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What Did Katanga and Ngudjolo’s Defense Teams Say in Their Opening Statements?

Before the defense case for Germain Katanga and Mathieu Ngudjolo Chiu starts on March 21, it is worth reminding ourselves of their teams opening statements to the court – made over one year ago. It may give us a sense of the direction Mr. Katanga and Mr. Ngudjolo’s respective teams could take in making a case for their innocence. Both defendants pleaded not guilty to all 11 counts against them.

First to present was the defense counsel of Germain Katanga, David Hooper.  Mr. Hooper did not deny that there was an attack on Bogoro the day in question, February 24, 200, but disputed allegations that Mr. Katanga had any responsibility for the crimes committed. He placed blame upon outside forces from Uganda, Rwanda, the Central Government in Kinshasa, and other local militias, specifically the Union of Congolese Patriots (UPC) led by Thomas Lubanga. Mr. Hooper also raised the concern of Katanga’s age because he was only 24 years old at the time of the Bogoro attack and is the youngest person ever to be charged before an international criminal tribunal.  This, Mr. Hooper argued, would make is highly unlikely he could have planned such an organized attack and that the prosecution evidence is lacking on linking Katanga to the event.

Next, the defense counsel for Ngdujolo, Jean-Pierre Kilenda Kakengi Basila, noted the importance of the trial to seek out the truth and make sense of the tragedy in Ituri, noting the complexity of the conflicts. Mr. Kilenda addressed procedural “grey areas” and noted that to fully understand the situation in Ituri, not only Katanga and Ngudjolo’s case should be tried jointly, but also that of Thomas Lubanga.  Finally, Mr. Kilenda argued that there are serious flaws in the prosecution’s case against his client and urged the judges conduct a rigorous examination of the facts and evidence to which the prosecution will offer.

Reprinted below are the defense opening statements.  The full transcript of that day, November 24, 2009, can be found here: http://www.icc-cpi.int/NR/exeres/BB95CE30-5C9C-428B-BDD9-1B8BF127D2B8.htm.

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MR HOOPER: Thank you, Mr President. As I indicated a week or two ago, I’m not going to say very much this afternoon; this is not because there’s nothing to say, but because this is not the time to say it.

This is the opening of a trial, the opening of the Prosecution’s case. It’s not the opening of the Defence case. And it is not, after all – and we bear this in mind as the underlying theme and principle behind this case – for Mr Katanga to prove his innocence.

The Prosecution have brought him here to The Hague from his home in the DRC. He hasn’t asked to be brought here. They bring these charges against him, and it’s for the Prosecution to prove them and to a high standard to prove, if they can, his guilt beyond a reasonable doubt.

Now, all these charges, as we know, concern events on just one day; that day is 24 February 2003. The allegations are that Mr Katanga planned, together with his co-accused Mathieu Ngudjolo, an attack on the village of Bogoro. We are not directly concerned with attacks or other events at other places on other days. The charges we are concerned with are solely concerned with the village of Bogoro and solely concerned with events on 24 February.

Undoubtedly, there was an attack on Bogoro that day and excesses were committed, but we say those excesses were not committed by Germain Katanga. The Defence disputes that Germain Katanga bears responsibility for those excesses, or that he planned the attack or that he participated in it. We dispute all the evidence that speaks to the contrary. It remains now for the Prosecution to prove the case that they have chosen, that they have elected to prove.

Bogoro, as we heard from Mr Ocampo this morning, is a village in Ituri, a province in the east of Congo, bordering Uganda. You can pass through the village of Bogoro in a couple of minutes. It’s a tiny place. I was, therefore, surprised when I first came into this case – and I was in London – and I turned to my Times World Atlas to find Bogoro marked on it.

Why was it marked on it, this tiny little place? Well, it’s marked on it for a reason: It’s geographically highly important. It marks the point where you can pass from East Africa, from Uganda, into the Democratic Republic of the Congo. You cross Lake Albert, one of those series of lakes that runs down the Rift Valley there in Africa. You climb the wall of the Rift Valley, and at the top of the wall through a little gap is Bogoro. That’s why it’s marked on the Times Atlas. That’s its significance, geographically and militarily, because it controls the route between Uganda and Bunia. And Bunia, as we know, is the principal town in this province, a province incidentally the size of England, the size of my country, with basically two roads running through it. That’s its significance.

