Congo-Kinshasa: Ntaganda to Call Three Witnesses At Sentencing Hearing Next Month

International Criminal Court (ICC) judges have granted Bosco Ntaganda's request to call three witnesses to testify at his sentencing hearing scheduled for September 17-20, 2019. A request by the prosecution to call an expert witness to testify about the effects of sexual violence was rejected.

In the ruling issued this week, judges also rejected a prosecution request to subject Ntaganda's contacts to increased monitoring until the completion of the sentencing phase. In this regard, the judges declined to order Ntaganda to speak only in Kinyarwanda or Swahili in order to permit effective monitoring of his communications.

Last month, ICC judges convicted Ntaganda all 18 counts of war crimes and crimes and crimes against humanity he was charged with. This is the highest number of counts an individual has been convicted for by the court based in The Hague. Ntaganda committed the crimes in 2002 and 2003, while he served as a deputy chief of staff in the Union of Congolese Patriots (UPC), one of the armed groups involved in an ethnic conflict in Congo's Ituri province.

At next month's hearing, the three witnesses are expected to provide mitigating evidence for Ntaganda, while defense lawyers, the prosecution, and victims' lawyers will make preliminary closing submissions. Judges have asked Ntaganda's lawyers to indicate whether he also wishes to make an unsworn statement at the hearing.

The prosecution had sought to call an expert witness to testify about the medical, psychological, and social consequences of sexual violence on victims in eastern Congo, including the impact of these crimes on individual victims, their families, and the affected communities. The expert would also testify about long-term harm and broader sociological consequences, such as inter-generational trauma.

However, judges noted that, in the judgement they made a number of findings on the physical and psychological consequences of sexual violence on individual victims of the crimes that Ntaganda was convicted of, as well as concerning relevant social circumstances leading to the delayed reporting of rape. For this reason, only parts of the proposed expert witness's testimony would be unique and go beyond other evidence on the record. They added that he lacks professional expertise in psychological and societal issues.

Below are the witnesses that judges authorized the defense to call. They will all testify remotely via video link.

Witness D-0306

During the conflict in Ituri, Witness D-0306 was a Lendu community leader (prosecution evidence shows that the UPC mostly targeted members of the Lendu ethnic group). The defense said D-0306 would testify about his interactions with Ntaganda in 2004, particularly Ntaganda's leadership in initiating a campaign of ethnic reconciliation in collaboration with Lendu community leaders. The defense said this evidence is relevant for purposes of mitigation, as it pertains to Ntaganda's efforts and undertakings to bring about ethnic reconciliation.

Judges considered that D-0306's proposed evidence is unique and goes beyond other evidence on the record given the time period it purportedly relates to. They noted that any findings in the conviction judgment concerning Ntaganda's alleged efforts to bring about peace and ethnic reconciliation in Ituri relate only to 2002-2003. Accordingly, the judges ruled that the proposed testimony may indeed be relevant in order to determine the existence of mitigating circumstances, such as Ntaganda's conduct after the events forming part of the charges. This witness will have in-court protective measures in the form of face and voice distortion and the use of a pseudonym.

Witness D-0047

The defense requested to call D-0047, a former member of the UPC, to testify about Ntaganda's involvement in two demobilization programs adhered to by the UPC and his "close partnership" with the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), in its implementation. The defense argued that D-0047's evidence is relevant for purposes of mitigation because it details efforts made by Ntaganda after the period of the charges to bring about peace and stability and to encourage demobilization.

Judges considered parts of D-0047's expected evidence to be unique and to go beyond other evidence on the record, especially regarding events in 2004. "Furthermore, to the extent that it details efforts made by Mr. Ntaganda to bring about peace and security in the DRC after the events forming part of the charges, including by effectively cooperating with MONUC, the expected testimony may be relevant for the purposes of mitigation," the judges added.

Witness D-0305

Defense lawyers said D-0305 would testify about Ntaganda's character, personal circumstances, and mitigating conduct as she personally witnessed him giving speeches in 2002, 2003, and 2004. The speeches purportedly emphasized the importance of protecting civilians in Ituri without distinction as to ethnicity and were part of a broader campaign of ethnic reconciliation. The witness - who the prosecution said was a former member of the UPC - will also provide evidence on Ntaganda's attitude towards women.

The chamber considered D-0305's expected testimony to be unique and to go beyond other evidence on the record, in so far as it concerns events that occurred outside the temporal scope of the charges, as well as to some extent concerning Ntaganda's character in relation to other people. They said the testimony may be relevant in determining the existence of mitigating circumstances, including efforts made by Ntaganda to secure peace in the region after the events forming part of the charges.

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