International Justice Monitor

A project of the Open Society Justice Initiative

Ntaganda Trial Resumes With Testimony of Former UPC Militiaman

After a five-week break, hearings in the trial of Bosco Ntaganda at the International Criminal Court (ICC) resumed on Monday with the testimony of the ninth defense witness – a former fighter in the Union of Congolese Patriots (UPC), the militia where the accused was a top commander. The defense case for Ntaganda, who denies 18 counts of war crimes and crimes against humanity, opened last June.

The former militiaman, who is testifying under the court-given pseudonym Witness D017, has been the subject of numerous submissions before the chamber. Due to undisclosed challenges, he was last month unable to appear before judges as planned. At the time, the defense said it was unable to finalize reviewing Witness D017’s evidence prior to his referral to the court’s Victims and Witnesses Unit (VWU) to facilitate his appearance in court.

Witness D017 is testifying with protective measures including image and voice distortion during public rebroadcast of hearings. Judges granted him protective measures after the defense stated that his place of residence and profession entails frequent contact with a large part of the local community that has “express negative reaction” to association with the court, and an undisclosed health condition.

The judges’ decision was also informed by an assessment by the VWU, which found that due to “the general instability and increase of violence in the Ituri region, and to certain risk factors specific to the Witness,” the use of in-court protective measures was recommended.

The bulk of Witness D017’s testimony has been heard in closed session. In open session yesterday, defense lawyer Stéphane Bourgon questioned the witness about his military training at the UPC training camp at Mandro. Witness D017 testified that despite the absence of documentation to verify the age of recruits, there were no recruits under the age of 18 at the camp.

He recounted the case of four individuals who were “rejected” by UPC instructors at the camp for “being below the required age.” The witness also stated that sexual relations among female and male recruits, as well as between recruits and instructors at the camp, were “strictly prohibited.” Among the charges Ntaganda faces are using child soldiers in armed conflict as well as rape and sexual slavery of child soldiers.

Earlier this month, prosecutors requested judges to order the disclosure of the “official identification for Witness D017, including a clear identity photograph.” They argued that disclosure was necessary for the prosecution to be able to identify the witness prior to his testimony “to confirm whether or not he is the person claimed.” The prosecution also said it needed to know the identity of the witness so as to “investigate effectively” aspects of his account and background for purpose of cross-examination.

According to the prosecution, efforts to obtain identity records of the witness through Congolese authorities were futile, with officials stating that no individual with the witness’s biographical information appeared in relevant registers.

“Given the lateness of the defense’s disclosure of Witness D017’s nickname under which he is known in the case, and the inability to identify the witness in the relevant records, there is reason to believe that the information provided for Witness D017 may be incomplete or inaccurate,” the prosecutors said.

Defense lawyers opposed the prosecution request, stating that the information provided in relation to the witness was “sufficient to enable the prosecution to prepare meaningfully” for its cross-examination. The defense added that the identity information provided for Witness D017 accurately reflected the information on his electoral card and that the prosecution’s suspicions to the contrary were “speculative and unfounded.”

On November 10, 2017, judges ruled in favor of the defense, stating that there was no formal obligation under any statutory framework to provide identity documents or photographs of witnesses. They also found that the information provided for Witness D017 was sufficient to enable the prosecution to prepare for its cross-examination.

However, judges last week rejected a request by the defense to admit into evidence Witness D017’s prior recorded statement. The defense had contended that the statement dated November 7, 2017, “touches upon certain events which can be considered as central to core issues of the case” against Ntaganda. The defense also argued that in addition to the former militiaman’s account being corroborated by other witnesses, the admission of the statement would also reduce the time Witness D017 would spend in court.

The prosecution, while noting that Witness D017’s statement contained issues in dispute in the case, opposed the defense request. It argued that the statement addresses Ntaganda’s acts, conduct, and behavior during the temporal scope of the charges.

Indeed, judges found that Ntaganda’s alleged actions were frequently referred to in the statement, including his whereabouts at particular times, orders he allegedly gave, and his general conduct. Noting that the statement was recorded after the conclusion of Ntaganda’s own testimony before the court, and many years after the events, judges ruled that the timing of the statement “may have an impact” on its reliability.

The prosecution will commence its cross-examination of Witness D017 on Wednesday morning.

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