It became this town, this poor village of Bogoro, militarily significant during the two Congo wars, which we heard a little this morning, and particularly the second war, the war of 1998 to 2003, a war that claimed probably more than four million lives. Some commentators say five million lives. An incredible number. Wars brought about, in large part, because of the previous President Mobutu’s degradation of his country, because of his waste and corruption, though his days are now probably looked back as halcyon and golden days by many in the Congo; because for all his faults, at least they weren’t at war and they didn’t have the miseries of war inflicted upon them. But his degradation of the state allowed other states, such as Rwanda, such as Uganda, to take advantage of its weaknesses to plunder the Congo. That is the backdrop to this case. And we know that Rwanda and Uganda, they display their excuses for being in this particular area of the Congo, and they have done so for ten years, but plunder was the heart of their reason for being there.

Uganda and Rwanda invaded this area, and the area of the Kivus to the south and elsewhere, and exploited the DRC ruthlessly. Uganda set themselves up in this very area; they had a base at Bogoro. From there, they attacked the defenceless people that lived south of Bogoro. These people are mainly Ngiti people, a group of Lendu, but they speak quite a different language than the Lendu. They are extremely poor people. They are an agrarian, defenceless community.

The Ugandans attacked them with trained and heavily-armed troops, even with attack helicopters. The local people had spears and bows and arrows. They put up a brave resistance against these neo-colonisers from Uganda. I have seen in one report of the many that we have had served on us these words written, and this is talking about Walendu Bindi in 2001 to 2002:

“A local, non-governmental organisation reported a total of 2,860 civilians killed – ” that’s the Twin Towers number, approximately, too ” – and 77 localities completely destroyed, together with all social infrastructures resulting in the displacement of 40,000 civilians. The collectivité of Walendu Bindi located in the southern part of Ituri had not been involved in the conflict until late 2001.” So it’s 2002 into 2003 that these miseries befell this area. And all Ituri, all its inhabitants became victims. Nobody was left untouched.

In this trial, we hear the voices mainly of Hema victims. And I don’t detract from their miseries one iota, but it is, we must remember, a selective voice. And we will not hear from the mass of Ngiti victims, of which there were a great number.

The Ugandans armed, trained and encouraged the UPC group to attack Ngiti. The UPC group had trained soldiers, 20,000 of them. The UPC came to Bogoro and set up camp, too, in Bogoro. They had 200 or maybe 300 trained soldiers there in a defended camp, well-armed, and that was the position when the camp was attacked on 24 February 2003. The camp was attacked. The camp was in Bogoro.

The UPC fled. Excesses were committed. We heard of a population of 6,000. That’s not right. By 23, the eve of the attack on Bogoro, most of the population had left. All the schools had been closed. Families had been moved out. There were, perhaps, a few hundred left.

Within the fortnight, the UPC had fled Bunia as well, the main town, and that was the position at least until May 2003. But even then, the UPC were a spent force. Within a few months, the Ugandans – following their undertakings to Kinshasa/Luanda in September 2002 – had finally, begrudgingly left the area. And behind it, of course, all the opportunities for pillage, the gold mines, the diamond mines, the timber that they had resourced actively over many years.

And in that way, the ambitions of a rapacious Uganda and a rapacious Rwanda that was already sniffing around the area were thwarted, and bit-by-bit Kinshasa re-asserted its power and its authority over this most easterly and distant and wretched province.

Interestingly, Mr President, in the course of the submissions from the Prosecution this morning, I don’t think I heard the word “Kinshasa” mentioned. It’s a strange omission. Central government was never mentioned in this history, the party with the greatest interest in this whole affair was the central government of President Kabila, in Kinshasa.

So, two years ago when I first came here and met Germain Katanga, I was pleasantly surprised to find an affable, intelligent and a pleasant young man; but what most surprised me was his age. He was born in April 1988. That makes him about the same age as my son, so it’s quite easy for me to see him as young. And bear in mind, that he spent over five years now in prisons. He has spent two years here and three years in the DRC, much of his adult life. And the three years he spent in the DRC, as you have heard yourself, were on trumped-up charges in relation to a matter which with he has had absolutely no connection.

But the point about his age is this: In February 2003 at the time of this Bogoro attack, he was only 24 years old. This makes him the youngest person ever to be charged before an international criminal tribunal or court.

Now, of course, youth is no bar to committing crime, it’s no bar to a capacity to commit crime, but doesn’t it raise a question as to why such an institution as this – albeit taking its first steps, as it is – an institution that is fighting impunity, as we heard from the Prosecution this morning, and we acknowledge and so it should and so it must, against a backdrop, though, here of an international armed conflict that leaves five million dead, with the involvement of many plundering states, that it puts in the dock a man who is only 24 years of age at the time when these allegations are allegedly rooted and whose essential role in time was merely to defend his own people against dreadful excesses.

