International Justice Monitor

A project of the Open Society Justice Initiative

Ntaganda’s Defense Case Opens Next Week

The defense case of former Congolese rebel leader Bosco Ntaganda opens on Monday, May 29, at the International Criminal Court (ICC). Ntaganda has been permitted to testify on oath for six weeks, and he also plans to call more than 110 witnesses – the biggest number to be presented by either the prosecution or the defense in a case at the court based in The Hague.

Next week’s proceedings will start with the presentation of the defense’s further opening statement, after which defense witnesses D-54, D-52, and D-210 will testify. Proceedings will then be adjourned until June 14 when Ntaganda will take the witness stand.

The former head of the Union of Congolese Patriots (UPC) faces 18 counts of war crimes and crimes against humanity, allegedly committed by himself and other UPC fighters during 2002 and 2003 in eastern Democratic Republic of Congo. The five counts of crimes against humanity are murder and attempted murder; rape; sexual slavery; persecution; and forcible transfer of population.

Meanwhile, the 13 counts of war crimes are: murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; and destroying the enemy’s property. Others are rape, sexual slavery, enlistment and conscription of child soldiers under the age of 15 years and using them to participate actively in hostilities.

In an interview last week, Ntaganda’s lead lawyer Stéphane Bourgon said the defense was aggrieved that their case would start before judges ruled on four crucial pending issues. These include a defense submission for a stay of proceedings, a defense application to file a no case to answer motion, and an appeal against Ntaganda’s trial on counts six and nine, under which he is charged with the alleged war crimes of rape and sexual slavery of child soldiers in the UPC by fighters from the same militia group.

Furthermore, Bourgon noted that judges had not ruled on the defense request (concerning its leave to appeal) for the prosecution to be barred from using any material it obtained while investigating Ntaganda for alleged witness interference in contravention of the Rome Statute’s Article 70. In the course of those investigation, the Office of the Prosecutor (OTP) obtained Ntaganda’s 4,684 conversations recorded at the ICC detention center, which Bourgon contends revealed detailed and confidential defense information, giving the OTP an undue advantage and making it impossible for the accused to receive a fair trial.

Last month trial chamber judges determined that it was still possible for Ntaganda to have a fair trial. The judges directed that the prosecution shall not be allowed to use the material obtained in the context of the Article 70 proceedings during the defense’s presentation of evidence, unless specifically authorized by the chamber upon receipt of a request. Furthermore, judges advised that any further review of Ntaganda’s conversations should be conducted by members of the OTP who are not part of the trial team in the Ntaganda case.

Having handed himself over to the court in March 2013, Ntaganda’s trial commenced in September 2015. The prosecution called 71 witnesses, while three victims also testified, and five victims presented their views and concerns to the court.

Ntaganda was initially indicted in 2006 along with Thomas Lubanga, the head of the UPC’s political wing, who became the first person to be tried and convicted by the ICC. Lubanga was convicted in March 2012 of recruiting, conscripting, and using children under the age of 15 in armed conflict, and was handed a 14-year prison term.

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