The prosecution at the International Criminal Court (ICC) has rebuffed former Congolese rebel leader Bosco Ntaganda’s grounds of appeal against his conviction and asked judges to reject his pleas for acquittal. The prosecution contends that judges who convicted Ntaganda in July 2019 did not violate any of his fair trial rights or make errors in assessing the evidence.
Ntaganda was convicted for 18 counts of war crimes and crimes against humanity, including murder, rape, sexual slavery, enlisting and using child soldiers, forcible displacement, destruction of property, pillaging, and attacking civilians and protected objects. He appealed the conviction, citing fair trial violations among other grounds, and is arguing that the only remedy is a full acquittal or a retrial.
However, the prosecution contends that none of Ntaganda’s arguments show that he had an unfair trial or that Trial Chamber VI committed any error in convicting him. According to prosecution lawyer Helen Brady, Ntaganda’s convictions were premised on the properly reasoned factual findings the chamber made after thoroughly analysing and assessing all the evidence admitted in the three-year trial, and correctly applying the standard of proof.
Speaking at the appeals hearing, Brady said judges rightly found that Ntaganda belonged to a group of co-perpetrators whose purpose was to drive members of the Lendu ethnic community from certain locations in Congo’s Ituri district, through brutalizing Lendu civilians, “He played a key role, both directly and by his broader essential contributions to the common criminal plan,” she said.
In convicting Ntaganda, trial judges found that he committed the crimes during 2002 and 2003, while he served as deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC). The FPLC was the armed wing of the Union of Congolese Patriots (UPC), an opposition group led by Thomas Lubanga, who was convicted at the ICC in 2012. In addition to appealing his conviction, Ntaganda has also appealed the 30-year-prison sentence handed to him by ICC judges.
Defense lawyers had argued that trial judges 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 faulted judges for taking an “erroneous approach” to witness assessment. However, according to Brady, contrary to defense claims that judges systematically dismissed Ntaganda’s evidence wherever it contradicted prosecution evidence, the chamber carefully assessed all relevant evidence and rejected his version as not credible whenever it was found implausible.
The prosecution submitted that, after exhaustively enunciating legal principles, trial judges conducted a detailed credibility analysis covering more than 70 pages and involving up to 14 prosecution witnesses, before they dismissed Ntaganda’s evidence as not credible. Brady said, “His complaint appears to be that the chamber didn’t adequately explain why it had preferred incriminatory evidence over his testimony to reach its factual findings, but the chamber did just that.”
Nicole Samson, another prosecution lawyer, responded to defense claims that the trial chamber took an improper approach to the corroboration of evidence and that it was biased against Ntaganda’s evidence. The defense had argued that, in convicting Ntaganda, trial judges based many of their findings on uncorroborated assertions that often emanated from accomplice witnesses.
The defense also submitted that prosecution witnesses 768, 963 and 17 were Ntaganda’s associates in the UPC/FPLC, and that judges erred in relying on their evidence that contradicted his own. Samson said the chamber correctly found that these witnesses were credible and their evidence was reliable, and it devoted several pages of the judgement to this assessment.
Furthermore, the prosecution argued that, in claiming the trial chamber relied on uncorroborated evidence to convict him, Ntaganda incorrectly introduced a requirement of corroboration when there was none. “A trial chamber may rely on uncorroborated but otherwise credible testimony from any witness, including from alleged accomplices,” said Samson. “This trial chamber adopted a case-by-case approach to corroboration. Its reasons for accepting or rejecting evidence are detailed and extensive.”
The defense has asked appeals judges to overturn Ntaganda’s conviction on all counts of crimes against humanity, arguing that trial judges did not cite any evidence to show that the UPC had a common plan to attack civilians. Ntaganda’s lawyers asserted that this evidence was a prerequisite to determining the commission of crimes against humanity. In response, the prosecution said all available evidence showed that the UPC targeted civilians as part of a policy to chase the Lendu away from specific areas.
The prosecution’s Matteo Costi said the militia’s commanders gave orders to their fighters to attack all Lendu, including civilians. He added that in the areas the militia attacked, they murdered men, women, and children, and committed rape, torture, and persecution.
When they took over Mongbwalu, FPLC soldiers “raped multiple women and girls as young as 13 and 14 years old,” and in Kobu Town FPLC soldiers detained and raped several women and girls, including an 11-year-old. “At least 50 of those captured in Sangi, Buli and Gola, including women, young boys and girls, were brought to Kobu. There, some women were raped. At night prisoners were executed in groups. At least 49 dead bodies were found in the following days in a nearby banana field.” Costi added that at Ntaganda’s residence, militia fighters detained and killed civilians, “Mr. Ntaganda in person shot dead one of them, a priest.”
The prosecution also dismissed defense arguments that Ntaganda was convicted in relation to a common plan that exceeded the scope of the charges. 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 the “destruction and disintegration of the Lendu community.” The defense has argued that Ntaganda was not given notice during the trial of the fact that he was being tried on the basis of his participation in a common plan to annihilate an ethnic group.
For its part, the prosecution stated that the confirmation decision and the trial judgment identified a military and a criminal component of the common plan, namely a military campaign to assume control over Ituri and to expel and attack the Lendu. “The chamber’s remark in the judgment that the co-perpetrators meant to destroy and disintegrate the Lendu community reflects the criminal component and it is established by the evidence,” said prosecution lawyer Meritxell Regué.