Where are those who inflicted on the poor people of Ituri all this misery? Where are the Ugandans and the Rwandans, the manipulators from Kinshasa that Mr Gilissen touched on this morning? It’s an important question.

And the other aspect to his age is this: In 2003, at age 24, was Germain Katanga so gifted in the arts of war as to be able to plan a successful attack on an entrenched and trained military position such as existed at Bogoro? Rather surprising, if that was the case. So who did do the planning? There are stones here that the Prosecutor – whose duty it is, of course, to search out exculpatory material, stones that have not been turned.

You are going to hear in the course of this trial quite a lot about the organisation, the FRPI. Who founded the FRPI? How did it develop? And we suggest that you pay particular attention to that question, because it’s our submission that it was only March 2003 that the FRPI that had existed essentially nominally up until then began to become organised. That is after the fall of Bunia, after the Ugandans chased out the UPC. Hardly anyone, we submit, had heard of the FRPI in February 2004 — 2003. I’m sorry. Even less so had people heard of the FNI.

The FRPI, we submit, did not have the structure that the Prosecution are laying on it at that time; it came later. Germain Katanga was not President at that time; that came later. It was not the organisation that planned Bogoro, as is the heart of the Prosecution case here.

Bogoro was attacked, and he is charged with planning it. That is the heart of the case against him. But who planned the attack? And the answer to that all important question may be found, perhaps, by asking some other questions, and doubtless you, the Judges and others in this Court, will be asking these questions over the course of the next several weeks and months. Who, for example, benefitted from the attack? Who provided the arms that the Ngiti people were, destitute as they were, quite incapable of buying? Who provided the military knowledge necessary to conduct such a relatively sophisticated operation? What was the le tournant majeur operational d’integration that arrived in Beni following the Sun City agreement in late 2002 and what part, if any, did it play? What was the role of the maison militaire in Kinshasa and its relationship with its army and agents in the east? As I say, these are questions to ponder perhaps over the next several weeks and months.

Earlier on, I may have said Germain Katanga was born in 1988. I meant 1978. Of course, we know his date of birth. And he is in your charge – you, the Judges, nobody else’s – and through me he can say he trusts in your judgment to assess this evidence, neutrally and thoughtfully, as we know you would do. Thank you very much.

PRESIDING JUDGE COTTE: (Interpretation from French) Thank you, Mr David Hooper. The floor is now given to the Defence of Mr Ngudjolo. Is it you, Mr Kilenda?

MR KILENDA: (Interpretation from French) Thank you, Your Honour, Honourable Judges of Trial Chamber II.

First of all, the Defence team of Mr Mathieu Ngudjolo would like to carry out one pleasant task, that is, to thank the Chamber for this opportunity to make opening remarks. The Chamber has realised the importance that the drafters of the Statutes attached to this particular step in the proceedings. This opportunity is a fine moment for all those involved to, well, perhaps not set out the thrust of their primary arguments but at least speak to their expectations for this trial that is getting underway. As far as we are concerned, this matter — and of course I will not touch upon matters that might be more properly reserved to our closing arguments but, in any event, for us this is a matter of showing the people of the Congo and all those on the international scene what our interpretation is, the interpretation of our client regarding the – what the international press has called the tragedy of Ituri and how the investigation by the Prosecutor has been conducted so far.

From this particular point of view the Defence team of Mr Ngudjolo was pleased to receive your ruling of 5 November 2009 in which you ordered that the head of investigations from the OTP appear tomorrow, and we certainly do not want to anticipate any of your particular thoughts, but we see in this a concern, a concern that the trial be held in an objective manner so that the truth shall be established, which is the very goal of the Chamber.

Mr President, your Honours, Mr Prosecutor, members of the OTP, my learned friends representing the victims, my learned friend Mr Hooper and all the members of your team, indeed something did occur in Bogoro on 24 February 2003. Mathieu Ngudjolo and his Defence have reasonable grounds to believe that. Denying that those events occurred would be an insult to morality, to reason and to decency.

According to the allegations from the Prosecution and others who are taking part in this trial, Germain Katanga and Mathieu Ngudjolo entered into a criminal agreement. They allege that this agreement led to the massacre of nearly 200 people in the village of Bogoro on 24 February 2003. The Prosecution received the referral of this matter before this Chamber on 26 September 2008 and, following the usual rules of the game, so to speak, the Prosecution will endeavour to convince you beyond all reasonable doubt of the guilt of the accused.

