The Prosecutor v. Bosco Ntaganda

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Original: English No. ICC-01/04-02/06 A A2 Date: 30 March 2021

THE APPEALS CHAMBER

Before: Judge Howard Morrison, Presiding Judge Piotr Hofmański Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa Judge Chile Eboe-Osuji

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA

Public redacted version of

Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’

Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence

Ms Fatou Bensouda, Prosecutor Mr Stéphane Bourgon Ms Helen Brady Ms Kate Gibson

Legal Representatives of Victims Amici Curiae

Ms Sarah Pellet Mr Michael A. Newton Mr Dmytro Suprun Mr Roger O’Keefe Ms Yolanda Gamarra ALMA - Association for the Promotion of International Humanitarian Law The Antiquities Coalition, Blue Shield International and Genocide Watch Mr Geoffrey S. Corn, Mr Richard Jackson, Mr Chris Jenks, Mr Eric Talbot Jensen and Mr James A. Schoettler, Jr. Ms Polina Levina and Ms Kaveri Vaid Ms Agnieszka Jachec-Neale Mr Pearce Clancy and Mr Michael Kearney of Al-Haq Ms Peta-Louise Bagott Public International Law & Policy Group University of Pretoria

REGISTRY Registrar

Mr Peter Lewis

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The Appeals Chamber of the International Criminal Court, In the appeals of Mr Bosco Ntaganda and the Prosecutor against the ‘Judgment’ of Trial Chamber VI of 8 July 2019 (ICC-01/04-02/06-2359), After deliberation, By majority, Judge Ibáñez Carranza and Judge Eboe-Osuji partially dissenting, Delivers the following

J U D G M E N T

The ‘Judgment’ of Trial Chamber VI is confirmed.

REASONS

I. KEY FINDINGS

The legal framework of the Court does not provide for any appeal against a decision taken by an absolute majority of the judges under article 40 of the Statute to the Appeals Chamber. The judicial independence of judges is at the core of the Court’s legal framework to safeguard the general integrity of the proceedings before the Court. It is for this reason that the Statute provides for a specific mechanism in article 40 which focuses on this subject matter and sets out the procedure to follow should an issue about the independence of a judge arise. While the issue of judicial independence is not appealable before the Appeals Chamber, an appellant may still raise on appeal matters affecting the fairness of the proceedings. In that regard, article 81(1)(b)(iv) of the Statute expressly provides the convicted person, or the Prosecutor on his or her behalf, with the possibility to raise a ground that ‘affects the fairness or reliability of the proceedings or decision’.

Ex parte submissions may be used only to the extent that they are strictly necessary. Whether ex parte proceedings are acceptable, and for how long ex parte

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submissions can be withheld from the other party, will depend on the specific circumstances of the case and, in particular, the risk of prejudice to the fair trial of an ongoing case.

For the purposes of article 74(2) of the Statute, the charges must be described in such a way that the trial chamber as well as the parties and participants are able to determine with certainty which sets of historical events, in the course of which crimes under the jurisdiction of the Court are alleged to have been committed form part of the charges, and which do not. It is not necessarily the case that such determination is possible only where the charging documents list all criminal acts underlying each charge exhaustively. Depending on the circumstances of the case, the charges may be described in a less specific manner, for instance, by specifying a period of time during which and an area where criminal acts were allegedly committed by an identifiable group of perpetrators against an identifiable group of victims. While in such a case the document containing the charges may also list or make reference to specific criminal acts, the scope of the case is not necessarily limited to them – other criminal acts not mentioned in the document containing the charges may still fall within the – broadly described – facts and circumstances of the charges. Whether such description of the charges is sufficient for purposes of article 74(2) of the Statute will depend, inter alia , on the scale of criminality and the mode of individual criminal responsibility alleged.

A single incident or operation in which multiple crimes are committed could amount to a crime against humanity provided that the relevant contextual elements are met, irrespective of the wider activities of the state or organisation concerned.

Article 7 of the Statute requires a finding that the attack was ‘directed against any civilian population’ and does not require a separate finding that the civilian population was the primary object of the attack. This means no more than that the attack targeted the civilian population; it is not required that the main aim or object of the relevant acts was to attack civilians. An attack directed against a civilian population may also serve other objectives or motives. The question of whether an attack was directed against a civilian population is essentially a factual issue. The requirement that the acts form part of a ‘course of conduct’ indicates that Article 7 is meant to cover a series or overall flow of events, as opposed to a mere

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aggregate of random or isolated acts. However, this does not mean that a trial chamber must have regard to the totality of the activities and military operations of a state or organisation for the purposes of establishing that there was a course of conduct involving the multiple commission of acts referred to in article 7(1) or that the attack targeted a civilian population. These determinations can be made through an examination of the circumstances and manner in which the criminal acts were carried out. It is not necessary for this purpose to have regard to other military operations or the wider activities of the state or organisation in question, including activities that did not involve the commission of crimes.

The difficulty in distinguishing combatants from civilians may be a relevant consideration when determining whether the civilian population as such was the object of the attack. At the same time, such difficulties cannot justify the targeting of an entire ethnic group without distinction between civilians and combatants. The relevance of this consideration must be assessed on a case-by-case basis.

Regarding the crime of ordering the displacement of the civilian population in the context of a non-international armed conflict under article 8(2)(e)(viii) of the Statute, there is no requirement that the perpetrator must be in occupation of, or exercise territorial control over, the relevant area.

Whether a person is in a position to give effect to an order to displace the civilian population is a question of fact that depends primarily on the position occupied by the accused person and his or her duties and responsibilities, including his or her ability to ensure compliance with his or her orders.

The burden of proof is on the Prosecutor and any suggestion that the accused would have to present more convincing evidence than the Prosecutor, or indeed any evidence at all, to prove their innocence would represent an impermissible reversal of that burden. Nonetheless, it is clear that, if the Prosecutor presents evidence meeting the ‘beyond reasonable doubt’ standard of proof, the accused may be convicted if he or she does not present evidence capable of raising reasonable doubt regarding the Prosecutor’s case.

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If the accused person chooses to present evidence, the credibility, reliability and weight of that evidence falls to be assessed in the same manner as evidence presented by the Prosecutor. The question of how the timing of the accused’s testimony should be considered forms part of a trial chamber’s discretion in evaluating the evidence.

There is no legal impediment to prior recorded testimony admitted pursuant to rule 68(2) of the Rules being relied upon to establish individual criminal acts in circumstances in which they are not the direct acts of the accused. However, reliance on such evidence should not be prejudicial to or inconsistent with the rights of the accused.

A conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. Therefore, prior recorded testimony must not form the sole or decisive basis for the conviction for a particular crime as such. Other instances of similar criminal acts must be established on the basis of oral testimony such that the right of the accused to challenge the evidence grounding his conviction for that crime is not prejudiced.

If a witness is involved in the criminal events under consideration, a trial chamber must provide sufficient reasoning for its reliance on the witness’s evidence, and must consider any motives or incentives that he or she may have had to implicate the accused in light of challenges to the witness’s credibility raised at trial.

Trial chambers enjoy broad discretion in assessing inconsistencies within the evidence and in deciding whether corroboration is necessary. Different testimonies do not need to be identical in all aspects or describe the same fact in the same way. Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. Accordingly, while testimonies need not be identical in all aspects, they must confirm, even if in different ways, the same fact.

There is no requirement for the trial chamber to establish the existence of a common plan on the basis of ‘the subsequent concerted action of the co-perpetrators’.

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Such subsequent concerted action may be a relevant consideration in determining whether the co-perpetrators acted with a common purpose. Indeed, the fact that coperpetrators act in unison will often be a strong indicator that, by so acting, they may be implementing a common plan to which they agreed. However, even in the absence of direct evidence of the agreement between the co-perpetrators, subsequent concerted action is not the only basis on which the trial chamber may infer the existence of a common plan. Therefore, there is no legal impediment to inferring the common plan from the wider circumstances, including the events on the ground.

Consistent with the principle of causation, which requires a causal link between the conduct of an accused and the crime, an accused’s essential contribution must be to the crime for which he or she is responsible. However, the contribution of a coperpetrator which, on its face, is not directly to a specific crime, but to the implementation of the common plan more generally may still suffice.

For indirect co-perpetration, the ‘knowledge’ component of mens rea includes an awareness on the part of the co-perpetrator of the factual circumstances that enabled him or her, together with other co-perpetrators, to jointly exercise control over the crime.

For co-perpetration, the decisive consideration is whether the contributions as a whole amounted to an essential contribution to the crimes within the framework of the common plan, such that without it, ‘the crime could not have been committed or would have been committed in a significantly different way’.

In order to find an accused criminally responsible as a co-perpetrator for specific criminal acts of murder or rape that took place on particular dates and in particular locations, it need not be established that he or she was aware of the details of these events, including whether and which specific acts had been committed. Rather, what must be established is that the person possessed the requisite mens rea with respect to the crimes as such in the sense of murder, rape, persecution, pillage et cetera , committed in implementation of the common plan.

A co-perpetrator can make an essential contribution to the common plan at any stage, including the execution stage, the planning and preparation stage, and the stage when the common plan is conceived.

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Establishing the whereabouts of an accused at the time that the alleged crimes – that he or she is said to have co-perpetrated through another person – took place may be relevant in establishing his or her control over the crimes in question. This, however, does not mean that for an accused to be held responsible he or she must be present when the crimes are taking place. Nevertheless, when, in cases such as the present one, it is alleged that the accused is controlling the crimes indirectly through, inter alia , the monitoring of the operations in the course of which crimes are being committed, the whereabouts of the person may be an important consideration.

Depending on the circumstances, the conduct of an accused after the commission of a crime may provide information or evidence that may be of relevance to the assessment of his or her intent at the time of the offence.

II. INTRODUCTION

This case concerns Mr Bosco Ntaganda’s alleged conduct, as a high level member of the Union des Patriotes Congolais and its military wing, the Forces Patriotiques pour la Libération du Congo , in the events that took place in Ituri district 1 of the DRC from on or about 6 August 2002 to on or about 31 December 2003.

On 8 July 2019, the Trial Chamber rendered the Conviction Decision, in which it found Mr Ntaganda guilty of five counts of crimes against humanity (murder and attempted murder, rape, sexual slavery, persecution, forcible transfer and deportation) and thirteen counts of war crimes (murder and attempted murder, intentionally directing attacks against civilians, rape, sexual slavery, pillage, ordering the displacement of the civilian population, conscripting and enlisting children under the age of 15 years into an armed group and using them to participate actively in hostilities, intentionally directing attacks against protected objects, and destroying the adversary’s property). 2

The Trial Chamber found that Mr Ntaganda was guilty as an indirect coperpetrator for all crimes charged and as a direct perpetrator for one act of murder,

1 Conviction Decision , paras 1, 32. 2 Conviction Decision , para. 1199, pp. 526-530, 535-538.

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constituting a crime against humanity and a war crime, as well as an underlying act of

3 persecution as a crime against humanity.

Both Mr Ntaganda and the Prosecutor filed appeals against the Conviction

4 Decision. In his appeal brief, Mr Ntaganda raises fifteen grounds of appeal

challenging the fairness of the proceedings and arguing that the Trial Chamber

5 committed several errors of law, fact and procedure. In her appeal brief, the

Prosecutor raises two grounds of appeal challenging the Trial Chamber’s

interpretation of the term ‘attack’ in article 8(2)(e)(iv) of the Statute (intentionally

6 directing attacks against protected objects). In relation to some of his challenges, Mr

Ntaganda requests that the Appeals Chamber order a new trial or a permanent stay of

7 the proceedings and in relation to others that it reverse his conviction. The Prosecutor

asks the Appeals Chamber to ‘enter additional and limited findings of fact’ and to

8 convict Mr Ntaganda for two additional incidents.

On 12, 13 and 14 October 2020, the Appeals Chamber held an oral hearing, on a

partially virtual basis, where it received submissions from parties, and observations

9 from participants and amici curiae .

For the reasons elaborated in this judgment, the Appeals Chamber confirms, by majority, the Conviction Decision and rejects Mr Ntaganda’s and the Prosecutor’s

appeals.

Separate opinions are set out as annexes to this judgment.

In addition, a comprehensive procedural history of the proceedings is set out in

annex A to this judgment. Annex B contains a list of designations used and materials

cited in this judgment.

3 Conviction Decision , pp. 535-538. Prosecutor’s Notice of Appeal 4 ; Mr Ntaganda’s Notice of Appeal. Mr Ntaganda’s Appeal Brief – Part I Mr Ntaganda’s Appeal Brief – Part 5 See e.g. , paras 1, 16, 18, 23; II , paras 4-5, 41, 56-58, 74, 90, 103, 128-129, 133, 141, 150, 166, 177, 184, 230, 232, 249, 257, 268, 271, 282, 300, 309, 322, 339, 347, 359, 364, 411; T-270, p. 95, lines 13-15; T-271, p. 20, lines 9-11. 6 Prosecutor Appeal Brief , paras 2, 6, 9, 11-13, 153. See also T-270 , p. 7, lines 15-25. Mr Ntaganda’s Appeal Brief – Part I Mr Ntaganda’s Appeal Brief – Part II 7 , paras 16, 23; , paras 41, 47, 57, 74, 103, 128-129, 133, 135, 141, 147, 150, 166, 177-179, 184-185, 208, 210, 225, 230, 232, 266, 271, 282, 305, 316-317, 322, 339, 347, 359, 398. 8 Prosecutor Appeal Brief , paras 13, 106, 154-156. See also T-270 , p. 20, lines 3-4. 9 T-270 , T-271 , T-272 .

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III. STANDARD OF REVIEW

Article 81(1)(a) and (b) of the Statute provides that the Prosecutor or the convicted person, or the Prosecutor on that person’s behalf, may appeal on grounds of a procedural error, error of fact, error of law, or any other ground that affects the fairness or reliability of the proceedings or decision. According to article 83(2) of the Statute, the Appeals Chamber may intervene only if it ‘finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error’. In the view of the Appeals Chamber, this results in the following standard of review.

A. Errors of law

Regarding errors of law, the Appeals Chamber has previously found that: [it] will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially 10 affected the Impugned Decision.

B. Errors of fact

At the outset, the Appeals Chamber recalls that by the terms of article 66(3) of the Statute an accused may only be convicted if a trial chamber is convinced of the guilt of the accused beyond reasonable doubt. Consequently, a trial chamber is required to enter findings to the standard of proof of ‘beyond reasonable doubt’ in relation to those findings that underpin the charges and upon which a conviction depends. In reviewing factual findings by the trial chamber, the Appeals Chamber will apply the standard of reasonableness as explained below.

In the appellate process, it is the role of the Appeals Chamber to review the conviction or acquittal and to ensure that, in arriving at its conclusion, the trial chamber correctly appreciated and applied the standard of beyond reasonable doubt. The Appeals Chamber must ensure that, when making factual findings, the trial chamber carried out a holistic evaluation of the evidence. This is in the sense of

10 Lubanga Appeal Judgment , paras 17-18; Ngudjolo Appeal Judgment , para. 20; Bemba Appeal Judgment , para. 36; Bemba et al. Appeal Judgment , para. 99.

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assessing in a connected way and weighing of all the relevant evidence taken together,

in relation to the fact at issue; rather than evaluating items of evidence without regard

to other related evidence. Furthermore, the Appeals Chamber must be satisfied that

the trial chamber assessed all factual findings in deciding, pursuant to the applicable law, that the accused person’s guilt was established beyond reasonable doubt or that

he or she should be acquitted.

With these principles in mind, when a factual error is alleged, the Appeals Chamber will determine whether a trial chamber’s factual findings were reasonable in

the particular circumstances of the case. In assessing the reasonableness of factual findings, the Appeals Chamber will consider whether the trial chamber’s evaluation

11

was consistent with logic, common sense, scientific knowledge and experience, and

whether the trial chamber took into account all relevant and connected evidence, and

was mindful of the pertinent principles of law (including, as applicable, the standard

of proof beyond reasonable doubt). Beyond the foregoing considerations, the Appeals

11 The obligation of a trier of fact in this regard finds expression in the law and jurisprudence of various national legal systems. Argentina : article 398 of the Argentinean Penal Procedural Code: ‘The court will pass sentence by majority vote, assessing the evidence received and the acts of the debate in accordance with the rules of sana crítica ’ (‘ El tribunal dictará sentencia por mayoría de votos, valorando las pruebas recibidas y los actos del debate conforme a las reglas de la sana crítica’ ); National Chamber of Criminal Cassation (Argentina), 10 May 2018: ‘The system of sana crítica requires the foundation of the decision, that is, the expression of the reasons why it is decided in one way or another. It also requires that the critical evaluation of the evidence be carried out in accordance with the rules of logic, experience and scientific knowledge’; Peru : article 393 of the Peruvian Penal Procedural Code: ‘The evidentiary evaluation will respect the rules of sana crítica , especially in accordance with the principles of logic, the maxims of experience and scientific knowledge’ (‘ La valoración probatoria respetará las reglas de la sana crítica, especialmente conforme a los principios de la lógica, las máximas de la experiencia y los conocimientos científicos ’); Poland : article 7 of the Polish Code of Criminal Procedure provides that the organs in charge of the proceedings shall form their view on the basis of all evidence led, assessed freely taking into account the principles of sound reasoning and indications of knowledge and life experience; Canada : R. v. François , [1994] 2 S.C.R. 827 (S.C.C.), para. 23: It was open to the jury, with the knowledge of human nature that it is presumed to possess, to determine on the basis of common sense and experience whether they believed the complainant’s story of repressed and recovered memory, and whether the recollection she experienced in 1990 was the truth. To do so cannot be characterized as unreasonable.; Spain: Susana Polo Garcia, 12 April 2018, STSJ M 3980/2018, 44/2018, p. 4: In relation to the review of convictions based on circumstantial evidence, the Criminal Chamber of the Superior Court of Justice of Madrid has held that these could be sustained if: (i) the facts or the basic facts are fully proven; (ii) the facts constituting the offence are deduced precisely from the proven basic facts; and (iii) the reasonableness of the inference can be checked in the sense that the first instance chamber has identified the findings of fact or evidence and explained the reasoning or logical link between the basic facts and the inferred facts; and (iv) that this reasoning is based on the rules of human judgment or common experience or on a reasonable understanding of the reality normally lived and appreciated in accordance with the collective criteria in force.

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Chamber will not disturb a trial chamber’s factual finding only because it would have 12 come to a different conclusion.

When considering alleged factual errors, the Appeals Chamber will allow the deference considered necessary and appropriate to the factual findings of the trial chamber. Such deference is justified by certain considerations that inescapably result from the construction of the Statute. The first consideration is that the Statute has vested the trial chamber with the specific function of conducting the trial. As part of that function and in light of the principle of immediacy, the trial chamber has the primary responsibility to determine the reliability and credibility of the evidence received in the course of the trial and then comprehensively assess the weight of the 13 evidence. In turn, this entails that the trial chamber has the primary responsibility to evaluate the connections and fairly resolve any inconsistencies between the items of evidence received at trial. The trial chamber’s function of conducting the trial warrants the presumption that this function has been properly performed, unless and until the contrary is shown. The second consideration is that the Statute requires the appellant to raise specific errors on appeal and the Appeals Chamber reviews the trial chamber’s decision through the lens of the errors raised. Nothing in the Statute suggests that an appeal under article 81 in which an error of fact is alleged should contemplate a trial de novo in the Appeals Chamber, in total disregard of the trial conducted by the trial chamber. Nevertheless, the Appeals Chamber’s deference to the factual findings of the trial chamber is not without qualification. The Appeals Chamber may interfere with a trial chamber’s factual finding if it is shown to be attended by errors including the following: insufficient support by evidence; reliance on irrelevant evidence; failure to take into account relevant evidentiary considerations and facts; failure properly to appreciate the significance of the evidence on record; or failure to evaluate and weigh properly the relevant evidence and facts. The Appeals Chamber may interfere where it is unable to discern objectively how the trial chamber’s conclusion could have reasonably been reached from the evidence on the record.

12 Lubanga Appeal Judgment , para. 21. 13 The principle of immediacy recognises the primary role of the trial chamber in the context of the unfolding dynamics of any given trial.

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The Appeals Chamber will consider the validity of the challenged factual finding vis-à-vis other relevant factual findings in a holistic manner. However, this does not mean that the Appeals Chamber will review the entirety of the evidentiary record. The Appeals Chamber will have regard not only to the arguments put forward by the appellant, but also to the evidence relied upon by the trial chamber and the arguments of all other parties and participants on the point in issue. In assessing the correctness of a factual finding, the trial chamber’s reasoning in support thereof is of great significance. In particular, if the supporting evidence appears weak, or if there are significant contradictions in the evidence, deficiencies in the trial chamber’s reasoning as to why it found that evidence persuasive may lead the Appeals Chamber to conclude that the finding in question was unreasonable.

Where an error of fact is established, the material effect of this error on the trial chamber’s decision will have to be assessed, pursuant to article 83(2) of the Statute. Importantly, an error and its materiality must not be assessed in isolation; rather the Appeals Chamber must consider the impact of the error in light of the other relevant factual findings relied upon by the trial chamber for its decision on conviction or acquittal. A trial chamber’s decision is materially affected by a factual error if the Appeals Chamber is persuaded that the trial chamber, had it not so erred, would have convicted rather than acquitted the person or vice versa in whole or in part.

