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Defense Opposes Admission of Evidence on Rape Allegedly Committed by Ntaganda

Lawyers representing Bosco Ntaganda at the International Criminal Court (ICC) have asked trial judges not to admit into the case record any evidence related to allegations of rape and sexual slavery personally committed by the accused.

In a September 30, 2015 written submission, defense lawyer Stéphane Bourgon argued that since the former Congolese military commander was not being charged as a direct perpetrator of these crimes, the prosecution should be barred from eliciting such evidence regardless of the status, age, or any other characteristic of the alleged victim.

The defense’s objections were first raised during the questioning of Witness P-0901, when a prosecutor asked him whether Ntaganda had “wives” amongst his escort. At the time, judges allowed the prosecution to proceed with its questioning of the insider witness about Ntaganda’s alleged “wives.” In its submission, the defense has asked judges to delete that testimony from the case record.

Ntaganda is charged with 18 counts of war crimes and crimes against humanity, including the rape and sexual slavery of child soldiers who served in the Patriotic Forces for the Liberation of the Congo (FPLC) militia group during 2002 and 2003. Ntaganda was the deputy chief of staff of the group, while Thomas Lubanga—who is serving a 14-year prison term at the ICC—was commander-in-chief.

At the opening of the trial last month, prosecuting lawyer Nicole Samson explained that although Ntaganda would not be charged as a direct perpetrator of rape, evidence would show that he committed rape, including of girls in his direct escort, which would in turn show that he knew sexual crimes were being committed against child soldiers in the group.

She said the rape of young girls in the FPLC was so common that soldiers sung derogatory songs about it. “They were seen as the property of the commander to be exploited,” said Samson.

However, according to Bourgon, the charges of direct commission of the crimes of rape and sexual slavery were not confirmed by the Pre-Trial Chamber. Consequently, he noted, related allegations were removed from the updated Document Containing Charges due to their “seriousness” and the need to “avoid giving the impression” that they constitute acts for which Ntaganda is charged. He argued that admitting any evidence on these allegations would therefore violate Ntaganda’s right to a fair trial.

Bourgon added that even if it could be argued that such evidence might be relevant with respect to other charges or modes of liability alleged by the prosecution, on trial “there can be no doubt that the probative value of such evidence would be plainly exceeded by its prejudicial effect on Mr. Ntaganda.”

The defense lawyer also submitted that admitting this evidence would impact Ntaganda’s right to be tried without undue delay since significant court time would be required for parties to the trial to elicit and counter such evidence.

Three witnesses so far have testified in the Ntaganda trial, which opened a month ago. The next witness is expected to start giving evidence on October 19.

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