As for the accused, they have denied right from the very outset the charges that have been laid. They have proclaimed their innocence in the most forceful of terms. They have never plotted or schemed in any way to wipe the village of Bogoro off the map. Why would they have done such a thing? Was it really in their interest to do so? The attitude displayed by the accused has remained constant.

It would appear to us that at this juncture the task of you, the Judges, impartial arbitrators, becomes uplifting, delicate and most difficult. You must come to a decision. You must deal with the various opposing interests and thereby upholding the law, follow the law. This means that you, and as is the case for the Defence, you have not experienced the facts so you must get to the heart of the matter and try to really find out what happened, basing yourselves on the fundamental legal statutes of the International Criminal Court, the rules that allow you to uphold the law in this manner. You will meet the expectations of the international community, which is determined to put an end to impunity and, similarly, you will meet the expectations of our client, who expects justice to be rendered with full respect of the law. This is a very complicated endeavour, and thus a number of imperatives are in order.

First of all, the first imperative is to seek out the truth. That is the fundamental aim of any criminal proceedings that seek to both respect the individual rights of people and collective rights, the collective rights of society, deeply concerned by these crimes that have scarred the conscience of humanity.

The second imperative is to make sense of what the international community describes as the tragedy of Ituri. Making sense of the events must be based on an objective, comprehensive and impartial description of the realities and the identification of the true causes of the armed clashes that occurred in that part of the DRC over many years.

Since that day the indigenous peoples of the Ituri district have had their eyes turned towards The Hague, where members of their communities are being tried. They expect that the cut and thrust of legal arguments will lead to the truth emerging so that justice can be rendered. That is the only way in which the wounds of the past can be healed, by international criminal justice in this post-conflict phase.

So there you have it, Mr President, your Honours. That is why the defence team of Mr Ngudjolo is taking this opportunity to draw your attention to the fact that, in our opinion, the tragedy of Ituri must not be reduced or boiled down to only one thing. And this is very often what the Prosecution seems to do. It can’t be boiled down to just a conflict between two ethnic groups, between the Hema and Lendu. Such an attitude would hide the multi-dimensional nature of the conflicts.

Extraneous considerations were quite predominant. The legal representatives of the victims, in their opening remarks in July 2008, focused so much on the international nature of the conflict that they made a number of very serious indications. Taking in account this reality could have led the Office of the Prosecutor taking a different tack.

We must spend some time looking at the complexity of the tragedy that occurred in Ituri. Once we have understood what happened, then we must deal with what the Defence is calling procedural grey areas, and then, finally, we will speak to our clients’ expectations.

First of all, I would like to spend a few moments speaking about the complex nature of the tragedy. The conflict between the Hema and Lendu originated before colonisation. The colonisation of the Congo by the Belgians then heightened tensions between these two communities. One community was deemed to be superior, racially superior, than the other and then this idea was stressed – as was done in Rwanda between the Tutsi and Hutu – and the Hema were deemed to be superior to the Lendu, and the Lendu owed them allegiance and obedience. Benefitting from this superiority that Belgian colonial powers had granted them, the Hema thought themselves to be superior beings and that they could crush the Lendu and treat them as if they were subhuman. These ideas, obviously, leading only to crime were echoed in one particular piece of research. I am speaking of a PhD thesis written by Mr Lwa-Djugu Djugu, a Hema person, entitled “The Bahema of Upper Zaire, Family Relationships and Policy Within a Traditional Society”.

This academic thesis received high honours, despite the criminal contentious statements found in this research. This doctoral thesis, which is still controversial within certain circles of the Congo, showed all the contempt that a people can show ostensibly and with impunity towards another with the full knowledge of the state. I think it would be appropriate to draw your attention to the fact that two Congolese members of parliament fought publicly in parliament because of the ideas found in this particular PhD thesis.

Furthermore, the Congolese association called Media For Peace organised a round table in Kinshasa from 10 to 11 July 2003, and it was written at that occasion, “This research, taking as its model the history of the Hutu and Tutsi people of Rwanda and Burundi, develops the idea of the superiority of the Hema,” and I am referring to page 287 of the thesis and, furthermore, I make reference to pages 152 and 153 of Jacques Maquet, Pouvoir er Societé en Afrique, which was published in 1970 by Hachette. In any event, this perpetuates this controversial thesis advanced by old western ethnologists regarding the differences between races.

