Bosco Ntaganda’s lawyers have requested that International Criminal Court (ICC) judges make a judicial site visit to locations in the Democratic Republic of Congo where Ntaganda and his troops allegedly committed crimes during 2002 and 2003. They asked that the visit takes place before the start of the defense case.
In a February 8, 2017 filing, lead defense counsel Stéphane Bourgon said such a timing for the visit would allow judges to gain knowledge of locations mentioned by prosecution witnesses “but which remain vague and unfamiliar given that no concrete evidence was adduced in respect of these locations.” Such knowledge is essential to judges’ understanding of the evidence to be presented by the defense, he added.
The defense request comes after a December 2015 rejection of a similar request by the prosecution. At the time, the judges said the visit should be conducted only where it would serve a specific purpose in relation to facts in issue. Further, the judges ruled that the need for a visit may be reassessed after the prosecution had completed presenting its evidence and again after the closing of the defense case. The last prosecution witness testified week ago while the defense case is scheduled to start in May 2017.
If judges grant the defense request, it would be the second such visit by ICC judges. In January 2012, judges in the trial of Germain Katanga and Mathieu Ngudjolo visited locations in Congo where crimes were allegedly committed. The prosecution, defense, and legal representatives of victims joined the judges for their visit.
According to Ntaganda’s lawyers, a visit would enable judges to become familiar with the geography of the region; the layout of villages, towns, municipalities, and cities relevant to the Updated Document Containing Charges (UDCC) and their surroundings; distances between various locations; infrastructure; and alleged crimes scenes within villages, towns, municipalities, and cities.
Judges would also gain knowledge on the topography of relevant locations, including mountains, rivers, forests, high grounds, and other vantage points and assess the possibility to hear weapons and gunshots between various locations mentioned in the UDCC.
In response to the defense request, lawyers representing victims suggested that the visit takes place at the end of the defense case. They say only then can judges identify with a sufficient degree of specificity on the main factual issues in dispute, the purpose and benefit of any such visit, and relevant locations.
The victims’ lawyers noted that, besides helping judges to get familiar with locations, a judicial visit would bring the work of the court closer to the victims. “The participation of Judges and Court officials, and their presence in the affected localities would be extremely positively received by the victims,” they said, adding that the visit was “unlikely to pose any risk to the safety and security of the victims, as it is assumed that the Accused will not be present during such a visit.”
The prosecution said it does not oppose a site visit, provided it does not delay the start of the defense case. Such a visit would assist the chamber in evaluating evidence, it added.
However, a decision not to conduct the visit at this time would not prejudice the accused, prosecutor Fatou Bensouda said. “While it may assist the Chamber to gain a more complete understanding of the locations in which the crimes charged in the UDCC are alleged to have taken place, a judicial site visit is not a sine qua non for the Chamber to be able to fairly evaluate the evidence in this case,” she added
Judges are yet to rule on the matter.