In the Courtroom: Procedures and witnesses tested in three ICC trials

Ntaganda: Defense case continues amid witness concerns

Bosco Ntaganda’s testimony in his own defense resumed on 29 August 2017 after the Court’s summer recess. Ntaganda is charged with five counts of crimes against humanity and thirteen counts of war crimes allegedly committed in the Ituri region of eastern Democratic Republic of the Congo (DRC) while he was deputy military head of the rebel group Patriotic Forces for the Liberation of Congo (FPLC).

When cross-examined by the prosecution on his knowledge of Congolese militia child recruits involved in Ugandan training exercises in 2000, Ntaganda stated that he and other senior members were trained at the time in Jinja, miles away from recruit trainings in Kyankwanzi. Ntaganda also testified that he was not aware at the time of international efforts to demobilize underage fighters in Kyankwanzi, where the prosecution argued 200 to 300 of 700 recruits came from Ntaganda’s Chui Mobile Force.

On issues related to command responsibility, Ntaganda testified in September on his efforts in the FPLC as a “peacemaker and disciplinarian,” denying knowledge of attacks, ethnically motivated or otherwise, by his forces against the civilian population, and maintaining that he acted decisively to punish violations in “the odd, isolated case.” According to Ntaganda, these included pillaging, which the prosecution argued was condoned in lieu of salaries for fighters. The former FPLC deputy commander also denied murdering a priest and ordering troops to rape three nuns on grounds of suspected collaboration with rival Lendu combatants.

The last phase of Ntaganda’s testimony focused on alleged witness interference. At the heart of the issue is a June 2015 decision by judges allowing the prosecution to access non-privileged conversations between detainees Ntaganda and Thomas Lubanga since March 2013, which the prosecution disclosed in November 2016 along with allegations that both Ntaganda and Lubanga attempted to interfere with and coach potential defense witnesses. Ntaganda argued that all such conversations were for the legitimate preparation of his defense case.

After deciding in April that a fair trial would be possible despite defense claims that the prosecution had gained an improper advantage, judges discontinued courtroom questioning on the matter when it appeared to enter the domain of a witness-tampering investigation (Rome Statute article 70). Judges also lifted existing related restrictions on Lubanga’s communications, enforced in the DRC following his transfer there in December 2015 to complete his ICC sentence.

On September 5, the ICC Appeals Chamber (AC) rejected Ntaganda’s appeal on an earlier Trial Chamber (TC) decision in which judges denied a defense request to file a ‘no case to answer’ motion. The defense argued that the TC violated Ntaganda’s right against self-incrimination and thus his right to a fair trial, but the AC found that the TC used its discretion in a fair and reasonable manner, and that a ‘no case to answer’ procedure is not the sole guarantee of a fair trial.

Following Ntaganda’s testimony, the defense shortened its initial witness list from over 100 to 40. The move followed concerns from the defense about its trouble getting witnesses to appear.

Ongwen: Prosecution presents case to pin down responsibility

The ICC trial of Dominic Ongwen, former Sinia Brigade commander of the Lord’s Resistance Army (LRA), opened in The Hague in December 2016, with prosecution witnesses dominating proceedings in 2017. Ongwen stands charged with 70 counts of war crimes and crimes against humanity allegedly committed in northern Uganda, and largely against internally displaced persons (IDP) camps.

The trial resumed after summer recess with the prosecution trying to ascertain Ongwen’s role in the LRA and the degree and willingness of his command over his LRA forces. Testimony suggested that during ceasefire talks between Ugandan authorities and the LRA in 2006, Ongwen was encouraged, on more than one occasion, to leave the rebel armed group and release underage fighters. A Ugandan army colonel testified that nobody, himself included, could convince Ongwen to acquiesce.

Several witnesses specifically focused on Ongwen’s alleged role in the attack against the Pajule IDP camp. One former LRA fighter testified about his abduction by the LRA and becoming a member of the battalion Ongwen allegedly commanded in the Pajule attack. Another former fighter testified that LRA commanders more senior than Ongwen were responsible for planning the Pajule attack. She also claimed that Ongwen was under arrest by the LRA at the time of the decision. A further witness claiming to have been abducted during the Pajule attack stated that he had not seen or heard of Ongwen taking part in the attack.

A different former LRA fighter meanwhile testified about his experiences following alleged abduction by a battalion of Ongwen’s Sinia Brigade, including shooting a gun for the first time during the attack on Odek in 2003, and being tasked with looting food supplies from Abok.

Witness testimony also addressed early interactions between Ugandan authorities and the ICC. A Ugandan intelligence official responsible for liaising with the ICC Office of the Prosecutor (OTP) testified that the government provided evidence on 15 LRA commanders, including Ongwen. On cross-examination, the defense questioned how the witness would have known which evidence to share with the OTP in 2004, prior to arrest warrants being issued, and probed his knowledge and mandate around alleged atrocities by Ugandan authorities at the time.