The second Republic of the Congo which was ruled by an iron hand by Maréchal Mobutu, based on this deadly principle of divide and conquer, exploited this conflict between the two peoples. Political, administrative and legal positions were all entrusted to Hema people. Many land conflicts came before the courts, but the Lendu always seemed to lose out and they found themselves stripped of their lands, persecuted everywhere. The only response to these things was the actions, the bloody reprisals by officers who were corrupt, who were manipulated and used as tools of oppression.

One example was the massacre of the civil population of Lendu Bindi — the Lendu Bindi civil population in Walendu Bindi during a commando operation led by a colonel who had been sent there by the Zaire authorities in 1992. Before the superior court of Matete in 2002, when asked to deal with a matter having to do with this thesis, a Congolese judge had to pay the price. Had she not fled the country, she would have paid the ultimate price for having the temerity to prosecute this intellectual in 1999. When the Balkanisation of the country was at its very height, owing to these so-called liberation wars, the conflict was exploited once again, more than before, and took on staggering proportions. The Lendu were systematically massacred by the Hema and the Ugandans. Everything seems to point towards a true desire to commit genocide. Clearly, everything had been planned to ensure out-and-out eradication of the Lendu tribe. Children were recruited, sent off to Uganda for military training and engaged in hostilities to massacre the Lendu.

During that time — during that time, the Congolese government was inexistent, powerless. This huge creature that the citizens had entrusted with their personal sovereignty was no longer anything more than a shadow of itself. The Congolese state was no longer able to ensure the collective security of all. Everything happened as if citizens were still living in some kind of untamed wilderness where only the strong would survive.

The Ugandan military forces that occupied the country during that period thought of the Lendus as their worst enemies and massacred them as they wished. Uganda, the occupying power since 1998 was the uncontested and ferocious ally of the Union des Patriotes Congolais.

Some Prosecution witnesses argue that young Hema youth were recruited by the UPC and sent to Uganda for military training. It is alleged that others were trained in Rwanda and even in the country; namely, in the Rwampara training centre in Bunia. What were the Lendu to do while this happened, stand by and do nothing as they were being killed, exterminated? Allow their tribe and their people to be slaughtered?

The instinct of preservation is a natural thing, and so that was the point when seeing the inability of the Congolese government to ensure their collective security, the Lendu began to organise themselves within their families, so as to ward off the repeated and blind attacks using only rudimentary weapons, ward off3 the attacks of the enemy clearly out of control using powerful military resources, including MIG 20s, helicopters, tanks, heavy artillery, including armoured vehicles.

This is called the instinct of preservation, and really is a matter of pure self-defence. They were defending themselves against obvious plans to exterminate the Lendu population. And this organisation that was being done was not by Mr Ngudjolo, who was not the leader of the Lendu, certainly not the most senior commander of the Lendu, as the Prosecutor claims. That is the historical truth of what happened in Ituri. Historians can attest to this.

It is unfortunate that the Prosecution still has not dealt with that part of the true situation that the Lendu experienced. They never dealt with that in their various filings. This situation explains why the various self-defence groups came into being. It was only a logical response, faced with the inability of the Congolese state to ensure the safety and well-being of many of its citizens who found themselves subject to arbitrary decisions, crime in many forms, and the abuses and violence of a foreign country, Uganda, which occupied its territory in plain sight and with the full knowledge of the international community, that same international community that is now calling for the ICC Prosecutor to ensure the punishment of Mr Ngudjolo, who had no decision-making power in Ituri.

Where it concerns procedural reasons, even if at the start the Defence of Mathieu Ngudjolo fiercely was opposed to the decision of Pre-Trial Chamber I of 11 February 2008 to join the instant cases, in the vision of the Prosecutor who considers that the two accused formed a joint criminal enterprise with a view to dislodging the Union des Patriotes Congolais from Bogoro, logic would have it that all the alleged protagonists be tried together with a view to saving contradictions in the decisions to be issued.

The Prosecutor is prosecuting another Congolese person before this Court for enlisting and conscripting child soldiers. He is accused by the Prosecutor of also having made these child soldiers participate in hostilities. Any sound mind would have to ask itself to the benefit of who and against who these children had to fight?

He’s also made an accusation of Germain Katanga and Mathieu Ngudjolo particularly of having carried out the enlisting of child soldiers and having put them into hostilities. The Prosecutor would have us believe that two ethnic groups were clashing in Ituri. Faced with such a possibility, it becomes difficult to understand the splitting up of cases which are currently pending before the International Criminal Court in the DRC situation and, more precisely, in Ituri. These cases deserve a joint examination, such as to be able to fully understand the causes and effects in an overall and holistic and attractive manner.

