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Judges Reject Ntaganda Lawyer’s Bid to Delay Cross-Examination of Insider Witness

Trial judges have rejected a request by defense lawyers to delay the cross-examination of a former insider in the Union of Congolese Patriots (UPC) militia who is testifying against Bosco Ntaganda at the International Criminal Court.

The insider, whose uses the pseudonym Witness P-0901, took the witness stand on September 17, 2015. A week earlier, on September 10, 2015, the defense asked judges to delay defense cross-examination of the witness, arguing that they were not ready since the prosecution had not disclosed some documents related to the testimony of the witness.

In his application, defense lawyer Stéphane Bourgon claimed the prosecution had admitted that it possessed transcripts and recordings of statements by Witness P-0901 which it had not disclosed. He did not state the reasons in court.

“The disclosure in question should have been completed long ago. The defense’s capacity to cross-examine [Witness] P-901 is severely compromised, as are Mr. Ntaganda’s rights to a fair trial,” argued Bourgon. “The only suitable remedy in the circumstances is postponement of the witness’s cross-examination.”

He proposed that defense cross-examination should wait until at least 30 days after an affirmation by the prosecution that it had fulfilled all its disclosure obligations in relation to the witness. The defense did not oppose the examination-in-chief of the witness that was scheduled this week, “in the interests of minimizing the disruption to proceedings.”

Witness P-901 was granted the use of a pseudonym as well as voice and face distortion during testimony. The prosecution argued that the witness had serious security concerns related to his testifying for the prosecution, including potential retaliation against him and his family.

The defense opposed offering protective measures to the witness, stating that it would impede the ability of judges to carry out their truth-seeking function, since concealing the identity of the witness from the public may decrease his commitment to telling the truth.

However, judges determined that although fair trial-related concerns generally favor the identity of witnesses being known to the public, “an objectively justifiable risk” exists with respect to the witness that warranted protection of his identity.

Under questioning by the prosecution over the last two days, Witness P-0901 testified about the structure and operations of the UPC, including the central role Ntaganda played as its deputy chief of staff in charge of military operations and organization.

“He was mostly in the field to see what the situation was for the troops. He also organized the troops in the field,” said the witness.

Floribert Kisembo, who was the group’s chief of staff, mostly remained at the group’s headquarters in Bunia, the witness testified. “When the UPC/ FPLC had control of a particular area, as chief of general staff he would remain in Bunia and he would handle administration and dealings with political authorities within the [UPC] government,” he said.

Ntaganda is on trial for 18 counts of war crimes and crimes against humanity allegedly committed in Congo during 2002-2003. At the time, he was a senior commander in the UPC and its militia, the Patriotic Forces for the Liberation of Congo (FPLC).

The witness said Ntaganda maintained a radio communication system at his residence, which enabled him to communicate to all UPC regional commanders. According to the witness, Ntaganda’s radio operator received and dispatched all messages, and kept a logbook of the communications. The witness said only the operator and Ntaganda could access the log book.

The defense is expected to start its cross-examination of Witness P-0901 on Monday, September 21, 2015, at 9:30 am local time in The Hague.