The hearing of Bosco Ntaganda’s appeals against his conviction and 30-year prison sentence at the International Criminal Court (ICC) has now been set for October 12-14, 2020. The hearing had been scheduled for last June, but was postponed due to COVID-19.
Appeals Chamber judges postponed the earlier scheduled hearing because the prosecution and the defense had stated that the court’s systems were not ready to handle a virtual hearing. In the scheduling order , judges did not state whether the hearing would be held virtually or physically at the seat of the court in The Hague. They said the modalities for the conduct of the hearing would be issued later.
In July 2019, Trial Chamber VI convicted Ntaganda over 18 counts of crimes against humanity and war crimes committed in 2002 and 2003 while he commanded the Patriotic Forces for the Liberation of Congo (FPLC) militia, the armed wing of the Union of Congolese Patriots (UPC). He is appealing the conviction and the sentence. The prosecution is also appealing a portion of the conviction decision in which the trial chamber acquitted Ntaganda of responsibility for attacks on a church at Sayo and a hospital in Mongbwalu town.
Last May, Ntaganda’s lawyers asked judges to be mindful of the logistical challenges and fair trial considerations that would arise if they were to consider holding a virtual hearing. They cited inability of defense teams to install and run robust systems to handle an online hearing and the challenge of maintaining the confidentiality of the proceedings when parties are pleading from their homes.
In the June 5 order postponing the hearing, the Appeals Chamber said the court needed to finalize technical preparations because its systems were not ready to handle virtual hearings. The chamber stated that the postponement meant that any hearing would take place later than envisaged in the Chambers Practice Manual, which was amended in 2019 to add specific deadlines for rendering decisions and judgments.
In particular, paragraph 90 of the manual provides that, if an oral hearing is to be held in an appeal against a conviction, acquittal, or reparations order, it shall take place within three months of the filing of the response to the appeal brief. The prosecutor responded to Ntaganda’s appeals briefs last April. Nonetheless, the judges stated that the COVID-19 pandemic and the resulting difficulties in the court’s operations, constituted an exceptional circumstances warranting an extension to deadlines.
Ntaganda’s defense had listed several requirements that it considered the minimum for a platform to have in order to host a virtual ICC appeal hearing. The lawyers said any virtual hearing must allow for simultaneous display of multiple images; real-time French to English interpretation and transcription; privileged consultations between Ntaganda and his lawyers; closed sessions for reference to confidential evidence; and the ability for Ntaganda to be held in a location where he can participate in open and closed sessions and to potentially address the Appeals Chamber directly. The defense also said it would be necessary to facilitate public access to the hearings.
In the appeal, Ntaganda argues that his conviction was invalid because one of the judges of the chamber that convicted him was unfit to serve as an ICC judge and cites numerous alleged fair trial violations. Meanwhile, his lawyers have termed the 30-year prison sentence manifestly excessive and disproportionate. They have asked the Appeals Chamber to impose a new sentence that is not higher than 23 years.