Please find Katanga and Ngudjolo Chronicle #4, which was originally published on the Aegis Trust website. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.
Witness 233 resumes his testimony in private session. “I am going to ask about several names,” announces Prosecutor Eric MacDonald. Any information that may lead to the identification of the witness and his family must remain confidential, so silence is the only thing heard in the Public Gallery.
It is nearly fifteen minutes until the voice of the Prosecutor is audible again. “I would like to come back to the events on 24 February 2003.” When the village of Bogoro was attacked, Witness 233 sought refuge in the bush. The population was told to rush to the military camp controlled by the UPC. But Witness 233 never reached it. From his hiding place he witnessed what occurred that day.
“We could only hear gun fire and bombs exploding. I could see the military camp burning and the people fleeing into the mountains. The UPC soldiers were fleeing with the population. We were told that the enemy was in the military camp, that people were injured with machetes,” says the witness.
The population in Bogoro had received warnings about possible attacks. “There were rumours,” says Witness 233. “People were not sure about this information; it was not concrete. When the attack took place, people were surprised.” When Bogoro was attacked, the people reacted by running towards the military camp. Those lucky enough to reach it left with the UPC soldiers. Those who failed were killed. “For some it was impossible to get to the camp because of the distance. When the gun fire began we had to move quickly, but the enemy soldiers took positions in the area,” says the witness. Some people were trapped and identified by the soldiers, asking the civilians to speak in their mother tongue.
Language arises in this testimony as an important issue. Yesterday, the Prosecution team asked the witness to tell the Court what language was used by those who said that it was safe to come out from their hiding spots. The words uttered were in Swahili and Kihema, the languages spoken by the Hema ethnic group. “Did you hear other words in a different language?” asks Mr. MacDonald. “No,” answers the witness. The Prosecution seems to have had different information given by Witness 233 in a previous statement. Eric MacDonald asks the Chamber for permission to refresh the witness´s memory. A legal debate ensues.
“Your Honour, if this request is granted, it would be unique in this Court,” said the Defence Counsel of Mr. Katanga, Andreas O´Shea, who views the Prosecution´s petition as inappropriate. “The evidence must be live and based on witness memory.” The Prosecution intends either to read an excerpt of the statement given by the witness in 2007 or allow the witness to re-read it by himself. “He can also recognise his signature and it would allow him to correct any mistakes in his statement,” points out Mr. MacDonald. But both the Defence teams of Germain Katanga and Mathieu Ngudjolo object strongly, arguing that the witness does not seem to have difficulties recalling the events. “The witness did not say, ‘I have a problem with my memory.’ He has not said, ‘I do not remember.’ The witness has given an answer. We do not accept reminding the witness what he said in a previous statement just because the Prosecution didn´t get the answer they like. This is not an issue of lack of recollection,” says Mr. O´Shea.
As pointed out by the Prosecution, more than three years have passed since Witness 233 gave his statement. The witness himself also wants to intervene: “I do apologise to everybody here. I cannot be sure when a specific event occurred. I have nothing to hide. You may find contradictions, but you have my statement. If I forget something you can refresh my memory. I am human. Please understand me.” The Chamber finally decides to suspend the hearing for ten minutes.
The minutes tick by while the Chamber reaches a decision. Despite admitting that they are sensitive to the difficulties the witness may experience in recalling certain events, the Judges consider that the Prosecutor could get the answer he wishes by reformulating his questions. The request is therefore denied, but Eric MacDonald does not desist, and before the luncheon recess, the Prosecution team gets what they were looking for. “What was the language those five fighters were speaking?” asks Mr. MacDonald. “They spoke in Kilendu,” says Witness 233, referring to the mother tongue of the Lendu community.
In the afternoon, Witness 233 tells the Court he went to Bunia, the capital of the Province of Ituri, 20 km north east of Bogoro. There he met survivors of the attack on the 24th of February and he had the opportunity to talk about how the events unfolded. “Particularly about what happened to young woman and young girls,” points out the Prosecutor, wanting to explore those conversations in more detail. But Mr. MacDonalds´s manner of formulating the question awakens the Defence´s objection. “That question is leading,” claims Mr. O´Shea. The Prosecutor must reformulate his question. Given the sensitivity of the issue, Mr. MacDonald asks to proceed in private session.
A long silence precedes new details about the witness’s flight. Witness 233 left Bunia, setting off in the direction of Mandro. He stayed in Kasenyi for one week, a village 48 km from Bunia. There he found UPC soldiers. “We noticed the soldiers were afraid, and therefore also the population. They thought that if Bogoro fell, Kasenyi would also fall. The situation was uncertain,” says the witness. Bunia, Mandro, Bogoro, Kasenyi. Between 1999 and 2003, Ituri was the scene of a violent conflict between the Lendu, Ngiti and Hema ethnic groups.
On the fateful day of the 24th of February 2003, nearly two hundred people were killed in Bogoro. The Hema community in the village drew up a list of the casualties, both civilians and soldiers. “Each person came with the number of relatives that had been killed. We submitted the list to the chief,” explains Witness 233