier (to the extent it is relevant to his actions as an adult). This possible outcome raises two questions. First, are guilty pleas a positive result in international criminal justice?  Second, assuming the answer is yes, how could the Prosecution encourage their acceptance at the Court? I will consider the first question in this post and the second in a follow-up post tomorrow.

Assuming that the case against Ongwen is solid, a guilty plea could prove to be a big win for all involved.  For Ongwen, it would be an opportunity to reduce his sentence and achieve, perhaps, some measure of personal redemption in accepting responsibility for his actions.  It would also be a victory for the Court and for the international criminal justice project.

Some have questioned whether plea agreements are compatible with international criminal justice. The concern is understandable. The crimes charged at the ICC and other international criminal tribunals are among the most serious known to humankind, and they demand both full accountability and a full accounting, meaning a complete record of the accused’s actions.  Plea agreements are not a familiar feature of all criminal justice systems, and for some it may feel almost unseemly to make “deals” to resolve international criminal cases.  For these reasons, plea agreements caused considerable consternation at the ad hoc tribunals. Reacting to a plea agreement in the Momir Nikolić case, one Trial Chamber questioned whether plea agreements were “appropriate in cases involving serious violations of international humanitarian law brought before this Tribunal.” (Sentencing Judgment, 2 Dec. 2003).  The Chamber noted that “[w]hen convictions result from a guilty plea, certain aims of having criminal proceedings are not fully realised, most notably a public trial.” (para. 61).  A guilty plea can foreclose the creation of a detailed historical record, and the interests of victims may not be served when there is no trial.  Of greatest concern to the Chamber, however, was the risk that the Prosecution might “bargain” away justice.  (para. 63)  If the Prosecution drops charges as part of a deal or recommends a lesser sentence, it may not be clear if it is acting because of insufficient evidence or simply to achieve a desired result. Therefore, the Chamber concluded that “any ‘negotiations’ on a charge of genocide or crimes against humanity must be carefully considered and entered into for good cause.” (para. 65)

These are all important considerations and they should inform how the parties and judges approach plea agreements. But such agreements also have the potential to bring enormous benefits to the parties and Court, a fact acknowledged by the Trial Chamber itself in Nikolić, and they should be encouraged and actively pursued.

First, an acknowledgment of guilt can be an important addition to the historical record and can serve to affirm and validate the experience of the victims.  Guilty pleas are less easily contested and challenged than are guilty verdicts.  Further, guilty pleas require a detailed acknowledgment of guilt, which can add to the historical record.

Second, guilty pleas that are accompanied by cooperation can help the Court build future cases.  Evidence from defendants who plead guilty must be evaluated with care, but it also has the potential to expose the criminality of senior actors that would otherwise be hidden.  This possibility can be particularly valuable in international criminal prosecutions because of the very limited tools that investigators have to pursue those responsible for mass crimes.  International criminal investigators are ordinarily completely dependent on cooperation from States and organizations to conduct their investigations and do not have at their disposal all of the investigative tools that domestic investigators and prosecutors usually enjoy.  Accordingly, cooperation from insiders can often be the only way to expose crimes and perpetrators.  At the ICTY, for example, some of the defendants who pled guilty and cooperated – like Dražen Erdemović and Milan Babić  – provided critical evidence in key cases at the tribunal.

Third, a guilty plea will result in an enormous savings of resources that can be used elsewhere.  The Trial Chamber in Nikolić did not find this justification particularly persuasive, but the reality is that the ICC is a court of limited resources and must constantly make choices in how it prioritizes investigations and prosecutions.  Trials are particularly expensive because they require the prolonged participation of three judges, senior prosecutors and defense counsel, and their staff as well as the personnel to run the courtroom and trial.  When a trial is avoided through a guilty plea, those resources will be used to investigate or prosecute other cases, a net gain for the Court.

Therefore, while guilty pleas pose risks, overall the advantages far outweigh any costs.  In many cases a guilty plea will not be an option either because the evidence is contested or the accused is ideologically motivated and therefore unwilling to consider any acceptance of responsibility. But where there is a possibility of a guilty plea, as there may be in the Ongwen case, the Court should certainly support it.

That leads to the second question:  If plea agreements are a good idea, how could the Prosecution encourage their acceptance at the ICC? I will address that question in a post tomorrow.

Photo: Joseph Kony, painted portrait P1040746, © Thierry Ehrmann

Alex Whiting

Alex Whiting is a Professor of Practice at Harvard Law School where he teaches, writes and consults on domestic and international criminal prosecution issues. Previously, he worked for 18 years as a U.S. and international prosecutor. From 2010 until 2013, he was in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague where he served first as the Investigations Coordinator, overseeing all of the investigations in the office, and then as Prosecutions Coordinator, overseeing all of the office’s ongoing prosecutions. Before going to the ICC, Whiting taught for more than three years as an Assistant Clinical Professor of Law at Harvard Law School, again with a focus on prosecution subjects. From 2002-2007, he was a Trial Attorney and then a Senior Trial Attorney with the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague. He was lead prosecution counsel in Prosecutor v. Fatmir Limaj, Isak Musliu, and Haradin Bala; Prosecutor v. Milan Martić; and Prosecutor v. Dragomir Milošević. Before going to the ICTY, he was a U.S. federal prosecutor for ten years, first with the Criminal Section of the Civil Rights Division in Washington, D.C., and then with the U.S. Attorney’s Office in Boston where he focused on organized crime and corruption cases. Whiting attended Yale College and Yale Law School, and clerked for Judge Eugene H. Nickerson of the Eastern District of New York. His publications include Dynamic Investigative Practice at the International Criminal Court, 76 Law and Contemporary Problems 163 (2014), INTERNATIONAL CRIMINAL LAW: CASES AND COMMENTARY (2011), co-authored with Antonio Cassese and two other authors, and In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered, 50 Harv. Int’l L. J. 323 (2009).

Discussion4 Comments

  1. Pingback: The Master of Confessions – Thierry Cruvellier on the ECCC’s Duch Trial | Chris Tenove

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

  3. Pingback: Ongwen at the ICC and the Possible ‘Guilty Plea’: A Response to Alex Whiting | Vrije Universiteit

  4. Good piece. The ICC should also take cognisance that Ongwen may still be a victim of this conflict born and bred amidst war. The ICJ bore a landmark ruling a fortnight ago in the Czech Serbia ruling. It should not be outside the scope of the ICC to treat victim perpetrators liniently to encourage other defectors thus bringing such conflicts to an amicable halt.

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