International Justice Monitor

A project of the Open Society Justice Initiative

Ntaganda Trial Judges Reject Prosecution Bid to Present Rebuttal Evidence on Credibility of 18 Witnesses

International Criminal Court (ICC) judges have denied prosecution requests to submit rebuttal evidence following the close of the defense case in the trial of former Congolese rebel leader Bosco Ntaganda.

The prosecution had sought to rebut defense evidence that questions the credibility of 18 dual-status witnesses, meaning prosecution witnesses who are also participating in the trial as victims. Furthermore, the prosecution sought to present a rebuttal witness whose evidence would dispute Ntaganda’s testimony that he lacked knowledge about a deadly attack by his fighters on a Congolese village in February 2003.

Ntaganda’s trial at the ICC for 18 counts of war crimes and crimes against humanity started in September 2015 and saw the prosecution present the evidence of 71 witnesses. The defense case opened in May 2017 and had 19 witnesses, including the accused who testified for up to 120 hours over six weeks.

The prosecutor’s bid to present rebuttal evidence on dual-status witnesses followed admission into evidence of a document tendered by the defense, which appears to cast doubt on their credibility. The document contains responses by the court’s Victims Participation and Reparations Section (VPRS) to questions posed by Ntaganda’s lawyers. Known as the ‘2017 Memo,’ it explains the methods of work of the VPRS, including how it deals with individuals that apply to participate as victims in trials at the court.

The VPRS, a section within the ICC Registry, assists victims to obtain legal advice, to submit applications to participate in proceedings at the court, and it organizes their legal representation.

According to the defense, the 2017 Memo is relevant to the credibility of several dual-status witnesses because it indicates that victim participation forms are read back to the victims prior to their signature, contrary to the statements of numerous prosecution witnesses. However, the prosecution claims the document contains “misleading assertions” on the process of filling in victim application forms by dual-status witnesses.

The prosecution requested judges to admit a 2018 memo written by the VPRS head, which they claimed confirmed that VPRS staff assisted only one of the dual-status witnesses. Prosecutors claimed the 2018 memo showed that VPRS was not in position to confirm whether the contents of victim application forms were read back to the other 18 dual-status witnesses prior to signature, as VPRS staff were not present during these interviews.

Judges determined that, whereas the 2018 memo provides information of potential relevance to the credibility of certain prosecution witnesses, the proposed rebuttal evidence was of limited significance and did not meet the required standard to be considered as evidence in rebuttal. They agreed with Ntaganda’s lawyers that the issue prosecutors sought to rebut was alluded to during the prosecution’s case-in-chief and did not arise unexpectedly during the defense’s presentation of evidence.

According to judges, on several occasions when the defense was cross-examining prosecution witnesses, it asked whether their victim participation forms had been read back to them before signature. Judges cited the cross-examination of Witness P883, during which the defense referred to the issue of the victims’ application process and argued that several witnesses explained inconsistencies between the information on VPRS forms and their testimony to the prosecution, to the fact that the forms were not reread back to them.

Victims’ lawyers supported the prosecution’s suggested rebuttal evidence, saying it was essential to clarify the actual practices for completing application forms by all victims participating in the Ntaganda case.

Judges also rejected a prosecution request to call a witness to rebut Ntaganda’s testimony about a trip me made to Rwanda in February 2003. The rebuttal evidence would dispute Ntaganda’s testimony that he had no knowledge of the attack by his Union of Congolese Patriots (UPC) militia on the Walendu-Djatsi locality, where several civilians were killed.

According to a timetable issued by judges, the prosecution and victims’ lawyers had to file closing briefs by April 20, 2018, while the defense will file their closing brief on June 18. The prosecution and the victims’ lawyers have up to July 3 to respond to the defense brief, with Ntaganda’s lawyers making their response by July 18. Judges indicated last December that closing statements would be scheduled approximately two weeks after the defense files this reply.

Judges admitted other documents produced by the VPRS in Mach this year in response to defense questions, which Ntaganda’s lawyers say provide further details on the standard procedure applied and the training of VPRS intermediaries in the field who are involved collecting victim application forms.

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