International Justice Monitor

A project of the Open Society Justice Initiative

Prosecution Details Extent of Witness Tampering Evidence Against Ntaganda

The prosecution at the International Criminal Court (ICC) has detailed the evidence it has gathered against Bosco Ntaganda during investigations of alleged witness interference and coaching. In an addendum to disclosure made last month, the Office of the Prosecutor (OTP) has cataloged and identified the visitation and call records from the court’s detention center that implicate Ntaganda and Thomas Lubanga.

On November 7, prosecutors disclosed to the defense some 20,968 records that allegedly “indicate serious and concerning attempts to interfere with Prosecution investigations and witnesses, and to coach potential defense witnesses” by Ntaganda and Lubanga. At the time, the prosecution stated that its claims were based on a review of 450 of the records.

To facilitate the defense’s review of the disclosed material, judges ordered the prosecution to identify the reviewed recordings and specific details, such as caller identity and date of the call. Accordingly, prosecutors have provided lists and spreadsheets of metadata and logs of the records, of which 9,409 pertain to Ntaganda and 11,559 to Lubanga.

Records on Ntaganda include one list of non-privileged contacts, three visitation records, 37 spreadsheets with call data records, 4,684 audio files of telephone conversations, and 4,684 metadata files with information on the date, start time, end time and duration of the telephone conversation and the telephone number called by the detainee.

Regarding Lubanga, the folder handed to the defense contains one list of non-privileged contacts, one visitation record, 31 spreadsheets with call data records, 5,763 audio files of telephone conversations, and 5,763 metadata files.

Since the disclosure of the evidence, the defense has sought an adjournment of the proceedings to give the team time to analyze the disclosed information and ensure all future cross-examinations are conducted in light of the prosecution’s evidence, and to make submissions on the impact of the witness interference investigation on the fairness of the trial.

Judges declined the defense’s request, finding that the recordings which purportedly show Ntaganda’s involvement in witness tampering were of little relevance to his ongoing trial. The defense asked judges to reconsider their decision, but they reaffirmed it last week.

Nonetheless, judges acknowledged the “voluminous” nature of the information disclosed by the prosecution and the “undisputed” need for the defense to have the opportunity to review the material and thereafter seek remedies for any prejudice that may have occurred. It is in view of this that prosecutors were directed to provide more information on the evidence gathered and reviewed so far.

It remains unclear whether the prosecution will bring witness interference charges against Ntaganda, who is on trial on 18 counts of war crimes and crimes against humanity. Lubanga, who was Ntaganda’s superior in the rebel outfit known as the Union of Congolese Patriots, is serving a 14-year person term over the enlistment and use of child soldiers.

In the meantime, prosecutors have requested judges to introduce new measures to safeguard the integrity of the proceedings. These measures include “enhanced” disclosure by the defense of information concerning the witnesses it intends to call to allow for prosecution investigations. These include disclosure of signed witness statements, showing when interviews were conducted and who was present, including interpreters. The OTP also proposes that the defense should disclose records of all prior meetings between each witness and Ntaganda’s lawyers and agents and provide a list of persons who facilitated contacts between each witness and the defense team.

Proceedings in the trial have so far this week continued with the testimony of Witness P002, who started testifying last Friday, entirely in closed session. Tomorrow morning hearings will continue with the testimony of a new prosecution witness.

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