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The Year in Review: Bosco Ntaganda’s ICC Trial

It has been 16 months since Bosco Ntaganda’s trial opened at the International Criminal Court (ICC). The prosecution has called 62 individuals to testify against the former Congolese rebel commander, who faces 18 charges of war crimes and crimes against humanity. The crimes were allegedly committed in the Ituri district of the Democratic Republic of Congo (DRC) during 2002 and 2003 while Ntaganda served as the deputy chief of staff of the Union of Congolese Patriots (UPC).

This article provides an overview of the trial proceedings during 2016, including evidence presented against the accused, and highlights issues such as allegations of witness tampering against Ntaganda, the boycott of proceedings and two-week hunger strike by the accused, the persistent use of closed session, and the kinds of evidence heard so far.

Murder and attacks against civilians

The trial has heard testimony from various witnesses implicating UPC troops in attacks against civilians in towns such as Kobu, Sayo, and Mongbwalu. In some of localities attacked, there were daily attacks forcing many civilians to flee. During such attacks, the UPC soldiers reportedly killed non-armed civilians, notably those who belonged to the Lendu ethnic group. Witness P790 recounted how up to 57 civilians were massacred in Kobu town while Witness P017 recalled that at least 20 women and children, and an unknown number of men, were executed in the same town. The accounts of Witness P790 and Witness P017 regarding Kobu were corroborated by Witness P301.

In Songolo, testified Witness P888, babies and children as young as five years were among the victims of attacks. Many residents of the besieged towns, among them Witness P113, were abducted and held hostage for extended periods. According to one victim, over a decade since the attacks on some of these towns, residents were still unable to rebuild lives.

Witness P190 alleged that the attacks by Ntaganda’s troops against various towns were motivated by financial gain. Others, such as Witness P019, said the attacks were ethnically motivated.  However, the defense also countered that militia groups opposed to the UPC committed atrocities in some towns.

Rape and sexual slavery of civilians and child soldiers

The trial heard that female underage recruits in the militia were allegedly subjected to rape and sexual slavery. According to one former insider, Witness P017, some girls as young as 12 years who served in the personal guard of high ranking commanders had “involuntary sexual relations” with the commanders. Other former insiders stated that female military personnel within the UPC were not in a position to turn down sexual advances from their superiors and some “were transformed into commanders’ wives.” Ntaganda’s soldiers also raped women they took prisoners, before executing them, according to Witness P963.

The Deputy Director of the Africa Division of Human Rights Watch (HRW), Anneke Van Woudenberg, briefly testified in the trial. Her reports titled The Curse of Gold, Covered in Blood: Ethically Targeted Violence in Northern DRC and Seeking Justice: The Prosecution of Sexual Violence in the Congo War, which included accounts of victims of sexual violence perpetuated by all armed groups in Ituri – including the UPC, were admitted into evidence.

Conscription and use of child soldiers

In his June 2016 testimony, Witness P190 alleged that Ntaganda grabbed children from a boy’s primary school and conscripted them into his militia. The witness stated that Ntaganda led a group of soldiers for a raid on the school in Muzipela in eastern Congo and took an unspecified number of children whom he drafted into the UPC. Along with others kidnapped from other locations, the school boys were trained at the group’s camp at Mandro. According to the witness, if any of the recruits, aged between 11 and 13 years, tried to escape, they would be shot.

Witness P769, a former recruit, alleged that some children served as military instructors at the group’s training camps. Another witness, going by the pseudonym Witness P030, said some of the child soldiers served in Ntaganda’s personal escort.

Meanwhile, a former United Nations (UN) child protection officer who worked to demobilize child soldiers said the UPC took some steps to demobilize child soldiers during 2003. She said the group issued a radio communique to demobilize child soldiers and thereafter released an unknown number of children. However, the group did not put in place appropriate security measures to disarm, demobilize, and reintegrate the released children back into the community, the UN official said.

Under cross examination by the defense, the official said she was not always able to verify the age of the children she interviewed.

Ntaganda implicated in looting

In his testimony, Witness P017, who was an insider in UPC, stated that Ntaganda ordered troops not to loot, but the accused continued pillaging from occupied towns himself. The witness recalled seeing equipment looted from a hospital in Mongbwalu in Ntaganda’s personal vehicle. Like their superior, the other soldiers also “continued to pillage as if no order had been given.” Witness P815 recounted widespread looting against Lendu civilians in Sayo.

Witness P907 also alleged that UPC leaders gave civilians weapons and encouraged them to pillage. The civilians, predominately of Hema ethnicity, exceeded those orders by engaging in combat and committing murder. However, during cross-examination, defense lawyers challenged this account of events, casting doubt over the witness’s knowledge of the workings of UPC.

Ten expert witnesses testify

Of the 13 expert witnesses lined up by the prosecution, 10 testified last year. Those who testified included forensic psychologist John Charles Yuille who testified on trauma; and Maeve Lewis, a psychotherapist. Others included Dr. Derek Congram, a forensic archaeologist who testified on exhumations along with four other team members; Dr. Sophie Gromb Monnoyeur, who conducted clinical examinations of four victims of alleged attacks by members of Ntaganda’s rebel group, and satellite imagery expert Lars Bromley. Epidemiologist Dr. Lynn Lawry testified on sexual violence.

Extended use of protective measures

Many witnesses were granted protective measures, including the use of pseudonyms as well as image and voice distortion, in order to conceal their identities from the public. In some instances the bulk of testimony of some witnesses was heard in closed session. Among these were Witness P290, Witness P550, Witness P894, Witness P877, and Witness P018. Others included Witness P105, Witness P365, Witness P792, Witness P976, Witness P918, Witness P911, Witness P758, Witness P761, and a heavily protected individual whose pseudonym was later disclosed as Witness P014. In some instances, the entirety of the testimony was heard in closed session.

