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Ntaganda’s Impeding Testimony at the ICC Raises Contentious Issues

Bosco Ntaganda’s impeding testimony at the International Criminal Court (ICC) has put into focus some contentious issues related to the protocols under which an accused person may testify in their own defense. Issues under contention include whether the court’s witness preparation procedures should apply to the accused and prosecution proposals to prohibit communication between the accused and his lawyers for the duration of his testimony and to restrict defense witnesses from following Ntaganda’s testimony in “any manner.”

On May 17, 2017, judges granted a defense request for Ntaganda to testify in his own defense, with his testimony expected to last for up to six weeks starting June 14. The former rebel leader has been on trial at the ICC since September 2015 over war crimes and crimes against humanity allegedly committed by himself and his Union of Congolese Patriots (UPC) soldiers during ethnic conflict in Congo’s Ituri province in 2002 and 2003.

In a May 26 application to judges, the prosecution argued that it was necessary to put in place various safeguards prior to Ntaganda taking the stand in order to ensure the integrity of proceedings and to avoid him directly or indirectly influencing the testimony of other defense witnesses.

However, in oral submissions on Tuesday, May 31, lead defense counsel Stéphane Bourgon took issue with the prosecution’s suggestion that the defense’s preparation sessions with Ntaganda should be recorded and preparation logs and notes disclosed. He noted that consultations between Ntaganda and his lawyers are protected by attorney-client privilege.

Regarding the prosecution’s request to prohibit communications between Ntaganda and the defense team for the duration of his testimony, Bourgon maintained that the accused’s fundamental rights, including consultation with counsel “at any stage of the proceedings,” must be respected.

“In cases before this court where an accused decided to testify, communications between the accused and the defense were not suspended,” stated Bourgon. “We thus request the chamber to authorize consultations between [the] accused and the defense in all phases of his testimony,” he added.

As per the court’s rules and procedures, contact between a witness and the calling party is restricted from the time the witness begins to testify until the end, except for contact in court during questioning. Witnesses are also forbidden from discussing their testimony with anyone for the duration of their appearance before the court. The prosecution contends that there is no reason why the prohibition on discussing testimony with anyone should not be issued to Ntaganda.

In his submissions, Bourgon cited jurisprudence in the trial of Germain Katanga and Mathieu Ngudjolo Chui as well as trials at the International Criminal Tribunal for the former Yugoslavia (ICTY). In those trials, he said, judges ruled that an accused cannot be considered a witness, and the application of certain witness rules to accused persons would be “incompatible” with their rights.

Meanwhile, the prosecution also requested judges to order the defense to instruct its witnesses scheduled to appear after Ntaganda has testified, not to follow his testimony, either by listening or watching proceedings online, or attending court in person. Bourgon said that it was “not practical” for the defense to take such measures for the over 100 witnesses it has lined up.

Stressing that the accused had the right to a public trial, Bourgon submitted, “Whether a witness decides to watch proceedings is up to them, as to anyone in the public.” He stated that Ntaganda intends to testify mostly in open session and dismissed prosecution suggestions that parts of Ntaganda’s testimony be heard in closed session to avoid the possibility of upcoming defense witnesses being influenced by his account.

Only one defense witness has so far testified since the opening of the defense case on Monday this week. Although both Katanga and Ngudjolo testified in their own defense, they took the stand after their witnesses had testified towards the end of their trial.

Nonetheless, defense lawyers agreed with prosecution assertions that the list of documents to be relied on during cross-examination not be discussed with Ntaganda. However, Bourgon stated that the prosecution’s disclosure obligations for all documents must apply so that “Ntaganda is not taken by surprise” with questions on undisclosed material. The defense also agreed with the prosecution’s request that Ntaganda answers all questions put to him once his testimony commences.

“In this regard, having waived his right to remain silent, Ntaganda is in the same position as other witnesses and understands that any and all of his answers will be considered by judges,” explained Bourgon.

The prosecution has also asked judges to prohibit Ntaganda from discussing his testimony with any non-privileged contacts during the course of his testimony and to order the defense to provide the list of items that it intends to discuss with the accused during its examination-in-chief 10 days before the start of his testimony.

The decision on the prosecution’s application is expected over the coming days. Hearings in the trial are scheduled to resume on June 14, 2017.