C. Procedural errors

Regarding procedural errors, the Appeals Chamber has found that:

an allegation of a procedural error may be based on events which occurred during the trial proceedings and pre-trial proceedings. However, as with errors of law, the Appeals Chamber will only reverse a […] decision if it is materially 14 affected by the procedural error. Having previously found that procedural errors ‘often relate to alleged errors in a Trial Chamber’s exercise of its discretion’, 15 the Appeals Chamber has established that:

14 Lubanga Appeal Judgment , para 20. See also Ngudjolo Appeal Judgment , para. 21; Bemba Appeal Judgment , para. 47; Bemba et al. Appeal Judgment , para. 99. 15 Ngudjolo Appeal Judgment , para. 21. See also Bemba Appeal Judgment , para. 48; Bemba et al. Appeal Judgment , para. 100.

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[…] it will not interfere with the Chamber’s exercise of discretion merely because the Appeals Chamber, if it had the power, might have made a different ruling. The Appeals Chamber will only disturb the exercise of a Chamber’s discretion where it is shown that an error of law, fact or procedure was made. In this context, the Appeals Chamber has held that it will interfere with a discretionary decision only under limited conditions and has referred to standards of other courts to further elaborate that it will correct an exercise of discretion in the following broad circumstances, namely where (i) it is based upon an erroneous interpretation of the law; (ii) it is based upon a patently incorrect conclusion of fact; or (iii) the decision amounts to an abuse of discretion. Furthermore, once it is established that the discretion was erroneously exercised, the Appeals Chamber has to be satisfied that the 16 improper exercise of discretion materially affected the impugned decision.

With respect to an exercise of discretion based upon an alleged erroneous interpretation of the law or an alleged incorrect conclusion of fact, the Appeals Chamber will apply the standard of review with respect to errors of law and errors of 17 fact as set out above. Where a discretionary decision allegedly amounts to an abuse of discretion, the Appeals Chamber has stated the following:

Even if an error […] has not been identified, an abuse of discretion will occur when the decision is so unfair or unreasonable as to “force the conclusion that the Chamber failed to exercise its discretion judiciously”. The Appeals Chamber will also consider whether the first instance Chamber gave weight to extraneous or irrelevant considerations or failed to give weight or sufficient weight to relevant considerations in exercising its discretion. The degree of discretion afforded to a Chamber may depend upon the nature of the decision in 18 question.

D. Substantiation of arguments

Regulation 58(2) of the Regulations of the Court requires the appellant to refer to ‘the relevant part of the record or any other document or source of information as regards any factual issue’ and ‘to any relevant article, rule, regulation or other

applicable law, and any authority cited in support thereof’ as regards any legal issue. It also stipulates that the appellant must, where applicable, identify the finding or

16 Bemba Appeal Judgment , para. 48 (footnotes omitted). See also Bemba et al. Appeal Judgment , para 100; Ngudjolo Appeal Judgment , para. 21; Kenyatta OA5 Judgment , para. 22; Lubanga Sentencing Judgment , para. 41; Ruto and Sang OA Judgment , paras 89-90; Kony OA3 Judgment , paras 79-80. 17 Kenyatta OA5 Judgment , paras 23-24, Bemba et al. Appeal Judgment , para. 101. 18 Kenyatta OA5 Judgment , para. 25 (footnotes omitted). See also Bemba et al. Appeal Judgment , para. 101.

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ruling challenged in the decision with specific reference to the page and paragraph number.

In addition to these formal requirements, an appellant is obliged to present cogent arguments that set out the alleged error and explain how the trial chamber 19 erred. In alleging that a factual finding is unreasonable, an appellant must explain why this is the case, for example, by showing that it was contrary to logic, common sense, scientific knowledge and experience. In their submissions on appeal, it will be for the parties and participants to draw the attention of the Appeals Chamber to all the relevant aspects of the record or evidence in support of their respective submissions relating to the impugned factual finding. Furthermore, in light of article 83(2) of the Statute an appellant is required to demonstrate how the error materially affected the impugned decision. Whether an error or the material effect of that error has been 20 sufficiently substantiated will be determined on a case by case basis.

When raising an appeal on the ground of unfairness under article 81(1)(b)(iv) of the Statute, the appellant is required to set out not only how it was that the proceedings were unfair, but also how this affected the reliability of the conviction decision. If an appellant fails to do so, the Appeals Chamber may dismiss the 21 argument without analysing it in substance.

IV. MR NTAGANDA’S APPEAL

A. First ground of appeal: Judge Kuniko Ozaki’s judicial independence

Under the first ground of appeal, Mr Ntaganda challenges Judge Kuniko Ozaki’s judicial independence under article 40(2) of the Statute. 22

1 Background On 7 January 2019, Judge Ozaki requested to change her status as a full-time judge to a non-full-time judge within the meaning of article 35(3) of the Statute, 23 which the Presidency, after consultation with all the judges, granted.

19 Lubanga Appeal Judgment , para. 30; Kony OA3 Judgment , para. 48. 20 Lubanga Appeal Judgment , para. 31. 21 Bemba Dissenting Opinion to Appeal Judgment , para. 386 (footnote omitted). 22 Mr Ntaganda’s Appeal Brief – Part I , paras 1, 16.

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In a memorandum sent to the Presidency and all the judges on 18 February 2019, Judge Ozaki indicated that she had been appointed as the Japanese Ambassador 24 to the Republic of Estonia and that her duties would commence on 3 April 2019.

On 4 March 2019, the judges, by an absolute majority, ‘decided in a plenary that the assumption by Judge Ozaki of the role of Ambassador of Japan to Estonia while she continues to serve as a non-full-time judge of the Court does not violate any aspect of article 40 of the Statute’. 25 A minority of three judges disagreed with that conclusion.

The majority considered that:

whilst it is also possible to read article 40(2) in the abstract manner, the language of article 40 calls for application in its concrete acceptation. Whilst the overriding general principle is stated in paragraph 1, it is evident in paragraphs 2 and 3 that the provision is concerned with assessing specific activities and occupations which may be performed by judges. Further, paragraph 4 creates a procedure for dealing with questions arising in respect of a specific individual judge. The concern of the provision is thus with the concrete question of whether functions actually being performed by a specific judge could affect judicial independence. The need for a concrete application is also supported by the evident contrast between article 40 of the Rome Statute and equivalent provisions of some other international courts or tribunals. For example, article 16(1) of the Statute of the International Court of Justice provides that ‘No member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature’. Article 40 eschews such broad references to abstract categories of prohibited functions and demonstrates a closer concern with analysing the actual activities or occupations proposed by a judge. Accordingly, the majority considered it necessary that the issue must be approached on a case-by-case basis, emphasising the actual activities to be performed by Judge Ozaki and their compatibility with her status 27 as a non-full-time judge of the Court.

With respect to whether Judge Ozaki’s appointment as Ambassador of Japan to Estonia would interfere with her judicial functions, the majority recalled that ‘Judge Ozaki had already, due to her own exceptional request, moved to a non-full-time

23 Annex 1 to Notification of the Decision of the Plenary of Judges pursuant to article 40 of the Rome Statute , 22 March 2019, ICC-01/04-02/06-2326-Anx1 (the ‘ Decision on Independence ’), para. 4. 24 Decision on Independence , para. 5. 25 Decision on Independence , paras 7, 16. See also para. 8. Decision on Independence , para. 8. Judge Ibáñez Carranza was part of the minority. See Decision on Independence , para. 8. 27 Decision on Independence , para. 10.

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status and her judicial functions were confined to her remaining duties in the

case’. 28 Ntaganda The majority noted Judge Ozaki’s commitment ‘to making herself

available as necessary for her judicial duties, including, if necessary, during any

sentencing stage’. 29 The majority was therefore satisfied that there was ‘minimal risk

of her activities as Ambassador from 3 April 2019 interfering with her judicial

30 functions as a non-full-time judge of the Court, much less any likelihood thereof’.

Furthermore, the majority considered that Judge Ozaki’s activities of

Ambassador of Japan to Estonia would not likely affect confidence in her judicial

31 independence. In reaching this conclusion, the majority noted that ‘Judge Ozaki’s

activities as Ambassador would be entirely confined to the bilateral relationship

between Japan and Estonia’ and that ‘neither Japan nor Estonia was connected to any

case before the Court’. 32 The majority further observed that ‘Judge Ozaki’s statement

that she could refrain from executing responsibilities if any arose which could impact

case’. 33 upon her judicial duties, which were confined to the Ntaganda The Judge

further indicated that ‘when returning to the Court to discharge her judicial duties at

the seat of the Court she would not act in any way as the Japanese Ambassador to

Estonia’. 34 In these circumstances, the majority was satisfied that ‘Judge Ozaki’s

independence would not be undermined by assuming the role of Ambassador of Japan

to Estonia’. 35

The minority disagreed with the majority’s conclusion. It considered that ‘the

performance of an executive or political function for a State Party by an individual

who remained a Judge of the Court was entirely likely to affect public confidence in

judicial independence’. 36 The minority added that contrary to other precedents before

other international courts and tribunals, Judge Ozaki did not undertake that she would

‘not […] assume any functions or duties of her political office prior to the completion

28 Decision on Independence , para. 12. 29 Decision on Independence , para. 12. 30 Decision on Independence , para. 12. 31 Decision on Independence , para. 13. 32 Decision on Independence , para. 13. 33 Decision on Independence , para. 13. 34 Decision on Independence , para. 13. 35 Decision on Independence , para. 14. 36 Decision on Independence , para. 15.

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of her judicial tenure’. 37 The minority also stressed the risk that ‘approving Judge Ozaki’s request could result in an eventual disqualification request under article

38 41(2)(b) of the Statute in the Ntaganda case or could be raised on appeal’.

On 30 April 2019, Mr Ntaganda requested the reconsideration of the Decision

on Independence (the ‘Request for Reconsideration’). 39

On 1 May 2019, the Presidency issued a notification concerning Judge Ozaki’s

40 resignation as Japanese Ambassador to Estonia on 18 April 2019.

On 14 May 2019, the plenary of judges decided that ‘the same body’ of judges

‘which took the initial plenary decision under article 40(4) […] with the exception of

Judges Fremr and Chung who have subsequently been excused from subsequent related matters’, should rule on the Request for Reconsideration (the ‘Decision on

Reconsideration’). 41 The judges rejected the Request for Reconsideration and invited

42 Mr Ntaganda, if he so wished, to make a request for disqualification.

The judges held that a distinction should be drawn ‘between a decision on an

administrative issue’ of whether a judge’s activity, ‘in general, is likely to affect

confidence in a judge’s independence’ under article 40 of the Statute and the issue of

‘a judge’s capacity to continue to sit in a particular case because his or her

impartiality might reasonably be doubted on any ground (article 41 of the Statute)’. 43

The judges added that

[t]he fact that, at the Court, the decision-making authority in respect of both types of decisions is vested in the judges, has no bearing on the distinct nature of these two decision-making processes. Nor does the fact that, as a judge

37 Decision on Independence , para. 15 (emphasis in original). 38 Decision on Independence , para. 15. 39 Request for Reconsideration of the Decision of the Judges Concerning Judge Ozaki Pursuant to Article 40 of the Rome Statute , ICC-01/04-02/06-2337. 40 Notification concerning Judge Kuniko Ozaki , ICC-01/04-02/06-2338, para. 3. Decision on the “Request for Reconsideration of the Decision of the Judges Concerning Judge Ozaki 41 Pursuant to Article 40 of the Rome Statute” (ICC-01/04-02/06-2337) and the “Request for Reconsideration of ‘Decision concerning the “Request for disclosure concerning the Decision of the plenary of Judges on the judicial independence of Judge Ozaki”, the “Request for disclosure concerning the visit of the Registrar to Japan on 21 and 22 January 2019”’ (Filing #2336), and for Additional Disclosure” (ICC-01/04-02/06-2339) and related requests , ICC-01/04-02/06-2346, para. 12. 42 Decision on Reconsideration , para. 24, p. 13. 43 Decision on Reconsideration , para. 17.

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serving pursuant to article 36(10) of the Statute, Judge Ozaki’s only remaining 44 judicial duty at the Court is completing the Ntaganda trial.

The judges recalled that the Decision on Independence ‘is an internal

administrative decision of the judges concerning a question of judicial independence, not a decision pertaining to Judge Ozaki’s capacity to sit in the Ntaganda case, with the latter issue not yet having arisen’. 45

With respect to Mr Ntaganda’s contention that he had not been heard because of

the ex parte nature of the article 40 proceedings, the judges held that ‘[a]rticle 40(4) and rule 34 of the Rules of Procedure and Evidence […] set out only a number of

limited procedural requirements for decisions thereunder, with any other questions of 46 process which may arise falling to be determined by the judges themselves’.

The judges further found that decisions taken pursuant article 40(4) are ‘general decisions concerning the functioning of a judge and are not decisions pertaining to the role of a judge in any specific case. It is not a decision which pertains to judicial proceedings and does not impact on the fair trial rights of any accused’. 47 They further held that such decision is ‘a general and administrative one of a judge’s capacity to

undertake a certain activity or occupation and not a question of the judge’s capacity to sit in a given case’. 48 The judges found that if a question regarding a judge’s activity that ‘may impact on his or her impartiality in a specific case’ arises, a party can raise 49 such concern under article 41(2)(b) of the Statute.

On 21 May 2019, Mr Ntaganda requested the disqualification of Judge Ozaki (the ‘Request for Disqualification’). 50

The Presidency convened a plenary of judges on 17 June 2019 to consider the request and, by absolute majority, the judges dismissed the Request for Disqualification (the ‘Decision on Disqualification’). 51

44 Decision on Reconsideration , para. 17. 45 Decision on Reconsideration , para. 18. 46 Decision on Reconsideration , para. 19. 47 Decision on Reconsideration , para. 19. 48 Decision on Reconsideration , para. 19. 49 Decision on Reconsideration , para. 21. Public Redacted Version of “Request for Disqualification of Judge Ozaki” 50 , ICC-01/04-02/06-2347- Red (confidential version dated 20 May 2019 and registered on 21 May 2019 (ICC-01/04-02/06-2347- Conf)).

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The plenary of judges held that the Request for Disqualification

does not allege any actual bias on the part of Judge Ozaki. To the extent that a claim of impartiality is concerned not with actual partiality but with the appearance of grounds to doubt impartiality, the plenary of judges have consistently considered the relevant standard of assessment to be whether the circumstances would lead a reasonable observer, properly informed, to 52 reasonably apprehend bias or a lack of partiality.

The plenary of judges found that the Request for Disqualification could ‘not be

used as pretence to seek review of the [Decision on Independence]’. 53 The plenary of judges noted Mr Ntaganda’s argument that the role of a Court judge and that ‘of

Japanese diplomat are incompatible in abstracto ’ and decided that submissions ‘to

this end need not be further entertained’. 54

With regard to the remainder of the Request for Disqualification, the plenary of

judges considered that the request ‘misstate[d] the legal issue’ and raised the

following issue:

whether the judges of the plenary are satisfied, to the requisite high threshold, that there is an objectively reasonable appearance that Judge Ozaki may be unable to discharge her judicial duties in the Ntaganda case impartially due to her having briefly held the senior diplomatic position of Ambassador of Japan to Estonia, in view of the entirety of the entailing circumstances, before, after 55 and during such appointment.

The plenary of judges observed that the request did not contain any ‘allegations

concerning the nature of any potential overlap of the functions of the Ambassador of 56 Japan to Estonia and the work of Judge Ozaki in the Ntaganda case’. Regarding the

situation of Judge Ozaki, the plenary of judges considered the following:

51 Decision of the Plenary of Judges on the Defence Request for the Disqualification of Judge Kuniko Ozaki from the case of The Prosecutor v. Bosco Ntaganda , 20 June 2019, ICC-01/04-02/06-2355- AnxI-Red (confidential version was registered on the same day (ICC-01/04-02/06-2355-Conf-AnxI)), paras 7, 56. Judges Eboe-Osuji, Morrison, Ibáñez Carranza and Balungi Bossa abstained from participating in the Disqualification Decision as ‘they had each reached a conviction that, in the particular circumstances, their participation may place them in a potential situation of conflict vis-à-vis their responsibilities as judges of the Appeals Division’. Decision on Disqualification , para. 57. 52 Decision on Disqualification , para. 32 (footnote omitted). 53 Decision on Disqualification , para. 34. 54 Decision on Disqualification , para. 34. 55 Decision on Disqualification , para. 35. 56 Decision on Disqualification , para. 37.

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Judge Ozaki assumed the position of Ambassador of Japan to Estonia with the prior approval of a decision of the plenary of judges taken pursuant to article 40(4) of the Statute. Judge Ozaki’s ambassadorship concerned only the bilateral relationship between Estonia and Japan. Judge Ozaki undertook that in the event that any matter arose in such context with implications for the Ntaganda case, she would take the appropriate steps to ensure no conflicts exist or to raise any issues with the Court immediately. The statement of Judge Ozaki’s instructional relationship with the Foreign Minister is only applicable when she is ‘pursuing 57 the duties of the ambassadorship’ .

In light of this factual context, the plenary of judges was not convinced that ‘a

well-informed, reasonable observer with a proper understanding of the nature of

judicial office would hold concerns as to the potential appearance that Judge Ozaki’s impartiality in the Ntaganda case could be called into question by virtue of her

relationship with Japan in connection with her appointment to a senior diplomatic position’. 58 The plenary of judges further noted ‘Judge Ozaki’s full availability and 59 capacity to impartially fulfil her remaining duties in the Ntaganda case’.

In addition, the plenary of judges found that ‘Judge Ozaki’s resignation from the position of Ambassador of Japan to Estonia [was] not determinative of the question of 60 whether her impartiality could be reasonably doubted’.

In conclusion, the plenary of judges considered that the Request for Disqualification failed to:

(i) show that the ‘circumstances of Judge Ozaki’s tenure as Ambassador of Japan to Estonia, which had been authorised pursuant to article 40(4) of the Statute, satisf[y] the high threshold necessary to rebut the presumption of impartiality’;

(ii) ‘demonstrate a reasonable appearance of bias in the Ntaganda case, arising from known circumstances of Judge Ozaki’s appointment, ambassadorship or resignation from a senior diplomatic post’;

(iii) ‘present specific allegations of the appearance of any potential connection between Judge Ozaki’s responsibilities as a Judge in the Ntaganda case and those of her role of Ambassador’. 61

57 Decision on Disqualification , para. 38 (emphasis in original and footnotes omitted). 58 Decision on Disqualification , para. 39. 59 Decision on Disqualification , para. 40. 60 Decision on Disqualification , para. 43. 61 Decision on Disqualification , para. 55.

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2 Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that by assuming her duties as a Japanese diplomat while

serving as a judge at the Court, Judge Ozaki ‘lost the appearance of judicial

62 independence’. He avers that Judge Ozaki ‘was thereby disqualified from sitting as

63 an ICC Judge, whether on a part-time or full-time basis’. In Mr Ntaganda’s view,

Judge Ozaki could not participate in deliberations and therefore the Trial Chamber

was not ‘properly constituted’ and the Conviction Decision was invalidly rendered

and ‘is a nullity’. 64

Mr Ntaganda submits that he has standing on appeal to challenge Judge Ozaki’s

65 independence. He argues that the Decision on Independence was rendered without

him being heard and that the ‘Presidency refused to permit reconsideration’ of this

66 decision. Mr Ntaganda argues that the matter of lack of independence of a judge is

‘a justiciable matter, properly advanced on appeal’. 67

(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda’s first ground of appeal should be

dismissed as it amounts to an appeal against the Decision on Independence, an appeal

68 for which the Statute does not provide. The Prosecutor argues that article 40(4) of

the Statute clearly provides that matters referred to in this provision are to be decided

‘by an absolute majority of the judges’. 69 Moreover, the Prosecutor avers that the

‘object and purpose of article 40 supports the finality of such decisions’ because this

provision aims at ensuring that ‘any activity of judges is not likely to affect

confidence in their independence’. 70 She adds that in light of the ‘potential

62 Mr Ntaganda’s Appeal Brief – Part I , para. 1. 63 Mr Ntaganda’s Appeal Brief – Part I , para. 1. 64 Mr Ntaganda’s Appeal Brief – Part I , paras 1, 16. 65 Mr Ntaganda’s Appeal Brief – Part I , paras 2-5. 66 Mr Ntaganda’s Appeal Brief – Part I , para. 2. Mr Ntaganda’s Reply to Prosecutor’s Response to 67 Mr Ntaganda’s Appeal Brief – Part I , para. 4; Appeal – Part I , para. 4. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 68 , paras 1, 3-4, 15. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 69 , para. 4. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 70 , para. 5.

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ramifications of such matters on the Court’s activities, efficiency requires that they

71 are resolved promptly and definitively, without further and protracted litigation’.

The Prosecutor argues that by ‘only seeking reconsideration’ of the Decision on

Independence, Mr Ntaganda ‘implicitly acknowledged’ that such decision is not

72 appealable as he would have otherwise tried to appeal it. She further avers that it

would appear ‘incongruous that five judges hear an appeal against a decision rendered

by the Plenary of judges, of which they have been part’. 73

(c) The victims’ observations

Victims Group 1 submit that Mr Ntaganda merely repeats arguments advanced

in both his requests for reconsideration and for disqualification and ‘misinterprets the

permissible scope of the present appeal’. 74

(d) Mr Ntaganda’s response to the victims

Mr Ntaganda argues that the right ‘to be tried before an independent tribunal is

an integral component’ of the right to a fair trial and that the submission of Victims

Group 1 that issues of independence under article 40 of the Statute are ‘sealed off

from appellate review’ is incorrect. 75

(e) Mr Ntaganda’s reply to the Prosecutor

Mr Ntaganda submits that ‘independence and impartiality are a “special

circumstance” and matters of “general importance” which Appeals Chambers have

addressed, regardless of if, when and how they were previously raised’. 76

3 Determination by the Appeals Chamber

The Appeals Chamber notes that, under this ground of appeal, Mr Ntaganda

argues that Judge Ozaki’s judicial independence under article 40 of the Statute 77 was

Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 71 , para. 5. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 72 , para. 6. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part I 73 , para. 6. 74 Observations of Victims Group 1 on Appeal – Part I , paras 4-8. Mr Ntaganda’s Response to Observations of Victims Group 1 on Appeal - Part I 75 , paras 3-4. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part I 76 , para. 3. 77 Article 40 of the Statute provides that: 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.

