Judges trying former Congolese military commander Bosco Ntaganda have ruled that evidence regarding rape and sexual slavery allegedly committed by the accused can be admitted at his trial at the International Criminal Court on a “case by case” basis. According to the judges, on balance, no unfair prejudice or undue delay to the trial would arise from the inclusion of such evidence.
Ntaganda’s lawyers argued that such evidence should not be admissible, and last September they asked trial judges to strike from the case record certain answers provided by Witness P-0901 during questioning by the prosecution. In a September 30, 2015 written submission, defense lawyer Stéphane Bourgon argued that Ntaganda was not being charged as a direct perpetrator of these crimes and the prosecution should be barred from eliciting such evidence regardless of the status, age, or any other characteristic of the alleged victim.
On October 30, judges ruled that, in principle, such evidence could be admissible. They rejected the argument that evidence of the type challenged by Ntaganda’s lawyers did not have relevance to the confirmed charges. The judges considered that there was a connection between this type of evidence and the charges.
“The conduct of an accused, in particular during the temporal period of the charges, has sufficient potential relevance, including in relation to various modes of liability and to mens rea,” the judges noted.
Judges stated that the risk of prejudice was significantly reduced since Ntaganda was not charged with personal commission of rape and sexual slavery, and the trial was being heard by “professional judges who are fully capable of only considering such evidence within its proper context or, as the case may be, ultimately declining to consider such evidence.”
However, Ntaganda’s lawyers are unsatisfied with the ruling and have asked for leave to appeal the decision. They argue that as a consequence of the ruling that evidence on crimes allegedly committed personally by Ntaganda and not charged in the Updated Document containing the charges (UDCC) is not inadmissible, the defense has the burden to object whenever the prosecution seeks to elicit evidence on such allegations, and to demonstrate that admitting such evidence results in an unfair prejudice or undue delay.
Bourgon argued that since the prosecution had the burden of proof, and that evidence related to crimes not charged is per se not relevant, the burden to justify the need to adduce such evidence to prove other charges must rest on the prosecution. “The burden imposed on the defense thus affects the fair and expeditious conduct of the proceedings,” he said.
In response to the defense’s application for leave to appeal, the prosecution said the defense misinterpreted the ruling because the chamber did not decide whether such evidence will be admitted, but simply rejected the defense’s argument that this evidence could not be elicited and that it should not be admissible in principle.
Prosecutor Fatou Bensouda stated that like for any other proposed evidence, the prosecution will need to establish the relevance and probative value of evidence related to crimes allegedly committed personally by Ntaganda—for which he has been charged under modes of liability other than direct perpetration in the UDCC—as proof of modes of liabilities included in the UDCC.
Ntaganda, a former deputy chief of staff of the Union of Congolese Patriots (UPC) militia group, is charged with 18 counts of war crimes and crimes against humanity, allegedly committed by himself and his soldiers during 2002 and 2003 in the Democratic Republic of the Congo’s Ituri province.
At the opening of Ntaganda’s trial at the ICC last September, prosecuting lawyer Nicole Samson stated 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.