Lawyers for former Congolese rebel commander Bosco Ntaganda have urgently appealed to judges at the International Criminal Court (ICC) to reject his conviction for war crimes and crimes against humanity. At an appeals hearing on Monday, October 12th the lawyers alleged that Ntaganda’s trial was filled with fair trial violations and that the conviction was erroneous.
“As a result of the many legal errors and errors of fact committed by the trial chamber, Mr. Ntaganda was convicted of 18 counts … we are confident that the appeals chamber will bring to light the trial chamber’s errors and order a full acquittal or a retrial for Mr. Ntaganda,” said lead defense lawyer Stéphane Bourgon.
Ntaganda was convicted in July 2019 over crimes committed in 2002 and 2003 in the Ituri district in the Democratic Republic of Congo. At the time, Ntaganda was the 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).
Trial Chamber VI found that Ntaganda was a direct perpetrator of three crimes: murder as a crime against humanity and as a war crime, and persecution as a crime against humanity. Besides bearing individual criminal responsibility for those three crimes, Ntaganda was convicted as an indirect perpetrator of 15 crimes. He appealed the conviction and the 30-year prison sentence.
At Monday’s hearing, defense lawyers stated that the trial chamber erred in finding that Ntaganda was liable as an indirect co-perpetrator, arguing that the UPC/FPLC did not have a common plan to destroy the Lendu ethnic community. They also said trial judges did not point to any evidence to back their finding that Ntaganda agreed to any such plan, or to the determination that the co-perpetrators foresaw rape and sexual slavery as the certain consequence of implementing that plan.
Defense lawyer Kate Gibson also argued that Ntaganda was convicted on the basis of a different common plan from the one he defended against. She said, “The idea [in the conviction decision] that the common plan encompassed the destruction of a community or disintegration of the Lendu ethnic group hadn’t been pled.”
In the conviction decision, judges held that Ntaganda contributed to a common plan “to drive out all the Lendu from the localities targeted during their military campaigns” through “destruction and disintegration of the Lendu community.” The defense argued that Ntaganda was not given notice during the trial that he was being tried on the basis of his participation in a common plan to annihilate an ethnic group.
Accordingly, the defense says the conviction decision expanded the case as confirmed by the Pre-Trial Chamber and as presented by the prosecution. This, it argues, goes against ICC rules that in convicting an accused, a trial chamber cannot exceed the scope of a common plan as pleaded in an indictment.
Further, the defense argued that numerous procedural irregularities undermined Ntaganda’s right to a fair trial, citing the trial chamber’s “excessive” use of ex parte material from the prosecution and the alleged error in declining to suspend the proceedings prior to resolving the defense’s no case to answer appeal.
According to the defense, while ICC rules provide for ex parte submissions in six-limited circumstances, Trial Chamber VI received 214 written ex parte submissions, of which 91 remained undisclosed at the end of the trial. The defense said even those reclassified during trial often remained ex parte for several months, yet they included witness statements with prejudicial allegations against Ntaganda.
Defense lawyers also raised the issue of the prosecution’s failure to disclose that it had access to Ntaganda’s conversations while he was at the ICC detention center, including on defense investigations, the identity of potential defense witnesses, and defense strategy. Bourgon said for 13-months as the prosecution presented its case it had access to these conversations without informing the defense, which the defense argued was unjustified, caused irremediable prejudice to the fairness of the trial, and constituted “a flagrant abuse of process leading to one possible remedy, a full acquittal.”
According to Bourgon, trial judges could have remedied some of their errors if they had not systematically rejected defense requests for leave to appeal. He said of the 23-requests the defense made, only three were granted and only in part. Bourgon asked the appeals chamber to reverse all guilty findings for crimes against humanity, arguing that judges erroneously concluded that the UPC/ FPLC had intentions to attack civilian populations or encouraged such an attack.
The appeals hearing, which was initially scheduled to begin on June 29, 2020 was postponed after judges determined that the court was not ready to handle virtual hearings. It will run on Wednesday, October 14, 2020.