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Witness 148 Denies his Testimony was Influenced

This report covers proceedings in the International Criminal Court (ICC) trial of Germain Katanga and Mathieu Ngudjolo Chui from June 13 – 17, 2011.

Germain Katanga is the alleged commander of the Ituri Patriotic Resistance Force (FRPI) militia, and Mathieu Ngudjolo Chui is the alleged former leader of the Nationalist and Integrationist Front (FNI) militia. They are charged with war crimes and crimes against humanity allegedly committed in 2003 in Bogoro, a village in the Ituri Province of eastern DRC.

During this reporting period, Witness 148, testifying in defense of Katanga, concluded his cross-examination. He was then questioned by the legal representative for victims, the judges, and was re-examined by the Katanga defense team. This report provides an overview of that testimony.

The chamber also rendered three oral decisions. In one decision, the chamber ruled that measures separating three detained witnesses from other prisoners in the ICC detention center should be altered so that the detained witnesses can have more time outside their cells. The chamber also held that the OTP disclose the results of an OTP investigation into a newspaper article about one of the witnesses to the witness’ duty counsel. Finally, the chamber ordered a defense witness to be sent home after the defense decided not to call the witness to testify. The prosecution had requested that the witness be kept in The Hague and called as a witness of the court. These decisions are discussed below.

Testimony of Witness 148

This witness testified with protective measures, including a pseudonym and voice and facial distortion.

During his examination in chief, the witness had testified that he participated in the attack on Bogoro and explained that the attack was carried out by a number of groups working together. Commander Yuda ordered the attack to be planned, the witness said. The witness reiterated that it was Yuda and his deputy Androso Zaba Dark planned the attack. Dark remained as commander in Bogoro after the attack.

Cross-examination

During cross-examination, the witness testified that Commander Kandro was the overall commander of the Ngiti combatants. He explained that there was disagreement between Kandro and Commander Cobra about attacking and looting the hospital in Nyankunde during the September 5, 2002 attack on that town. The hospital was attacked, and Cobra’s men looted its medical supplies, he said, although Kandro objected to this. Witness 148 claimed that he was not a part of that attack and did not see civilian bodies in Nyankunde.

Like other witnesses, the witness said that Cobra later killed Kandro, and went after Kandro’s fighters.

Witness 148 claimed that Katanga went to Beni, and later, ammunition started to arrive in Aveba, sent from Beni. Although he did not see the materiel himself, nor did he see combatants coming to Aveba to collect the ammunition, he was told about it, he said.

Testifying about the attack on Bogoro, Witness 148 said that the village was open and civilians were able to come and go when the attack started. He claimed that civilians were killed by machete in a school in Bogoro. He did not see any civilians killed during the battle but did see civilian corpses after the battle.

The witness testified that he saw burnt houses in Bogoro but said he never heard that civilians were burnt in houses, however. He also admitted that the soldiers pillaged the “few items that were available” in the village. This could be used by the prosecution as crime-base evidence, which proves that crimes were in fact committed during the attack on Bogoro.

He had testified that before the battle, the combatants had received fetishes. On cross-examination, he admitted that there were conditions for receiving a fetish: that they must not rape or steal during the battle. The prosecution asked whether these conditions applied after the battle.

“Even after the battle the conditions still applied. There were persons who violated these conditions…the hunger or the drive to get money could lead people to do just anything,” he replied.

The witness said that he had never heard of Mathieu Ngudjolo. The witness was an officer at the time of the attack on Bogoro and saw soldiers coming from Zumbe, the prosecution recalled, and asked again about whether he had heard about Ngudjolo. The witness clarified that he had heard of Ngudjolo, but he had never seen him; the witness said he had not understood the question.

The witness said that representatives from the UN visited Bogoro on various occasions. The prosecution asked about one occasion when Ugandans accompanied the UN on a visit to Bogoro, when they traveled along the route from Bunia that the witness was commanding. The witness recalled the visit but did not know its purpose. The prosecution alleged that Commander Androso Zaba Dark refused to let the group access the military camp area of Bogoro. The witness could not recall that and said the group went to Bogoro headquarters where Commander Dark was. He did not know whether Commander Dark then refused to let them into the camp.

Turning to the witness’ statement taken by defense lawyers, the prosecution asked whether he was shown a list of possibly exculpatory witnesses by the defense investigator, Jean Logo. In particular, the prosecution wanted to know whether the witness knew who else was on the list. He denied knowing who was on the list, saying that the investigator had not given him any names. The witness also testified that he did not know how Logo got his contact information, after the prosecution suggested that it came from Katanga’s family.

