International Justice Monitor

A project of the Open Society Justice Initiative

Bosco Ntaganda’s Defense Case Opens at the ICC

Today, a lawyer representing Bosco Ntaganda at the International Criminal Court (ICC) outlined the defense case for the former Congolese rebel leader who is on trial for war crimes and crimes against humanity. In his opening statement, lead defense counsel Stéphane Bourgon stated that defense evidence “will show that Ntaganda is not guilty for crimes as charged but he contributed to minimizing the number of victims in Ituri.”

According to Bourgon, prosecutors adopted an “incomplete and selective approach” by presenting their case through a “narrow lens” that failed to adduce crucial contextual evidence on the 2002-2003 ethnic conflict in Congo’s Ituri region. “The defense will submit evidence that should have been with the prosecution who has the burden of proof, but we have the obligation to address these issues,” said Bourgon.

Specifically, the defense would present evidence on the ideology and inner workings of the Union of Congolese Patriots (UPC) – the militia group in which Ntaganda was a commander – an issue Bourgon claimed only one prosecution witness addressed. However, he added, the witness who goes by the pseudonym Witness P005 “turned out to be almost a defense witness.” All of Witness P005’s testimony last January was heard in closed session.

Ntaganda stands accused of 13 counts of war crimes, including murder, rape, sexual slavery, pillaging, and enlistment and conscription of child soldiers. He is also faced with five counts of crimes against humanity: murder and attempted murder; rape; sexual slavery; persecution; and forcible transfer of population. The crimes were allegedly committed during his tenure as the deputy chief of staff of the UPC, one of several armed rebel groups active in Ituri during 2002-2003 conflict. He has pleaded not guilty.

Bourgon also stated that prosecutors did not present any evidence from a military expert, an area he deemed “crucial” to enable judges to differentiate between a regular army and a rebel group that may not follow established military rules. “Our expert witness will tell you where the UPC falls in this equation and this will allow you understand to what extent responsibility can be incurred by Ntaganda,” stated Bourgon.

Regarding the prosecution’s evidence on exhumations and satellite imagery, the defense would show that the results of exhumations did not match the prosecution’s case about alleged UPC attacks in the Kobu, Bambu, and Lipri localities.

Furthermore, through the aid of visuals, the defense would present evidence on conditions surrounding some of the alleged events. For instance, it would show “how difficult or not it was” to get to various locations by road. The defense would also present organizational charts to “assist in understanding the construction of the army and knowing lines of command and control, staff relations, and the organization of various units.”

Bourgon faulted the prosecution for reliance on “unreliable” information gathered by third parties including non-government organizations and the former UN Organization Mission in Democratic Republic of the Congo (MONUC). He said such evidence was sometimes “based on rumors” and “gathered without due process.”

Bourgon said the defense maintained every argument made during its first opening statements back in September 2015 at the start of the prosecution case. The defense has lined up over 100 witnesses, relative to the prosecution’s 71. The accused is also scheduled to testify in his own defense.

The first individual to testify for Ntaganda this afternoon started giving evidence via video link without any protective measures. Olivier Dekana, also known as Witness D210, failed to obtain documents to enable him to travel to The Hague to testify in person. In his brief testimony this afternoon, he recounted how he travelled to the UPC training camp at Mandro to join the militia group. However, upon arrival he was informed that he had to go back home as the camp “did not train children.”

Meanwhile, prior to the appearance of Witness D210, judges issued an oral ruling rejecting a defense request to file a no case to answer motion. “Parties and participants are informed that the chamber rejects the defense request for leave to file a no case to answer motion. A written decision will follow in due course,” announced Presiding Judge Robert Fremr.

Witness D210 continues his testimony tomorrow morning.

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