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

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 second part of this two-part series, Bourgon discusses some key prosecution allegations and relfects on landmark moments in the trial.

Wairagal Wakabi (WW): What was Mr. Ntaganda’s response to the allegations of the recruitment and use of child soldiers in the UPC/FPLC?

Stéphane Bourgon (SB): Mr. Ntaganda consistently maintained that no one under the age of 15 was trained by or fought with the FPLC. Mr. Ntaganda explained why he would not and did not do so. Mr. Ntaganda’s testimony was that, in case of doubt, and given the lack of reliable birth certificates or identity documents at the time, a visual assessment was made to ensure that the individuals were old enough to join the FPLC.

Significantly, this case clearly stands apart from other instances in conflicts elsewhere in which the practice of recruiting underage soldiers and using them for ill purposes was large-scale and widely publicized. In the defense’s view, the evidence in this case shows no situation coming close to such practice.

WW: Mr. Ntaganda has also been accused of committing rape himself, and is charged for condoning rape, particularly of female child soldiers, within the militia group. What is his testimony and his evidence on this?

SB: Mr. Ntaganda was not charged with having committed rape himself, although an allegation was made outside of the scope of the indictment that he had. The defense position is that if this allegation had been considered reliable, it would surely have formed part of the charges against him. Mr. Ntaganda testified vigorously not only that he did not commit rape but also that he would never have tolerated rape within the ranks of the FPLC, and that he severely punished those rare cases of which he became aware. Mr. Ntaganda’s testimony was corroborated by witness evidence, including that of male and female subordinates who confirmed his views on the matter.

WW: What about the allegations of committing murder including by himself? An incident cited by the prosecution is his alleged murder of a priest named Boniface Bwanalonga.

SB: Mr. Ntaganda offered detailed testimony about this event and denied categorically that he murdered, or ordered the murder, of the priest Bwanalonga. There is only one prosecution eyewitness who substantiated this allegation, whom the defense has submitted to the Trial Chamber was utterly discredited and unreliable.

WW: The principle of “command responsibility,” which means that superiors can bear responsibility for the actions of their subordinates, is important in this case. The evidence of the prosecution shows that Mr. Ntaganda knew about the crimes being committed by his subordinate fighters, but neither stopped nor punished them, but he condoned the crimes and even abetted them. What’s the defense’s reaction?

SB: This allegation was strongly denied by Mr. Ntaganda, under oath. He offered during his testimony many specific examples of having punished subordinates for crimes. “Command responsibility” does not impose criminal liability on a strict liability basis, but rather requires that commanders be diligent in deterring and punishing such crimes. The defense has not taken the position that no crimes were committed, or that there are no genuine victims of crimes, but rather that Mr. Ntaganda did not commit these crimes and acted diligently to try to suppress them when he became aware of them.

In fact, as mentioned during oral arguments, the defense pleaded that throughout the period covered by the charges, Mr. Ntaganda’s acts and conduct actually contributed and resulted in less harm being inflicted on the civilian population than if he had not been involved.

WW: The defense has denied that there was a common plan among the UPC/ FPLC to attack members of Lendu ethnicity, including civilians, and that Mr. Ntaganda was a key actor in this plan. What is the defense theory and evidence on this?

SB: The defense’s view is that the UPC/FPLC was a multi-ethnic organization that was genuinely committed to reconciliation and stability in Ituri. As revealed by the evidence adduced, before being ousted from Bunia in March 2003 by a coalition of forces including Lendu combatants but headed by the UPDF (the Uganda Peoples Defense Forces, the country’s national army), the UPC had succeeded in getting all ethnic groups to sign a peace agreement. Only two members of one of the delegations, which constituted a minority in that delegation, had refused to sign.

At the same time, during the period covered by the charges, the UPC/FPLC was determined to defeat armed groups who were against the truth and reconciliation process. This enemy, as was established in the [Germain] Katanga case, committed killings on a scale far larger than those even alleged as having been committed by the FPLC. The defense position is that the FPLC’s military operations were not only lawfully conducted but, given this larger context, reasonable and justified.

WW: In the course of this case, the prosecution accessed Mr. Ntaganda’s telephone conversations from the detention center? How did this affect the cases of the defense and of the prosecution?

SB: The effects were profound. During the presentation of the prosecution’s case, having been granted access to these conversations for the purpose of detecting whether any offences were being committed against the administration of justice, the prosecution was in a position to know, ahead of time, what the defense would do; while the defense did not even know that such information was in the possession of the prosecution.

The prosecution was further authorized to use some of these recordings as a basis to cross-examine Mr. Ntaganda on the substance of the charges against him. The defense’s view, however, is that even though Mr. Ntaganda discussed his defense strategy in these conversations, they revealed nothing more than Mr. Ntaganda speaking to individuals, many years after the events, to understandably refresh his own memory about the sequence of events. The defense further took the view that there is not the slightest indication in these recordings of any attempt to encourage any potential witness to lie. Mr. Ntaganda still has not been charged with any such offence by the prosecution.

WW: At some point, the defense filed a no case to answer motion, which judges ultimately rejected. What prompted the defense to file this motion and why did judges disagree with your arguments in this regard?

SB: The trial chamber did not, in fact, reject any no-case-to-answer motion; rather, it declined to entertain any such motion. This ruling was also upheld by the Appeals Chamber. The motion that the defense indicated that it wished to file did not extend to the entire case, but only to limited elements of it — most importantly, that there was no evidence to support a conviction of Mr. Ntaganda in relation to the February 2003 military operation.

WW: Looking back at the trial in totality, what would you say are some of the landmark moments or issues that emerged?

SB: The testimony of Mr. Ntaganda was a landmark event. He had the courage to tell his story under oath, subjecting himself to weeks of cross-examination. This is both an exhausting and perilous exercise, in which the demeanor of the accused and every word he will say will be thoroughly scrutinized by the trial chamber.

Mr. Ntaganda nevertheless undertook this arduous exercise, took responsibility for his actions while also laying bare everything he did and explaining why. In hindsight, I can say that I am very proud of the manner in which Mr. Ntaganda undertook this exercise, for the most part in public session, responding to every question and sharing his experience on the events. His testimony really helped in bringing a broader perspective to actions that might otherwise be taken out of context. Mr. Ntaganda’s willingness to testify, regardless of the outcome of his trial, was an important contribution to the mission of the International Criminal Court.

As the defense explained during closing oral arguments, the extent to which key prosecution witnesses provided untruthful testimony is another very significant aspect of this case.

Lastly, the prosecution’s parallel Article 70 investigation [against Ntaganda for alleged witnes interference] throughout the proceedings is also a landmark event. The information the prosecution managed to gain access to, the pressure imposed on the defense having to respond to the prosecution’s continuous allegations of interference while representing Mr. Ntaganda on the substantive aspects of the case, and the fact that he still has not been charged in relation to these allegations, is revealing.