Bosco Ntaganda, the Congolese militia commander who voluntarily surrendered to the International Criminal Court (ICC) last March, has asked judges to release him from the court’s detention.
His lawyer, Marc Desalliers, said Mr. Ntaganda’s willingness to cooperate could not be disputed at this stage of the proceedings because he voluntarily surrendered to the court and on numerous occasions stated his desire to appear before a judge.
In the August 20, 2013 application, the lawyer said the war crimes accused would not leave Dutch territory for the duration of the proceedings against him. Furthermore, Mr. Ntaganda would comply with any conditions judges attached to his release, including appearing at hearings and not obstructing investigations and court proceedings.
Judge Ekaterina Trendafilova has asked the Dutch government to comment on any conditions that would have to be met to enable the Netherlands to accept Mr. Ntaganda on its territory. Prosecutors were also asked to file a response to the release request.
On March 18, 2013, Mr. Ntaganda turned up at the American embassy in the Rwandan capital Kigali and asked to be transferred to The Hague, where there were two arrest warrants on his head.
The first warrant – issued in 2006 – alleged that Mr. Ntaganda, along with Thomas Lubanga, recruited, enlisted, and used child soldiers in armed conflict during 2002 and 2003.
Whereas the Congolese government handed Mr. Lubanga to the world court, his co-accused remained at large until this year, oscillating between service with the national army and command of anti-government militia groups. The Lubanga trial was the first conducted by the court and resulted in a March 2012 conviction. Mr. Lubanga is currently appealing his 14 year jail sentence.
The second arrest warrant for Mr. Ntaganda, issued in July last year, accused him of the crimes against humanity of murder, rape, and sexual slavery, and war crimes of murder, attacks against a civilian population, pillaging, rape, and sexual slavery.
Prosecutors charge that Mr. Lubanga was the head of the Patriotic Force for the Liberation of Congo (FPLC), a group that used children under the age of fifteen in armed conflict, while Mr. Ntaganda was the group’s deputy chief of staff.
In the application for the second warrant of arrest, prosecutors said the circumstances that led to issuing the first warrant still subsisted, including Mr. Ntaganda’s “potential, continued commission” of crimes and intimidation of potential witnesses.
In the application for interim release, the defense said arguments made years earlier could not “satisfy the requisite threshold” to warrant pre-trial detention, particularly given more recent developments.
Mr. Desalliers stated that Mr. Ntaganda surrendered to the court eight months after the July 6, 2012 order by Congolese president Joseph Kabila for his dismissal from the country’s army. The surrender was made “once he had planned his voluntary surrender to ensure that it took place in conditions guaranteeing its effectiveness and security.”
He added that Mr. Ntaganda never sought to evade justice and surrendered when he was in a position to do so. Furthermore, Mr. Desalliers said, the prosecution had confirmed to the court that it had been informed of Mr. Ntaganda’s place of residence, “which, in any case, he had never sought to conceal.”
The defense lawyer also submitted that because Mr. Ntaganda was considered indigent by the court and was a subject of United Nations resolutions that imposed a travel ban and an asset freeze, he could not abscond from justice. He also said the accused did not hold a passport or other travel document that could make him a flight risk.
Mr. Desalliers stated that Mr. Ntaganda wanted to make “an active contribution to the preparation of his defense,” and if released he would be able to communicate readily with his defense team.
The defense argued that the conditions for Mr. Ntaganda’s detention were not justified at this stage in the proceedings. “It rests with the prosecution to establish the necessity for detention and the defense must be afforded the opportunity to respond to the prosecution arguments,” said Mr. Desalliers.
A request by the public counsel for victims, Paolina Massidda, to make comments to the release application, was rejected by Judge Trendafilova. The judge said no victims had been permitted yet to participate in the proceedings.
The confirmation of charges hearing for Mr. Ntaganda is scheduled for February 2014.