Other prosecution witnesses focused on LRA practices related to alleged sexual and gender-based crimes in the case, such as forced marriage; alleged initiation practices for LRA abductees; and the preparation of government-intercepted LRA radio communications for presentation in Court.

Gbagbo & Blé Goudé: Clarifying appeals and victims’ participation procedures

According to the ICC Prosecutor’s case, Laurent Gbagbo, former President of Côte d’Ivoire, and members of his inner circle, including co-defendant Charles Blé Goudé, created and executed a common plan to consolidate power after losing the country’s 2010 presidential election. Both are charged with four counts of crimes against humanity in the trial that opened in January 2016.

The latest chapter on a continuing issue in the case—Gbagbo’s detention—saw Trial Chamber (TC) judges decide in late September against interim release due to its finding that material circumstances would not reduce the risks associated with Gbagbo’s requested release. The decision came after the Appeals Chamber (AC) reversed the TC’s 11th such decision and ordered it to reassess the risks of absconding or obstructing proceedings against considerations such as Gbagbo’s health, age and length of detention.

Gbagbo appealed the latest TC decision on 5 October, but the AC dismissed the appeal, noting that the defense had not complied with amended Court regulations on what should appear in appeals notices that do not require prior permission by judges.

Regarding procedures for participating victims, in October the TC ruled in favor of a request by the Legal Representative of Victims for family members to continue legal action on behalf of six deceased participating victims. The defense has sought leave to appeal the decision.

In their decision, judges disagreed with the Gbagbo defense that this would amount to an improper transfer of the “right” to express views and concerns, and referred to established Court practice in rejecting the suggestion that such matters should be governed by Ivorian civil law. In clarifying a procedure for similar future “resumption of action” applications, the judges agreed with the defense that such a procedure should maintain the right to raise objections.

Arrest warrants to reparations for cultural destruction: What else is happening?

The OTP’s continuing efforts to investigate alleged Rome Statute crimes committed in Libya since 2011 yielded a new ICC arrest warrant in August 2017. In issuing a warrant for Mahmoud Mustafa Busayf al-Werfalli for his direct involvement in seven rounds of executions leading to the deaths of 33 people between June 2016 and July 2017 in Benghazi or surrounding areas, the ICC Prosecutor conceded that al-Werfalli’s arrest and surrender would remain a challenge.

According to the ICC arrest warrant, al-Werfalli joined the Al-Saiqa Brigade after the former state forces unit became part of the post-Gaddafi Libyan National Army’s (LNA) “Operation Dignity” in Benghazi. The warrant states that since 2015 al-Werfalli has held a commanding role in Al-Saiqa. It is in this capacity that he stands suspected of murder as war crime, with purported video and audio evidence providing pre-trial judges reasonable grounds for the arrest warrant.

At the beginning of September 2017, the Prosecutor renewed the call for al-Werfalli’s surrender to the Court. The Prosecutor stressed Libya’s continuing obligation to cooperate with the arrest and surrender of the suspect absent an admissibility challenge from competent Libyan authorities and a decision by ICC judges suspending any such obligation.

The Prosecutor noted the LNA’s official statement that al-Werfalli had been arrested and was being investigated by a military prosecutor, but expressed concern about conflicting reports on his whereabouts, including some alleging that al-Werfalli has been involved in additional killings since the arrest warrant was issued.

The Court meanwhile continued to address challenges in the arrest of ICC suspect and Sudanese President Omar al-Bashir, wanted for alleged war crimes, crimes against humanity, and genocide in Darfur. Following a July ICC finding of non-compliance by the government of South Africa, the government of Jordan now finds itself having to explain its own failure to comply with requests to arrest al-Bashir when he visited the ICC member state in March. The process continued into October with the government submitting sources of law cited in its defense of the non-arrest.

On the other side of the international justice process, in the ICC’s Mali situation, Trial Chamber judges issued a reparations order in August following Ahmad al-Faqi al-Mahdi’s 2016 guilty plea to the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu.

Al Mahdi was found liable for €2.7 million in harms. In their decision, ICC judges highlighted that the destruction of cultural heritage “carries a message of terror and helplessness; destroys part of humanity's shared memory and collective consciousness, and renders humanity unable to transmit its values and knowledge to future generations.”

Considering al-Mahdi indigent, the judges instructed the Trust Fund for Victims to help fund the collective and individual reparations in its draft plan expected by February 2018. Individual reparations are meant to benefit those economically dependent on the attacked buildings and those with damaged ancestral burial sites.