Ntaganda’s lawyers have increasingly opposed protective measures for prosecution witnesses. For instance, on November 16 the defense filed a submission opposing protective measures for a witness whose pseudonym was redacted from documents made public. Stéphane Bourgon, the lead defense lawyer, argued that the prosecution had not substantiated the kind of intimidation the witness was experiencing and contended that the information provided by the prosecution showed that the supposed intimidation was “nothing more than public criticism.”

In February 2016, judges declined to reconsider the level of protective measures for Witness P039 finding it “inappropriate” to increase the level of measures from partial to full protection. Upon being informed that the chamber had granted him partial protective measures back in October 2015, the witness said he was unable to testify due to security concerns. Judges had not granted the witness the protective measures of voice and image distortion prior to his initial appearance, arguing that the use of a pseudonym would “sufficiently mitigate any risks to the witness’s security.”

The defense argued that persistent use of closed sessions denies Ntaganda a public trial and can encourage witnesses to tell lies because they know that members of the public cannot know their identities or hear their testimonies.

Number of prosecution witnesses

Eight witnesses testified between September and December 2015, while 52 witnesses were called during 2016, with many of them having the testimony they gave in the earlier trial of Thomas Lubanga admitted into evidence. Two witnesses, Witness P888 and Witness P868, were recalled after their initial appearances. Like Witness P039, another individual going by the pseudonym P668 was called but did not take the witness stand.

On July 15, judges directed the prosecution to reduce the number of witnesses it intended to call to testify against Ntaganda. At the time, Presiding Judge Robert Fremr stated that the chamber expects the prosecution to complete presenting its evidence during the “first couple of months” of 2017. The following month, the prosecution moved to make its case shorter by reducing the total time estimate for examining and cross-examining its remaining witnesses by 65 hours.

Furthermore, the OTP indicated that it would request judges to admit the prior recorded testimony of several witnesses under Rule 68 of the court’s Rules of Procedure and Evidence. Under this rule, if a witness who gave the previously recorded testimony is not present before the court, judges may allow the introduction of that testimony if it is not related to the acts and conduct of the accused.

Nonetheless, the prosecution maintained a witness list of 89 individuals, as initially estimated during trial opening statements where they stated that they had lined up more than 80 witnesses, including insiders who worked with Ntaganda, victims, eyewitnesses, and expert witnesses.

Defense team continues to face challenges

The defense continued to face challenges during the year. A shortage of resources, including manpower, made it difficult to conduct field investigations in the earlier part of the year. It also impacted the defense’s ability to sufficiently prepare for cross-examination of prosecution witnesses.

Hearings were twice postponed in February due to unavailability of defense lawyers. First when Luc Boutin, then the deputy counsel for Ntaganda, became unavailable for reasons not made public at a time when lead attorney Stéphane Bourgon was also not at the court. The second occasion was due to poor health of the lead defense counsel.

This affected the defense’s preparation for cross-examination of witnesses during February and rendered Ntaganda’s lawyers unable to cross-examine Witness P290, instead asking judges to call this witness at a later stage.

In April, Boutin resigned from the case, citing personal reasons.

Ntaganda’s hunger strike

On September 7, Ntaganda went on hunger strike and refused to attend his trial in protest against a decision by judges to maintain restrictions imposed on his communications and contacts. Whereas judges initially ordered that Ntaganda must attend proceedings, hearings stalled when court officials were unable to transport him to the courtroom on medical grounds, and he maintained his refusal to authorize his lawyers to represent him in his absence.

Hearings continued for a short while under protocol established by the judges, whereby Ntaganda’s lawyer represented his interests in his absence. On September 21, Ntaganda ended his protest and gave defense lawyers mandate to represent him after court officials arranged for his wife to visit him for eight days, in conditions he deemed acceptable.

Under restrictions imposed on Ntaganda in August 2015, his telephone communications are only permitted with two individuals, are actively monitored, and are limited in duration, language, and subject matter, with the use of coded language or discussion of case-related matters prohibited. Since the strike, Ntaganda has continued to push for the removal of restrictions on his communications.

Witness tampering allegations

In a notice filed on November 7, the prosecution disclosed to the defense evidence alleging that Ntaganda was involved in a “broad scheme to pervert the course of justice, including by coaching potential defense witnesses, obstructing prosecution investigations and interfering with prosecution witnesses.”

In reaction, the defense asked judges to stay the proceedings until 2017 to give them time to analyze the disclosed information to ensure all future cross-examinations were conducted in light of the prosecution’s disclosure and to make submissions on the impact of the witness bribery investigation on the fairness of the trial.

Judges rejected the defense request, ruling that whereas the disclosed information “may of course impact aspects” of the defense strategy, an immediate stay of proceedings was not warranted. They suggested that the defense could be given time during the preparation of its case to make submissions on the disclosed material.

To facilitate the defense’s review of the disclosed material, prosecutors cataloged and identified the visitation and call records from the court’s detention center, which they claimed implicated Ntaganda.

On November 28, Ntaganda’s lawyers asked judges to reconsider their decision, pointing to the large volume of disclosed materials that needed weeks to study and respond to, the alleged late disclosure of the material by the prosecution, and related prejudice suffered by the accused. Judges reaffirmed their decision on December 1.

Hearings in the trial are scheduled to resume on Monday, January 16.