In presenting its case, the prosecution also relied on forensic evidence gathered from exhumed bodies, communication logs, various documents, videos, and photographs.
The defence case opened three months after the evidence of the last prosecution witness. So far, one defence witness has testified, and Ntaganda last week commenced his testimony. This article gives an overview of the prosecution evidence heard in open session during the trial.
In June 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 Ntaganda 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 was the deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC). At the time, the FPLC, which was the armed wing of the Union of Congolese Patriots (UPC) headed by Thomas Lubanga, was among various militia involved in an ethnic conflict in Ituri district of the Democratic Republic of the Congo (DRC).
Murder and attacks against civilians
In February 2017, Sonia Bakar, who headed the investigations unit of the human rights section of the former United Nations Mission in Congo (MONUC), recounted investigations into human rights violations in Ituri district during 2002-2003. Bakar said she and her team conducted nine investigations in Ituri, including site visits to Kobu, Lipri, and Bambu localities, where they interviewed up to 1,600 victims and witnesses to crimes such as massacres, rape, abduction, pillaging, and destruction. Up to 250 murders and 18 cases of rape recorded during the investigations were attributed to UPC troops.
Indeed, the trial heard testimony from various witnesses implicating UPC troops in attacks against civilians in towns such as Kobu, Sayo, and Mongbwalu. In some of the localities, there were daily attacks, forcing civilians to flee. During such attacks, the UPC soldiers reportedly killed non-armed civilians, notably those who belonged to the Lendu ethnic group. Witness P790 recounted how up to 57 civilians were massacred in Kobu town while Witness P017 recalled that at least 20 women and children, and an unknown number of men, were executed in the same town. The accounts of Witness P790 and Witness P017 regarding Kobu were corroborated by Witness P301.
In Songolo, testified Witness P888, babies and children as young as five years were among the victims of attacks. Many residents of the besieged towns, among them Witness P113, were abducted and held hostage for extended periods. Others fled to neighboring towns such as Bambu and Beni, which were also later attacked. According to Witness P863, some residents fled to neighboring Uganda.
According to Witness P0901, after the FPLC took control of Mongbwalu, none of its Lendu inhabitants continued to live in this town or the others occupied by the FPLC. In Sayo, ethnic groups which were not at war with the FPLC, namely the Alur, Babira, and Lugbara, remained in the area during the group’s occupation.
Witness P190 stated that the attacks by Ntaganda’s troops on various towns were motivated by financial gain. Others, such as Witness P019, said the attacks were ethnically motivated. However, the defense also countered that militia groups opposed to the UPC committed atrocities. Bakar, the MONUC official, conceded that other rival militia groups, and even civilians, committed atrocities.
The court also heard that the Nationalist and Integrationist Front (Front des nationalistes et intégrationnistes, FNI), which took control of Sayo after the FPLC’s occupation, imposed “bad conditions” on the residents. Witness P886 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.
Rape and sexual slavery of civilians and child soldiers
The trial heard that female underage recruits in FPLC were subjected to rape and sexual slavery. Witness P017, a former insider in the militia, said some girls as young as 12 years who served in the personal guard of high-ranking commanders had “involuntary sexual relations” with the commanders. Other former insiders testified that female military personnel within the UPC were not in a position to turn down sexual advances from their superiors and some “were transformed into commanders’ wives.”
The trial also heard that Ntaganda’s soldiers raped some women they had taken prisoner, before executing them. Witness P0901 testified that FPLC troops raped girls and women at checkpoints but none of the perpetrators was punished.
The Deputy Director of the Africa Division of Human Rights Watch (HRW), Anneke Van Woudenberg, briefly testified in the trial. Her reports titled The Curse of Gold, Covered in Blood: Ethnically Targeted Violence in Northern DRC and Seeking Justice: The Prosecution of Sexual Violence in the Congo War, which included accounts of victims of sexual violence perpetrated by all armed groups in Ituri, was admitted into evidence.
Ntaganda has contested the jurisdiction of the court to try him on the charges of rape and sexual enslavement of child soldiers in the UPC by the group’s commanders and soldiers. According to defence lawyers, under Article 3 of the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. As such, argues the defence, the victim of a war crime in a non-international armed conflict must be a protected person within the meaning of Article 3, meaning a person “taking no active part in the hostilities.”
However, in a January 2017 decision, judges affirmed that the ICC has jurisdiction to try Ntaganda on the two contested charges, noting that the court’s statutory framework does not require victims of these crimes to be protected persons. The judges found that limiting the scope of protection in the manner proposed by the defence “was contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict.” This decision was also upheld on appeal.
