Bosco Ntaganda’s application to appeal at least eight of the 18 charges of war crimes and crimes against humanity confirmed against him at the International Criminal Court (ICC) has been rejected.
In a July 4, 2014 decision, pre-trial judge Ekaterina Trendafilova ruled that Mr. Ntaganda’s argument that relying on indirect evidence, anonymous witness statements, or statements of deceased witnesses to confirm certain charges was erroneous, and accordingly constituted an appealable issue, was “misleading.”
In a June 16 application, Mr. Ntaganda’s defense lawyer Marc Desalliers sought leave to appeal the confirmation decision on grounds that the defense could not challenge evidence, including that from anonymous testimonies, hearsay, and deceased witnesses. According to Mr. Desalliers, pre-trial judges relied “exclusively on evidence that the Defense was unable to reasonably challenge, without examining whether […] [it] was corroborated or whether the admission thereof could prejudice the Defense.” As a result, the defense was placed in a “difficult” and “limiting” position in challenging the credibility and reliability of the evidence.
The prosecution opposed the defense’s application, stating that it “simply represents the defense’s disagreement with the manner in which the chamber appraised the evidence before it.” Legal representatives of victims participating in the trial also opposed to the defense’s application.
In her determination, Judge Trendafilova considered that the existence of an “appealable issue” must take into account the issue’s effect on the fairness and expeditiousness of the trial as well as the trial outcome.
In this regard, the judge dismissed the defense’s argument, agreeing with prosecution assertions that the core of the defense’s argument was a “disagreement” with the chamber on the type of evidence used for confirming the charges. She added that the chamber had discretionary powers to freely assess all evidence submitted to determine its relevance or admissibility.
“The Chamber’s ability to evaluate the evidence at this stage is not unlimited and is not to be compared with the assessment that takes place at trial,” said the judge.
The judge added that, as per the provisions of Article 61 of the Rome Statute, the prosecutor may rely on documentary or summary evidence and may not need to call the witnesses expected to testify at trial during the confirmation of charges proceedings. The use of such evidence, even where the identities of the witnesses are unknown to the defense, “is not necessarily prejudicial to or inconsistent with the rights of the accused and a fair and expeditious trial.”
Judge Trendafilova also ruled that throughout the course of the confirmation proceedings, the suspect was not deprived, but given all opportunities, to challenge or object to the evidence and charges brought against him.
Besides, the judge noted that the defense has previously raised similar concerns about its right to challenge the reliability and credibility of evidence. In an earlier June 2014 decision, the chamber ruled that the defense can “advance any of the challenges regarding the relevance or admissibility of evidence at the trial stage.”
“The same holds true with respect to the Defense’s argument related to the Chamber’s reliance on statements of deceased witnesses and the impossibility of challenging them,” stated the single judge in the July ruling.
Last June, ICC Pre-Trial Chamber II found that there were substantial grounds to believe that during 2002 and 2003, troops belonging to the Patriotic Front for the Liberation of Congo (FPLC) committed crimes against the civilian population in Congo’s Ituri province. It also determined that as the group’s deputy chief of staff, Mr. Ntaganda bore criminal responsibility for the alleged crimes including murder, attempted murder, rape, sexual slavery, forced transfer of the population, displacement of civilians, attacks against protected objects, pillaging, destruction of property, and use of child soldiers.
Since the confirmation decision, Trial Chamber VI consisting of Judges Robert Fremr (presiding), Kuniko Ozaki, and Geoffrey Henderson has been constituted to try Mr. Ntaganda. Meanwhile, Mr. Desalliers, who represented the accused since his voluntary surrender to the court in April 2013, stepped down from the case due to “irreconcilable” differences with his client.
A date for the commencement of trial proceedings is yet to be set.