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Lawyers Oppose Change to Ntaganda’s Mode of Liability

Bosco Ntaganda’s lawyers have opposed the prosecution’s proposal for a potential change to the mode of liability for the Congolese military commander who faces 18 counts of war crimes and crimes against humanity.

Defense lawyer Stéphane Bourgon said the proposed ground for the additional mode of liability was rejected by pre-trial judges. He said for trial judges to provide notice of a possible re-characterization of facts at this stage of the proceedings, the Document Containing Charges (DCC) must sufficiently support findings on the additional mode of responsibility.

On June 2, Mr. Ntaganda will go to trial at the International Criminal Court (ICC). He is facing charges as a direct perpetrator and indirect co-perpetrator for murder, rape, sexual slavery, pillaging, and using child soldiers, among other crimes. However, prosecutor Fatou Bensouda has asked judges to consider adding an alternative mode of liability of “direct co-perpetration.”

The prosecutor argued that all of the crimes Mr. Ntaganda is charged with as a direct perpetrator form part of or were the consequence of a common plan between one or more persons. She said it would be possible therefore for trial judges to establish an alternative mode of liability “given the overlap between the elements of direct and indirect co-perpetration, and in view of the close proximity of the co-perpetrators to the crimes including by committing them themselves.”

In his March 18, 2015 submission, Mr. Bourgon said the pre-trial chamber did not set out the constitutive elements required for direct co-perpetration. “Contrary to what the prosecution implies, the constitutive elements of direct co-perpetration are not clearly defined in the jurisprudence of the Court,” he added. “In particular, it is not clear whether the physical perpetrators of the crimes must be part of the common plan or not.”

In the confirmation of charges decision, pre-trial judges found sufficient evidence indicating that jointly with other persons, Mr. Ntaganda committed the 18 confirmed crimes through other persons and accordingly bore “criminal responsibility as an indirect co-perpetrator and not as a direct co-perpetrator.”

The judges found that Mr. Ntaganda committed the crimes through members of the Hema ethnic group and soldiers of the Patriotic Forces for the Liberation of Congo (FPLC), for which he was deputy military head.

The defense lawyer argued that whether or not trial judges decide to provide notice of a possible re-characterization to include direct co-perpetration, Mr. Ntaganda’s trial should proceed on the basis of the modes of liability confirmed by the pre-trial chamber and not on the basis of a mode of liability that could be added at a later time.

The prosecution has suggested that if judges issue the notice, both the prosecution and the defense could present their evidence and examine witnesses with full knowledge of the possibility that the accused’s conduct could be re-characterized as direct co-perpetration.

“The presentation of evidence and the examination of witnesses must proceed on the sole basis of the Updated DCC and not on a mere possibility of a legal re-characterization of the facts,” countered Mr. Bourgon.