This reporting period saw the first witnesses called in the defense of Germain Katanga. Katanga and co-defendant Mathieu Ngudjolo Chui are charged by the International Criminal Court (ICC) for war crimes and crimes against humanity arising out of the conflict in the Ituri region of the Democratic Republic of the Congo (DRC). Katanga was the alleged leader of the Force de résistance patriotique en Ituri (FRPI) militia, and Mathieu Ngudjolo Chui is the alleged former leader of the Front des nationalistes et intégrationnistes (FNI). Both accused deny all of the charges against them.
The Prosecution called 26 witnesses to provide evidence that the two accused are guilty of crimes charged in the indictment. The defense witnesses will provide evidence that could suggest that the accused are not guilty and that could weaken Prosecution evidence.
Each defense team will present a separate defense case. The Katanga defense will call its witnesses first, and then the Ngudjolo team will call its witnesses. The two accused are scheduled to testify after all defense witnesses have been called.
Legal and Procedural Issues
Witness Visits to Katanga and Ngudjolo
Both defense teams have requested the Court to allow defense witnesses to visit the accused at the end of their testimony. The defense teams argued that international and regional human rights instruments stress the need for the well-being of defendants, which includes facilitating visits with family members as well as friends—including witnesses from trial. Moreover, the teams wanted the accused to be able to thank the witnesses for coming to testify, as is common at international tribunals.
The Prosecution categorically opposed such visits because of concerns over possible exchanges between witnesses and the accused about issues concerning the trial. However, the Prosecution did suggest that an alternative solution might be possible, especially for those witnesses who are family members of the accused.
The judges referred to a decision from February 18, 2011 that generally prohibits contact between the parties and witnesses during testimony, except in exceptional circumstances. Applications for exceptions to that prohibition need to be made separately for each witness. The application must explain why a meeting is justified. If the Chamber considers that exceptional circumstances exist and approves the request, then the party will have to make a request with the Registry to organize the visit.
The Katanga defense team requested a visit between Katanga and his first witness, who is Katanga’s brother. The judges decided that after he finished his testimony, the witness could visit Katanga for 30 minutes at the court (not at the detention center). The Court ruled that their conversation must be limited to personal, family, and friendly issues or issues relating to Katanga’s life in prison. There could be no mention of the case. The meeting had to take place in French or Swahili with the presence of a member of registry who could speak those languages and cut the meeting short if the two started talking about prohibited topics or switched languages.
For the second defense witness, who is a joint Katanga/Ngudjolo witness, both teams requested permission for the witness to visit the accused at the detention center. The Katanga team also requested visits for the next two witnesses it will call.
The Chamber held that the parties had not provided sufficiently “exceptional circumstances” to deserve the visits. However, the Chamber allowed the witnesses to meet each accused for five-minute interviews after testimony is completed so that the accused could thank the witnesses. The judges imposed similar restrictions as for the meeting between Katanga and his brother.
Katanga is Scheduled to Testify
The defense team for Katanga submitted a revised list of witnesses indicating that Katanga would testify. The Court ordered that Katanga would testify after all of Ngudjolo’s witnesses had been called, but before Ngudjolo’s testimony.
The first two defense witnesses were called by the Katanga defense team. The witnesses testified about the period before the conflict, including the formation of loosely organized local defense groups and the creation of the FRPI. These witnesses provided potentially exonerating evidence about Katanga’s alleged involvement in crimes committed in Bogoro, DRC, in February 2003.
Testimony of Jonathan Bubachu Baguma
The first witness, Jonathan Bubachu Baguma, was Katanga’s younger brother. Baguma testified in open session with no protective measures.
A student in agronomy, the witness testified that he first met his brother in 1998 in Aveba, a small town in the Ituri region of the Democratic Republic of the Congo (DRC).
Defending their Villages against the Ugandans
Baguma testified that there were many problems with the Ugandan army in Aveba.
“The Ugandan army arrived at our village in 1996 with the group RCD-K/ML,” he said.