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affected when she assumed her duties as a Japanese diplomat while continuing to 78 serve as a judge at the Court. In his view, this disqualified her from sitting as a judge 79 at the Court. He contends that, as she could not participate in the deliberations, as required by article 74(1) of the Statute, the Trial Chamber was not ‘properly constituted’ and the Conviction Decision ‘is a nullity’. 80 Mr Ntaganda argues that the matter of a judge’s lack of independence is ‘properly advanced on appeal’. 81

The Appeals Chamber notes that the issues which Mr Ntaganda raises are the same as the ones with which the judges in plenary session dealt in the Decision on Independence. Indeed, Mr Ntaganda explicitly acknowledges that ‘[t]his ground of appeal, in substance, raises the same issues that were adjudicated in the [Decision on Independence]’. 82 The Appeals Chamber also notes that Mr Ntaganda is not raising any issue regarding the disqualification of Judge Ozaki. Therefore, it must be first determined whether Mr Ntaganda can raise, in an appeal against the Conviction Decision, an issue that has been comprehensively addressed in a decision taken by an absolute majority of the judges pursuant to article 40 of the Statute.

The Appeals Chamber notes that, pursuant to article 40(4) of the Statute, issues relating to a judge’s judicial independence ‘shall be decided by an absolute majority of the judges’ of the Court. Such a decision on the matter of the independence of a judge in the performance of her or his judicial functions and duties is taken by all judges of the Court (apart, of course, the judge or judges concerned). This specific statutory framework aims at safeguarding the independence of a judge and demonstrates its significance for ensuring fairness of the judicial proceedings. This is also in line with article 3 of the Court’s Code of Judicial Ethics on the judicial 83 independence of Judges at the Court. While the Code of Judicial Ethics is ‘advisory

3 Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraph 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, the judge shall not take part in the decision. 78 Mr Ntaganda’s Appeal Brief – Part I , para. 1. 79 Mr Ntaganda’s Appeal Brief – Part I , para. 1. 80 Mr Ntaganda’s Appeal Brief – Part I , paras 1, 16. 81 Mr Ntaganda’s Appeal Brief – Part I , para. 4. 82 Mr Ntaganda’s Appeal Brief – Part I , para. 5. 83 ICC-BD/02-01-05. Article 3 on Judicial Independence provides that:

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in nature’, it serves as ‘guidelines’ to the judges ‘on the essential ethical standards required of judges in the performance of their duties’. 84 The Appeals Chamber notes that the drafters of the Statute underscored the importance of these principles by imposing stringent scrutiny of the judicial independence of a judge by requiring an absolute majority of all judges of the Court to decide this matter rather than a bench of five judges of the Appeals Chamber or a bench of three judges of any of the other Chambers of the Court.

The Appeals Chamber considers that the legal framework of the Court does not provide for any appeal against a decision taken by an absolute majority of the judges under article 40 of the Statute to the Appeals Chamber. While Judge Eboe-Osuji does not concur with this reasoning, he concurs with the Appeals Chamber’s ultimate 85 outcome. The Appeals Chamber consider that such a possibility would not be logical and feasible under the court’s legal framework, given that the judges of the Appeals Chamber are may have been part of the plenary of judges in session that decides on this matter; if an appeal were possible, the judges of the Appeals Chamber could thus be required to review their own decision. Even if one or more judges of the Appeals Chamber did not participate in such decision this would not mean that the Appeals Chamber should then have jurisdiction to review a decision on the independence of a judge taken by the absolute majority of the judges under article 40 of the Statute, given the statutory scheme.

The Appeals Chamber emphasises that the judicial independence of judges is at the core of the Court’s legal framework to safeguard the general integrity of the proceedings before the Court. It is for this reason that the Statute provides for a

1 Judges shall uphold the independence of their office and the authority of the Court and shall conduct themselves accordingly in carrying out their judicial functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence. 84 Article 11(1) which reads: 1. The principles embodied in this Code shall serve as guidelines on the essential ethical standards required of judges in the performance of their duties. They are advisory in nature and have the object of assisting judges with respect to ethical and professional issues with which they are confronted. 85 Judge Eboe-Osuji expresses a different opinion. He is of the view that the Appeals Chamber is not precluded from considering the issue of Judge Ozaki’s independence just because it was already determined by the plenary of judges. However, after having examined Mr Ntaganda’s arguments, Judge Eboe-Osuji would still confirm the conclusion of the plenary of judges that the independence of Judge Ozaki was not affected when she assumed the role of Ambassador of Japan to Estonia, and accordingly would reject this ground of appeal.

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specific mechanism in article 40 which focuses on this subject matter and sets out the procedure to follow should an issue about the independence of a judge arise. This procedure has been followed in the present case. In the Decision on Independence, an absolute majority of the judges held that Judge Ozaki’s assumption of the role of Ambassador of Japan to Estonia while continuing to serve as a non-full-time judge of the Court did not violate any aspect of article 40 of the Statute. Therefore, the majority in that decision has examined and adjudicated the question of Judge Ozaki’s independence. The Appeals Chamber recalls that Mr Ntaganda’s request for reconsideration of the Decision on Independence of Judge Ozaki was unsuccessful. Mr Ntaganda cannot now raise the same matters on appeal.

While the issue of judicial independence is not appealable before the Appeals 86 Chamber, an appellant may still raise on appeal matters affecting the fairness of the 87 proceedings. In that regard, the Appeals Chamber notes that article 81(1)(b)(iv) of the Statute expressly provides the convicted person, or the Prosecutor on his or her behalf, with the possibility to raise a ground that ‘affects the fairness or reliability of the proceedings or decision’. In the present case, Mr Ntaganda neither presents arguments challenging the fairness or reliability of the Conviction Decision under that provision.

Judge Ibáñez Carranza, while agreeing with the outcome of the majority of the Appeals Chamber, disagrees with its reasoning insofar as it concludes that ‘the issue of judicial independence is […] not appealable before the Appeals Chamber’. In her view, the determination of the matter cannot be based on the administrative decision adopted by the plenary of judges which was unrelated to any specific judicial proceedings. A judicial decision cannot find its reasoning only in an administrative decision. The nature, object and consequences of these are different. The Appeals Chamber must now address a judicial ground of appeal in the context of a final appeal brought against a conviction decision in which the convicted person is arguing that one of the judges lacked judicial independence (or at least the appearance of judicial independence) and therefore could not have adjudicated the matter because the risk of implicit unfairness.

86 As stated above, Judge Eboe-Osuji does not concur with this reasoning. 87 See Ayyash Joint Opinion , para. 27.

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Judge Ibáñez Carranza considers that Mr Ntaganda has a right to raise any issue that may have affected the fairness of the proceedings pursuant to article 81(1)(b)(iv) of the Statute. The right to appeal on the basis of an alleged lack of independence on the part of one of the judges adjudicating a case is also a corollary of the internationally recognised human right ‘to a fair and public hearing by a competent, independent and impartial tribunal established by law’. 88 Judge Ibáñez Carranza is of the view that the judges of the Appeals Chamber are not prevented from addressing this ground of appeal on its merits. Indeed, in the Decision on Disqualification, Judges Eboe-Osuji, Morrison, Ibáñez Carranza and Balungi Bossa abstained from participating as ‘they had each reached a conviction that, in the particular circumstances, their participation may place them in a potential situation of conflict vis-à-vis their responsibilities as judges of the Appeals Division’ towards the concrete appeal of Mr Ntaganda (Judge Hofmański was not present at the moment, and 89 therefore he did not participate in the decision of the plenary).

For reasons set out in her dissent to the Decision on Independence, Judge Ibáñez Carranza remains of the view that it is incorrect and reproachable that a judge who is adjudicating grave crimes that amount to gross human rights violations is, at the same time, performing executive functions for a State Party to the Rome Statute. In her opinion, this inevitably affected the appearance of independence of the concerned judge and put at risk the fairness of the proceedings. However, Judge Ibáñez Carranza considers that Mr Ntaganda has failed to show a material effect of the alleged lack of independence of Judge Ozaki.

As noted above, Mr Ntaganda repeats the arguments advanced before the plenary of judges. Article 83(2) of the Statute requires that the reliability of the decision must have been affected as a result of a ground affecting the fairness of the proceedings. Judge Ibáñez Carranza is of the view that Mr Ntaganda does not show how the Conviction Decision was affected by the alleged lack of independence and how he was prejudiced as a result. Judge Ibáñez Carranza finds that an analysis of the Conviction Decision shows that Mr Ntaganda was convicted for 18 charges on the basis of solid reasoning and an assessment of the evidence that established beyond

88 ICCPR, article 14.1. 89 Decision on Disqualification , para. 57.

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reasonable doubt his culpability. The reasoning and outcome were unanimous. In her view, this means that any alleged lack of independence on the part of Judge Ozaki did not have a material impact on the Conviction Decision.

4 Overall conclusion In light of the above reasons, the Appeals Chamber dismisses this ground of appeal.

B. Second ground of appeal: Alleged violations of Mr Ntaganda’s right to a fair trial due to procedural irregularities

Under the second ground of appeal, Mr Ntaganda raises allegations of unfairness. In particular, he submits that his right to a fair trial was violated because:

90 (i) the Trial Chamber resorted, in an excessive manner, to ex parte material; (ii) the Prosecutor failed to disclose Mr Ntaganda’s non-privileged conversations in her possession and the Trial Chamber did not take measures to 91 mitigate the prejudice that resulted from these disclosure violations;

(iii) the Trial Chamber failed to suspend the proceedings prior to the resolution 92 of the ‘no case to answer’ appeal; and

(iv) the Trial Chamber prioritised expeditiousness at the expense of 93 Mr Ntaganda’s right to a fair hearing.

The Appeals Chamber will consider these four sub-grounds in turn.

The Appeals Chamber notes, at the outset, that when raising on appeal an issue which the appellant previously raised at trial and on which the trial chamber ruled, he or she must identify alleged errors in relevant decisions of the trial chamber, to the 94 extent that those decisions deal with that issue raised on appeal. As summarised below, Mr Ntaganda made a number of procedural requests regarding the issues he now raises on appeal and the Trial Chamber ruled on these requests. In some of the arguments raised under this ground of appeal, Mr Ntaganda raises the same issues

90 Mr Ntaganda’s Appeal Brief – Part II , paras 5-20; T-270 , p. 87, lines 10-13. Mr Ntaganda’s Appeal Brief – Part II 91 , paras 5, 21-41. Mr Ntaganda’s Appeal Brief – Part II 92 , paras 5, 42-47. Mr Ntaganda’s Appeal Brief – Part II 93 , paras 5, 48-57. 94 Bemba Dissenting Opinion to Appeal Judgment , para. 387. See also Lubanga Appeal Judgment , para. 155.

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anew without identifying errors in the relevant rulings of the Trial Chamber. The

Appeals Chamber has taken it into account when examining the arguments on appeal.

1 The Trial Chamber’s alleged excessive resort to ex parte material

Under this sub-ground of appeal, Mr Ntaganda argues that the Trial Chamber’s

95 excessive resort to ex parte material violated his right to a fair trial.

(a) Background

(i) Ex parte submissions regarding P-0768

On 8 August 2014, the Prosecutor requested the Trial Chamber to impose

restrictions pursuant to regulation 101(2) of the Regulations of the Court on the

96 contact between Mr Ntaganda and other persons, alleging that [REDACTED]. In

support of her allegations, the Prosecutor filed as annexes to her request

97 [REDACTED]. On the same day, the Prosecutor also filed a confidential redacted

98 version of the request. Confidential redacted versions of [REDACTED] were filed

99 on 19 December 2014.

100 From 19 to 22 October 2015, P-0768 gave testimony at the Court.

In an ex parte filing of 21 April 2015, the Prosecutor informed [REDACTED].

101 The filing refers to [REDACTED]. A confidential redacted version of this filing

102 was filed on 5 November 2019.

On 9 May 2016, the Prosecutor provided the Trial Chamber with further

information relevant to the restrictions on Mr Ntaganda’s contacts. 103

Mr Ntaganda’s Appeal Brief – Part II 95 , paras 5-20. 96 Public redacted version of “Prosecution’s urgent request for measures under regulation 101(2) of the Regulations of the Court”, 8 August 2014, ICC-01/04-02/06-349-Conf-Exp, 15 January 2016, ICC- 01/04-02/06-349-Red3 (the ‘ Prosecutor’s Request for Restrictions ’) (confidential ex parte version was registered on 8 August 2014 (ICC-01/04-02/06-349-Conf-Exp)), paras 1, 4, 53-54. Prosecutor’s Request for Restrictions 97 Annexes to , ICC-01/04-02/06-349-Conf-Exp-AnxA, ICC- 01/04-02/06-349-Conf-Exp-AnxB. 98 ICC-01/04-02/06-349-Conf-Red (the latest confidential version was registered on 14 March 2017, ICC-01/04-02/06-349-Conf-Red4). 99 ICC-01/04-02/06-349-Conf-AnxA-Red, ICC-01/04-02/06-349-Conf-AnxB-Red. 100 T-33 , T-34 , T-35 , T-36 . 101 [REDACTED], ICC-01/04-02/06-565-Conf-Exp, paras 1, 13-15. 102 ICC-01/04-02/06-565-Conf-Red. 103 Prosecution’s submissions on the restrictions to NTAGANDA’s contacts, ICC-01/04-02/06-1313- Conf-Exp (confidential redacted version was registered on 10 May 2016 (ICC-01/04-02/06-1313-Conf-

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(ii) Access to transcript of hearing of 30 October 2015

On 8 August 2014, the Prosecutor filed, ex parte , a request for

104 105 [REDACTED]. This request was reclassified as confidential on 12 June 2017.

On 30 October 2015, the Trial Chamber held an ex parte hearing with P-0055,

106 in the presence of the Victims and Witnesses Unit, to address matters of security.

On 2 November 2015, Mr Ntaganda sought re-classification of the transcript of

the hearing of 30 October 2015, arguing that its content was material to the

107 preparation of the defence.

On 11 November 2015, the Trial Chamber decided to provide the parties with a

summary of the hearing of 30 October 2015, including ‘verbatim extracts’ with

redactions to ‘information that should not be disclosed in the interests of the security

of the witness, and to information which the Chamber [did] not consider to be

108 relevant to the preparations of the parties and participants’.

On 22 February 2016, Mr Ntaganda requested the provision of the full transcript

109 of the hearing of 30 October 2015.

On 24 February 2016, the Trial Chamber rejected the request, noting, inter alia ,

110 that the security situation of the witness concerned had not changed.

(iii) Request for disclosure of ex parte materials

On 17 February 2017, Mr Ntaganda requested ‘disclosure of any and all ex

parte materials before the Chamber that concern, directly or indirectly, allegations of

Exp-Red)); confidential redacted versions were registered on 28 November 2016 (ICC-01/04-02/06- 1313-Conf-Red2) and on 28 March 2017 (ICC-01/04-02/06-1313-Conf-Red3); public redacted versions were registered on 17 May 2016 (ICC-01/04-02/06-1313-Red) and on 14 December 2016 ( ICC-01/04-02/06-1313-Red2 ). 104 [REDACTED], ICC-01/04-02/06-348-Conf-Exp, paras 1, 20, 23. 105 ICC-01/04-02/06-348-Conf. 106 T-42. 107 Email communication, as summarised in Decision on Defence request seeking provision of transcript of the ex parte hearing held on 30 October 2015, 24 February 2016, ICC-01/04-02/06-1189- Conf (the ‘Decision on Access to Transcript’), para. 2. 108 Provision of summary of ex parte hearing to parties and participants, ICC-01/04-02/06-995-Conf (the ‘Summary of Ex Parte Hearing’), para. 3, p. 4. 109 Urgent request on behalf of Mr Ntaganda seeking provision of full transcript of the ex parte hearing held on 30 October 2015, ICC-01/04-02/06-1185-Conf. 110 Decision on Access to Transcript, para. 12, p. 7.

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111 witness coaching against Mr Ntaganda or his associates and family’. He argued, inter alia , that the ‘prohibition on ex parte communications is necessary to “preserve

the confidence of the public in the impartiality of the judiciary”’. 112

On 16 March 2017, the Trial Chamber issued its decision on Mr Ntaganda’s

113 request, where it noted that:

Whereas the present case record contains materials that are marked ex parte because they relate to the Prosecution’s allegations of interference with and coaching of witnesses, and the related litigation concerning the restrictions placed on Mr Ntaganda’s contacts, other materials have been marked ex parte for different reasons, such as that they were obtained, or contain information that was obtained, pursuant to Article 54(3)(e) of the Statute, or relate to the 114 security of witnesses and/or victim applicants.

The Trial Chamber noted the Prosecutor’s undertaking to file lesser redacted

versions of eight filings related to allegations of witness interference and authorised

115 the requested reclassifications. It also reviewed all its decisions that had not been

notified or had been notified with redactions to Mr Ntaganda, to conclude that the

redactions applied to the versions accessible to Mr Ntaganda ‘continue[d] to be

116 necessary to protect the safety and security of the witnesses or other persons’. The

Trial Chamber held that one ex parte decision would remain ex parte for that same

117 reason. Regarding decisions relating to the litigation on restrictions to

Mr Ntaganda’s contacts, the Trial Chamber found it appropriate to give him access to full or lesser redacted decisions, noting, however, that ‘the information that would

become available as a result [was] mostly already known to the Defence due to public

versions or lesser redacted version having been issued or the information having been referred to in a later decision’. 118

111 Motion on behalf of Mr Ntaganda requesting access to ex parte material before the Chamber in Case ICC-01/04-02/06, ICC-01/04-02/06-1790-Conf (‘Mr Ntaganda’s Motion for Access to Ex Parte Material’), para. 1. 112 Mr Ntaganda’s Motion for Access to Ex Parte Material, para. 14. 113 Decision on Defence request for access to ex parte material, ICC-01/04-02/06-1826 (the ‘ First Decision on Ex Parte Material ’). 114 First Decision on Ex Parte Material , para. 4. 115 First Decision on Ex Parte Material , para. 5. 116 First Decision on Ex Parte Material , para. 7. 117 First Decision on Ex Parte Material , para. 7. 118 First Decision on Ex Parte Material , para. 8.

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The Trial Chamber noted that ‘any [ ex parte ] material underlying the Prosecution’s filings is covered by the regular disclosure regime, subject to any

119 reasons that would prevent the disclosure of these materials’. Regarding transcripts of ex parte hearings, the Trial Chamber noted that only one hearing was held in the absence of Mr Ntaganda, that the parties received a summary thereof and that Mr Ntaganda’s request for access to the transcript of that hearing had already been 120 rejected. The Trial Chamber also rejected the request for access to ex parte correspondence between the Prosecutor and the Trial Chamber, noting that

[n]o ex parte e-mail communication addressing any substantive matters has taken place between the Chamber and the Prosecution that, in view of the Chamber, should be provided to the Defence. The Defence’s allegation that communications exist that would be material to its preparations and its reference 121 to appearance of bias in this regard is inapposite.

(iv) Access to ex parte submissions from sources other than the Prosecutor On 28 November 2019, after the Conviction Decision and the Sentencing Decision were rendered, Mr Ntaganda requested: (i) information about 56 ex parte

submissions originating from sources other than the Prosecutor; and (ii) the Trial Chamber’s assistance in ensuring that those sources file redacted or public versions of

122 these submissions.

On 11 December 2019, the Trial Chamber, in its new composition, granted the 123 request in part and held that:

even though it now reclassifies a number of filings from ex parte to confidential, in relation to some of them, the Defence was already privy to the relevant information contained therein, and that due to the nature of the filings and/or their content, no prejudice arises to Mr Ntaganda as a result of such filings not having been available to the Defence until this point. The Chamber also emphasises that no prejudice arises to Mr Ntaganda as a result of the

119 First Decision on Ex Parte Material , para. 9. 120 First Decision on Ex Parte Material , para. 10, referring to Decision on Access to Transcript. 121 First Decision on Ex Parte Material , para. 11. 122 Email communication, as summarised in Decision on Defence request in relation to ex parte filings, 11 December 2019, ICC-01/04-02/06-2451 (the ‘ Second Decision on Ex Parte Material ’), para. 6. 123 Second Decision on Ex Parte Material , p. 7.

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continued ex parte status of certain filings, as their content does not concern the 124 charges and/or evidence of the criminal case against Mr Ntaganda.

(b) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda submits that the Court’s legal texts provide for ex parte

125 submissions only in exhaustively enumerated circumstances, consistent with, inter

126 alia , the jurisprudence of the ECtHR. He submits that of the 214 written ex parte

submissions which the Trial Chamber received during trial, ‘91 remained undisclosed

at the end of trial’ and many of the other ones ‘remained ex parte until many months

after they were first presented’. 127 He argues that some of the ex parte filings included

128 material prejudicial to him, in particular, [REDACTED] P-0768, [REDACTED].

