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Ntaganda’s Lawyers Lay Out Reasons for Appeal Against ICC Conviction

Bosco Ntaganda’s lawyers have laid out 15 grounds of appeal against his guilty verdict at the International Criminal Court (ICC) and asked the Appeals Chamber to acquit him of all the 18 counts for which he was convicted.

In the September 9 notice, defense lawyer Stéphane Bourgon alleges procedural errors and violations of Ntaganda’s fair trial rights. In addition, he alleges various erroneous findings by Trial Chamber VI in its conviction decision of July 8, 2019.

In the first ground of appeal, the defense argues that the trial chamber erred in rendering a judgment with the participation of a judge who did not satisfy the requirements of Article 40 of the court’s statute, and who, contrary to the requirements of Article 74(1), was not present at each stage of the trial and throughout its deliberations.

This is a reference to Judge Kuniko Ozaki, who the defense sought to have removed from the case when she served for a brief period as Japan’s ambassador to Estonia and as a non-full-time judge on the Ntaganda trial. The defense argued that this dual role violated the requirements of judicial independence stipulated by Article 40 of the Rome Statute, but the plenary of judges last June disagreed and declined to disqualify Judge Ozaki.

In the notice of appeal, the defense alleges various procedural irregularities that violated Ntaganda’s right to a fair trial. These include the prosecution’s “inappropriate access” to all of Ntaganda’s non-privileged telephone conversations from the court’s Detention Center “without any vetting process.” It argues that in this process, the prosecution obtained confidential defense information without informing the defense and that the prosecution used this confidential information, including in submissions to the trial chamber.

Furthermore, the defense says the trial chamber failed to order the disclosure of material relevant to the credibility of prosecution witnesses, such as payments and other benefits given to witnesses. Other undisclosed evidence mentioned are confidential material from the Thomas Lubanga case and information redacted from witness statements. Ntaganda’s lawyers also cite the large volume of “unjustified ex parte submissions and material” entertained by the trial chamber, including its hearing of the evidence of the prosecution’s Witness P055 in the absence of the defense.

Ntaganda was convicted for crimes committed in eastern Congo’s Ituri province during 2002 and 2003, while he served as deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC) militia, the armed wing of the Union of Congolese Patriots (UPC). Prosecution evidence shows that the UPC, whose members were mostly from the Hema group, targeted those of Lendu ethnicity. In his latest filing, Ntaganda says judges were wrong to find that he was responsible for the crimes they found to have been committed by FPLC/UPC soldiers and Hema civilians.

It is also the defense’s contention that judges erroneously convicted Ntaganda of individual criminal acts for which he was not charged, and for which the facts and circumstances were not adequately pleaded. Additionally, the defense argues that the chamber committed errors of law and fact by finding that the contextual elements of crimes against humanity had been established beyond a reasonable doubt.

In particular, the defense contends that the chamber erred in finding that attacks over which Ntaganda was convicted were carried out pursuant to an organizational policy “to attack and chase away the Lendu civilians as well as those who were perceived as non-Iturians.”

The defense faults trial judges for purportedly relying on the evidence of insider witnesses, which they “erroneously” found to be credible and reliable; and failure to give sufficient weight to inconsistencies between the application forms of victim who testified for the prosecution and their statements and evidence under oath. It also faults judges for dismissing Ntaganda’s evidence, “including on the basis of uncorroborated prosecution evidence.”

Further, the defense argues that the trial chamber erred in finding that Ntaganda knew that anyone under the age of 15 was enlisted, conscripted, or used to participate in hostilities. It also claimed the findings that Ntaganda’s escort included child soldiers, and that any child soldier was raped or sexually enslaved, were manifestly unreasonable, shifted the burden of proof to the accused, or misapplied the standard of proof.

The prosecution has issued its own appeal notice, indicating that it would appeal the findings of judges regarding two incidents, where they acquitted Ntaganda for intentionally directing attacks against a church at Sayo and the hospital at Mongbwalu.

The sentencing hearing for Ntaganda is scheduled for September 17-20, 2019. More background information on the trial, judgment, and sentencing hearing can be found in this briefing paper.

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