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Q&A with Stéphane Bourgon, Lawyer Representing Bosco Ntaganda: Part II

Stéphane Bourgon is the lead lawyer for Bosco Ntaganda, a former rebel leader in the Democratic Republic of Congo (DRC) who is facing 13 counts of war crimes and five counts of crimes against humanity at the International Criminal Court (ICC). For the second part of his interview, he spoke to International Justice Monitor about the need for trials at the ICC to be more open to the public and Ntaganda’s struggle to have his children visit him in The Hague.

Wakabi Wairagala (WW): Let’s talk about the defense case. How many witnesses are you intending to call and what is the evidence you’re going to present?

Stéphane Bourgon (SB): We have to wait and see where the prosecution will go during the remainder of its case. So far, 30 witnesses have been heard and there are some 55 more who have yet to testify. We expect that the prosecution will soon inform the trial chamber of their intentions until the end of its case, whether they will call all of the remaining witnesses or reduce the time expected for their examination-in-chief of these witnesses.

It is too early to tell how long the case for the defense will be or how many witnesses we intend to call. We are, however, making progress in this regard as the case for the prosecution is unfolding.

What I can say at this stage is that we have met a large number of potential defense witnesses, in fact well over 100. How many we are likely to call will depend on the evidence adduced by the prosecution in the next few months. We are already presenting elements of the case for the defense through our cross-examinations of prosecution witnesses. In addition, we are confident that we will present a very strong case for the defense once the prosecution rests.

As for the strategy of the defense, we made it clear during the presentation of opening statements and we have every intention to stick to the plan. You might be well aware that Mr. Ntaganda has already been tried and convicted, if I may use this term, in the media. Even though this makes our job difficult, we have begun to show and we will demonstrate that the man you read about in the media is not Mr. Ntaganda.

WW: And what kind of people are you considering calling as defense witnesses?

SB: First we intend to call witnesses who will confirm the information we have been using to cross-examine prosecution witnesses. We are also looking at calling witnesses who have direct knowledge of the events we hear about during the case for the prosecution.  Suffice it to say, as mentioned during opening statements, that we will undoubtedly provide a different view, from a different perspective, of these events.

WW: So much is closed to the public during trials at the ICC. Do you think we should be having so many closed sessions or is there a way they can be minimized?

SB: I have never seen a trial with so much evidence being heard in private session and so many witnesses being granted protective measures. There’s a lot of pressure on the International Criminal Court to protect witnesses and victims and we fully agree with that. If you do not have witnesses you cannot have trials, so it is important to protect witnesses. We have to be careful, however, not to cross the line where granting protective measures is either not required, or worse, is being used to make it possible for people to provide evidence that is not true because they know that nobody will hear them.

It is important to know that when a witness testifies before the trial chamber, they have a guarantee from the DRC government that they will not be prosecuted there on the basis of their testimony. The witnesses also know that if they cooperate with the ICC Office of the Prosecutor, they will not be prosecuted. In addition, they know on the basis of the protective measures put in place for them that nobody will know what they personally said in the courtroom, except for those present during their testimony.

It has been said that as a result, witnesses are free from any pressure and likely to speak freely about events they were involved in. However, the opposite situation is also a likely outcome. Being shielded entirely from any repercussions, witnesses know, whether they tell the truth or not, that there will be no consequences. In our respectful view, this is a serious consideration.

We believe in the necessity of protective measures when someone has been in harm’s way or if there is an objectively justifiable risk to their safety. We also believe, however, that this notion is being extended too far and that there is too much recourse to private sessions.

There is a reason why persons accused have a right to a public trial. The outside public’s scrutiny is paramount. This is simply not happening in this case as most of the evidence is being heard in private session. In our view, this situation is not limited to this trial and it will have to be addressed seriously in the future.

WW: Besides the Kenyan cases, in the other cases have there been problems for witnesses or victims for cooperating with the court?

SB: I am not in a position to provide specific observations about other cases before the ICC. However, I was involved in a number of trials before other international courts and tribunals and there have been instances where revealing the identity of witnesses did entail objectively identifiable risks to their safety. In such situations protective measures were required and were implemented.

The interpretation to be given to the notion of “objectively identifiable risk” is problematic. Any witness testifying in a criminal trial is likely to be the object of criticism whether from persons who were affected by the crimes being adjudicated or those being tried for an alleged crime. This has to do with the nature of criminal proceedings and not all witnesses require protective measures on this basis.  In our respectful view, too many witnesses are being granted protective measures on this basis alone without a clear demonstration of an objectively identifiable risk to their safety.

Needless to say, this impacts on our work. For example, in past trials I was involved in, the regular practice when information was not provided to the defense in relation to a witness who was granted protective measures, was to provide this information to the defense 30 days before his or her testimony. This is not happening before the ICC where some information related to protected witnesses is often not provided to the defense at all or given to the defense at a time when investigating the same is not possible.

WW: There was one or two witnesses in the Mr. Ntaganda trial who wanted full protective measures but judges declined. They said we shall not reveal your name but you will testify with your face showing.

SB: This happened many times before other international courts and tribunals where witnesses were given a pseudonym, so their names would not be known, but they nonetheless testified in public for the most part. Not revealing the name of witnesses is sufficient in many cases to protect their identity. The greater the risk to the safety of a witness, the more stringent the protective measures have to be.

In the instance you are referring to, the trial chamber was not convinced that protective measures beyond the granting of a pseudonym were necessary in light the information provided regarding the situation of that witness. As a result the witness did not testify.

The prosecution sought to appeal this decision but the trial chamber denied its request. Nonetheless, in its request the prosecution argued that they would likely have to withdraw many witnesses if the trial chamber’s decision was upheld. Since then, all witnesses for whom the prosecution requested protective measures were granted the full set of measures available, including pseudonym, as well as face and voice distortion.

WW: Ntaganda used to pursue interim release. I haven’t seen any application recently for interim release. Will he be pursuing that again?

SB: Since I was assigned to this case we have not requested that Mr. Ntaganda be granted provisional release nor do we intend to do so.  For the time being we are focusing on the trial and on showing who Mr. Ntaganda really is.

WW: But Mr. Ntaganda is entitled to family visits?

SB: Mr. Ntaganda surrendered voluntarily and was transferred into the custody of the ICC in March 2013. Since then, he has been visited by his wife but has not seen his seven children. You are right in saying that Mr. Ntaganda is entitled to a family visit. Various issues have made it difficult to organize such a visit although we have been striving to do so. Beyond budgetary considerations, which have yet to be resolved, the main difficulty is that Mr. Ntaganda’s children do not have passports. Since August 2014, we have been trying to obtain passports for his children. Very recently, we made new arrangements with staff members in the registry who are helping us in this regard. This is a priority for us.

While Mr. Ntaganda’s morale remains very high and he is working hard with us to prepare for the testimony of prosecution witnesses, the fact that he has not seen his children for more than three years is taking a toll on him. We take the view that it is very important for the ICC to ensure that the right of persons accused to family visits is enforced.

WW: Who would pay for such a visit?

SB: There is a system in place at the ICC to pay for family visits. However, we are informed that this system works on the basis of voluntary contributions from State Parties and that the available budget is very low. We certainly hope this will not be an issue once we obtain the required passports.