International Justice Monitor

A project of the Open Society Justice Initiative

Judges Reject Evidence of Former UN Envoy on Children in Armed Conflict

Radhika Coomaraswamy, the former United Nations Special Rapporteur on Violence against Women and Special Representative of the Secretary General on Children and Armed Conflict, will not testify in Bosco Ntaganda’s trial. Her report on the conscription, enlisting, and use of child soldiers in armed conflicts will also not be admitted into evidence.

In a February 2016 ruling, International Criminal Court (ICC) judges recognized Coomaraswamy’s experience and expertise, but they found that her proposed testimony fell “within the chamber’s own competence.” Regarding her report, which prosecutors sought to tender into evidence, judges noted that it “mostly provides legal opinions on certain elements of the crimes charged” and in the interest of ensuring focus and efficient proceedings, it should not be tendered into evidence.

Coomaraswamy is one of 13 expert witnesses prosecutors intended to call to testify against Ntaganda, who is facing 13 counts of war crimes and five of crimes against humanity. In the ruling, judges decided that three other expert witnesses whose evidence the defense had challenged could testify in the trial and have their reports tendered as evidence.

Coomaraswamy testified in the trial of Thomas Lubanga at the ICC back in January 2010. During her testimony, she called for justice for girl child soldiers in armed conflict.

However, Ntaganda’s lawyers challenged Coomaraswamy’s impartiality, stating that her report “advocates for particular interpretation” of the provisions of the Rome Statute relating to child soldiers. Furthermore, the defense argued that the report uses language that is not neutral as expected from an expert witness. According to the defense, Coomaraswamy “significantly” departed from the instructions given by the prosecution by “providing a legal opinion on certain elements of the crimes charged.”

In response to the defense’s objections, prosecutors pointed out that in the Lubanga trial, the trial chamber drew from Coomaraswamy general evidence on the phenomenon of child soldiers “to inform its own findings” about the situation of minors in the Union for Congolese Patriots (UPC). Lubanga was the militia group’s head while Ntaganda served as its deputy chief of staff during the 2002-2003 armed conflict in the Democratic Republic of Congo.

In rejecting prosecutors’ bid to call the former UN official and to submit her report as evidence, the chamber stated that it retains the discretion “to evaluate” the credentials of a proposed expert despite the individual having already testified as an expert in other cases before the ICC.

Meanwhile, regarding Kambayi Bwatshia, also known as Witness P932, judges noted that based on his curriculum vitae (CV), he “appears to have long experience,” had engaged in academic research, and acted as a consultant on matters related to naming, registration of civil status, family structures, and dates of birth in Congo. The chamber thus ruled that he can testify as an expert witness.

The defense had argued that Bwatshia did not demonstrate any scientific knowledge and expertise relevant to the administrative, cultural, and social aspects of life in Congo’s Ituri district. The expert’s evidence would therefore be of “marginal probative value.”

Judges also ruled that Dr. Lynn Lawry, an epidemiologist, and Maeve Lewis, a psychotherapist, can testify as experts. The defense had challenged Lawry’s report on human rights violations committed by the UPC in Ituri during 2000–2005 because it relied on data beyond the period of the charges against Ntaganda. Judges ruled that Lawry, also known as Witness P453, had “sufficient credentials,” and her report, including information outside the period of the charges, may be of relevance to the chamber.

Prosecutors proposed to call Lewis, also known as Witness P938, to testify on the effects of trauma with respect to four prosecution witnesses. Ntaganda’s lawyers challenged this expert witness on the grounds that she provided an opinion on the credibility of the prosecution witnesses, which exceeded the terms of the expertise requested by the prosecution and “infringed” on the chamber’s role to determine the credibility of witnesses in the trial.

However, judges determined that Lewis’s assessment report on whether four prosecution witnesses who are allegedly victims of sexual and other violence during the events in Ituri exhibit psychological harm and consequences was relevant. Nonetheless, judges agreed with the defense regarding Lewis’s opinion on the credibility of the witnesses. They stated that they would “disregard” any such conclusions in the report, and her in-court testimony should not cover aspects of whether or not the symptoms and responses of the witnesses in question are consistent with those of other persons who have experienced such events.

Expert witnesses are individuals who by virtue of some specialized knowledge, skill, or training can assist the chamber in understanding or determining technical issues at dispute in cases before the ICC. So far, one expert witness, Robert Garretón, has testified in Ntaganda’s trial, which started last September.

Judges are currently hearing the evidence of the 14thprosecution witness, who took the stand on February 23. Almost all of his testimony so far has been heard in closed session.

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