Mr Ntaganda further argues that ‘[t]he Chamber’s tolerance for these sub-sonic,

and often highly prejudicial, written communications – and its failure to require their

129 prompt disclosure – violated Mr. Ntaganda’s right to a fair trial’. In this respect,

Mr Ntaganda refers to the case of P-0055, whom the Trial Chamber heard ex parte to

130 receive, what Mr Ntaganda believes are, prejudicial allegations against him.

Mr Ntaganda contends that, as a result, the findings based on P-0055’s evidence are

131 unsafe.

(ii) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda ‘fails to show that the limited use of

ex parte submissions at trial – for the purpose of maintaining the integrity and fairness

of the proceedings, and protecting victims and witnesses, in accordance with the

Statute’ – occasioned unfairness that affected the reliability of the Conviction

132 Decision. The Prosecutor argues that the trial chamber has discretion to receive ex

124 Second Decision on Ex Parte Material , para. 10. Mr Ntaganda’s Appeal Brief – Part II 125 , paras 6-7. 126 Mr Ntaganda’s Appeal Brief – Part II , para. 9. Mr Ntaganda’s Appeal Brief – Part II 127 , para. 12, referring to annex C to Mr Ntaganda’s Appeal Brief – Part II. Mr Ntaganda’s Appeal Brief – Part II 128 , para. 13; T-270 , p. 87, lines 10-13. Mr Ntaganda’s Appeal Brief – Part II 129 , para. 14. Mr Ntaganda’s Appeal Brief – Part II 130 , para. 15; T-270 , p. 87, lines 14-24. Mr Ntaganda’s Appeal Brief – Part II 131 , para. 19. Prosecutor’s Response to Appeal – Part II 132 , paras 23-24.

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parte submissions and that such submissions are contemplated not only in the

133 circumstances listed by Mr Ntaganda.

The Prosecutor further contends that Mr Ntaganda’s concern that ‘his interests

may be, or may have been, adversely affected by 40 ex parte submissions to which he

does not have access’, is ‘unfounded, and incorrect’, as some of them appear not to be

material to ‘the assessment of Ntaganda’s guilt or innocence’. 134 Regarding P-0768,

the Prosecutor submits that Mr Ntaganda shows no prejudice, as he knew of the

relevant allegations before trial and the filings in question and ‘[a]t no point was

“consciousness of guilt” or “bad character” evidence considered in determining the

charges’. 135 Regarding P-0055, the Prosecutor argues that: (i) the trial chamber has the

power to hear from a witness [REDACTED] on an ex parte basis; (ii) the summary of

the hearing, provided to the parties, is extensive and Mr Ntaganda ‘made no serious

effort to explore [the] issue [of P-0055’s credibility] in cross-examination’; and (iii)

his ‘undeveloped allegation of bias’ is insufficient ‘to overturn the […] presumption

of judicial impartiality’. 136

(iii) The victims’ observations

Victims Group 2 submit that they support the Prosecutor’s arguments in relation

137 to some of the alleged infringements. Regarding Mr Ntaganda’s request for an

order for retrial, Victims Group 2 argue that such an order is an ‘exceptional measure’

and resort to it must be limited, and that, in any event, none of the criteria for such a

138 remedy are met.

Prosecutor’s Response to Appeal – Part II 133 , para. 25. Prosecutor’s Response to Appeal – Part II 134 , para. 27. Prosecutor’s Response to Appeal – Part II 135 , para. 30. Prosecutor’s Response to Appeal – Part II 136 , para. 31. Prosecutor’s Response 137 Observations of Victims Group 2 on Appeal – Part II , para. 18, referring to to Appeal – Part II , paras 24-37. 138 Observations of Victims Group 2 on Appeal – Part II , paras 19-20.

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(c) Determination by the Appeals Chamber

(i) Whether a trial chamber may resort to ex parte material

Mr Ntaganda submits that ex parte submissions are allowed only in

139 exhaustively enumerated circumstances and that, where they concern the credibility

140 of witnesses, an inter partes disclosure is required.

The Appeals Chamber notes that ex parte proceedings are not subject to a

141 general prohibition before the Court. However, the Appeals Chamber points out

that resort to such proceedings should be limited. When deciding on the advisability

or modalities of the notification of an ex parte submission to the accused person, a

trial chamber must be mindful of the duty to respect the principle of the equality of

arms. It finds relevant the jurisprudence of the ECtHR on which Mr Ntaganda relies

142 in this context. It notes the following ruling of the ECtHR:

In a system where the filing of written observations by the parties before a hearing is not excluded and where a court, therefore, when deliberating on a case has at its disposal in addition to oral statements made at a hearing written statements filed beforehand, a party which is not informed about written submissions of the opposing party and thus deprived from reacting thereto is put 143 at a substantial disadvantage vis-à-vis its opponent.

Regarding the requirement of notification of the other party of an ex parte

application, the Appeals Chamber recalls its ruling in the case of The Prosecutor v.

Thomas Lubanga Dyilo :

Mr Ntaganda’s Appeal Brief – Part II 139 , paras 6-7. Mr Ntaganda’s Appeal Brief – Part II 140 , para. 10. 141 Bemba Dissenting Opinion to Appeal Judgment , para. 429. In that regard, the Appeals Chamber observes that such proceedings are expressly referred to, for instance, in rule 74(4) of the Rules on selfincrimination by a witness: ‘Before giving such an assurance [with respect to self-incrimination], the Chamber shall seek the views of the Prosecutor, ex parte , to determine if the assurance should be given to this particular witness’; in rule 83 of the Rules on a ruling on exculpatory evidence: ‘The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2’; in rule 88(2) of the Rules on special measures regarding, for instance, the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence: ‘A Chamber may hold a hearing on a motion or a request [for special measures], if necessary in camera or ex parte , to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness’. Mr Ntaganda’s Appeal Brief – Part II 142 , para. 9. 143 Lanz Judgment , para. 62. See also Brandstetter Judgment , paras 67-68.

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The Pre-Trial Chamber’s approach that the other participant has to be informed of the fact that an application for ex parte proceedings has been filed and of the legal basis for the application is, in principle, unobjectionable. Nevertheless, there may be cases where this approach would be inappropriate. Should it be submitted that such a case arises, any such application would need to be determined on its own specific facts and consistently with internationally recognized human rights standards, as required by article 21 (3) of the Statute. By making a decision that does not allow for any degree of flexibility, the Pre- 144 Trial Chamber precluded proper handling of such cases. The Appeals Chamber therefore finds that ‘ ex parte submissions may be used only to the extent that they are strictly necessary’. 145 It further considers that ‘[w]hether ex parte proceedings are acceptable, and for how long ex parte submissions can be withheld from the other party, will depend on the specific circumstances of the case and, in particular, the risk of prejudice to the fair trial of an ongoing case’. 146

(ii) Whether prejudice must be presumed in cases where ex parte submissions have been made The Appeals Chamber is unable to accept Mr Ntaganda’s proposition that ‘[w]here the judge to whom the ex parte submissions have been made is the decider of fact, prejudice may be presumed’. 147 Under the Court’s legal framework, there are ex parte procedures in which judges are expected to rule on issues relating to the substance of the case, notably in respect of the authorisation of non-disclosure of material to the defence, pursuant to rule 81(2) of the Rules. The fact that judges of a trial chamber make such a ruling in an ex parte procedure does not mean that prejudice automatically results therefrom. Pursuant to article 74(2) of the Statute, the judges are expected to base their decision on the guilt or innocence of an accused person ‘only on evidence submitted and discussed […] at the trial’. This provides a safeguard for the party excluded from ex parte proceedings because any material of which the judges may have become aware may not be used when determining the guilt or innocence of the accused person, unless it subsequently was submitted and

144 Lubanga OA3 Judgment , para. 67. 145 See Bemba Dissenting Opinion to Appeal Judgment , para. 429. 146 See Bemba Dissenting Opinion to Appeal Judgment , para. 429. Mr Ntaganda’s Appeal Brief – Part II 147 , para. 11.

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discussed at trial. There is therefore no reason for a presumption of prejudice, to 148 which Mr Ntaganda refers.

The Appeals Chamber will therefore proceed to analyse Mr Ntaganda’s arguments regarding the alleged prejudice in accordance with the applicable standard of appellate review.

(iii) Whether the Trial Chamber’s resort to ex parte proceedings was excessive Mr Ntaganda submits that 91 ex parte submissions ‘remained undisclosed at the end of trial’ and many other were only disclosed with a delay of months. 149 He argues that these submissions were ‘often highly prejudicial’. 150

The Appeals Chamber notes that when withholding information from Mr Ntaganda, the Trial Chamber relied on article 54(3)(e) of the Statute and on 151 reasons related to the security of witnesses and/or victim applicants. The Appeals Chamber is satisfied that resort to ex parte proceedings was based on valid grounds in this instance.

The Appeals Chamber also notes that the Trial Chamber specifically rejected Mr Ntaganda’s allegation of prejudice on account of lack of access to ex parte submissions, as, in many cases, he had been privy to the relevant information 152 contained therein and, in other cases, the ex parte email communications between 153 the Trial Chamber and the Prosecutor did not concern substantive matters. Mr Ntaganda does not challenge these findings of the Trial Chamber.

The Appeals Chamber will now turn to Mr Ntaganda’s arguments regarding the specific cases of P-0768 and P-0055.

(a) P-0768

148 See Bemba Dissenting Opinion to Appeal Judgment , para. 441. Mr Ntaganda’s Appeal Brief – Part II 149 , para. 12. Mr Ntaganda’s Appeal Brief – Part II 150 , para. 14. 151 First Decision on Ex Parte Material , para. 4. 152 First Decision on Ex Parte Material , para. 8; Second Decision on Ex Parte Material , para. 10. 153 First Decision on Ex Parte Material , para. 11.

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154 Mr Ntaganda refers to [REDACTED] P-0768, [REDACTED]. The Appeals

Chamber notes that, although the Prosecutor’s application for restrictions, based on

the allegations of interference with P-0768, was filed ex parte , a confidential redacted

155 version of the application was notified to Mr Ntaganda on the same day. A

confidential redacted version of [REDACTED] was notified to him on 19 December

156 2014. He was thus privy to, at least the essence of, the allegations against him

before the witness came to testify in October 2015. Therefore, Mr Ntaganda was in a

position to explore these matters with the witness or otherwise react to the allegations

before the Trial Chamber made its final determination as to his guilt.

(b) P-0055

Mr Ntaganda also refers to the case of P-0055, whom the Trial Chamber heard

157 158 ex parte . Mr Ntaganda: (i) challenges the legal basis for that hearing; (ii) objects

to the Trial Chamber’s failure to provide the parties with an unredacted transcript of

159 the hearing; and (iii) argues that [REDACTED] created a bias in the judges against

160 him.

The Appeals Chamber notes that Mr Ntaganda had been on notice that such a

hearing would be held. To address concerns which Mr Ntaganda’s Lead Counsel

expressed in the courtroom just before the Trial Chamber took the decision to hold

161 162 that hearing, it invited the Victims and Witnesses Unit to attend. Shortly after

that hearing, the Trial Chamber ensured the provision of a summary of that hearing,

including ‘verbatim extracts’ with redactions. 163 The redactions were applied to

information which could not be disclosed for security reasons and to information

which the Trial Chamber found not to be ‘relevant to the preparations of the parties

and participants’. 164 The Appeals Chamber finds that the withholding of information

Mr Ntaganda’s Appeal Brief – Part II 154 , para. 13. 155 ICC-01/04-02/06-349-Conf-Red. 156 ICC-01/04-02/06-349-Conf-AnxA-Red. 157 Mr Ntaganda’s Appeal Brief – Part II , para. 15. Mr Ntaganda’s Appeal Brief – Part II 158 , para. 16. Mr Ntaganda’s Appeal Brief – Part II 159 , para. 17. Mr Ntaganda’s Appeal Brief – Part II 160 , para. 18. 161 T-41 , p. 17, lines 4-25. 162 T-41 , p. 17, line 21 to p. 18, line 13. 163 Summary of Ex Parte Hearing, p. 4. See also First Decision on Ex Parte Material , para. 10. 164 Summary of Ex Parte Hearing, para. 3.

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from Mr Ntaganda was justified in this instance and that the Trial Chamber took adequate measures to counterbalance potential prejudice. Mr Ntaganda was on notice of at least the essence of the information and was free to explore these issues with the witness or otherwise react to the information before the Trial Chamber made its final determination as to his guilt.

(iv) Conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s resort to ex parte material as allegedly excessive and rendering the proceedings unfair, the Appeals Chamber rejects this sub-ground of appeal.

2 Alleged disclosure violations and restrictions related to allegations of witness interference Mr Ntaganda argues that the Prosecutor obtained access to his non-privileged conversations from the Detention Centre, without informing him thereof, and that for 165 a period of 13 months she did not disclose them to him. He submits that despite his requests, the Trial Chamber failed to take measures to mitigate the prejudice caused 166 by these disclosure violations. Mr Ntaganda contends that his right to know the case he has to meet and the principle of equality of arms were violated and argues that the only appropriate remedy for these violations is ‘a full acquittal’. 167 He also submits that the Trial Chamber’s response to the Prosecutor’s allegations of witness interference ‘impeded [his] preparedness for trial and the fairness of the proceedings’. 168

(a) Background

(i) Restrictions on Mr Ntaganda’s telephone conversations In the Prosecutor’s Request for Restrictions of 8 August 2014, the Prosecutor alleged that there were instances of intimidation of and interference with witnesses and sought the imposition of restrictions on communication between Mr Ntaganda 169 and other persons. She requested, inter alia , that the Registry provide a report, ‘to

Mr Ntaganda’s Appeal Brief – Part II 165 , paras 21-41. Mr Ntaganda’s Appeal Brief – Part II 166 , paras 22, 31-33, 36-39. Mr Ntaganda’s Appeal Brief – Part II 167 , paras 22, 41. Mr Ntaganda’s Appeal Brief – Part II 168 , para. 53. Prosecutor’s Request for Restrictions 169 , paras 1, 3-4, 27.

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the Prosecution and Chamber, based upon a review of all the non-confidential phone calls made by the Accused since arriving at the Detention Centre’. 170

On 8 December 2014, the Trial Chamber partially granted the Prosecutor’s

171 request (the ‘First Decision on Restrictions’). The Trial Chamber noted:

In addition to a request for restrictions to contact, the Chamber is asked to rule on the provision of information relating to allegations of breaches of confidentiality and witness interference or intimidation, to the same Prosecution that is prosecuting Mr Ntaganda. During the entirety of the proceedings against the accused, the Chamber has to carefully balance the accused’s rights, including his right to receive adequate information to mount an effective defence, whilst at the same time ensuring that appropriate measures are taken to protect witnesses. The Defence should receive as much information as is reasonably possible, without compromising the safety of any witnesses referred 172 to in the materials concerned.

The Trial Chamber instructed the Registry, inter alia , ‘to conduct a post factum

review of the non-privileged conversations made by […] Mr Ntaganda [...] and to

submit a report of this review to the Chamber and the Defence’. 173 The Trial Chamber

indicated that it would ‘then set a deadline by which the report is to be sent to the

Prosecution, allowing sufficient time for the Defence to raise with the Chamber any objections to certain parts of the report being provided to the Prosecution’. 174

On 13 March 2015, the Trial Chamber imposed additional restrictions,

175 including an active monitoring of non-privileged telephone calls.

On 26 June 2015, Mr Ntaganda filed a request for an immediate adjournment of the proceedings ‘until the necessary conditions [were] in place to ensure a fair trial’

(‘Mr Ntaganda’s Request for Adjournment of June 2015’). 176

Prosecutor’s Request for Restrictions 170 , paras 51, 54. 171 Decision on the Prosecution request for restrictions on contact and the Defence request for access to logs, ICC-01/04-02/06-410-Conf-Exp-Red (corrected ex parte confidential version registered on 16 February 2015, (ICC-01/04-02/06-410-Conf-Exp-Corr); upon the Trial Chamber’s instruction of 12 May 2017, the decision was reclassified as confidential on 15 May 2017 (ICC-01/04-02/06-410- Conf-Corr)), p. 26. 172 First Decision on Restrictions, para. 47. 173 First Decision on Restrictions, pp. 26-27. 174 First Decision on Restrictions, para. 56. 175 Order instructing the Registry to put in place additional temporary restrictions on contact, ICC- 01/04-02/06-508-Conf-Exp, para. 7, p. 5.

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On 3 July 2015, the Trial Chamber partially granted Mr Ntaganda’s request for

177 adjournment (the ‘Adjournment Decision of July 2015’).

On 18 August 2015, the Trial Chamber decided to maintain restrictions on

Mr Ntaganda’s communications, subject to modification (the ‘Second Decision on

Restrictions’). 178

The Trial Chamber recalled that the previous restrictions had been imposed ‘to

ensure the safety of witnesses, prevent breaches of confidentiality and ensure the

integrity of the proceedings’. 179 The Trial Chamber found that there were reasonable

grounds to believe that Mr Ntaganda, inter alia , had: (i) used coded language ‘to

disguise attempts to disclose confidential information or to interfere with

witnesses’; 180 181 (ii) disclosed the identity of Prosecution witnesses; and

(iii) ‘instructed his interlocutors to coach witnesses, or directly told his interlocutors

which story to tell’. 182 However, the Trial Chamber was not convinced that during the

active monitoring period Mr Ntaganda’s behaviour ‘amount[ed] to witness

interference’ or that it ‘otherwise affect[ed] the integrity of the proceedings’. 183 The

Trial Chamber ordered, inter alia , that the restrictions imposed on Mr Ntaganda’s

communications already in place and the active monitoring, subject to certain

184 modifications, be maintained. The Trial Chamber underlined that in ordering the

continuation of the active monitoring of Mr Ntaganda’s non-privileged phone calls, it

Public redacted version of “Corrected version of ‘Urgent motion on behalf of Mr Ntaganda seeking 176 immediate adjournment of the proceedings until the necessary conditions are in place to ensure a fair trial’, 26 June 2015, ICC-01/04-02/06-677-Conf-Exp” , 29 June 2015, ICC-01/04-02/06-677-Corr-Red (the corrected confidential ex parte version dated 26 June 2015 was registered on 29 June 2015 (ICC- 01/04-02/06-677-Conf-Exp-Corr); original confidential ex parte version was registered on 26 June 2015 (ICC-01/04-02/06-677-Conf-Exp)), paras 73, 76, p. 20; T-22 , p. 4, lines 6-7. 177 T-22 , p. 4, line 5, to p. 5, line 20. Decision on Prosecution request to impose restrictions on Mr Ntaganda’s contacts 178 , ICC-01/04- 02/06-785-Red (the confidential ex parte version was registered on the same day (ICC-01/04-02/06- 785-Conf-Exp)), pp. 35-36. 179 Second Decision on Restrictions , para. 44. 180 Second Decision on Restrictions , para. 50. See also paras 48-49. 181 Second Decision on Restrictions , paras 51-54. 182 Second Decision on Restrictions , para. 57. See also para. 56. 183 Second Decision on Restrictions , para. 58. 184 Second Decision on Restrictions , paras 66-69, p. 35.

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took into account his ‘right to have ‘adequate facilities’ for the preparation of his

defence’. 185

On 7 September 2016, the Trial Chamber decided to maintain the restrictions on

Mr Ntaganda’s non-privileged conversations (the ‘Decision Reviewing Restrictions’),

186 noting that its previous findings continued to stand. The Trial Chamber recalled its

prior guidance to the Prosecutor that any article 70 investigations ‘should be

concluded as expeditiously as possible, and that any related applicable disclosure of

information to the Defence be made as soon as possible’. 187 The Trial Chamber

concluded that ‘certain restrictions remain[ed] necessary to ensure the safety of

witnesses, prevent breaches of confidentiality and ensure the integrity of the

188 proceedings’.

On 16 September 2016, the Trial Chamber, by majority, granted Mr Ntaganda’s

189 request for leave to appeal the Decision Reviewing Restrictions.

On 8 March 2017, the Appeals Chamber confirmed the Decision Reviewing

190 Restrictions.

(ii) Article 70 investigation

On 3 July 2015, the Presiding Judge of the Trial Chamber stated that

191 [REDACTED].

On 13 August 2015, the Prosecutor filed before the pre-trial chamber a request

for judicial assistance (the ‘Prosecutor’s Request for Judicial Assistance’), 192 in which

185 Second Decision on Restrictions , para. 61. 186 Second Public redacted version of Decision reviewing the restrictions placed on Mr Ntaganda’s contacts, 7 September 2015, ICC-01/04-02/06-1494-Conf-Exp , 21 November 2016, ICC-01/04-02/06- 1494-Red4 (confidential ex parte redacted version was registered on 7 September 2016 (ICC-01/04- 02/06-1494-Conf-Exp-Red)), para. 22. 187 Decision Reviewing Restrictions , para. 24. 188 Decision Reviewing Restrictions , para. 33. 189 Decision on Defence request for leave to appeal the ‘Decision reviewing the restrictions placed on Mr Ntaganda’s contacts’ , ICC-01/04-02/06-1513, p. 10. Judge Chang-ho Chung dissented. See also Public redacted version of “Request for leave to appeal decision maintaining restrictions on Mr Ntaganda’s communications and contacts”, 13 September 2016, ICC-01/04-02/06-1501-Red (the ‘ Request for Leave to Appeal Decision Reviewing Restrictions ’) (confidential ex parte version was registered on the same day (ICC-01/04-02/06-1501-Conf-Exp)). 190 Judgment on Mr Bosco Ntaganda’s appeal against the decision reviewing restrictions on contacts of 7 September 2016, ICC-01/04-02/06-1817-Red (OA4) (the ‘ Ntaganda OA4 Judgment ’) (confidential version issued on the same day (ICC-01/04-02/06-1817-Conf)), para. 103. 191 T-22 , p. 2, line 23 to p. 3, line 6.