The Congolese Rally for Democracy – Kisangani Liberation Movement (RCD-K/ML) was allied with the Ugandan army forces that were fighting against Thomas Lubanga’s Union of Congolese Patriots (UPC) forces. Lubanga is currently on trial at the ICC for war crimes involving child soldiers.
The Ugandan army was based in Gety and Boga, the witness said. To get from one Ugandan army base to another, they would pass through Aveba and other villages, he explained.
“So the Ugandans, while going through these villages, would burn down the houses of the people, they would kill the inhabitants of the villages and they would pillage the houses and hospitals,” Baguma told the judges.
“And even worse, in Aveba there was a lot of fighting with the young people in the village who…had to defend their village against the Ugandans,” he said.
Baguma testified that these young people would use traditional flutes to signal the arrival of the Ugandans. Then they would use arrows and machetes to fight the Ugandans while the parents and children hid in the bush, he said.
The witness explained that the young people defending Aveba did not have firearms in those days, and that there was only very basic organization to the defense.
The Ugandans were in the area for approximately two years, the witness testified.
He said that his brother, Germain Katanga, found him in the bush, where the witness was hiding. Baguma claimed that Katanga had participated in some of the fighting in Bukiringi and in Gety, where he obtained a firearm from a Ugandan soldier. However, the witness said he did not know exactly how Katanga had acquired the weapon.
The witness described the conflict in the region, explaining that once the Ugandans had left the area, it was calm for a while. Then, Baguma said, the war returned to the region when Mulondo Lopondo (the governor appointed by Mbusa Nyamwisi) was driven out of Bunia in August 2002 by UPC forces.
The defense showed the witness a document listing 952 children under the age of 18 who had passed through a demobilization site in the area. The witness testified that as many as 75 percent of these people were not combatants.
They had gone to the demobilization site in order to take advantage of kits being given out, which included sandals, clothing, and promises of support for studies, the witness said.
“The times were terrible … and these promises meant that a lot of young people went to be demobilized even though they were not combatants,” Bagumatold the judges.
The witness was shown a list he prepared that included the names of seventy-three youth who he maintained had demobilized but were not combatants. Baguma said he knew the persons on the list through his involvement with local schools, the church, and football.
Cross-examination by the Prosecution
During cross-examination, the Prosecution sought to discredit this witness’ testimony.
The Prosecution expressed doubt that Baguma did not know more about his brother’s involvement in the military. In particular the Prosecution suggested that the witness was not telling the truth about how Katanga obtained a weapon from a Ugandan during one battle.
The Prosecution pointed to inconsistencies in the witness’ testimony and a previous statement he had given where he indicated that the Ugandan was killed for the weapon. The witness stood by his in-court testimony, when he claimed he did not know the details of how Katanga acquired the weapon, and suggested that there had been an error in transcribing his statement.
The Prosecution pushed the point farther, reminding the witness that he had read the statement and had the opportunity to correct it.
“You read this and initialed it, so you must have seen there was a mistake in this sentence, which is a key sentence,” the Prosecution trial lawyer said.
After a short silence, noted by the judges, the Prosecution moved on without an answer from the witness.
The Prosecution also attacked the credibility of the witness’ testimony about the demobilized children he claimed were not combatants. The Prosecution doubted that the witness personally new the seven hundred or so children he claimed were not combatants, especially those who came from other regions.
“How were you able to certify that children from different regions, where you didn’t live, how can you say they weren’t combatants? Are you in a position to state this?” the Prosecution asked.
The witness maintained that he knew these children. “I knew more than the names on this list, I could show you this, their home, I could point them all out, even now,” Baguma testified.
Questions by Legal Representative for Child Soldiers
The Legal Representative for the child soldier’s group of victims also had questions for Baguma. The Legal Representative wanted to know whether the FRPI had child soldiers. The witness responded that there were no child militia members in the FRPI in Aveba, but there were in some other areas where he did not travel.
The witness explained that some children fought in self-defense, while other fought out of a sense of revenge for crimes committed against their families.
