On June 14, 2017, former Congolese militia leader and army general Bosco Ntaganda is scheduled to take the witness stand in his own defense at the International Criminal Court (ICC) in The Hague. Ntaganda has been on trial at the ICC since September 2015; his defense case began on May 29, 2017.
Ntaganda is alleged to be the former Deputy Chief of the General Staff of the Patriotic Forces for the Liberation of Congo (FPLC), the armed wing of the Union of Congolese Patriots (UPC). Known as “the Terminator” or “Warrior” among his troops for his tendency to lead from the front and directly participate in military operations, Ntaganda served in a number of rebel groups throughout eastern Congo for over a decade. Notably, he worked with UPC leader Thomas Lubanga, the first person to be convicted by the ICC, from 2002 to 2005. After a 2009 peace agreement with the Congolese government, Ntaganda served as a general in the Congolese army until 2012.
Ntaganda was taken into ICC custody on March 22, 2013, four days after he voluntarily appeared at the United States Embassy in Kigali, Rwanda, and asked to be transferred to the Hague-based court. At the time, Ntaganda had two outstanding arrest warrants, the first issued in 2006 and the second issued in 2012.
What is this case about?
The case is about alleged crimes that occurred during an ethnic conflict in the Ituri province of eastern Democratic Republic of Congo (DRC) in 2002 and 2003. The prosecution has alleged that during the conflict there were “widespread and systematic” attacks by the UPC/FPLC fighters against civilians perceived to be of non-Hema ethnicity, such as the Lendu, Bira, and Nande, aimed at driving them out of the mineral-rich Ituri province pursuant to the militia group’s organizational policy. As a result, the prosecution has charged Ntaganda with 13 counts of war crimes and five counts of crimes against humanity.
During the presentation of its evidence, the prosecution called 71 witnesses. Three victims participating in the trial also provided testimony, and five victims presented their views and concerns to the court.
The defense has argued that Ntaganda is a peacemaker whose FPLC forces provided security to villages caught amidst a much larger and violent ethnic conflict. The defense has indicated that it plans to call 111 witnesses to testify, including Ntaganda.
Why is Ntaganda testifying in his own defense?
According to lead defense lawyer, Stéphane Bourgon, Ntaganda wants to testify in order to clear his name. According to Bourgon, “Mr. Ntaganda wants to establish, himself, that he’s not the person portrayed in the media and elsewhere. He wants to establish who he is, what he did, and why he did what he did.” In its submission to the court, the defense also noted that it would both be in the interest of justice and may result in a shorter presentation of the defense case. Ntaganda’s testimony is expected to take a minimum of six weeks.
Ntaganda has already made an unsworn statement during the trial opening in September 2015. During his speech, he told judges he was not a criminal and that he was fighting for “the peaceful return of the Congolese refugees who has been chased out of their country.”
How will his testimony impact the case?
The prosecution has raised concerns about Ntaganda’s impending testimony, some of which stem from witness tampering allegations against him.
In a filing made on May 26, the prosecution requested several safeguards to be put in place before and during the testimony, including restricting contact between Ntaganda and his defense lawyers for the duration of his testimony. The prosecution argued this will ensure that the accused testifies “spontaneously and without counsel on strategy and poise.” The prosecution also requested the trial chamber order the defense to instruct defense witnesses who will testify after Ntaganda that they must not follow his testimony in any form. This will prevent Ntaganda’s testimony from influencing, directly or indirectly, the testimony of future witnesses, according to the prosecution. In addition, the prosecution said part of his testimony may need to be held in private session in order to ensure Ntaganda does not circumvent restrictions put in place as a result of the witness tampering allegations.
The defense responded that contact between the accused and his lawyer is a fundamental right that should not be restricted. Furthermore, the defense stated that the accused has a right to a public trial and argued that it would be impractical to inform all future defense witnesses to abstain from following the proceedings.
Trial Chamber VI rejected the prosecution requests, stating that Ntaganda and his lawyers are allowed to have contact during the accused’s testimony, as long as the lawyers’ communication does not instruct Ntaganda on how to respond to questions during testimony. Furthermore, the judges held it would not be “appropriate or feasible” for the defense to order future witnesses not to follow Ntaganda’s testimony. The judges also said any decision about the need to hear testimony in private session will be made on a case-by-case basis.
Have other ICC suspects testified in their own defense?
Yes. Germain Katanga and Mathieu Ngudjolo Chui both testified in their own defense at the ICC in October and November 2011 while they were on trial jointly for crimes committed in DRC. Lubanga did not testify in his own defense, however, he made an unsworn statement during his sentencing hearing in June 2012. Likewise, Ahmed Al Faqi Al Mahdi made an unsworn statement at the opening of his trial in which he pleaded guilty to a single war crime in June 2016.