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she sought access to, inter alia , Mr Ntaganda’s non-privileged call logs and

recordings of non-privileged telephone conversations from the day he entered the Court’s detention centre.

193

The Prosecutor argued that she might use the information

contained in the requested material ‘during trial in pursuit of the establishment of the truth’.

194

On 14 August 2015, the Prosecutor requested the Trial Chamber to order the

195

transfer of the relevant part of the case record to Pre-Trial Chamber II.

On 18 September 2015, the Single Judge of Pre-Trial Chamber I granted to the Prosecutor access to recorded materials from the ICC Detention Centre (the ‘Single

Judge’s Decision on Prosecutor’s Request for Assistance’).

196

In May 2016, the Trial Chamber became aware of the Prosecutor’s access to

197

additional non-privileged calls of Mr Ntaganda.

On 11 May 2016, Mr Ntaganda filed a request for disclosure of ex parte annexes to the Prosecutor’s submissions on the restrictions to Mr Ntaganda’s

198

contacts, arguing that ‘the scale of the non-disclosure [] not only prejudices the

Defence, but effectively denies the Defence any opportunity to address what appears

192 Request for judicial assistance to obtain evidence for investigation under article 70, ICC-01/04-638- Conf-Exp (confidential redacted version was registered on 28 November 2016 (ICC-01/04-638-Conf- Red)). 193 Prosecutor’s Request for Judicial Assistance, para. 68. 194 Prosecutor’s Request for Judicial Assistance, para. 67. Public redacted version of “Request for transfer of part of the case record to Pre-Trial Chamber II”, 195 14 August 2015, ICC-01/04-02/06-781-Conf , 30 November 2016, ICC-01/04-02/06-781-Red (confidential ex parte version was registered on 14 August 2015 (ICC-01/04-02/06-781-Conf-Exp); pursuant to the Trial Chamber’s instruction of 23 November 2016, the request was reclassified as confidential on 24 November 2016 (ICC-01/04-02/06-781-Conf)). 196 Decision on the Prosecutor’s “Request for judicial assistance to obtain evidence for investigation under Article 70”, dated 18 September 2015 and registered on 21 September 2015, ICC-01/04-729- Conf-Exp (pursuant to Pre-Trial Chamber I’s instruction of 25 January 2017, the decision was reclassified as confidential on that same day (ICC-01/04-729-Conf)), para. 7. 197 T-159 , p. 2, lines 15-16. Second public redacted version of “Prosecution’s submissions on the restrictions to NTAGANDA’s 198 contacts”, 9 May 2016, ICC-01/04-02/06-1313-Conf-Exp , 14 December 2016, ICC-01/04-02/06-1313- Red2 (confidential ex parte version was registered on 9 May 2016 (ICC-01/04-02/06-1313-Conf-Exp); public redacted version was registered on 17 May 2012 (ICC-01/04-02/06-1313-Red) .

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to be the core of the Prosecution’s allegations’ (‘Mr Ntaganda’s Request for

Disclosure’). 199

On 3 June 2016, the Trial Chamber rejected Mr Ntaganda’s Request for

Disclosure in most aspects (the ‘Decision on Mr Ntaganda’s Request for

Disclosure’). 200 It noted that: (i) the Prosecutor’s relevant submissions contained

sufficient information, available to Mr Ntaganda, with respect to allegations of

201 witness interference; (ii) some material was ex parte as it related to investigations

under article 70 of the Statute and its transmission might compromise those

202 investigations; and (iii) the withheld allegations are similar to those which

203 Mr Ntaganda had received notice.

The Trial Chamber emphasised that it was composed of professional judges and

that ‘no prejudice [would] be occasioned to the accused’, given the limited purpose of

the Prosecutor’s submissions. 204 It noted that to the extent the withheld information

might be material to the preparation of the defence, rule 81 of the Rules ‘would justify

205 non-disclosure at [that] stage’. The Trial Chamber encouraged the Prosecutor ‘to

conclude relevant portions of [her] investigations as promptly as possible and to

disclose all resulting information which [might] be material to the preparation of the

Defence as soon as possible’. 206 Regarding redactions to annexes filed inter partes ,

the Trial Chamber noted that most of them were ‘strictly necessary for ensuring the

protection of the witnesses’. 207

199 Urgent request on behalf of Mr Ntaganda seeking disclosure of the annexes to the Prosecution’s submissions on the restrictions to Mr Ntaganda’s contacts and related requests, ICC-01/04-02/06-1315- Conf-Exp-Corr, para. 5. 200 Public redacted version of Decision on Defence request seeking certain material relating to review of restrictions placed on Mr Ntaganda’s contacts, 3 June 2016, ICC-01/04-02/06-1364-Conf-Exp , 21 November 2016, ICC-01/04-02/06-1364-Red2 (confidential ex parte version was registered on 3 June 2016 (ICC-01/04-02/06-1364-Conf-Exp); pursuant to the Trial Chamber’s instruction of 12 May 2017, the decision was reclassified as confidential on 15 May 2017), p. 13. Decision on Mr Ntaganda’s Request for Disclosure 201 , para. 18. Decision on Mr Ntaganda’s Request for Disclosure 202 , para. 19. Decision on Mr Ntaganda’s Request for Disclosure 203 , para. 20. Decision on Mr Ntaganda’s Request for Disclosure 204 , para. 21. Decision on Mr Ntaganda’s Request for Disclosure 205 , para. 22. Decision on Mr Ntaganda’s Request for Disclosure 206 , para. 22. Decision on Mr Ntaganda’s Request for Disclosure 207 , para. 25.

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(iii) Request for suspension of proceedings

On 4 November 2016, the Single Judge of Pre-Trial Chamber I, upon the Prosecutor’s request, ordered the Registry to provide Mr Ntaganda with immediate

208 access to call records and recordings which were available to the Prosecutor.

On 7 November 2016, the Prosecutor notified the Trial Chamber of the

disclosure of non-privileged contact and visitor logs, and the recordings of non-

209 privileged telephone conversations, obtained pursuant to article 70 of the Statute.

On 14 November 2016, Mr Ntaganda requested an immediate suspension of proceedings until the disclosure of information described in the Prosecutor’s notice of

7 November 2016 (‘Mr Ntaganda’s Request for Suspension’). 210 He argued that ‘[t]he

immediate disclosure of this information [was] necessary to limit the ongoing

prejudice caused by past non-disclosure and to allow the Defence to make informed

submissions to the Trial Chamber concerning the impact of the investigation and the

211 non-disclosure on the fairness of the proceedings’.

On 16 November 2016, the Trial Chamber, in an oral decision, rejected

212 Mr Ntaganda’s Request for Suspension. The Trial Chamber noted that what was

being requested was in fact ‘an immediate adjournment’ and considered the request

213 on that basis, rather than against the stringent standard for a stay of proceedings.

Regarding the alleged potential prejudice in the cross-examination of witnesses,

the Trial Chamber noted that ‘the allegations of witness coaching [were] based on the Prosecution’s assessment of the accused’s own conduct’ and that he was ‘best placed

to advise the Defence team […] in respect of whether lines of cross-examination

214 being pursued [might] be compromised or prejudiced by his prior conduct’. The

Decision on the “Prosecution’s request to provide Bosco Ntaganda with access to evidence obtained 208 pursuant to article 70” , ICC-01/04-738, p. 4. Prosecution’s Communication of the Disclosure of Evidence obtained pursuant to Article 70 209 , ICC- 01/04-02/06-1616, paras 1, 15. Public redacted version of “Urgent Request for Stay of Proceedings” dated 14 November 2016 210 , ICC-01/04-02/06-1629-Red (confidential version was registered on the same day (ICC-01/04-02/06- 1629-Conf)), para. 1. Mr Ntaganda’s Request for Suspension 211 , para. 1. 212 T-159 , p. 2, line 13 to p. 7, line 24. 213 T-159 , p. 3, lines 14-21. 214 T-159 , p. 4, lines 5-7, 10-18.

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Trial Chamber noted that the defence of Mr Ntaganda had been on notice of

allegations of coaching ‘since prior to the commencement of the trial’. 215 The Trial

Chamber observed that ‘significant portions of the recordings [would] not have any

direct materiality to these proceedings’ and certain information might be relevant to

‘peripheral issues’. 216 The Trial Chamber was of the view that if the fairness of the

proceedings had been impacted, an immediate adjournment would not be capable of

217 remedying that. It recognised that for purposes of the review of the disclosure

Mr Ntaganda might require assistance and that he should address a relevant request to

218 the Registry.

On 12 December 2016, the Trial Chamber rejected Mr Ntaganda’s request for

219 leave to appeal the oral decision of 16 November 2016.

(iv) Request for a permanent stay of proceedings

On 20 March 2017, Mr Ntaganda requested a stay of the proceedings

(‘Mr Ntaganda’s Request for Stay’), 220 arguing that

[t]he acquisition by the Prosecution team in this case of 4,684 conversations of Mr Ntaganda, concurrent with trial proceedings, given the high relevance of those conversations to Defence strategy as well as to Mr Ntaganda’s personal knowledge of the case amounts to an abuse of the Court’s process, as a result of 221 which Mr Ntaganda cannot receive a fair trial.

On 28 April 2017, the Trial Chamber rejected the request for stay of

proceedings (the ‘Decision on Mr Ntaganda’s Request for Stay’). 222 When assessing

the actual prejudice, the Trial Chamber noted that the material to which the Prosecutor

had had access, included ‘information on the whereabouts of the accused and other

individuals at the relevant times, names of individuals who could have provided

information for the Defence and potential witnesses, and which may therefore be

215 T-159 , p. 4, lines 19-23. 216 T-159 , p. 5, lines 19-24. 217 T-159 , p. 6, lines 7-11. 218 T-159 , p. 6, lines 12-15. Decision on request for leave to appeal the Chamber’s decision rejecting the Defence request for a 219 stay of proceedings , ICC-01/04-02/06-1677, p. 9. Public redacted version of “Defence Request for stay of proceedings with prejudice to the 220 Prosecutor”, 20 March 2017, ICC-01/04-02/06-1830-Conf , 21 March 2017, ICC-01/04-02/06-1830- Red (confidential version was registered on 20 March 2017 (ICC-01/04-02/06-1830-Red)), p. 30. Mr Ntaganda’s Request for Stay 221 , para. 2. 222 Decision on Defence request for stay of proceedings with prejudice to the Prosecution , ICC-01/04- 02/06-1883, para. 61, p. 34.

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relevant to defence strategy’. 223 The Trial Chamber found that access to such

information placed the Prosecutor ‘in an unduly advantageous position vis-à-vis the

Defence’ and was prejudicial to Mr Ntaganda. 224 However, the Trial Chamber found

that the information relevant to defence strategy ‘appear[ed] to be limited’ and that

Mr Ntaganda had not identified concrete instances of use of such information by the

225 Prosecutor to his prejudice. The Trial Chamber held that any prejudice could be

‘remedied, retroactively and prospectively, through alternative, less drastic measures’,

226 rather than a stay of proceedings, for which the threshold was not reached.

Regarding the length of the ex parte proceedings, the Trial Chamber noted that

[i]n the present case, ex parte classification of the relevant proceedings was initially ordered by the Pre-Trial Chamber on the basis that disclosure of the information would have compromised ongoing investigations, as provided for under Rule 81(2) of the Rules. In that context, the Chamber reminded the Prosecution on two occasions that the Article 70 investigations should be concluded as expeditiously as possible, and that any related applicable 227 disclosure of information to the Defence should be made as soon as possible.

The Trial Chamber found that Mr Ntaganda’s arguments on the alleged

prejudice ‘appear[ed] speculative’ and did not consider that he suffered prejudice

228 warranting a stay of proceedings. The Trial Chamber recalled that it had rejected

the Prosecutor’s request for admission into evidence of material from the article 70

proceedings and that it was ‘capable of disregarding any irrelevant information’. 229 As

an ‘alternative measure’, the Trial Chamber decided that the Prosecutor should ‘not be

allowed to use the material obtained in the context of the Article 70 proceedings

during the Defence’s presentation of evidence unless specifically authorised by the

Chamber […] upon receipt of a substantiated request’. 230

223 Decision on Mr Ntaganda’s Request for Stay , para. 42. Decision on Mr Ntaganda’s Request for Stay 224 , para. 42. See also para. 43. Decision on Mr Ntaganda’s Request for Stay 225 , para. 43. Decision on Mr Ntaganda’s Request for Stay 226 , para. 43. See also para. 61. Decision on Mr Ntaganda’s Request for Stay 227 , para. 50 (footnote omitted). Decision on Mr Ntaganda’s Request for Stay 228 , para. 51. Decision on Mr Ntaganda’s Request for Stay 229 , paras 56-57. Decision on Mr Ntaganda’s Request for Stay 230 , para. 61, p. 34.

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On 13 June 2017, the Trial Chamber rejected, by majority, Mr Ntaganda’s

231 request for leave to appeal the Decision on Mr Ntaganda’s Request for Stay.

(b) Summary of submissions

(i) Mr Ntaganda’s submissions

(a) Alleged disclosure violations

Mr Ntaganda submits that for 13 months during the presentation of her case, the

Prosecutor was in possession of 4,684 non-privileged telephone conversations made

by Mr Ntaganda from the Court’s detention centre, without his knowledge. 232 He

argues that those conversations comprise information about his whereabouts at

relevant times, defence investigations, the identity of defence witnesses and defence

233 strategy. He contends that the Prosecutor’s access to this information and its non-

disclosure for an extended period of time, without informing him, ‘constitutes an

abuse of process’. 234 Mr Ntaganda argues that, despite the Prosecutor’s intention to

use the recordings of his non-privileged conversations in the trial, the Single Judge of

Pre-Trial Chamber I erred in granting the Prosecutor’s request for access to those

235 conversations. He contends that he should have been informed of the Prosecutor’s

unrestricted access to his past conversations and that the Prosecutor had no discretion

236 to withhold disclosure. Mr Ntaganda argues that the Trial Chamber erred by

237 declining to adjourn the proceeding and to order a permanent stay of proceedings.

(b) Litigation related to restrictions

Mr Ntaganda submits that the Trial Chamber’s response to the Prosecutor’s

allegations of witness interference ‘impeded [his] preparedness for trial and the

fairness of the proceedings’. 238 He alleges that the Trial Chamber ‘took [these]

allegations at face value’, as it did not hear any witnesses involved in the non-

Decision on Defence request for leave to appeal the ‘Decision on Defence request for stay of 231 proceedings with prejudice to the Prosecution’ , ICC-01/04-02/06-1955, p. 8; Dissenting opinion of Judge Robert Fremr , ICC-01/04-02/06-1955-Anx. Mr Ntaganda’s Appeal Brief – Part II 232 , para. 21; T-270 , p. 88, lines 1-5, 11-14. Mr Ntaganda’s Appeal Brief – Part II 233 , para. 21; T-270 , p. 88, lines 15-19. Mr Ntaganda’s Appeal Brief – Part II 234 , para. 21. Mr Ntaganda’s Appeal Brief – Part II 235 , paras 26-27; T-270 , p. 88, lines 6-10. Mr Ntaganda’s Appeal Brief – Part II 236 , para. 28. Mr Ntaganda’s Appeal Brief – Part II 237 , paras 36-38; T-270 , p. 88, line 20 to p. 89, line 15. Mr Ntaganda’s Appeal Brief – Part II 238 , para. 53.

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privileged telephone conversations and ‘found reasonable grounds to believe that the

239 accused intended or was involved in a scheme to interfere with witnesses’.

Mr Ntaganda contends that the Trial Chamber could then ‘dispose of the issue quickly

by imposing permanent restrictions on [Mr Ntaganda]’ without having to change the

240 starting date of the trial. He avers that by doing so the Trial Chamber failed to

‘invest the necessary time to verify the reliability of the allegations and statements

submitted by the Prosecution, and properly adjudicate the issue’. 241

(ii) The Prosecutor’s submissions

(a) Alleged disclosure violations

The Prosecutor argues that Mr Ntaganda fails to show an abuse of process or

242 any unfairness arising from her access to his non-privileged conversations. She

submits that when the Trial Chamber granted her request for restrictions to

Mr Ntaganda’s non-privileged contacts, it also formally notified him that the Registry

243 might listen to his non-privileged conversations. The Prosecutor contends that she

was relieved from a duty to disclose materials obtained for the purpose of her

244 investigation, pursuant to rule 81 of the Rules. The Prosecutor argues that

Mr Ntaganda did not sustain ‘irremediable prejudice’, as her access to information

245 about his whereabouts at relevant times was not unfettered.

(b) Litigation related to restrictions

The Prosecutor submits that Mr Ntaganda does not ‘address any aspect of the

Chamber’s reasoning with specificity […] or its finding that his alternative

interpretations were implausible’. 246 The Prosecutor avers that Mr Ntaganda’s

contention that ‘litigation of matters concerning the integrity of the trial itself caused

prejudice’ because it took away time and resources from trial preparation is

Mr Ntaganda’s Appeal Brief – Part II 239 , para. 53. Mr Ntaganda’s Appeal Brief – Part II 240 , para. 53. Mr Ntaganda’s Appeal Brief – Part II 241 , para. 53. Prosecutor’s Response to Appeal – Part II 242 , para. 32. Prosecutor’s Response to Appeal – Part II 243 , para. 33. Prosecutor’s Response to Appeal – Part II 244 , para. 36. Prosecutor’s Response to Appeal – Part II 245 , paras 38-39. Prosecutor’s Response to Appeal – Part II 246 , para. 57.

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‘unconvincing’. 247 The Prosecutor argues such pre-trial litigation and matters are 248 expected.

Regarding Mr Ntaganda’s claim that ‘this matter was not in fact litigated enough ’, the Prosecutor submits that it was never suggested that Mr Ntaganda’s

conduct in that regard would be considered by the Trial Chamber ‘in determining his guilt or innocence of the charges’. 249

(iii) The victims’ observations on disclosure violations

Victims Group 2 submit that they support the Prosecutor’s arguments in relation to ‘other alleged infringements’. 250 Regarding Mr Ntaganda’s argument that he must be fully acquitted, Victims Group 2 argue that none of the criteria for such a remedy 251 are met.

(c) Determination by the Appeals Chamber

(i) Whether the Prosecutor could withhold material from disclosure Mr Ntaganda argues that the Prosecutor’s access to his non-privileged

conversations and their non-disclosure for an extended period of time, without 252 informing him, constitutes an abuse of process. He thus alleges disclosure violations. The relevant provisions are the following.

Rule 77 of the Rules reads:

The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.

Rule 81 of the Rules provides in its relevant parts:

Prosecutor’s Response to Appeal – Part II 247 , para. 58. Prosecutor’s Response to Appeal – Part II 248 , para. 58. Prosecutor’s Response to Appeal – Part II 249 , para. 59 (emphasis in original). Prosecutor’s Response 250 Observations of Victims Group 2 on Appeal – Part II , para. 18, referring to to Appeal – Part II , paras 24-37. 251 Observations of Victims Group 2 on Appeal – Part II , para. 20. Mr Ntaganda’s Appeal Brief – Part II 252 , para. 21.

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2 Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex parte basis by the Chamber. However, the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused.

[…]

4 The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial.

The Appeals Chamber notes that it is not in dispute that at least parts of the recordings of non-privileged conversations of Mr Ntaganda and other material which the Prosecutor obtained in the course of her investigations met the criteria for disclosure under rule 77 of the Rules. When authorising the Prosecutor to withhold disclosure or apply redactions, the Trial Chamber relied on the protection of 253 witnesses and the risk of prejudice to ongoing investigations, specifically referring 254 255 to rule 81 or rule 81(2) of the Rules.

The Appeals Chamber notes that Mr Ntaganda does not explain why, in his view, the Trial Chamber erred in considering that disclosure might prejudice the Prosecutor’s ongoing investigation. He merely avers, without providing any detail, that the disclosure he sought ‘would neither have revealed the existence nor the details of the Prosecution’s article 70 investigation that could have continued without interference’. 256

In these circumstances, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the risk of prejudice to the investigation, as well as on the

Decision on Mr Ntaganda’s Request for Disclosure 253 First Decision on Restrictions, para. 47; , para. 25. Decision on Mr Ntaganda’s Request for Disclosure 254 , para. 22. Decision on Mr Ntaganda’s Request for Stay 255 , para. 50. Mr Ntaganda’s Appeal Brief – Part II 256 , para. 31.

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protection of witnesses, as reasons for withholding parts of the relevant material from disclosure. The Appeals Chamber will separately consider whether the Trial Chamber adequately protected Mr Ntaganda’s rights in relation to that non-disclosure.

(ii) Whether the Prosecutor erroneously obtained access to Mr Ntaganda’s conversations without his knowledge Mr Ntaganda argues that the Single Judge of Pre-Trial Chamber I erred in granting the Prosecutor’s request for access to his non-privileged conversations, 257 without informing him thereof. He contends that the Prosecutor had no discretion to 258 withhold disclosure.