Within the vein of these concerns, your Chamber should constantly have in mind with a view to better understanding this tragedy that the cases – which are currently pending before the International Criminal Court in the situation of the Democratic Republic of the Congo where it concerns Ituri – are, in fact, but one. They should have been judged together; they deserve all to be joined together.

Who would have had an interest in driving the Union des Patriotes Congolais out of Bogoro and why? Did the UPC really have child soldiers within its ranks, and to do what? For a plausible reason, was — is Uganda not in the box? Well, proprio motu, it assigned itself a fallacious pacification mission in Ituri for the precise motive of protecting the populations who were abandoned and with a view to making secure its fronts.

How can you understand certain politicians currently governing the Congolese state whose testimony could have shed light on the religion of your high court, to have played a first-line role, particularly within the structures such as EMOI, the integration operational staff? They have never been heard to this day. Well, their examination would have been able to bring answers to a whole host of questions which surround the Bogoro case.

How can you explain that the Prosecutor has not heard, not even as witnesses, the leaders of the APC, the Armée du Peuple Congolais of Mbusa Nyamwisi, whose troops were present in Bogoro before arrival of the UPC and the UPDF, Ugandan army.

And what is, finally, the prosecutorial policy of the International Criminal Court? The accused, currently in the dock of the International Criminal Court, are they responsible for the Bogoro massacre? Did they really plan it?

The responsibilities in this case in Bogoro, are they not to be found in foreign countries – namely, Uganda and the Congolese state – which it would have had an interest in kicking out the UPC enemy? It would have thwarted their political and economic ambitions at a given time.

These questions should not be dissociated from the examination of the case that you are judging today and the answers to which make it possible to understand the political and military situation and the economic situation in Ituri, which has suffered grave violations of human rights for several years. The answers to these questions would shed light also on the real reasons for the emergence of self-defence groups in Ituri.

Before going back to this more in-depth in pleadings and submissions, let us say simply that it is both the absence and the incapacity of the Congolese state at the time to ensure the collective security of the inhabitants of Ituri, which has justified the proliferation of self-defence groups as well as the presence of foreign countries in Ituri, such as Uganda, which has established a veritable military government, the front-man of which appears in a number of videos produced by the Prosecutor.

Three: The expectations of the Defence of Mathieu Ngudjolo Chui. We — President, your Honours, we go into this trial after the decision of 26 September 2008 which confirmed ten charges against our client. Everything could then appear lost for him given that a certain opinion, which is only that he be eliminated from society. May that not come to pass.

Mathieu Ngudjolo and his Defence go into this trial with a clear conscience, driven by the imperative of searching for the truth. This calm that they have comes from the decision confirming the charges itself, paragraph 71 of which recalls that it is for the Trial Chamber that evaluates the evidence on which the confirmation charges were based.

This clear conscience results, President and Judges, from the assurance that you have – in accordance with the legal provision – given to the accused from the first status conference of 21 September 2008. Having examined the latter with regard to whether they plead guilty or not guilty, and following their answer of pleading not guilty, you have unequivocally reminded them of their rights, those linked to the presumption of innocence and of criminal legality.

On the same occasion, you stressed to the Prosecutor that he always has the burden of proof when it comes to the crimes the accused are accused of. You have even gone further demanding that the Prosecution produce a detailed table which, in a very clear way, sets out the charges against the accused and all the related evidence. Your method of approach is symptomatic of the respect of the presumption of innocence.

The requirement of the Prosecutor to produce such a table, in our humble opinion, respectfully reminds the Prosecutor of the evidentiary standards at trial before the International Criminal Court. You should, to convince you of the liability of the accused, prove their guilty beyond reasonable doubt. The rigorous nature of the evidentiary standards at this stage of the proceedings before the ICC reflects a respect of the human person, as this standard highly protects the rights of the accused who should not be exposed to the whims of international criminal justice if his guilt is shown with doubt, with grey areas.

Those who tend to would — prosecution before the high court — or this would do so, and it’s also to convince even the accused of his conviction if a sentence should be handed down that would be an example which would be arbitrary.

So, in order to permit — to make it possible to admit to the Judges and the international community, the Prosecutor has taken testimony of witnesses alleged to have seen a plan to raze Bogoro to the ground and allegedly have the capacity of the highest command of the FNI, Mathieu Ngudjolo.

These witnesses are said to have seen and given instructions to other commanders dispatched to the field while drawing up the plan and also during hostilities. All the investigation of the Prosecutor is based on these supposed witnesses. These other commanders who have been used by — supposedly used by Mathieu Ngudjolo were never heard. This is at least curious.