“Yesterday I spoke about the war…against the Ugandans in the Walendu-Bindi area. … And everyone defended themselves. So at that time everyone, including the women and the children and elderly people and young people, everyone went to fight. And it was at that time that the children were included among the militia members. … We had to defend ourselves. … Other children were children who were taking revenge for the death of their parents who had been killed by the Ugandans. As far as they were concerned, they had to fight against the enemy who had killed their parents,” Bagumatold the Judges.
Testimony of Floribert Njabu
Floribert Njabu, the former political leader of the FNI, was the second defense witness to testify. Njabu testified in open session, with no protective measures.
Njabu testified that he is Lendu, and was born in the north east of Ituri district. He first met Katanga in August 2003 in Bunia, he said.
Right to Refuse Self-Incriminating Testimony
Njabu was arrested by Congolese authorities in 2005 and has since been held in detention in Kinshasa. Therefore, the judges were careful to advise the witness of his rights under Articles 74 and 93(2) of the Rome Statute.
Under Article 74, the witness is entitled to refuse to answer a question if it could incriminate him. The Chamber stressed that he could use this right at any moment and for any question. The judges also reminded the witness that if he does use this right, the judges could give certain guarantees to the witness, such as the confidentiality of his answers and the promise that they would not be used against him in later prosecutions at the ICC (except in some narrow circumstances).
Article 93(2) guarantees the witness that the ICC will not prosecute, detain, or subject the witness to any restriction on personal freedom for any of his actions or omissions from before he left the DRC for The Hague. This means that the ICC has guaranteed that it will not prosecute him for crimes he may have committed in the DRC.
Recovering the District of Ituri “At All Costs”
The witness said that after the outbreak of the rebellion, he joined the RCD-K/ML when it was based in Bunia.
He also described the fall of Lopondo, testifying that he was at Lopondo’s house when it was attacked. Lopondo and his guard fled, and the witness said he remained behind to wait for a plane to take him to the RCD-K/ML headquarters in Beni.
The witness explained that at the time, “The RCD-K/ML and former government of Kinshasa wanted at all costs to recover control of the district of Ituri.”
The FRPI came into existence around this time, Njabu told the Court. Njabu testified that Dr. Adirodu came to Beni to talk to them about the FRPI. Katanga was not present at that meeting, the witness testified.
Dr. Adirodu had been an advisor to the RCD-K/ML, but at the time told the witness and others that the FRPI was a well-known organization created in Kinshasa, the witness testified. Njabu, however, said that for them, the FRPI was completely new.
“We understood that he wanted to form a sort of armed group perhaps, but he was the only one to know the ins and outs of that,” Njabu said of Adirodu.
In spite of several questions on the issue of the ethnicity of the group, the witness would not say that the group was intended to be representative of just one ethnicity.
Njabu also explained how he had participated in a weapons delivery. The witness said he had been told the weapons came from Kinshasa (presumably from the government). He testified that they were sent to groups in northern Ituri.
Witness Arrested, No Due Process
The witness said that when he was arrested on February 27, 2005, he was still the national president of the FNI. He said at the time, he was not given an explanation about why he was arrested.
“I was arrested. They never told me why…except to say that it was in connection with the murder of nine UN Blue Helmets…After that, we were told that we were being prosecuted for offenses against state security. And since this wasn’t enough, they again changed it and started talking about crimes against humanity,” Njabu testified.
He said that he has not been subject to due process. He recalled that the last time he was brought before the courts (the high military court) was in 2007. In the four years since, nothing has been done on his case, he said.
Njabu also testified that before leaving the DRC to travel to The Hague, the witness and the other two Katanga defense witnesses also detained in the DRC received a surprise visit from the Congolese Minister of Justice.
“[He] came before our departure and traumatized us, intimidated us, given that he insisted on our departure being filmed, including our pictures being taken. As you can see, having spent so many years in prison, they did not say or do anything meaningful until the time we were about to leave to tell the truth, he came to intimidate us. For those six years and 20 days that we have been in prison, our country has never shown the will to administer justice in our case,” Njabu told the Court.
Hearings for March 31, 2011 were cancelled. The witness’ testimony will continue on April 5, 2011.