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Q&A with Defense Lawyer Stéphane Bourgon Reflecting on Ntaganda’s Trial: Part I

Stéphane Bourgon is the lead lawyer for Bosco Ntaganda, the former deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC), who has been on trial at the International Criminal Court (ICC) since September 2015. The prosecution accuses Ntaganda of committing war crimes and crimes against humanity during 2002 and 2003 in Ituri district of the Democratic Republic of Congo, where the FPLC, the armed wing of a rebel movement known as the Union of Congolese Patriots (UPC), was involved in an armed conflict. Ntaganda denies all charges against him. The defense and the prosecution made their closing oral arguments before judges in August last year.

In December 2018, Bourgon spoke to International Justice Monitor’s Wairagala Wakabi. In the first part of this two-part series, Bourgon discusses the strategy of the defense case, what prompted Ntaganda to testify, and the reliability of prosecution witnesses.

Wairagala Wakabi (WW): It has been a while since you filed the defense’s closing brief. In short, what is the defense case in Mr. Ntaganda’s trial?

Stéphane Bourgon (SB): The prosecution case, based on the charges laid, is that Mr. Ntaganda is responsible for crimes allegedly committed against civilians during two military operations in November 2002 and February 2003. Although the overall period covered by the charges amounts to some 17 months, these two operations lasted, according to the prosecution, for about 16 days and 15 days, respectively. Mr. Ntaganda is also charged in relation to the recruitment and use of child soldiers in 2002 and 2003.

Mr. Ntaganda frankly acknowledged during his testimony and throughout the conduct of his defense that in November 2002, following a first attempt by the FPLC to liberate Mongbwalu [town] where the civilian population was being mistreated, in his absence he was entrusted with the overall command of the operation. The defense case, consistently maintained, was that the allegations of widespread criminality are false, and that Mr. Ntaganda actually punished any and all crimes of which he became aware. Conversely, Mr. Ntaganda explained that he had virtually no involvement in the February 2003 attack and was, in fact, undertaking missions elsewhere.

As to the allegations concerning child soldiers, the defense contends that the prosecution has not established beyond a reasonable doubt that anyone with the FPLC was under 15 years of age, let alone that Mr. Ntaganda was aware of this. Significantly, as explained at length during oral arguments, the defense insisted on the fact that no credible evidence of purported child soldiers at the time was adduced during trial.

WW: Regarding the witnesses that you called, whereas earlier you had indicated that you would call more than 100 witnesses, eventually you called 19. What prompted this?

SB: This is not uncommon in adversarial proceedings. Throughout the trial, the defense assesses on an ongoing basis what evidence needs to be called based on the strength of the prosecution case as it unfolds in court. The presentation of the case for the defense is tailored on whether there is really a genuine need for additional or corroborating evidence.

In this case, as explained in our [closing] briefs but also during oral arguments, the testimony of Mr. Ntaganda as it unfolded was a determining factor in reducing the number of witnesses the defense called to testify.

WW: What prompted Mr. Ntaganda himself to testify and moreover to be on the witness stand for such a long period of time?

SB: The decision of an accused to testify in adversarial proceedings, exposing himself to thorough cross-examination and the judges’ questions, is a major issue. For Mr. Ntaganda, even though the final decision was delayed to ensure this was the best strategy in the circumstances, the ultimate decision was clear and simple. From the beginning, as can be seen from the proactive approach taken by the defense when cross-examining prosecution witnesses, Mr. Ntaganda wanted to frankly tell his version of events, as far as possible in public, contrary to most witnesses in this case who gave their testimony anonymously and often in private session.

The evidence adduced by the prosecution often went far beyond the scope of the charges against Mr. Ntaganda and the prosecution focused its strategy on Mr. Ntaganda’s reputation in the media, which prompted Mr. Ntaganda to lay bare his actions and conduct, and place his story in the broader context of historical events, and of his life experiences.

WW: What was the gist of Mr. Ntaganda’s testimony? What issues did he testify to, and how was his testimony relevant to disputing the prosecution evidence?

SB: The gist of Mr. Ntaganda’s testimony was about how he conducted himself during the relevant time periods, and why. He responded to all questions put to him whether by the defense, the prosecution or the judges thoroughly, calmly and confidently, recalling to the best of his recollection exactly where he was, what he did and why during the two military operations that fall within the scope of the prosecution case.

Mr. Ntaganda did not deny his involvement in combat operations but insisted on his military ethos as a soldier who spent most of his career training soldiers and the raison d’être in his view of the military. Mr. Ntaganda also explained what he understood to be the FPLC’s, as well as his own, policies and attitude towards the recruitment or use of child soldiers, but he also tried to explain why young individuals often felt compelled to attempt to associate themselves with the military in the context of Ituri in 2002 and 2003.

WW: In your closing statements, you mentioned that his testimony is corroborated by many sources of evidence, including prosecution witnesses. What are some examples of this?

SB: The most compelling example of this is the contemporaneous record of secret communications amongst the senior leadership of the FPLC at the time, as recorded in a “logbook.” The prosecution announced during its opening statement that this was an incriminating document but said precious little about it during its closing submissions. The defense, conversely, relied heavily on this document as corroboration of Mr. Ntaganda’s testimony as to where he was and what he did at crucial moments during the two military operations that are part of the charges. Mr. Ntaganda’s testimony is also corroborated in key respects by certain prosecution witnesses, in particular, his lack of involvement in the second operation.

WW: You have also alleged, including in your closing oral arguments, that some prosecution witnesses and victim witnesses provided false evidence or fabricated evidence. Could you throw some light on this?

SB: The defense’s view as explained not only during closing oral arguments during which limited information can be provided in public, but even more so in its closing briefs, is that the evidence provided by key prosecution insider witnesses was so implausible or inconsistent that it demonstrated a lack of truthfulness on its face. Although there are many reasons why witnesses sometimes do not provide truthful or reliable evidence, if only for example because it might be in their interest not to be associated with a former superior in trial, who also punished many subordinates at the time as revealed by the “log book” in evidence, what matters is not why they testified in a certain way but whether they told the truth or not.

There were also indications that some witnesses had coordinated their testimony with one another and that documents had been falsified to show, for example, enlistment with the FPLC or to understate age [of the former fighters]. Other witnesses may have presented evidence that they genuinely believed to be true, but that was tainted by bias or was simply inaccurate.

WW: How do you view the role of victims’ participation in this case?

SB: On many occasions, the defense expressed the view that victims’ participation is an important aspect of proceedings before the International Criminal Court. Nonetheless, victims’ participation should not impact the fairness of the proceedings, nor should it distract attention from the core issue of determining impartially the guilt or innocence of an accused.