It is also strange to note that while Uganda at this time was the occupying force, having massacred a lot of Congolese during the conflictual period, no military Ugandan officer has been heard with regards to the Bogoro case. The witnesses of the Prosecutor confirm, however, that Uganda made and undid alliances between political military groups put up by itself in Ituri.

Uganda manipulated and armed these political and military groups. Uganda trained child soldiers recruited by the UPC. Ugandan soldiers and those of the Armée du Peuple Congolais of Mbusa Nyamwisi were present in Ituri in general and, in particular, where it concerns us, in Bogoro during the period where the crime is charged.

Some witnesses of the Prosecutor confirmed that arms which had been used to attack Bogoro came from Kinshasa via Beni, where the EMOI was based, the integrated operational staff and the headquarters of Mbusa Nyamwisi, who allegedly coordinated the supply operations for the troops with arms and ammunition. It is in public knowledge that the torches were always burning between the UPC and RCD-KML of Mbusa Nyamwisi.

The UPC, supported by the Ugandan army, its ally at the time had driven out Mr Lopondo, the military governor of Mbusa Nyamwisi, from the town of Bunia on 9 August 2002. It is also established with facts that numerous agreements were concluded between the two groups to put an end to hostilities in Ituri before 24 February 2003.

It is also — there are also particularly the Kampala agreements of 2002 and the Dar es-Salaam accord of 10 February 2003. During this, the UPC had asked, but in vain, the Congolese President Joseph Kabila to withdraw his troops from Beni and for the RCD-KML to cease all military activity in Ituri. All these accords therefore failed, and the APC, the military wing of the RCD-KML of Mbusa Nyamwisi continued its military activities in Ituri, at a given time, a conflict put against each other UPDF and the UPC.

Prior to this conflict, the Ugandan armies and Rwandan armies had already clashed in Kisangani. Therefore, during this period, there are several conflicts which need to be pointed out. Firstly, the conflict between Rwanda and Uganda in Kisangani. RCD-Goma with the support of Rwanda. And the UPC had the support of Uganda.

Secondly, the conflict in Uganda — between Uganda and the UPC against RCD-KML of Mbusa Nyamwisi from 9 August 2002. Mr. Lopondo, the military governor of Mbusa Nyamwisi, was driven out of the town of Bunia by the allied forces UPDF and the UPC.

Thirdly, the UPC turned its back on Uganda and allied itself with RCD-Goma of Dr Adolphe Onosumba supported by Rwanda; hence, the hostility of Uganda in January 2003 and the open conflict with Uganda against the UPC.

Fourthly, agreement between Uganda, Kinshasa and RCD-KML of Mbusa Nyamwisi 25 against the UPC.

Fifthly, after this agreement, Uganda which had the total governance of Ituri created the FRPI, Front du L’integration pour Pacification de L’Ituri, the objective of which was to dislodge the UPC from Ituri. And then, as it would seem, it was opposed to peace in Ituri with a view to the traceability of this hyper-conflictual situation, who was interested in driving the UPC from Bogoro?

Instead of trying to find the real people responsible for this tragedy, who should be found within the Ugandan army or among the people in power in Kinshasa, the Prosecutor takes these two young people, Katanga and Ngudjolo, in its submissions and recommendations on the interethnic conflict between the Hema and the Lendu Ngugu territory in Orientale Province, and in its report of 7 December 1999, the Congolese Association of Human Rights, l’ASADHO, asked in the short-term that:

One, an investigation be carried out under the responsibility of a neutral and credible authority, such as the special rapporteur for the commission of human rights of the United Nations with a view to establishing the responsibilities, particularly within the ranks of the Ugandan military hierarchy, and the leaders of the RCDML who had the control of the territory in which these events took place.

Secondly, that the Ugandan authorities and the RCDML should have had all authorisations or should have granted all authorisation and access rights to the humanitarian organisations such as the International Committee of the Red Cross with a view to assisting those displaced and the wounded.

The objective of the trial which commences today is the establishment of the truth regarding what truly happened on 24 February 2003 in Bogoro. This criminal court is very much attached to the establishment of the truth, both with regard to its basic tests and the practice of the Court. The objective is therefore the establishment of the truth.

The legal arguments in your Chamber will seek the theory of the — to ensure that the law decides on the adjudicatory facts. Who did what? Where? When? Why and how?

