In this guest post from the International Justice Monitor, Wairagala Wakabi summarizes the prosecution’s case to date in the ICC trial of Bosco Ntaganda. Nine witnesses have been called against the former Congolese militia commander, who is charged with 18 counts of war crimes and crimes against humanity allegedly committed in eastern Democratic Republic of Congo.
At large for nearly seven years after the ICC first issued an arrest warrant against him, Ntaganda walked into the American embassy in Kigali, Rwanda, in March 2013 and asked to be transferred to the ICC. On June 10, 2014, pre-trial judges confirmed charges of murder, attempted murder, rape, sexual slavery, and use of child soldiers against Ntaganda. The other charges for which he is on trial include forced transfer of the population, displacement of civilians, attacks against protected objects, pillaging, and destruction of property. The crimes were allegedly committed during 2002 and 2003 while Ntaganda served as the deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC). At the time, the FPLC was one of the militia groups involved in an ethnic conflict in the Ituri district of the Democratic Republic of the Congo (DRC).
Prosecutors said in their trial opening statements that they had lined up more than 80 witnesses, including insiders who worked with Ntaganda, victims, eyewitnesses, and expert witnesses. The prosecution also said it would rely on forensic evidence gathered from exhumed bodies, communication logs, letters, videos, and photos from the militia group’s training camps. Below, we present the evidence heard so far on some of the major themes of the trial.
Prosecutors charge that the crimes for which Ntaganda is on trial were committed against civilians, particularly those of Lendu ethnicity. The first witness to take the stand, Witness P-0805, recounted how FPLC fighters convened a peace meeting with members of the Lendu community near the Congolese town of Mongbwalu but arrested and later shot dead those who turned up. He said he counted 49 bodies of slain civilians, including women and children, some only two or three years old.
Witness P-016 recalled more massacres in Kobu and surrounding towns. He said FPLC troops shot dead his father, “decapitated” his wife and children, and killed numerous other civilians. According to this witness, only FPLC fighters were present in Kobu during March of 2003. Judges also heard that FPLC fighters kept their prisoners in underground pits. Roberto Garretón, also known as Witness P-0931, a former Special Rapporteur for the United Nations Commission for Human Rights on human rights in the DRC, consented to his prior recorded testimony from the Thomas Lubanga trial being admitted as evidence in the Ntaganda case. Garretón testified as an expert witness in the Ntaganda trial for about an hour, mainly about the origins of the ethnic conflict in the DRC.
The second witness to testify in the trial was Witness P-0901. He said troops commanded by the accused raped girls and women at check points outside towns they controlled. According to the witness, except for one case in which a perpetrator was identified but who later fled, he did not know of anyone who was punished over the rapes.
This trial set a precedent by being the first at the ICC where a commander is charged with rape and sexual violence committed against child soldiers under his command. At the opening of the trial, however, prosecuting lawyer Nicole Samson said that while Ntaganda would not be charged as a direct perpetrator of rape, evidence would show that he committed rape, including of girls in his direct escort, which would in turn show that he knew sexual crimes were being committed against child soldiers in the group.
Defense lawyers have continued to oppose the submission of evidence on rape allegedly committed by Ntaganda personally. However, on October 30, judges ruled that such evidence is admissible on a “case by case” basis. They considered that “the conduct of an accused, in particular during the temporal period of the charges, has sufficient potential relevance, including in relation to various modes of liability and to mens rea.”
Child Soldiers in the UPC/FPLC
In 2013, Thomas Lubanga, the first person to go on trial at the ICC, was sentenced to 14 years in prison for using child soldiers in active combat. Lubanga was the leader of the Union of Congolese Patriots (UPC). The FPLC was the armed wing of the UPC. Witness P-886 testified about child soldiers in the FPLC’s ranks. He said the child soldiers’ duties included acting as bodyguards for the group’s commanders.
Witness P-010, a former fighter with the group, also testified about child soldiers in the FPLC. In her 2009 testimony in the Lubanga trial, Witness P-010 told the court that FPLC commanders routinely had forced sex on female recruits. She also stated that the militia commanders encouraged fighters to take drugs before going to fight, purportedly to give them courage, and those who showed signs of fear were put on the frontline of the battlefield. The witness also said recruits in Lubanga’s militia, some younger than 13 years of age, were subjected to brutal training and indoctrination at camps in Rwampara and Mandro.
Ntaganda’s lawyers claimed Witness P-010 was motivated by personal gain. They said she made new claims about Ntaganda’s role in the atrocities in order to regain status as a participating victim in the trial, which she had lost in the trial of Lubanga. Ntaganda’s lawyers have sought to impeach Witness P-010. Witness P-010, is the only female that has so far testified in the trial.
In the Lubanga judgement, judges found that they could not rely on “many aspects” of Witness P-010’s testimony due to contradictions between her testimony and documentary evidence regarding her age at the time of the events. The Lubanga judges also found that eight other individuals who testified as former FPLC child soldiers had provided false testimony. As a result, the judges dismissed their evidence and ordered the revocation of these individuals’ status as participating victims in that trial.
