Bosco Ntaganda is seeking to appeal at least eight of the 18 war crimes and crimes against humanity confirmed against him by pre-trial judges at the International Criminal Court (ICC).
In a June 16, 2014 filing, Marc Desalliers, the lawyer for the Congolese rebel leader, sought authorization to appeal, arguing that pre-trial judges based the confirmation of several charges on circumstantial evidence, evidence from anonymous sources, and statements of deceased witnesses.
On June 9, Pre-Trial Chamber II found that there were substantial grounds to believe that Mr. Ntaganda bore individual criminal responsibility for crimes committed by troops belonging to the Patriotic Front for the Liberation of Congo (FPLC) against the civilian population in Congo’s Ituri province. The crimes were allegedly committed during 2002 and 2003 while he served as the group’s deputy chief of staff.
The defense contends that the confirmed charges of murder and attempted murder in the Kilo locality were based solely on a report by a non-governmental organization citing an anonymous source and an uncorroborated statement of a deceased witness. Meanwhile, two counts relating to murders in Bambu were confirmed “based solely on hearsay” and the statement of an anonymous witness.
Furthermore, argued the defense, rape charges in Bambu, Sangi, and Buli were confirmed solely on the basis of anonymous testimonies. Similarly, charges of sexual slavery were confirmed for all localities solely on the basis of anonymous testimony and hearsay, the defense said.
Other charges the defense contends were confirmed on the basis of hearsay include forced transfer of the population, displacement of civilians, and attacks against protected objects. According to Mr. Desalliers, the confirmation of the count of destruction of property was partly based on the evidence of a deceased witness.
In their decision committing the militia leader to trial, judges found that there were substantial grounds to believe that Mr. Ntaganda himself committed murder, personally attacked and persecuted civilians, pillaged, and attacked protected objects in a number of localities.
However, Mr. Desalliers argued that in separate cases before the ICC, pre-trial chambers had ruled that the use of anonymous testimonies may deprive the defense of the opportunity to challenge the credibility and reliability of that evidence. The chambers had considered that such evidence should be assessed by examining whether it could be corroborated by other elements.
He argued further that confirming charges solely on the basis of the testimony of a deceased witness disadvantages the defense since it would never be able to properly test the credibility of the witness and reliability of their testimony.
The defense also stated that it did not intend to seek a stay of the proceedings for the duration of the appeal process because it was seeking the non-confirmation of some – not all – charges against Mr. Ntaganda.
The pre-trial chamber composed of judges Ekaterina Trendafilova (presiding), Hans-Peter Kaul, and Cuno Tarfusser is yet to respond to the defense request to appeal.