The importance of facts in international jurisdictions has already been proven. One only has to read the decision of the International Court of Justice of 19 December 2005 in the case DRC v Uganda, a decision condemning Uganda for the exercise of illegal military activities in the Democratic Republic of Congo. One can also read the decision by this same court on 27 June 1986 in the case United States v Nicaragua. The value of the exact account of the facts in the events that happened in Bogoro must be examined on the basis of the evidentiary standards at this level of the proceedings. That is beyond any reasonable doubt.

This means that the Chamber has to be very rigorous vis-à-vis the parties when it comes to the presentation of the facts and the presentation of the evidence. Your Chamber must ascertain whether, with a view to establishing the truth, it has at its disposal all the verified facts. Did the key persons — were the key persons interviewed by the Prosecution? Did the Prosecution set aside the testimony of certain individuals who could have contributed to the reality of the massacre in Bogoro? Given what clearly could appear to be grey areas in the investigation, wouldn’t it be possible to resort to some of the witnesses called by the Court itself? In other words, in this search for the truth, the Court must ask itself the following fundamental question:

Who precisely had an interest in chasing out the UPC from Bogoro? Which were the duties of Mr Ngudjolo and Mr Katanga at the date of the alleged crimes? Wouldn’t it be more logical for the Court to interview the Ugandan authorities who were managing Ituri politically, administratively and militarily? The Ugandan Generals Kale Kahihura, who was a sort of military governor of Ituri as well as General Kasini, who had created the Kibali-Ituri province through his decree of 22 June 1999, and had even authorised a Canadian company to exploit petroleum in Ituri. Wouldn’t these people — shouldn’t these people have been interviewed?

Some have also stated that the UPC had turned their backs on the Ugandans at one point and this is how come the Ugandans concluded another pact with the APC of Mbusa Nyamwisi, who is currently a Congolese minister and who, with the support of the Congolese government in the structure known as EMOI, had decided to throw out UPC from Bogoro. It could be said that a plan to throw out the UPC from Bogoro was hammered out by the highest authorities in Uganda and Congo. And for purposes of the establishment of the truth, wouldn’t it would be appropriate to interview these authorities with a view to clarifying the Court on the ins and outs of the attack at Bogoro?

The Defence of Mathieu Ngudjolo will show that the allegations against their client are not founded in fact or in law. They will not develop the argument of tu quoque, given that Ngudjolo was never involved personally, or through intermediaries, in the attack against Bogoro, on 24 February 2003. We must underscore the biased and incomplete nature of the investigation carried out by the Prosecutor in this case. They have gathered materials that point to the involvement of Ugandan officers who were clearly identified, but it is curious and disappointing to note that the Prosecutor did not deem it useful to interview those people as witnesses.

An august jurisdiction such as yours has the right to expect fair answers to questions, the questions that we have just formulated, and which may lead to others. These answers will reveal whether the accused actually concocted a scheme to wipe out Bogoro from the map or whether the perpetrators of these Machiavellic plan are not amongst the Ugandan and Congolese authorities who were the decision-makers in Ituri.

This is very important within the context of the imputability of facts and also within the definition of the modes of liability. The Defence of Mathieu Ngudjolo is of the opinion and remains convinced that the International Criminal Court has all the legal means to implement its criminal policy. Even the United States, which has not yet condescended to ratify the Rome Statute, have faith in this court. On 3 November 2009 we heard them asking the DRC to arrest and transfer Bosco Ntaganda to The Hague, and this is another perpetrator who was directly involved in the events in Ituri.

Mr President, your Honours, the Congolese people, and in particular the population of Ituri, are waiting for justice. They know that if the ICC implements all the relevant provisions in its statute and rules that justice will be rendered. In answer to that legitimate expectation, your Chamber owes it to itself to fill all the gaps left by the investigations of the Prosecutor and to correct all the inequalities created which are incompatible with the main objective of this jurisdiction, which is to fight against impunity while ensuring the rule of law.

During the trial on the merits, which commences today, your Chamber will bear in mind the guiding principle of the irrelevance of official capacity as stipulated in Article 27 of the Statute of the ICC. In the search for the truth with regard to the events that took place in Bogoro on 24 February 2003, nothing should be allowed to stand in your way, neither the political positions currently occupied by some of those who ordered these crimes in the Congolese government or the military ranks of the Ugandan and Congolese officers who were directly or indirectly involved in that tragedy.

The Congolese people are waiting for the truth. The Congolese people are waiting for justice. And now, which is in the Democratic Republic of Congo, a period of zero tolerance, as correctly decreed by the head of state, who is the same person who referred the situation in the DRC to your august Court.

Mr President, your Honours, I have finished my presentation.



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