Pillaging and Destruction of Property
Witness P-0805 said FPLC soldiers demolished his home and stole his property, including US $4,920, 53.5gms of gold, 9.3gms of gold alloy, 12 pairs of trousers, 14 shirts, seven pairs of shoes, five pairs of sandals, and a bicycle. He testified about gold that was apparently looted by Ntaganda from Mongbwalu and transported by his cousin to the group’s headquarters in Bunia. He added that Ntaganda’s troops pillaged a hospital at Nyakunde and looted clothes and other merchandise from shops in Mongbwalu.
Similarly, Witness P-886 recalled the UPC’s entry into Sayo town and how they ransacked shops and homes and killed civilians.
Forced Displacement of the Population
According to the prosecution, the FPLC was predominantly made up of members of the Hema ethnic group—although Ntaganda himself is of Rwandan Tutsi origin. Witness P-0901’s testified that after the FPLC took control of Mongbwalu, none of the Lendu inhabitants continued to live in this town or the others occupied by the FPLC. In Sayo, ethnic groups which were allegedly not at war with the FPLC, namely the Alur, Babira, and Lugbara, remained in the area during the group’s occupation.
Witness P-0805 stated that he fled his village after it was attacked by the FPLC because he feared being killed. The witness said he was of Lendu ethnicity.
Ntaganda himself claimed at the start of his trial that he was a peacemaker and a revolutionary who fought to bring peace to Ituri which had been besieged by murderous ethnic militia, and to enable displaced civilians return to their homes.
Ntaganda is being tried as a direct perpetrator and indirect co-perpetrator of crimes. However, the prosecution asked judges to consider adding an alternative mode of liability of “direct co-perpetration.” Prosecutors claim Ntaganda led his soldiers into operations and ordered them to commit crimes. According to the testimony of a former FPLC soldier, the accused gave orders not to spare the enemy.
“The order was given that if you come across the enemy, you must hit them. That was the only order we were given,” stated Witness P-010. She did not say whether Ntaganda mentioned anything about how to treat civilians.
However, it was also heard that Ntaganda ordered the execution of one of his soldiers who shot dead a civilian in Mongbwalu. Witness P-8059 stated that, on the day his brother was shot dead, Thomas Kasangaki, who commanded the FPLC troops in Mongbwalu, sent soldiers to the home of the deceased. The soldiers asked the witness and his family if they needed any assistance such as food for the mourners.
According to the witness, the soldiers explained that anyone who killed would be “treated to similar treatment.” The FPLC militiamen also told the family that the soldier who had shot their kin was under arrest and his execution was awaiting orders from Ntaganda. The witness said the soldier was executed the next day.
Witness P-0901, a former FPLC insider, testified about the group’s structure and operations, including the central role Ntaganda played as its deputy chief of staff in charge of military operations and organization. He said Ntaganda maintained a radio communication system at his residence, which enabled him to communicate to all UPC regional commanders. The evidence of another former insider indicates the group used Motorola and Kenwood short-range radios and Thuraya satellite phones. They also had phone base stations that could be used to communicate over a long distance and which could encrypt messages.
But Ntaganda’s trial has also heard that the Nationalist and Integrationist Front (Front des nationalistes et intégrationnistes, FNI), which took control of Sayo town after the FPLC’s occupation, imposed “bad conditions” on the residents. Witness P-886 said FNI militia did not allow residents to drink alcohol, forced women to walk around topless, and “punished or whipped” those who did not comply with their edicts. In December 2012, ICC judges acquitted Mathieu Ngudjolo, FNI’s former leader, of three counts of crimes against humanity and seven counts of war crimes.
Use of Protective Measures
Four of the witnesses who have so far testified in the trial were granted protective measures including image and voice distortion during public broadcast of their testimony and frequent use of private session in order to protect their identities. Two witnesses were granted partial protective measures.
Despite being granted full protective measures and being obscured from Ntaganda’s view in the courtroom, Witness P-010 failed to testify on the first day of her initial appearance. She consistently failed to answer questions put to her by the prosecution. After telling a support officer seated next to her in the courtroom that she was in a “complicated situation” being in the same room as the accused, Ntaganda agreed to leave the courtroom and followed the proceedings remotely.
In August 2015, judges determined that 11 witnesses who had in-court protective measures during their testimony in the Lubanga trial should have similar protections in the Ntaganda trial. The prosecution said these protections were necessary. It cited the security situation of the witnesses and observed that six of them were participating in the ICC witness protection program.
Defense lawyers have argued that such measures would impede the ability of judges to carry out their truth-seeking function, since concealing the identity of the witness from the public may decrease their commitment to telling the truth.
Hearings in the trial are scheduled to resume in mid January 2016.
This article was originally published on the International Justice Monitor.
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