Former Congolese rebel commander Bosco Ntaganda has reduced the number of witnesses he will call to testify at the International Criminal Court (ICC) from more than 100 to 40 following the weeks-long testimony he gave in his own defense. Before Ntaganda began his testimony, defense lawyers said they would make their case significantly shorter if the accused was allowed to testify for several weeks at the start of the defense case.
Following the completion of Ntaganda’s testimony at the end of last month, his lawyers filed an updated list that comprises 40 witnesses. Last week, the lawyers said they would no longer call one of those witnesses (D-214). Meanwhile, the defense asked judges to allow the addition of two individuals, Witness D-251 and Witness D-257, to the list. Judges granted the request, which the prosecution and lawyers representing victims opposed.
Ntaganda, whose trial started in September 2015, started his defense case last June, and judges have heard evidence from eight defense witnesses since. However, the trial stalled last week due to unspecified challenges defense lawyers were experiencing in getting witnesses to appear before the court.
The accused was the second witness called by the defense, and he testified between June and September of this year. Prior to his testimony, the defense had indicated that it intended to call up to 111 witnesses. Last month, the defense said it intended to drop 11 witnesses. The prosecution in the Ntaganda trial called 71 witnesses.
Meanwhile, the defense is seeking to add Witness D-251 five months after the deadline for submitting its witnesses because it expects her testimony to contradict purportedly incriminating prosecution evidence about the age of specific individuals whom Ntaganda knew (and who are purportedly former child soldiers), and about how Ntaganda treated female soldiers and escorts. The witness would also testify that Ntaganda’s bodyguards were not raped or sexually abused, and offer her knowledge of specific prosecution witnesses who alleged rape and sexual abuse. Her evidence would therefore be “relevant and exculpatory to issues of core importance” to the case, said the defense.
Defense lawyers submitted that, in order to save court time, they would tender Witness D-0251’s testimony under Rule 68(3) of the court’s Rules of Procedure and Evidence, under which judges may allow the introduction of the prior recorded testimony of a witness who is present before the chamber if the individual does not object and if both parties and the chamber have an opportunity to examine the witness.
Regarding Witness D-257, the defense stated that his evidence would corroborate Ntaganda’s testimony on the reasons for his visit to Kigali, Rwanda, in 2003, which the prosecution challenged during cross-examination. The defense stated that this testimony was directly relevant to Ntaganda’s credibility.
In permitting the defense to add the two individuals to its witness list, judges noted that Witness D-251 was expected to provide exculpatory evidence on a number of issues of significance to the case, including Ntaganda’s treatment of female escorts, his attitude towards relationships between soldiers and escorts, the age of escorts, and Ntaganda’s directions on the treatment of the civilian population and prisoners. Judges also ruled that Witness D-257’s anticipated testimony might be of relevance to a contested issue in the case, namely Ntaganda’s testimony in relation to his visit to Rwanda.
The prosecution opposed the addition of the two witnesses, arguing that the request was filed five months after the expiration of the relevant deadline and after the major part of the defense case had passed. The prosecution faulted the defense for failing to provide valid reasons for not seeking to add these witnesses at an earlier stage, and claimed Witness D-257’s proposed evidence was not relevant to any matters to be determined.