The prosecution asked whether certain words or expressions found in the statement were suggested to him. In his statement, he said, “Even after his appointment as president, Germain [Katanga] did not have any effective control over the various commanders.” The prosecution alleged that the phrase “effective control,” was suggested to him by the investigator or somebody else, the prosecution alleged. The witness maintained that he said everything in the statement, and the investigator only wrote down what the witness had said.

“Nobody influenced me in any way,” he said.

Questions from the Legal Representative for Victims

The witness had testified about four other attacks on Bogoro before the major attack on February 2003. The legal representative for victims asked the witness what the objective of the Ngiti attackers was for the February attack. The goal of those attacks was to chase out the UPC, he said.

He said that he only participated in the fourth and fifth attacks. During the fourth attack, they were repelled, he said. He did not know whether any livestock was looted during that attack. He said he did not witness any pillaging, looting or stealing of cows or livestock in Bogoro, “for the simple reason that there were no cows there.” Victims of the attack, however, have testified that their possessions, including livestock, were looted after the attack.

During the fourth and fifth attacks, all the civilians that were at the point of entry to Bogoro left, and during the fifth attack, there were no civilians at that location, he said.

The legal representative also asked about whether it was tradition for the combatants to loot after a victory.

“There are different types of combatants,” the witness explained.

Some might loot, he said, but others might not. The witness testified that the combatants usually did not report back to or share the commanders about what they had looted. He said that if a commander forced the combatants to give them what the combatants had looted, a gunfight could break out, and therefore, this was not done.

Four groups of Ngiti fighters stayed behind after the attack, he said, but no one else. Combatants who had stayed behind to occupy Bogoro lived in the houses of Bogoro that were not pillaged or destroyed, the witness testified. These combatants received food from the Kagaba market, the farms in Bogoro, and from people passing through who gave them food.

Questioning by the Chamber

The chamber also had questions for the witness. They started by asking about the witness’ testimony that Commanders Dark and Yuda were invited to Tchey by Commander Bayonga, when Bayonga appointed the people who were supposed to lead the FRPI. The witness said that Dark had told him that they were invited to Tchey and that Yuda was appointed commander of a battalion with Dark as his assistant. Other appointments were made as well, he said. The witness said he could not recall whether these appointments were made before or after the Bogoro battle.

The chamber asked whether any appointments were made for Aveba. The witness responded that Dark had told him Katanga was appointed as the president of the FRPI. The witness thought that Katanga’s appointment was made after the battle of Bogoro.

The witness testified that there were about five child soldiers in the Kagaba camp, but they were “not in the habit of going into battle,” he testified. Yuda objected to children going to battle, he said. The children lived with the families of their older brothers, he said.

“I would say that they were living with their families in the camps, especially when a member of their family was a combatant,” he said.

The witness said that the “fetisher” gave his group fetishes before the February 2003 attack on Bogoro.

“This was more or less the rule before going out to battle,” he said.

The fetishes came with conditions, however, of not stealing, not raping and not having sexual intercourse before going out to battle. Generally speaking, these conditions were always the same, irrespective of which battle the fetishes were given for, he said.

Commanders Yuda and Dark ordered the attack on Bogoro, the witness claimed. Yuda gave a speech to the combatants the night before the battle, and called on the combatants to bring in reinforcements to drive out the UPC, the witness claimed. The only objective was to attack Bogoro and drive off the UPC, he said.

The witness concluded his testimony, and the court suspended hearings for ten days, in part due to the defense decision not to call the next witness and due to a week during which no hearings were conducted at the ICC.

Legal Issues

The trial chamber rendered three oral decisions during this reporting period, which are discussed below.

The first oral decision was in response to a motion submitted by Katanga’s defense requesting the chamber to lift separation measures between the three detained witnesses and Katanga in the ICC detention center. The chamber explained that the three detained witnesses are housed in the same wing as Katanga and Ngudjolo in the detention center. Due to rules that prohibit contact between the witnesses and the accused, the detained witnesses have a limited number of hours they can come out of their individual cells and have a social life in the common areas.

On June 6, upon an order from the chamber, the Registrar submitted a confidential report on the detention conditions of the three detained witnesses. The Registrar noted that the detention center has to manage two different groups of detainees:  the three detained witnesses and the others detained by the ICC. Contact between detainees within each group is allowed, but contact between the groups is not. The three detained witnesses are allowed to take part in sporting activities for a maximum of one hour each day and carry out open-air exercises with the detained persons of the ICTY for a maximum of one hour 45 minutes per day. Furthermore, their cells are opened for three hours and 45 minutes maximum per day, which makes it possible to communicate between themselves and shower. During this period, the other detained persons are either exercising or locked up in their cells. The net result is that on average the detained witnesses can come out of their cells for six hours 20 minutes per day, maximum. The report noted that the meals were served in their cells and that the detainees have access to information and television programs. The Registrar noted that the current conditions cannot be extended beyond five to six weeks without undermining the welfare of the three detained witnesses. The Registry emphasized that any increase in the period of time they are allowed to leave would mean a decrease in the amount of time other detainees are allowed out. However, if the separation measures were lifted for everyone except the two defendants, it would mean that the detained witnesses could come out while the defendants are in court, the Registry noted.