Conscription and use of child soldiers
In his June 2016 testimony, Witness P190 alleged that Ntaganda grabbed children from a boys’ primary school and conscripted them into the FPLC. The witness stated that Ntaganda led a group of soldiers for a raid on the school in Muzipela and took an unspecified number of children whom he drafted into the militia. The school boys were trained at the group’s camp at Mandro. According to the witness, if any of the recruits, aged between 11 and 13 years, tried to escape, they would be shot.
Witness P769, a former recruit, alleged that some children served as military instructors at the group’s training camps. Another witness, going by the pseudonym Witness P030, said some child soldiers served in Ntaganda’s personal escort. Earlier, Witness P886 had testified that child soldiers’ duties included acting as bodyguards to the group’s commanders.
Witness P010, a former fighter with the group, also testified about child soldiers in the FPLC. In her 2009 testimony in the Lubanga trial, which was admitted into evidence in Ntaganda’s trial, Witness P010 told the court that FPLC commanders routinely had forced sex with female recruits. She also stated that recruits in the 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 P010 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 Lubanga trial. In the Lubanga judgement, judges found that they could not rely on “many aspects” of Witness P010’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.
Meanwhile, a former United Nations child protection officer said the UPC issued a radio communique to demobilize child soldiers and thereafter released an unknown number of children. However, the group did not put in place appropriate measures to disarm, demobilize, and reintegrate the released children back into the community. Under defence cross-examination, the official said she was not always able to verify the age of the children she interviewed.
Witness P0805 said FPLC soldiers demolished his home and stole his property, including US $4,920, as well as 53.5gms of gold, 9.3gms of gold alloy, and household property. The gold was apparently looted by Ntaganda from Mongbwalu and transported by his cousin to the group’s headquarters in Bunia town. The witness said Ntaganda’s troops pillaged a hospital at Nyakunde and looted clothes and other merchandise from shops in Mongbwalu. Similarly, Witness P886 recalled the UPC’s entry into Sayo town and how they ransacked shops and homes and killed civilians. Witness P815 also recounted widespread looting against Lendu civilians in Sayo.
Ntaganda himself was implicated in looting. In his testimony, Witness P017, a former UPC insider, stated that Ntaganda ordered troops not to loot, but the accused himself continued pillaging from occupied towns. The witness recalled seeing equipment looted from a hospital in Mongbwalu in Ntaganda’s personal vehicle. Like their superior, the other soldiers also “continued to pillage as if no order had been given.”
Witness P907 also alleged that UPC leaders gave civilians weapons and encouraged them to pillage. The civilians, predominately of Hema ethnicity, exceeded those orders by engaging in combat and committing murder. However, during cross-examination, defense lawyers challenged this account of events, casting doubt over the witness’s knowledge of the workings of UPC.
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. However, the trial also heard that Ntaganda ordered the execution of one of his soldiers who shot dead a civilian in Mongbwalu.
Witness P0901, 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, which could encrypt messages.
Eleven expert witnesses testified for the prosecution. Those who presented evidence included forensic psychologist John Charles Yuille, who testified about trauma, and Maeve Lewis, a psychotherapist. Others included Dr. Derek Congram, a forensic archaeologist who, along with four members of his team, testified about exhumations; Dr. Sophie Gromb Monnoyeur, who conducted clinical examinations of four victims of alleged attacks by FPLC fighters, and satellite imagery expert Lars Bromley.
Epidemiologist Dr. Lynn Lawry testified about sexual violence, while Roberto Garretón, also known as Witness P0931, a former Special Rapporteur for the United Nations Commission for Human Rights on human rights in the DRC, testified about the origins of the ethnic conflict in Congo.
Extended use of protective measures
Many witnesses were granted protective measures, including the use of pseudonyms as well as image and voice distortion, in order to conceal their identities from the public. In some instances, the bulk of testimony by some witnesses was heard in closed session. Among these were Witness P290, Witness P550, Witness P894, Witness P877, and Witness P018. Others included Witness P105, Witness P365, Witness P792, Witness P976, Witness P773, Witness P918, Witness P005, Witness P911, Witness P108, Witness P758, Witness P761, and a heavily protected individual whose pseudonym was later disclosed as Witness P014. In some instances, the entirety of the testimony was heard in closed session.
Despite being granted full protective measures and being obscured from Ntaganda’s view in the courtroom, Witness P010 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.
Ntaganda’s lawyers have increasingly opposed protective measures for prosecution witnesses. They argued that persistent use of closed sessions denied Ntaganda a public trial and could encourage witnesses to tell lies because they know that members of the public cannot know their identities or hear their testimonies.