The Prosecutor v. Bosco Ntaganda

Original: English No.: ICC-01/04-02/06 Date: 28 April 2008

PRE-TRIAL CHAMBER I

Before: Judge Akua Kuenyehia, Presiding Judge Judge Anita Usacka Judge Sylvia Steiner

SITUATION IN THE DEMOCRATIC REPUBLIC OF CONGO IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA Public Document

DECISION TO UNSEAL THE WARRANT OF ARREST AGAINST BOSCO NTAGANDA

No. ICC-01/04-02/06 1/6 28 April 2008

Decision to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Mr Luis Moreno Ocampo, Prosecutor Mr Ekkehard Withopf, Senior Trial Lawyer

Legal Representatives of the Victims Legal Representatives of the Applicants

Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

States Representatives Amicus Curiae

REGISTRY Registrar Defence Support Section Ms Silvana Arbia Victims and Witnesses Unit Detention Section Mr Simo Väätäinen Victims Participation and Reparations Other Section

No. ICC-01/04-02/06 2/6 28 April 2008

PRE-TRIAL CHAMBER I of the International Criminal Court ("the Chamber" and "the Court," respectively);

NOTING the "Prosecution's Application for Warrants of Arrest, article 58"1 (the Prosecution's Application for the Warrant of Arrest) filed by the Prosecution on 12 January 2006, in which the Prosecution requested, inter alia, the issuance of an warrant of arrest against Bosco Ntaganda and indicated that it has a strong preference the Prosecution's Application for the Warrant of Arrest and the Chamber's decision on the warrant of arrest remain under seal;

NOTING the "Décision relative à la requête de l'Accusation aux fins de délivrance d'un mandat d'arrêt"2 ("the Decision") issued on 22 August 2006 whereby the Chamber issued a warrant of arrest against Bosco Ntaganda;

NOTING the warrant of arrest against Bosco Ntaganda3 issued by the Chamber on 22 August 2006;

NOTING the "Prosecution's Application for Unsealing the Arrest Warrant against Bosco Ntaganda"4 ("the Prosecution Application") filed by the Prosecution on 29 February 2008;

NOTING the confidential ex parte hearing held before the Chamber on 23 April 2008, in which the Prosecution extended the Prosecution Application5 for unsealing to the decisions of 10 February 20066 and of 22 August 2006;7

1 ICC-01/04-98-US-Exp 2ICC-01/04-02/06-1-US 3ICC-01/04-02/06-2-US 4 ICC-01/04-02/06-15-US-Exp 5ICC-01/04-02/06-T-1-US-ENG, page 20, from line 11 No. ICC-01/04-02/06 3/6 28 April 2008

NOTING articles 57 (3) (c), 67 (1) and 68 (1) of the Rome Statute ("the Statute"), rules 87 (2) (c) and 88 (4) of the Rules of Procedure and Evidence ("the Rules") and regulation 8 (c) of the Regulations of the Court ("the Regulations");

CONSIDERING that the Chamber, in its Decision, decided that the proceedings in the case of The Prosecutor v. Bosco Ntaganda shall remain under seal because (i) Bosco Ntaganda remained at large despite criminal proceedings against him in the Democratic Republic of the Congo ("the DRC") and continued to fight as a top commander of the Mouvement Révolutionnaire Congolais ("the MRC") against the Forces Armées de la République démocratique du Congo ("thé FARDC") in thé Ituri district,8 and therefore (ii) public knowledge of the proceedings in this case might result in Bosco Ntaganda hiding, fleeing, and/or obstructing or endangering the investigations or the proceedings of the Court;9

CONSIDERING that, in the Prosecution Application and at the confidential ex parte hearing held on 23 April 2008, the Prosecution submitted that the circumstances that initially led to the sealing of the arrest warrant against Bosco Ntaganda have changed, specifically that: (i) Bosco Ntaganda is no longer fighting as a top commander of the MRC against FARDC in the Ituri district;10 (ii) there are reasons to believe that Bosco Ntaganda may have become aware of the existence of the arrest warrant against him;11

6ICC-01/04-118-US-Exp and ICC-01/04-118-US-Exp-Corr 7 ICC-01/04-02/06-l-US-Exp-tEN 8ICC-01/04-02/06-l-US,para 80 9ICC-01/04-02/06-1-US, para 79 10 ICC-01/04-02/06-15-US-Exp, para 12 However, according to the Prosecution, he may have joined the Congrès National pour la défense du peuple ("CNDP") and may currently operate in the North Kivu 11 ICC-01/04-02/06-15-US-Exp, paras 14-15, see also ICC-01/04-02/06-T-1-US-ENG, page 3, from line 1 No. ICC-01/04-02/06 4/6 28 April 2008

(iii) any potential risk that the unsealing of the Warrant of Arrest against Bosco Ntaganda could have for victims and witnesses is under control12 as protective measures have been taken to ensure the adequate security of the witnesses in this case and in the cases of The Prosecution v. Thomas Lubanga Dyilo and The Prosecution v. Germain Katanga and Mathieu Ngudjolo Chui;ï3 (iv) if the international actors are officially informed that there is an arrest warrant against Bosco Ntaganda, it may be more difficult for Bosco Ntaganda to flee or to seek refuge in the neighbouring countries;14 and (v) the arrest warrant has been notified to the DRC authorities for almost a year without the DRC authorities being in a position to execute it, and unsealing may assist the DRC authorities in apprehending him;15

CONSIDERING that, during the confidential ex parte hearing held on 23 April 2008, the representatives of the Registry, which is the competent organ of the Court to execute the Court's warrants of arrest and is in charge of the Court's Witness Protection Programme, agreed with the Prosecution that (i) the unsealing of the warrant of arrest for Bosco Ntaganda will not endanger the witnesses of the DRC cases;16 and that (ii) this was the "right moment" to make public the warrant of arrest for Bosco Ntaganda;17

CONSIDERING that, in light of the above-mentioned, it is the view of the Chamber that it is no longer necessary for the warrant of arrest against Bosco Ntaganda to remain under seal;

12 ICC-01/04-02/06-T-1-US-ENG, page 7 from line 7 13 ICC-01/04-02/06-15-US-Exp, para 21 ICC-01/04-02/06-T-1-US-ENG, page 6, lines 10 to 14, and lines 19 and 20 14ICC-01/04-02/06-T-1-US-ENG, page 13 from line 22 15 ICC-01/04-02/06-15-US-Exp, paras. 17-18 16ICC-01/04-02/06-T-1-US-ENG, page 7, lines 20 to 23, and page 8, lines 22 to 25 and page 9, lines 2 to 5 17ICC-01/04-02/06-T-1-US-ENG, page 18, lines 11 to 15 No. ICC-01/04-02/06 5/6 28 April 2008

Judge Akua Kuenyehia Presiding Judge Judge Anita Usacka Judge-Sylvia Steiner

Dated this Monday 28 April 2008 At The Hague, The Netherlands No. ICC-01/04-02/06 6/6 28 April 2008