The defense submitted that because the detained witnesses will have to be in detention for some time pending their asylum claims, in the interests of justice and for humanitarian reasons, it would be practical to lift what the defense considered unnecessary and disproportionate restrictions. The defense pointed out that it was highly unlikely that these witnesses would be called again to testify in this case. The defense noted that less restrictive measures could be adopted that only limit the prohibition on contact to the accused persons only. The Ngudjolo defense proposed the authorization of contact between the detained witnesses and the accused persons under the supervision of a guard who understands the language.

The prosecution opposed the request, pointing out that in light of the report of the Registry, the situation of the detained witnesses is not unacceptable. The “relative discomfort” of the witnesses is not exceptional enough to justify a waiver of the restrictions on contact, the prosecution averred. Noting that the witnesses might be recalled and that the accused may testify, the prosecutor submitted that the integrity of the proceedings should be preserved.

The chamber recalled that the trial chamber in the Thomas Lubanga case had lifted similar separation measures once testimony of witnesses in that case had been concluded. The chamber noted that the restriction measures were ordered in accordance with the jurisprudence relating to contacts between the witness and the party that called that witness, to avoid challenges regarding the integrity of the proceedings. To this end, the chamber opined that it was necessary to avoid contact between the two groups of detained persons in order to prevent the exchange of information. However, the chamber noted that it was not necessary to take measures to lock the witnesses up just in order to prevent visual contact or prevent the groups from meeting and seeing each other in the detention center.

The chamber stated that it was sensitive to the humanitarian issues raised by the motion and intended to ensure the best possible detention conditions, particularly in the instant case of witnesses who have filed for asylum in the Netherlands and may therefore stay in the detention center for an extended time.

The implementation of less restrictive measures authorizing contacts with the two groups of detained persons while the accused are in the hearings would be the most acceptable solution, the chamber found. However, the chamber refused to allow direct contacts between the accused and the witnesses, as the detention conditions reported by the Registry did not involve total isolation and therefore did not merit a waiver of this restriction. This was not a final decision, and the chamber advised the Registry to find a sustainable solution by exploring all measures that would make it possible to extend the periods of contact between detained witnesses in the course of the day, particularly during meal times, even if that means a reinforcement of supervision measures.

The chamber also ruled on a motion to disclose the results of investigation by OTP on an interview with defense witness Sharif Manda (one of the detained witnesses who has claimed asylum in the Netherlands) in the Congolese newspaper Le Millionaire. The prosecution had challenged the authenticity of the article, stating that given the findings of a preliminary investigation, the content of the article did not reflect the interview that the witness gave to the journalists of the paper. The witness told his duty counsel that he was not aware of the existence of that interview and considered that the article was a manipulation. He therefore asked for the disclosure of the final outcome of the OTP’s investigation. The prosecution responded that it had no objection to the disclosure, on condition that the chamber order the redaction of the names of people involved in the newspaper for the public and parties outside the proceedings. The witness concurred with the prosecution’s position and ordered the material disclosed with the redactions.

At the conclusion of Witness 148’s testimony, the defense was scheduled to call Witness 47. However, in a last minute decision made in light of a confidential filing received late the day before from the duty counsel for the witness, the defense decided it was no longer necessary to call the witness.

The prosecution acknowledged that it was an exceptional situation and did not have any objections to the withdrawal of the witness. However, the prosecution wanted assurances that it could use Witness 47’s witness statement during the cross-examination of another defense witness, defense investigator Jean Logo. The prosecution has been questioning witnesses about whether their testimony has been influenced and the conduct of the defense investigation. The prosecution argued that like in Witness 148’s statement, Witness 47’s statement includes legal terms such as “effective control.” The prosecution wanted to ensure that it could ask Logo about this and other matters concerning the conduct of the defense investigation, including that the witnesses travel with copies of their statements when they come to The Hague to testify. The prosecution also suggested that the judges call Witness 47 as a witness of the court.

The chamber did not make any findings on the prosecution’s request regarding the statement and suggested that the witness leave that evening so that the court would not incur any further expense.

Hearings will resume in the Katanga and Ngudjolo trial on June 27, 2011.

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