The Appeals Chamber notes that the Single Judge granted to the Prosecutor access to the recordings of non-privileged telephone conversations held by Mr Ntaganda from the detention centre to allow her to pursue her investigations on 259 the alleged violations of article 70 of the Statute. It is noted that at the time, Mr Ntaganda was already on notice that his non-privileged conversations might be 260 listened to and that his past conversations were subject to a post factum review. The Prosecutor confirms that she ‘did not receive intelligible summaries even of the limited number of conversations initially identified as a priority for investigation until February 2016’. 261 She also submits that she did not review records of any conversations made since the start of trial and accessed a limited volume of 262 recordings. Therefore, additional information to which the Prosecutor was granted access was limited.

The Appeals Chamber nonetheless finds that in the process initiated by the Single Judge’s Decision on Prosecutor’s Request for Assistance, once the Prosecutor gained access to ‘material or information […] which must be disclosed in accordance with the Statute’, as per rule 81(2) of the Rules, she should have promptly sought instructions from the Trial Chamber on whether disclosure of such material might

Mr Ntaganda’s Appeal Brief – Part II 257 , para. 27. Mr Ntaganda’s Appeal Brief – Part II 258 , para. 28. 259 Single Judge’s Decision on Prosecutor’s Request for Assistance, para. 7. 260 First Decision on Restrictions, p. 27. Prosecutor’s Response to Appeal – Part II 261 , para. 35 (emphasis in original). Prosecutor’s Response to Appeal – Part II 262 , para. 35.

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‘prejudice further or ongoing investigations’ and whether such material or information

263 had to be disclosed to Mr Ntaganda.

The Appeals Chamber notes that the Trial Chamber became aware of the

Prosecutor’s access to additional parts of recordings of non-privileged calls of

264 Mr Ntaganda only in May 2016 and thus several months after the Single Judge of

265 Pre-Trial Chamber I had granted such access. This made it difficult for the Trial

Chamber to take any measures in that period to prevent any potential prejudice

resulting from the Prosecutor’s access to additional material. It was only able to assess

266 whether Mr Ntaganda suffered prejudice.

(iii) Whether the Trial Chamber took adequate measures to protect Mr Ntaganda’s rights

Mr Ntaganda argues that the Trial Chamber erred by declining to adjourn the

267 268 proceedings and to order a permanent stay of proceedings. He submits that the

269 alternative measures adopted by the Trial Chamber were insufficient.

The Appeals Chamber notes that in the Trial Chamber’s assessment prejudice to

Mr Ntaganda was limited. In particular, the Trial Chamber found that ‘the allegations

of witness coaching [were] based on the Prosecution’s assessment of the accused’s

own conduct’ and that he was ‘best placed to advise the Defence team […] in respect

of whether lines of cross-examination being pursued [might] be compromised or

prejudiced by his prior conduct’. 270 The Trial Chamber took into account that

‘significant portions of the recordings [would] not have any direct materiality to these

proceedings’. 271 Similarly, in the Decision on Mr Ntaganda’s Request for Stay, the

Trial Chamber observed that the information relevant to defence strategy ‘appear[ed]

to be limited’ and that Mr Ntaganda had not identified concrete instances of use of

263 See Bemba Dissenting Opinion to Appeal Judgment , para. 438. 264 T-159 , p. 2, lines 15-16. 265 Single Judge’s Decision on Prosecutor’s Request for Assistance. Decision on Mr Ntaganda’s Request for Stay 266 , para. 50. See also para. 24. Mr Ntaganda’s Appeal Brief – Part II 267 , para. 36. Mr Ntaganda’s Appeal Brief – Part II 268 , paras 37-38. Mr Ntaganda’s Appeal Brief – Part II 269 , para. 39. 270 T-159 , p. 4, lines 5-7, 10-15. 271 T-159 , p. 5, lines 19-24.

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272 such information by the Prosecutor to his prejudice. Mr Ntaganda does not demonstrate that these findings of the Trial Chamber are erroneous.

The Appeals Chamber takes note of the measures taken by the Trial Chamber to protect the rights of Mr Ntaganda. In particular, in its oral decision on Mr Ntaganda’s request for suspension, the Trial Chamber recognised that for purposes of the review of the disclosure Mr Ntaganda might require assistance and that he should address a 273 relevant request to the Registry. In the Decision on Mr Ntaganda’s Request for Stay, the Trial Chamber recalled that it had rejected the Prosecutor’s request for 274 admission into evidence of material from the article 70 proceedings. The Trial Chamber also directed that the Prosecutor should ‘not be allowed to use the material obtained in the context of the Article 70 proceedings during the Defence’s presentation of evidence unless specifically authorised by the Chamber upon receipt 275 of a request’. Mr Ntaganda does not explain why these measures were inadequate.

The Appeals Chamber also notes that, being on notice of at least the essence of the Prosecutor’s allegations regarding witness interference, Mr Ntaganda was in a position to explore those issues with the witnesses concerned. Furthermore, having received outstanding disclosure, he could have sought to recall witnesses.

Regarding the Decision on Mr Ntaganda’s Request for Stay, the Appeals Chamber recalls that

[a] Trial Chamber ordering a stay of the proceedings enjoys a margin of appreciation, based on its intimate understanding of the process thus far, as to whether and when the threshold meriting a stay of proceedings has been 276 reached. The Appeals Chamber further recalls that the proceedings can be stayed where ‘no fair trial can take place’ because ‘the breaches of the rights of the accused are

Decision on Mr Ntaganda’s Request for Stay 272 , para. 43. 273 T-159 , p. 6, lines 12-15. Decision on Mr Ntaganda’s Request for Stay 274 , para. 56. 275 Decision on Mr Ntaganda’s Request for Stay , p. 34. 276 Lubanga OA13 Judgment , para. 84.

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such as to make it impossible for him/her to make his/her defence within the framework of his rights’. 277

Mr Ntaganda has not demonstrated that the Trial Chamber improperly exercised its discretion in finding that conditions for a stay of proceedings were not met.

(iv) Litigation related to restrictions The Appeals Chamber finds no merit in Mr Ntaganda’s contention that the allegations of witness interference were not properly adjudicated by the Trial Chamber because no witness was heard, and he did not have the opportunity to 278 properly challenge the allegations. The Trial Chamber issued several decisions and orders addressing these allegations under regulation 101(2) of the Regulations of the Court. The Appeals Chamber recalls that the ‘focus of the Trial Chamber’s examination was whether the terms of regulation 101 (2) of the Regulations of the Court were met’. 279 In particular, the Trial Chamber was called upon to determine whether contact between Mr Ntaganda and any other person: ‘(b) [c]ould prejudice or otherwise affect the outcome of the proceedings […], or any other investigation’, ‘(d) [c]ould be used […] to breach an order for non-disclosure made by a judge’ or ‘(f) [i]s a threat to the protection of the rights and freedom of any person’. 280 The scope of the matter being adjudicated by the Trial Chamber was thus limited. Mr Ntaganda does not explain why the Trial Chamber was required to hear witnesses under the procedure set out in regulation 101 of the Regulations of the Court, in addition to receiving his and the Prosecutor’s submissions, as well as reports of the Registry. As indicated above, the Appeals Chamber confirmed the Decision Reviewing Restrictions and found no error in the approach adopted by the Trial Chamber in assessing the allegations and in imposing the restrictions.

Moreover, the Appeals Chamber finds Mr Ntaganda’s contention that he did not have ‘an opportunity to challenge these adverse allegations’ misguided. 281 It notes that the Trial Chamber was mindful of Mr Ntaganda having the opportunity to be heard

277 Lubanga OA4 Judgment , para. 39. See also para. 37. Mr Ntaganda’s Appeal Brief – Part II 278 , paras 53-54. 279 Ntaganda OA4 Judgment , para. 61. 280 Ntaganda OA4 Judgment , para. 60. Mr Ntaganda’s Appeal Brief – Part II 281 , para. 54.

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and noted, pursuant to regulation 101(3) of the Regulations of the Court, that

282

[REDACTED]. In that regard, it held that ‘[d]uring the entirety of the proceedings against the accused, the Chamber has to carefully balance the accused’s rights,

including his right to receive adequate information to mount an effective defence,

whilst at the same time ensuring that appropriate measures are taken to protect witnesses’.

283 284

Therefore, [REDACTED], which the Prosecutor did.

The Appeals Chamber notes that Mr Ntaganda had several opportunities to

285 286

challenge the allegations at trial and on appeal, a fact which he acknowledged in

one of his submissions. Indeed, in his request for leave to appeal the Decision

Reviewing Restrictions, Mr Ntaganda indicated that he had not appealed the Second Decision on Restrictions because ‘despite having no burden of proof, [he] offered

lengthy submissions on the numerous suspicions and suppositions put forward by both the Registry and the Prosecution’.

287

This statement appears to contradict his

contention that he lacked the opportunity to challenge the said allegations. In any

event, the Appeals Chamber finds speculative Mr Ntaganda’s contention that the Trial Chamber erred in allowing the trial to continue in a context of unchallenged ‘adverse

allegations, suggestive of a consciousness of guilt or at least of bad character, raised

282 First Decision on Restrictions, para. 46. 283 First Decision on Restrictions, para. 47. 284 First Decision on Restrictions, para. 48. 285 See Version publique expurgée de la «Réponse/Observations de M. Bosco Ntaganda à la Demande du Procureur pour l’imposition de mesures prévues à la norme 101(2) du Règlement de la Cour », ICCer 01/04-02/06-360-Conf-Exp, 1 septembre 2014 , 12 January 2016, ICC-01/04-02/06-360-Red (confidential ex parte version was registered on 1 September 2014 (ICC-01/04-02/06-360-Conf-Exp)); Public redacted version of “Further Submissions on Behalf of Mr Ntaganda”, ICC-01/04-02/06-379- Conf-Exp, 26 September 2014 , 12 January 2016, ICC-01/04-02/06-379-Red (confidential ex parte version was registered on 26 September 2014 (ICC-01/04-02/06-379-Conf-Exp)); Public redacted version of “Final Observations on Prosecution Requests for Restrictions on Mr Ntaganda’s Communications”, ICC-01/04-02/06-759-Conf-Exp, 3 August 2015 , 13 January 2016, ICC-01/04- 02/06-759-Red2 (confidential ex parte version registered on 3 August 2015 (ICC-01/04-02/06-759- Conf-Exp)); Public redacted version of “Observations on behalf of Mr Ntaganda on restrictions on his contacts in detention”, 9 May 2016, ICC-01/04-02/06-1312-Conf-Exp , 11 October 2016, ICC-01/04- 02/06-1312-Red (confidential ex parte version registered on 9 May 2016 (ICC-01/04-02/06-1312- Conf-Exp)); Public redacted version of “Response on behalf of Mr Ntaganda to the ‘Prosecution’s submissions on the restrictions to NTAGANDA’s contacts[’]”, 13 June 2016, ICC-01/04-02/06-1391- Conf-Exp-Red , 11 October 2016, ICC-01/04-02/06-1391-Red2 (confidential ex parte version registered on 13 June 2016 (ICC-01/04-02/06-1391-Conf-Exp)). 286 The Appeals Chamber observes that in his appeal against the Decision Reviewing Restrictions, Mr Ntaganda argued that ‘the Trial Chamber “failed to accord Mr Ntaganda an adequate hearing in several respects”’. The Appeals Chamber rejected his argument. See Ntaganda OA4 Judgment , paras 76, 87- 91. 287 Request for Leave to Appeal Decision Reviewing Restrictions , para. 8.

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288 by Prosecution witnesses who later testified’. The Appeals Chamber also considers that Mr Ntaganda’s argument lacks substantiation.

Equally unconvincing is his contention that this ‘time-consuming and voluminous’ litigation ‘impeded [his] preparedness for trial and the fairness of the proceedings’. 289 Apart from making this broad claim, Mr Ntaganda does not substantiate how his preparedness was affected or whether he suffered any prejudice.

Finally, the Appeals Chamber finds speculative his claim that the Prosecutor’s continuous allegations about the accused’s bad character and attempts to interfere 290 with witnesses had an impact on the Judges of the Trial Chamber in any manner. Mr Ntaganda does not point to any finding in the Conviction Decision where the Trial Chamber actually relied on these allegations or afforded weight to these allegations when assessing and ultimately determining his guilt.

(v) Conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the restrictions imposed on him, the Appeals Chamber finds that Mr Ntaganda has not demonstrated that in relation to these restrictions there were any procedural irregularities that rendered the proceedings in his case unfair. Accordingly, the Appeals Chamber rejects this sub-ground of appeal.

3 Failure to suspend the trial proceedings prior to the resolution of the ‘no case to answer’ appeal Under this sub-ground of appeal, Mr Ntaganda submits that the Trial Chamber erred in rejecting his request for adjournment and requiring him to proceed with his testimony prior to the resolution of his appeal against the Trial Chamber’s decision 291 rejecting his request for leave to file a motion for a no case to answer. He argues that as a result the Trial Chamber violated his ‘right to be informed promptly and in detail of the charges, and to remain silent’. 292

Mr Ntaganda’s Appeal Brief – Part II 288 , para. 54. Mr Ntaganda’s Appeal Brief – Part II 289 , para. 53. Mr Ntaganda’s Appeal Brief – Part II 290 , para. 54. Mr Ntaganda’s Appeal Brief – Part II 291 , para. 43. Mr Ntaganda’s Appeal Brief – Part II 292 , paras 43, 45.

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(a) Background

On 2 June 2015, the Trial Chamber issued a decision on the conduct of the

proceedings in which it held that if the ‘Defence wish[ed] to file […] a motion

[asserting that there was no case for it to answer], it should seek leave to do so

including, inter alia , submissions on the applicable standard and procedure, no later

than five days after the end of the Prosecution’s presentation of evidence, or, if applicable, the presentation of evidence by the [Victims]’. 293

On 25 April 2017, Mr Ntaganda requested leave to file a motion for a no case to

294 answer.

On 12 May 2017, Mr Ntaganda requested a modification of the evidentiary schedule to allow him to testify ‘at the earliest opportunity during the presentation of

the case for the Defence’. 295

On 17 May 2017, the Trial Chamber, by email, communicated an amended

296 schedule, which included the modification requested by Mr Ntaganda.

On 29 May 2017, the Trial Chamber, by oral decision, rejected Mr Ntaganda’s

297 Request for Leave for No Case to Answer Motion. The decision containing written reasons was issued on 1 June 2017 (the ‘Decision Denying Leave to File No Case to

Answer Motion’). 298

On 6 June 2017, Mr Ntaganda requested leave to appeal the Decision Denying

299 Leave to File No Case to Answer Motion.

293 Decision on the conduct of proceedings , ICC-01/04-02/06-619, para. 17. 294 Request for leave to file motion for partial judgment of acquittal, ICC-01/04-02/06-1879-Conf (‘Mr Ntaganda’s Request for Leave for No Case to Answer Motion’). 295 Urgent Defence Request on behalf of Mr Ntaganda seeking modification of the schedule for the first two evidentiary blocks , ICC-01/04-02/06-1903, para. 2. See also paras 5, 10. 296 See Decision on Defence request to modify the schedule for the first two evidentiary blocks , 19 May 2017, ICC-01/04-02/06-1914, para. 9. 297 T-206 , p. 5, lines 1-4. 298 Decision on Defence request for leave to file a ‘no case to answer’ motion , ICC-01/04-02/06-1931, para. 25, p. 11. Urgent Request for leave to appeal “Decision on Defence request for leave to file a ‘no case to 299 answer’ motion”, 1 June 2017, ICC-01/04-02/06-1931 , dated 5 June 2017 and registered on 6 June 2017, ICC-01/04-02/06-1937.

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On 14 June 2017, the Trial Chamber granted, by oral decision, Mr Ntaganda’s 300 request for leave to appeal with respect to two issues. The Trial Chamber

emphasised that while it notified the parties and participants of its decision at that

stage, it did not consider it necessary to wait for the resolution of that appeal before commencing the testimony of Mr Ntaganda, ‘noting that any such appeal relates to

whether a “no case to answer” motion must be entertained, rather than necessarily

granted or denied’. 301

During that same hearing on 14 June 2017, Mr Ntaganda requested an

adjournment of the proceedings for two reasons: (i) to allow him to file a request

seeking suspensive effect of the Decision Denying Leave to File No Case to Answer

Motion before the Appeals Chamber; and (ii) to protect his right to remain silent by 302 not having to testify while his appeal was pending before the Appeals Chamber.

At that same hearing, the Trial Chamber, by oral decision, rejected

Mr Ntaganda’s request for adjournment of the proceedings and requested that

Mr Ntaganda proceed with his scheduled testimony (the ‘Adjournment Decision of June 2017’). 303

On 19 June 2017, the Appeals Chamber rejected Mr Ntaganda’s request for

suspensive effect (the ‘Decision on Suspensive Effect’). 304

On 27 June 2017, Mr Ntaganda filed his appeal brief against the Decision 305 Denying Leave to File No Case to Answer Motion. In his appeal brief,

Mr Ntaganda requested the Appeals Chamber to order the immediate suspension of 306 the trial proceedings pending resolution of his appeal.

300 T-209 , p. 4, lines 6-10, p. 24, line 15 to p. 26, line 13. 301 T-209 , p. 4, lines 11-15. See also p. 27, lines 17-19. 302 T-209 , p. 8, line 16 to p. 11, line 20. 303 T-209 , p. 27, line 25 to p. 28, line 1. See also p. 26, line 14 to p. 27, line 24. 304 Decision on suspensive effect , ICC-01/04-02/06-1968 (OA6), para. 10; Notice of appeal and urgent request for suspensive effect , 14 June 2017, ICC-01/04-02/06-1960 (OA6) (the ‘ Request for Suspensive Effect ’). 305 Appeal from decision denying leave to file a ‘no case to answer motion’, ICC-01/04-02/06-1975 (OA6) (‘ Mr Ntaganda’s Appeal Against Decision Denying Leave to File No Case to Answer Motion ’). Mr Ntaganda’s Appeal Against Decision Denying Leave to File No Case to Answer Motion 306 , para. 31.

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307 On 28 June 2017, the Appeals Chamber dismissed in limine his request.

On 5 September 2017, the Appeals Chamber confirmed the Decision Denying

308 Leave to File No Case to Answer Motion.

Mr Ntaganda testified from June to September 2017, for a total of 30 court

309 days.

(b) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda submits that in all cases either at the Court or at the ad hoc

tribunals, no accused was required ‘to present [his] evidence’ prior to the resolution of

310 the no case to answer challenge. He avers that ‘[t]o do so would undermine the

primary rational of a “no case” submission, being that “an accused should not be

called upon to answer a charge when the evidence presented by the Prosecution is

substantially insufficient to engage the need for the defence to mount a defence

case”’. 311 Mr Ntaganda argues that he was prejudiced as the Trial Chamber relied on

his testimony ‘given prior to the Appeals Chamber’s decision, to make adverse factual

findings’ on the challenged charges. 312 Consequently, he requests ‘the reversal of

these findings, and the convictions that rest thereon’. 313

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber did not abuse its discretion in

314 refusing to stay the proceedings pending the resolution of Mr Ntaganda’s appeal.

She argues that Mr Ntaganda fails to address the Trial Chamber’s reasoning for

307 Decision on request to suspend the trial proceedings, ICC-01/04-02/06-1976 (OA6) (the ‘ Decision Dismissing Request for Suspension of June 2017 ’), para. 9. 308 Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on Defence request for leave to file a ‘no case to answer’ motion”, ICC-01/04-02/06-2026 (OA6) (‘ Ntaganda OA6 Judgment ’), para. 59. 309 Annex A to Conviction Decision , para. 13. The Trial Chamber recalled that because of the summer recess, ‘a 37-day break occurred between the seventh day of the cross-examination by the Prosecution and the remainder of the cross-examination’. See Annex A to Conviction Decision , para. 13, fn. 40. Mr Ntaganda’s Appeal Brief – Part II 310 , para. 44. Mr Ntaganda’s Appeal Brief – Part II 311 , para. 44 (emphasis in original omitted). Mr Ntaganda’s Appeal Brief – Part II 312 , para. 47, referring to Conviction Decision , paras 329, 521, 554, 555, 564-565, 638, 647-651, fns 879-888, 1672, 1684-1685, 1688-1690, 1715, 1720, 1723, 1725, 2035, 2062, 2065-2067, 2070, 2073-2074, 2077, 2080-2081. Mr Ntaganda’s Appeal Brief – Part II 313 , para. 47. Prosecutor’s Response to Appeal – Part II 314 , para. 43.

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315 declining the adjournment of the proceedings. She also argues that his

‘undeveloped reference to article 67(1)(a) and (g)’ fails to demonstrate any error in

the Trial Chamber’s approach. 316

In addition, the Prosecutor argues that Mr Ntaganda was informed of the case to

317 answer and the charges against him. She adds that Mr Ntaganda ‘made an informed

choice to testify, with assistance of counsel’ and that it is ‘untenable to claim,

retrospectively’ that it could not be an informed choice ‘when the charges could still

change’. 318

(iii) The victims’ observations

Victims Group 2 argue that Mr Ntaganda’s speculative arguments of ‘what

could have been the impact’ if the Appeals Chamber’s decision would have been

different ‘cannot be the subject of an appeal’. 319 Victims Group 2 aver that

Mr Ntaganda cannot have suffered any prejudice since the Appeals Chamber

confirmed the Decision Denying Leave to File No Case to Answer Motion and the

320 charges against him remained the same. Victims Group 2 maintain that

Mr Ntaganda ‘knowingly took the decision to testify’ since he requested to ‘be heard

at the beginning of his case’. 321

(iv) Mr Ntaganda’s response to the victims

Mr Ntaganda submits that by ‘forcing’ him to testify before the Appeals

Chamber’s decision was rendered, the Trial Chamber took the position that ‘“no case

to answer” submissions do not have the effect of staying the trial until their

resolution’. 322 He argues that following this logic, ‘the Gbagbo and Blé Goudé Trial

Chamber could have proceeded to hear the defence evidence while simultaneously

323 adjudicating the defence motions for acquittal’. He adds that whether he could have

chosen not to give evidence, this ‘does not circumvent the unfairness’, as

Prosecutor’s Response to Appeal – Part II 315 , para. 45. Prosecutor’s Response to Appeal – Part II 316 , para. 45. Prosecutor’s Response to Appeal – Part II 317 , para. 47. Prosecutor’s Response to Appeal – Part II 318 , para. 48. 319 Observations of Victims Group 2 on Appeal – Part II , para. 29. 320 Observations of Victims Group 2 on Appeal – Part II , para. 29; T-271 , p. 70, lines 9-17. 321 Observations of Victims Group 2 on Appeal – Part II , para. 30. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 322 , para. 6. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 323 , para. 6.

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Mr Ntaganda should never have been put in such position ‘before the question of the

sufficiency of evidence was settled’. 324

(c) Determination by the Appeals Chamber

With respect to Mr Ntaganda’s contention that the ‘Trial Chamber violated his

right to be informed promptly and in detail of the charges, and to remain silent’, 325 the

Appeals Chamber notes that in his request for adjournment, Mr Ntaganda raised the

issue of his right to remain silent and not to have to testify on charges for which there

326 was insufficient evidence. In the Adjournment Decision of June 2017, the Trial

Chamber rejected Mr Ntaganda’s request, holding that there were no ‘compelling

reasons’ to order an adjournment of the proceedings. 327 It stressed that neither ‘the

Defence [n]or the accused would suffer any negative effect or undue prejudice from

328 commencing the testimony of Mr Ntaganda at this stage’. The Trial Chamber

recalled that it

is composed of a bench of professional judges. It is well equipped to appropriately assess the evidence, including in light of any ruling of the Appeals Chamber in relation to the upcoming appeal, in relation to any no case to answer motion or any procedural issues arising therefrom that may impact the present proceedings. Further, the Chamber notes […] that such appeal relates to whether a no case to answer motion must be entertained rather than necessarily granted 329 or denied in substance.

The Trial Chamber considered that Mr Ntaganda’s request was ‘premised on

unduly speculative grounds’. 330 It then concluded that it would not ‘be in the interests

of justice, nor the fairness or expeditiousness of the proceedings to adjourn the

proceedings pending resolution by the Appeals Chamber of the foreshadowed

331 Defence request for suspensive effect’. The Trial Chamber indicated that

332 Mr Ntaganda was expected to testify as scheduled.

Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 324 , para. 8. Mr Ntaganda’s Appeal Brief – Part II 325 , para. 43. 326 See Adjournment Decision of June 2017 , p. 9, line 25 to p. 10, line 24. 327 Adjournment Decision of June 2017 , p. 27, lines 7-8. 328 Adjournment Decision of June 2017 , p. 27, lines 9-11. 329 Adjournment Decision of June 2017 , p. 27, lines 12-19. 330 Adjournment Decision of June 2017 , p. 27, lines 19-20. 331 Adjournment Decision of June 2017 , p. 27, lines 21-24. 332 Adjournment Decision of June 2017 , p. 27, line 25 to p. 28, line 1.

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The Appeals Chamber notes that Mr Ntaganda does not challenge the Trial Chamber’s reasoning or approach adopted in the Adjournment Decision of June 2017.

Moreover, when requesting suspensive effect of the Decision Denying Leave to File No Case to Answer Motion, Mr Ntaganda sought the suspension of the trial 333 pending the resolution of his appeal on the ground of his right to remain silent. Indeed, he argued that if the proceedings continued, he would ‘testify and answer to charges for which the Prosecution might have presented insufficient evidence at the end of its case thereby violating his fundamental right to remain silent, the right not to be subjected to any reversal of the burden of proof’. 334

In rejecting Mr Ntaganda’s request, the Appeals Chamber considered that ‘[w]ith the [Decision Denying Leave to File No Case to Answer Motion] […] the Trial Chamber did not order that the trial continue’; rather, ‘[i]t denied a procedural request, namely, a request for leave to file a “no case to answer” motion’. 335 The Appeals Chamber was of the view that the suspension of the trial proceedings, sought by Mr Ntaganda, could not ‘be attained through a suspension of the [Decision Denying Leave to File No Case to Answer Motion]’ as it was ‘difficult to discern any effect that suspending a decision that merely rejects a procedural motion would have’. 336 Nonetheless, the Appeals Chamber recalled the Trial Chamber’s power ‘to adapt the proceedings before it in such a way as to address any concerns that 337 Mr Ntaganda may have resulting from [his] appeal’.

The Appeals Chamber therefore does not accept Mr Ntaganda’s contention that the Appeals Chamber’s rejection of his Request for Suspensive Effect did not justify 338 the Trial Chamber to proceed with the trial. In this regard, Mr Ntaganda does not show that because the Appeals Chamber dismissed his request ‘on the basis that [suspension of the trial] could not be attained through the suspension of the [Decision Denying Leave to File No Case to Answer Motion], and not on its merits’, 339 the Trial

333 Request for Suspensive Effect , paras 24, 27. 334 Request for Suspensive Effect , paras 24, 27. 335 Decision on Suspensive Effect , para. 9. 336 Decision on Suspensive Effect , para. 9. 337 Decision on Suspensive Effect , para. 10. Mr Ntaganda’s Appeal Brief – Part II 338 , para. 46. Mr Ntaganda’s Appeal Brief – Part II 339 , para. 46.

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Chamber erred in ordering the continuation of the trial. In particular, Mr Ntaganda does not explain why the Trial Chamber, despite the Appeals Chamber rejecting his 340 request, should have nonetheless stayed the proceedings. Article 82(3) of the Statute clearly provides that an interlocutory appeal does ‘not of itself have suspensive effect unless the Appeals Chamber so orders’. 341 The effect of the Appeals Chamber’s ruling was that the conduct of the trial proceedings continued as scheduled without any interruption related to the pending appeal before the Appeals Chamber.

Moreover, in dismissing in limine Mr Ntaganda’s request for an immediate suspension of the proceedings pending resolution of his appeal, the Appeals Chamber observed that: (i) Mr Ntaganda had already sought the suspension of the trial proceedings pending the outcome of the appeal and that his request was rejected; and (ii) ‘Mr Ntaganda d[id] not explain why the Appeals Chamber should reconsider the Decision on Suspensive Effect or on what legal basis the Appeals Chamber could 342 grant the relief sought with the Request for [Suspensive Effect]’.

In the present appeal, the Appeals Chamber finds that Mr Ntaganda merely repeats unsuccessful arguments presented at trial and on appeal without setting out any specific error in the Trial Chamber’s reasoning or approach in refusing to adjourn the proceedings pending the resolution of his appeal.

In that regard, the appeal of Mr Ntaganda related to a decision on whether to consider a motion of no case to answer or not, rather than to a decision on the merits of such a motion. In view of the nature of that decision: (i) the charges against Mr Ntaganda, including those challenged in his Request for Leave for No Case to

340 In the Adjournment Decision of June 2017, the Trial Chamber correctly noted article 82(3) of the Statute and the procedure for a request for suspensive effect under rule 156(2) of the Rules, and held that, ‘leaving aside any issue of the appropriateness of such a remedy to the present situation, such application is to be made before the Appeals Chamber and is thus to be decided by the Appeals Chamber’. However, the Trial Chamber addressed the request for adjournment on the basis that it had rejected Mr Ntaganda’s Request for Leave for No Case to Answer Motion and that the proceedings had to continue ‘as scheduled unless the Chamber is persuaded that there are compelling reasons to adjourn’. See Adjournment Decision of June 2017 , p. 26, line 20 to p. 27, line 5. 341 See also Decision Dismissing Request for Suspension of June 2017 , para. 8, where the Appeals Chamber held that ‘in the context of interlocutory appeals, “[an application designed to stay proceedings] is a remedy unknown to the Statute and wholly separate from the one envisaged by article 82 (3) of the Statute”, meaning that the only interim relief expressly recognised by this provision of the Statute in respect of interlocutory appeals is the suspension of the decision subject to appeal.’ (Footnote omitted). 342 Decision Dismissing Request for Suspension of June 2017 , para. 8.

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Answer Motion, remained the same; and (ii) there was no ongoing litigation that would directly affect those charges such that their status should be considered to be uncertain. Mr Ntaganda’s submission that he was not properly informed of the charges while testifying is therefore without merit. In that same vein, his contention that he was prejudiced because the Trial Chamber relied on his testimony ‘given prior of the Appeals Chamber’s decision’ to make adverse factual findings 343 on the related charges is unfounded, as the proceedings were never suspended and the Appeals Chamber confirmed the Decision Denying Leave to File No Case to Answer Motion. Therefore, it was within the discretion of the Trial Chamber to rely on the evidence presented during the evidentiary period when Mr Ntaganda’s appeal was pending.

Furthermore, the Appeals Chamber finds misguided Mr Ntaganda’s contention that the Trial Chamber should have considered that submissions on a no case to answer ‘have the effect of staying the trial until their resolution’, as well as his 344 reliance on the case of Gbagbo and Blé Goudé . As held above, Mr Ntaganda’s request was a procedural request on whether or not he could be authorised to file submissions on a no case to answer. Hence, his motion for leave did not trigger the procedure of a no case to answer request, as in the case on which he relies. In these circumstances, the Trial Chamber was not required to suspend the proceedings.

(d) Conclusion

Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s decision not to suspend the proceedings prior to the resolution of his appeal against the Decision Denying Leave to File No Case to Answer Motion, the Appeals Chamber rejects this sub-ground of appeal.

4 Alleged violation of the right to a fair hearing Mr Ntaganda submits that by prioritising the expeditiousness of the proceedings without regard to his ‘pleas for assistance and delay’, the Trial Chamber ‘wrongly exercised its discretion in making repeated decisions which violated his right to a fair trial; his right to have adequate time and facilities to prepare his defence and the right

Mr Ntaganda’s Appeal Brief – Part II 343 , para. 47. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response to Observations of 344 , para. 44; Victims on Appeal – Part II , para. 6.

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to full answer and defence’. 345 He adds that the Trial Chamber rejected a number of

346 his requests for leave to appeal these and other issues.

In support of his contention, Mr Ntaganda raises the following three issues:

(i) the date of commencement of the trial;

(ii) the suspension of a Defence investigator; and

347 (iii) the re-scheduling of P-0290’s cross-examination.

Mr Ntaganda submits that ‘[t]hese errors can only be remedied by ordering a

new trial’. 348

The Appeals Chamber will address these issues in turn.

(a) Commencement of the trial

Mr Ntaganda submits that the Trial Chamber abused its discretion in rejecting

349 his request to postpone the trial until 2 November 2015.

(i) Background

On 9 October 2014, the Trial Chamber scheduled the commencement of the trial

350 for 2 June 2015.

On 7 April 2015, Mr Ntaganda requested the Trial Chamber to postpone the

351 trial until 2 November 2015.

352 On 22 April 2015, the Trial Chamber, in an oral decision, postponed the

commencement of the trial and scheduled the opening statements for the ‘second or

Mr Ntaganda’s Appeal Brief – Part II 345 , para. 57. Mr Ntaganda’s Appeal Brief – Part II 346 , para. 57; T-270 , p. 86, line 25 to p. 87, line 9. Mr Ntaganda’s Appeal Brief – Part II 347 , paras 48-57. Mr Ntaganda’s Appeal Brief – Part II 348 , para. 57. Mr Ntaganda’s Appeal Brief – Part II 349 , para. 50. Corrigendum of ‘Order Scheduling a Status Conference and Setting the Commencement Date for 350 the Trial’ , 28 November 2014, ICC-01/04-02/06-382-Corr (original registered on 9 October 2014 (ICC-01/04-02/06-382)), p. 9. 351 Urgent request on behalf of Mr NTAGANDA seeking to postpone the presentation of the Prosecution’s Case until 2 November 2015 at the earliest with Public Annex A, dated 2 April 2015 and registered on 7 April 2015, ICC-01/04-02/06-541-Red (the ‘ Request for Postponement of April 2015 ’), para. 11, p. 18. 352 T-19 , p. 3, line 9 to p. 8, line 4.

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third week of July 2015’ and the hearing of evidence for the week of 17 August 2015

(the ‘Postponement Decision of April 2015’). 353

On 21 May 2015, the Trial Chamber rejected Mr Ntaganda’s request for leave

354 to appeal the Postponement Decision of April 2015.

(ii) Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that the Trial Chamber abused its discretion in rejecting

his request to postpone the trial until 2 November 2015 ‘despite […] the addition of

29 new Prosecution witnesses on 15 January’ and ‘failed to take into account relevant

considerations’. 355 He argues that he was faced with: (i) a ‘three-fold increase’ in the

Prosecutor’s disclosure; (ii) the Prosecutor’s failure to meet her disclosure obligations

‘in a timely manner’; and (iii) ‘investigation difficulties’. 356 He argues that the Trial

Chamber’s limited postponement was ‘mainly to accommodate the Registry’s own

logistical difficulties’. 357 He argues that, as a result, his ‘right to adequate time and

facilities to prepare his Defence’ was violated. 358

Mr Ntaganda adds that the Trial Chamber erred in rejecting his request for leave

to appeal the Postponement Decision of April 2015, as the ‘criteria in article 82(1)(d)

were met’. 359

(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda does not identify any error in the

Trial Chamber’s reasoning in its Postponement Decision of April 2015. 360 Regarding

his claim about the ‘29 new Prosecution witnesses’, she argues that the addition of

353 Postponement Decision of April 2015 , p. 7, lines 7-18. Decision on Defence request for leave to appeal the Chamber’s decision on postponement of the 354 trial commencement date , ICC-01/04-02/06-604, p. 11; Request on behalf of Mr Ntaganda seeking leave to appeal the Chamber’s decision on Defence urgent request for postponement of the Prosecution’s case, 24 April 2015, ICC-01/04-02/06-572 (the ‘ Request for Leave to Appeal the Postponement Decision of April 2015 ’). Mr Ntaganda’s Appeal Brief – Part II 355 , para. 50. Mr Ntaganda’s Appeal Brief – Part II 356 , para. 50. Mr Ntaganda’s Appeal Brief – Part II 357 , para. 50. Mr Ntaganda’s Appeal Brief – Part II 358 , para. 50. Mr Ntaganda’s Appeal Brief – Part II 359 , para. 50. Prosecutor’s Response to Appeal – Part II 360 , para. 51.

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those witnesses ‘complied with the Chamber’s deadlines, and is not unusual in a complex case progressing from confirmation to trial’. 361 As to the disclosure issue, the Prosecutor avers that Mr Ntaganda omits to mention that ‘almost 60% of this disclosure was made up of photos and videos taken during exhumations and post mortem examinations, requiring limited review, and a further 20% of re -disclosed documents (for example, with redactions lifted)’. 362

(c) The victims’ observations

Victims Group 2 submit that the Trial Chamber properly exercised its 363 discretion.

(iii) Determination by the Appeals Chamber The Appeals Chamber notes that in reaching the Postponement Decision of April 2015, the Trial Chamber was ‘mindful of its obligation to ensure full respect for the rights of the accused, including in particular the right to have adequate time and facilities for preparation of the defence’. 364 The Trial Chamber also recalled its duty to ensure a ‘fair and expeditious trial’. 365 It considered Mr Ntaganda’s submissions in that context but found that ‘a significant number of the issues raised by the Defence were either already known to it at the time it made submissions on the schedule for preparation for trial, or should reasonably have been anticipated by it at that stage’. 366 Among these issues, the Trial Chamber noted the ‘status of Defence investigations at that time, the impact of changes in the composition of the Defence team and to some extent the potential volume of disclosure’. 367

The Trial Chamber was also of the view that ‘a number of the other difficulties’ raised by Mr Ntaganda ‘either [fell] within the range of normal investigative difficulties that might be anticipated in a case of this nature, or relate[d] to matters

Prosecutor’s Response to Appeal – Part II 361 , para. 52 (footnote omitted). Prosecutor’s Response to Appeal – Part II 362 , para. 52 (emphasis in original). 363 Observations of Victims Group 2 on Appeal – Part II , para. 35. 364 Postponement Decision of April 2015 , p. 5, lines 13-15. 365 Postponement Decision of April 2015 , p. 5, lines 16-17. 366 Postponement Decision of April 2015 , p. 5, lines 19-22. 367 Postponement Decision of April 2015 , p. 5, lines 22-24.

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which in the Chamber’s view d[id] not legitimately justify the Defence postponement request’. 368

The Trial Chamber also considered that the Prosecutor’s ‘request for delayed disclosure and for non-standard redactions’ had ‘been appropriately limited in number and scope’ and would not therefore ‘justify an alteration of the trial commencement date’. 369 In addition, it found that Mr Ntaganda should have ‘a clear outline and understanding of the Prosecution’s case’ from the pre-trial brief and the updated Document Containing the Charges in addition to the information contained in the 370 Confirmation Decision.

The Appeals Chamber notes that Mr Ntaganda does not challenge the reasoning or any specific finding of the Postponement Decision of April 2015. Rather, he repeats arguments presented before the Trial Chamber without explaining how the 371 Trial Chamber erred in rejecting them. The Appeals Chamber further observes that his argument that the Trial Chamber ‘failed to take into account relevant considerations’ 372 is unsubstantiated as he does not identify considerations which, in his view, should have been taken into account by the Trial Chamber. In any event, the Trial Chamber considered matters related to the Prosecutor’s disclosure and the difficulties encountered by the Defence. Mr Ntaganda does not specifically challenge the Trial Chamber’s findings on these issues. His undeveloped arguments, limited to a mere disagreement with the Trial Chamber’s decision, fail to show that the Trial Chamber abused its discretion.

Furthermore, the Appeals Chamber considers Mr Ntaganda’s allegation that the postponement mainly served to accommodate the Registry to be misplaced. The Trial Chamber noted the Registry’s submissions regarding additional time needed ‘to facilitate the holding of opening statements in the DRC’ and considered that while the matter was before the Presidency, it was ‘in the interest of justice’ to have the opening statements in Bunia in the DRC in order to bring ‘the judicial work of the Court closer

368 Postponement Decision of April 2015 , p. 5, line 25 to p. 6, line 3. 369 Postponement Decision of April 2015 , p. 6, lines 4-8. 370 Postponement Decision of April 2015 , p. 6, lines 9-12. 371 See Request for Postponement of April 2015, paras 25, 32, 35, 39; Request for Leave to Appeal the Postponement Decision of April 2015 , paras 15, 19, 23, 28, 37. Mr Ntaganda’s Appeal Brief – Part II 372 , para. 50.

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to the most affected communities’. 373 Moreover, in deciding to postpone the

commencement of the trial for a limited period, the Trial Chamber took into account

not only the Registry’s logistical difficulties but also ‘to a lesser extent the Defence

submissions that it would not be in a position to commence trial as scheduled,

including on the basis of certain delays in completion of full disclosure by the

Prosecution’. 374

Hence, contrary to Mr Ntaganda’s claim, when deciding to postpone the trial the

Trial Chamber took into account Mr Ntaganda’s submissions regarding the difficulties

in the preparation of his defence. In particular, the Trial Chamber ‘recognized that

such a postponement may assist the Defence in completing its review of the

incriminating material disclosed to date’. 375 It therefore decided that the trial would

commence on 7 July 2015 and the presentation of evidence would start in the week of

376 17 August 2015. The Trial Chamber observed that ‘this revised schedule will in

effect provide the Defence with approximately two and a half months of additional

preparation time, which the Chamber considers to be entirely ample in the current

circumstances’. 377 Furthermore, it rejected the Prosecutor’s request to revise the

disclosure deadlines as it ‘would compromise the ability of the Defence to adequately

prepare’. 378 Mr Ntaganda does not present any arguments challenging these findings.

Finally, regarding the Trial Chamber’s decision rejecting Mr Ntaganda’s

Request for Leave to Appeal the Postponement Decision of April 2015, the Appeals

379 Chamber notes that by arguing that the ‘criteria in article 82(1)(d) were met’,

Mr Ntaganda is in fact appealing that decision, which is not permissible. The Appeals

380 Chamber recalls that decisions denying leave to appeal may not be appealed.

373 Postponement Decision of April 2015 , p. 6, lines 13-19. 374 Postponement Decision of April 2015 , p. 6, lines 20-24. 375 Postponement Decision of April 2015 , p. 7, lines 1-2. 376 Postponement Decision of April 2015 , p. 7, lines 13-18. 377 Postponement Decision of April 2015 , p. 7, lines 19-21. 378 Postponement Decision of April 2015 , p. 7, lines 22-25. Mr Ntaganda’s Appeal Brief – Part II 379 , para. 50. 380 See Lubanga Review Judgment , paras 35, 39-40. See also Norman et al. Decision , para. 25: ‘An appeal from the decision of the Trial Chamber refusing leave to appeal could itself, in such a case, have been brought pursuant to leave sought and granted by the Trial Chamber. The prospect of an endless series of applications for leave to appeal from a decision of the Trial Chamber that would make it absurd to contemplate an appeal by leave of the Trial Chamber from such refusal, does lend some

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The Appeals Chamber will now address Mr Ntaganda’s arguments related to the

suspension of a Defence investigator.

(b) Suspension of a Defence investigator

Mr Ntaganda avers that because of the Trial Chamber’s ‘undue concern for the

existing trial calendar’, it failed to ‘address Defence concerns’ regarding the impact of

381 allegations [REDACTED] on his investigations.

(i) Background

On 23 June 2015, upon an ex parte request from the Prosecutor, the Trial

Chamber suspended one Defence investigator on the basis of allegations of breach of confidentiality (the ‘Interim Suspension Order’). 382 Noting the seriousness of the allegations and the need ‘to ensure the effectiveness of the measures taken’, the Trial

Chamber considered that it was ‘appropriate to proceed at this stage on the basis of the Prosecution’s 383 ex parte Request’. Nonetheless, the Trial Chamber, ‘mindful of

the impact the requested measures [might] have on the Defence’, ordered that the

Defence ‘be provided with a copy of the [Prosecutor’s ex parte ] Request, with minimal redactions’, and be given ‘an opportunity to make submissions on it’. 384

On 26 June 2015, Mr Ntaganda filed his Request for Adjournment of June 385 2015.

On 3 July 2015, the Trial Chamber, in an oral decision, postponed the opening statements to 2 September 2015 and the commencement of the Prosecutor’s

386 presentation of evidence to 15 September 2015.

On 4 August 2015, the Trial Chamber rejected Mr Ntaganda’s request for leave

387 to appeal the Adjournment Decision of July 2015.

strength to the view that the intention of the Rules, though not expressly stated, is to exclude appeals from refusal of the Trial Chamber to grant leave to appeal’. Mr Ntaganda’s Appeal Brief – Part II 381 , para. 51. Public redacted version of ‘Order taking interim measures in relation to a Defence investigator and 382 related matters’ ICC-01/04-02/06-667-Conf-Exp , 10 March 2021, ICC-01/04-02/06-667-Red (confidential ex parte version was registered on 26 June 2015 (ICC-01/04-02/06-667-Conf-Exp)), para. 8, p. 8. 383 Interim Suspension Order , para. 6. 384 Interim Suspension Order , para. 6. Mr Ntaganda’s Request for Adjournment of June 2015 385 . See also paragraph 137 above. 386 Adjournment Decision of July 2015 , p. 5, lines 12-14. See also paragraph 138 above.

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On 12 August 2015, the Trial Chamber made a ruling regarding the Defence

investigator (the ‘Suspension Decision of August 2015’). 388 It considered that there

were ‘reasonable grounds to believe that the First Investigator engaged in conduct

sufficiently detrimental to the integrity of the proceedings and the safety and well-

389 being of witnesses to warrant his continued suspension from the Ntaganda case’.

Pursuant to section 10 of the Code of Conduct for Investigators, the Trial Chamber

directed the Registry to transmit the matter to the ‘Commissioner of the Disciplinary

board […] for consideration and any further action deemed appropriate’. 390 The Trial

Chamber further held that if ‘compelling circumstances arise, such as an exonerating

finding by the Disciplinary Board’, it would ‘if appropriate, review its findings’

regarding the first investigator ‘as soon as practicable’. 391

(i) Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda argues that the Trial Chamber failed ‘to take into account relevant

factors’ and ‘was required to address [allegations of witness interference] before the

start of trial’, as is done before other international courts. 392 He further avers that it

was unreasonable for the Trial Chamber to allow the commencement of the trial

before his ‘investigators were absolved or new investigators were in place’. 393

Mr Ntaganda argues that as a result the cross-examination of Prosecution witnesses

was done with no ability ‘to investigate their allegations, or verify issues raised by

their testimony’. 394 Mr Ntaganda further argues that the Trial Chamber erred in

387 Public redacted version of ‘Decision on Defence request for leave to appeal the Chamber’s decision on postponement of the trial commencement date’, ICC-01/04-02/06-760-Red (the ‘ Decision Rejecting Leave of August 2015 ’) (confidential version was registered on the same day (ICC-01/04-02/06-760- Conf)), p. 12; Public redacted version of “Application on behalf of Mr Ntaganda seeking leave to appeal the Chamber’s oral decision on ‘Urgent motion on behalf of Mr Ntaganda seeking immediate adjournment of the proceedings until the necessary conditions are in place to ensure a fair trial’” , 10 July 2015, ICC-01/04-02/06-709-Red (confidential ex parte version was registered on the same day (ICC-01/04-02/06-709-Conf-Exp)). Public redacted version of ‘Decision on Prosecution request for suspension of investigators and 388 related matters’ ICC-01/04-02/06-777-Conf-Exp , 10 March 2021, ICC-01/04-02/06-777-Red (confidential ex parte version was registered on 12 August 2015 (ICC-01/04-02/06-777-Conf-Exp)). 389 Suspension Decision of August 2015 , para. 28, p. 18. 390 Suspension Decision of August 2015 , para. 29, p. 19. 391 Suspension Decision of August 2015 , para. 30. Mr Ntaganda’s Appeal Brief – Part II 392 , para. 51, fn. 119. Mr Ntaganda’s Appeal Brief – Part II 393 , para. 52. Mr Ntaganda’s Appeal Brief – Part II 394 , para. 52.

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rejecting his request for leave to appeal the Adjournment Decision of July 2015 as the 395 criteria under article 82(1)(d) were met .

(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda’s arguments do not show an error in the Trial Chamber’s decision to suspend a Defence investigator. 396 The Prosecutor argues that Mr Ntaganda’s claim that the Trial Chamber was required to resolve the issue of the allegations against his investigator before the commencement of the trial is ‘not only unsupported by the authorities that [he] cites, but contradicts the practice of this Court’. 397

(ii) Determination by the Appeals Chamber The Appeals Chamber notes that Mr Ntaganda’s contention that the Trial Chamber was required to address allegations of witness interference against his investigator ‘before the start of trial, as is the practice before other international courts’ 398 is unfounded.

The Appeals Chamber observes that Mr Ntaganda refers to case-law relating to contempt of court implying that the Trial Chamber’s determination of the investigator’s issue amounted to proceedings regarding that type of offence. However, the Trial Chamber’s conclusions were not made under article 70 of the Statute on offences against the administration of justice. Rather it treated the issue as a disciplinary matter and it transmitted it to the ‘Commissioner of the Disciplinary board […] for consideration and any further action deemed appropriate’. 399 By doing so, the Trial Chamber adjudicated the matter, contrary to Mr Ntaganda’s contention, before the commencement of the trial which was set to start on 2 September 2015.

The Appeals Chamber further notes that Mr Ntaganda refers to notices filed before the Trial Chamber, in which he updated the Trial Chamber on the progress 400 made in the recruitment of a new investigator and a resource person. These notices

Mr Ntaganda’s Appeal Brief – Part II 395 , para. 52. Prosecutor’s Response to Appeal – Part II 396 , para. 54. Prosecutor’s Response to Appeal – Part II 397 , para. 54 (footnote omitted). Mr Ntaganda’s Appeal Brief – Part II 398 , para. 51. 399 Suspension Decision of August 2015 , para. 29, p. 19. Mr Ntaganda’s Appeal Brief – Part II 400 , fn. 118.

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were only informative and Mr Ntaganda did not seize the Trial Chamber with any

401 specific request or concern. In fact, in his notice of 1 September 2015, he indicated

that a ‘postponement of the beginning of the presentation of the Prosecutor’s case’

402 scheduled to start on 15 September 2015 was not required at that time.

Mr Ntaganda further argues that the Trial Chamber’s limited extension until

2 September 2015 ‘was of no meaningful use’ because the requested postponement

403 was required until the absolution of the Defence investigators or their replacement.

In the Adjournment Decision of July 2015, the Trial Chamber noted Mr Ntaganda’s

submissions that an immediate adjournment of the proceedings was required ‘until the

necessary conditions [were] in place to ensure a fair trial’ and that he could not be

‘ready to start the trial proceedings in the current schedule’. 404 Considering the

submissions from the parties and the Registry on ‘certain practical matters related to

one of the issues the Defence faces’, the Trial Chamber was convinced that

Mr Ntaganda’s situation at the time affected his ability ‘to prepare for the start of

trial’. 405 It therefore considered that Mr Ntaganda ‘should be provided a limited

amount of additional time to be able to address certain issues’ and considered

‘appropriate to order a limited postponement of the evidentiary phase of the

proceedings’. 406

In reaching this decision, the Trial Chamber was mindful of its obligations

under article 64(2) of the Statute, ‘in particular, to ensure the fairness of the trial and

accused’. 407 the rights of the Accordingly, the Trial Chamber rescheduled the opening

statements for 2 until 4 September 2015 and the start of the ‘evidentiary stage, with

the first three witnesses scheduled for the first block’ to commence on

401 See for example Public redacted version of ‘Notice on behalf of Mr Ntaganda informing the Chamber of the assignment of a new Defence investigator and a new Defence resource person, and the consequences thereof’, 1 September 2015, ICC-01/04-02/06-807-Red (‘ Mr Ntaganda’s Notice ’). Mr Ntaganda’s Notice 402 , para. 19. Mr Ntaganda’s Appeal Brief – Part II 403 , para. 52. 404 Adjournment Decision of July 2015 , p. 4, lines 5-9. 405 Adjournment Decision of July 2015 , p. 4, lines 18-19, 25, p. 5, line 1. 406 Adjournment Decision of July 2015 , p. 5, lines 4-7. 407 Adjournment Decision of July 2015 , p. 5, lines 2-4. See also Decision Rejecting Leave of August 2015 , para. 23.

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408 15 September. The Trial Chamber indicated that it was not useful, at that stage, to 409 further modify the trial schedule.

The Appeals Chamber observes that apart from challenging the limited length of the granted adjournment, Mr Ntaganda does not raise any specific error in the Trial Chamber’s approach or reasoning in the Adjournment Decision of July 2015. The Trial Chamber’s decision expressly took into account Mr Ntaganda’s situation at the time and the need to conduct the proceedings fairly.

In addition, Mr Ntaganda’s claim that the cross-examination of Prosecution witnesses was conducted with no ability ‘to investigate their allegations, or verify issues raised by their testimony’ is solely based on an extract of his defence press 410 conference held on 1 September 2015. Mr Ntaganda does not refer to the crossexamination of any particular witness and does not explain how that crossexamination was affected. Furthermore, the Appeals Chamber considers that Mr Ntaganda’s mere reference to an extract of his Lead Counsel’s general statement made at a press conference is insufficient to support his claim or to show an error in the Trial Chamber’s approach. 411

The Appeals Chamber further notes that when rejecting Mr Ntaganda’s request for leave to appeal the Adjournment Decision of July 2015, the Trial Chamber explained that modifications made to the trial schedule and its instructions to the parties regarding the first evidentiary block ‘were meant to enable the adjudication of the Ex Parte Litigation, to the extent deemed appropriate by the Chamber, prior to the commencement of the evidentiary phase of the trial, and to allow the Defence time to address its concerns and prepare for trial’. 412 It clarified that while finding that further modifications to the trial schedule were not useful, it left ‘open the possibility that such modification could be made in the future, should a legitimate need to do so

408 Adjournment Decision of July 2015 , p. 5, lines 12-14. 409 Adjournment Decision of July 2015 , p. 5, lines 15-16. Mr Ntaganda’s Appeal Brief – Part II 410 , para. 52, fn. 122, referring to Ntaganda Case: Press conference of 1 September 2015, at 51:02 to 51:33. 411 See Ntaganda Case: Press conference of 1 September 2015, at 51:02 to 51:34 where Mr Ntaganda’s Lead Counsel stated the following: ‘We had insufficient time to prepare for this case and I will say this to the judges tomorrow but they already know. It is mainly due to the size of the case but also to some events that have taken place and I will simply say the fact that the case of the Prosecution has changed significantly since the decision of the confirmation of charges was rendered.’ 412 Decision Rejecting Leave of August 2015 , para. 24 (footnote omitted).

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arise’. 413 The Trial Chamber also recalled its ‘trial management powers and the range

of measures available to assist the Defence should concrete difficulties arise’. 414

The Appeals Chamber notes that Mr Ntaganda appears to challenge the

415 Decision Rejecting Leave of August 2015. As recalled above, this amounts to

416 appealing a decision denying leave to appeal, which is impermissible.

The Appeals Chamber will now turn to the last issue, which concerns the re-

scheduling of the cross-examination of one witness.

(c) Re-scheduling of P-0290’s cross-examination

Mr Ntaganda submits that the Trial Chamber erred in rejecting his request to

417 postpone the cross-examination of P-0290 and his request to recall this witness.

(i) Background

At the hearing on 20 January 2016, Mr Ntaganda’s Lead Counsel informed the

Trial Chamber that Mr Ntaganda’s Associate Counsel, who was supposed to cross-

examine P-0790 (testifying before P-0290), could not be in court for medical reasons

418 and would therefore not be able to proceed with the cross-examination.

Mr 0Ntaganda’s Lead Counsel stated that he was ‘not able to step in for him on short

notice this morning’. 419 He requested that the proceedings be adjourned ‘for the day

and to resume whenever the Chamber [was] ready to resume with either [his]

420 colleague or [him]self proceeding with the cross-examination of Witness P-790’.

The Trial Chamber adjourned the proceedings until the afternoon of that same

421 day. It stated that it was ‘grateful to Mr Bourgon [the Lead Counsel] for his

indication this morning that he thought he might be able to step in to resume the

examination this afternoon in Mr Boutin’s [the Associate Counsel] place’. 422 It noted

that since then, Mr Ntaganda’s Lead Counsel informed the Trial Chamber via an

413 Decision Rejecting Leave of August 2015 , para. 25. 414 Decision Rejecting Leave of August 2015 , para. 25. Mr Ntaganda’s Appeal Brief – Part II 415 , para. 52; T-270 , p. 86, line 25 to p. 87, line 9. 416 See paragraph 242 above. Mr Ntaganda’s Appeal Brief – Part II 417 , paras 55-56. 418 T-55 , p. 3, lines 4-6, 11-12 . 419 T-55 , p. 4, lines 9-10. 420 T-55 , p. 5, lines 13-15. 421 T-55 , p. 9, lines 15-20. 422 T-55 , p. 10, lines 2-3.

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email that ‘he [was] not after all going to be able to start immediately [on that same]

day’. 423 The Trial Chamber was of the view that in light of the ‘unexpected and

exceptional’ circumstances, it considered the Lead Counsel’s request ‘to not resume

424 the examination until 4.30 [on the following day] to be reasonable’. Nonetheless,

the Trial Chamber considered that ‘it [was] preferable to complete the testimony of

this witness as soon as possible’. 425 It proposed that the hearing could continue on

Thursday, 21 January 2016 in the afternoon and again on Monday, 25 January 2016 in

426 the afternoon. Mr Ntaganda’s Lead Counsel stated that he was grateful and that he

427 was fine with the proposed schedule.

During that same hearing, the Presiding Judge highlighted that further changes

to the schedule would ‘require maximum effort from Judges, […] for the interpreters,

for those who are recording the transcript’, which meant that it would also require

‘maximum effort’ from Mr Ntaganda’s Lead Counsel. 428 The Presiding Judge

acknowledged that the situation was not easy for Mr Ntaganda’s Lead Counsel and

that he was ‘very experienced counsel’ but he wanted to make sure that he would not

indicate on the following day that he was ‘not ready again’. 429 Mr Ntaganda’s Lead

Counsel confirmed that he would ‘abide by the new schedule’. 430

The next day, on 21 January 2016, Mr Ntaganda’s Lead Counsel updated the

Trial Chamber on his Associate Counsel’s situation and stated that he would not be

available ‘for at least a period of 5 to 10 days’. 431 He recalled that, as he had stated in

an email sent the day before to the Trial Chamber, he needed ‘to take measures in

order to facilitate the proceedings during this coming [evidentiary] block’. 432 He

indicated having discussed the matter with a member of the Prosecution and agreed to

423 T-55 , p. 10, lines 4-5. 424 T-55 , p. 10, lines 6-8. 425 T-55 , p. 10, lines 9-10. 426 T-55 , p. 10, lines 11-13. 427 T-55 , p. 10, lines 19-20. 428 T-55 , p. 10, line 24 to p. 11, line 2. 429 T-55 , p. 11, lines 3-4, 9-10. 430 T-55 , p. 11, line 13. 431 T-56 , p. 2, line 24 to p. 3, line 1. 432 T-56 , p. 3, lines 5-6.

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‘raise the issue and discuss [it] with the Chamber’. 433 Mr Ntaganda’s Lead Counsel

434 then resumed the cross-examination of P-0790.

On 25 January 2016, Mr Ntaganda requested a modification of the schedule for

the third and fourth evidentiary block on the ground that his Associate Counsel who

was supposed to cross-examine the five remaining Prosecution witnesses, including

[REDACTED], remained unavailable and his Lead Counsel was ‘unable to proceed

with all the witnesses scheduled to testify in the third evidentiary block without the

benefit of significant delays between each witness’. 435 Mr Ntaganda proposed that P-

0290 testify on ‘8, 9, 10, 11, 12 February 2016’. 436

On 27 January 2016, Mr Ntaganda, via an email sent to the Trial Chamber, requested leave to reply to the Prosecutor’s submissions about: (i) the ‘Prosecution’s

practice of having its witnesses arrive in The Hague weeks before their scheduled testimony’; (ii) the Prosecutor’s arguments with respect to the ‘state of Defence’s

preparation’; and (iii) the ‘Registry’s decision on the Defence request for additional

resources’. 437

On 28 January 2016, the Trial Chamber rejected Mr Ntaganda’s request for

leave to reply on the ground that it did not consider that it needed further submissions

438 on the issue.

On that same date, the Trial Chamber partially granted Mr Ntaganda’s Request

for Modification of Evidentiary Blocks 3 and 4 and adopted the revised scheduled

439 proposed by Mr Ntaganda in his request. The Trial Chamber recalled that it had ‘acknowledged that the unavailability of Associate Counsel for the Defence was an

433 T-56 , p. 3, lines 6-9. 434 T-56 , p. 4, lines 1-2. 435 Public redacted version of “Request on behalf of Mr Ntaganda seeking Trial Chamber VI to modify the schedule for evidentiary blocks 3 and 4”, ICC-01/04-02/06-1102-Red (confidential version registered on the same date (ICC-01/04-02/06-1102-Conf)) (the ‘ Request for Modification of Evidentiary Blocks 3 and 4 ’), paras 9, 13. 436 Request for Modification of Evidentiary Blocks 3 and 4 , paras 23, 27. 437 Public redacted version of ‘Decision on Defence request to modify the schedule for the third and fourth evidentiary blocks’, 28 January 2016, ICC-01/04-02/06-1115-Red (confidential version registered on the same date (ICC-01/04-02/06-1115-Conf)) (the ‘ Decision on Revised Witness Schedule ’), para. 5. 438 T-58 , p. 4, lines 15-17; Decision on Revised Witness Schedule , para. 6. 439 Decision on Revised Witness Schedule , para. 12; Request for Modification of Evidentiary Blocks 3 and 4 , paras 23, 27.

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“unexpected and exceptional” event, which warranted some adjustment to the hearing

schedule in respect of the witness who was then testifying’. 440 It recognised that the circumstances would ‘place an additional burden’ on Mr Ntaganda’s Lead Counsel,

while noting that ‘support [was] also available from the wider Defence team, whom

the Chamber would expect are involved in the preparation for witnesses and should, at

least, be in a position to assist Lead Counsel with any final detailed preparations which may be outstanding’. 441 However, the Trial Chamber was of the view that ‘some further modification of the current schedule may be warranted to assist the

Defence, given the unexpected nature, and timing, of Associate Counsel’s absence’. 442

On 1 February 2016, Mr Ntaganda requested reconsideration of the Decision on

Revised Witness Schedule, inter alia , on the ground that the two-day break between

the testimony of P-0290 and another witness was ‘unreasonable’ and amounted ‘to an 443 abuse of the Chamber’s discretion’. He acknowledged that the Trial Chamber had

adopted his proposed revised schedule for these two witnesses; however, he averred

that if leave to reply had been granted, he would have explained that the proposed 444 two-day break resulted ‘from an oversight’. In his view, the new dates for P-0290 should have been from ‘9 February 2016 until approximately 15 February 2016’

instead of ‘8 February 2016, until approximately 12 February 2016’. 445

On 3 February 2016, the Trial Chamber rejected Mr Ntaganda’s Request for 446 Reconsideration. The Trial Chamber found Mr Ntaganda’s submissions to be ‘largely set[] out […] on certain of the issues for which leave to reply was rejected’. 447

The Trial Chamber recalled that there is ‘no automatic right of reply’ and

consequently, it was ‘incumbent on the Defence to provide all information it

440 Decision on Revised Witness Schedule , para. 7. 441 Decision on Revised Witness Schedule , para. 7. 442 Decision on Revised Witness Schedule , para. 7. 443 Public redacted version of “Application on behalf of Mr Ntaganda seeking reconsideration of ‘Decision on Defence request to modify the schedule for the third and fourth evidentiary blocks’”, ICC-01/04-02/06-1122-Red (confidential version registered on the same date (ICC-01/04-02/06-1122- Conf)) (the ‘ Request for Reconsideration ’), paras 21-22, 25. 444 Request for Reconsideration , paras 21-22. 445 Request for Reconsideration , paras 21, 27, 30. 446 Public redacted version of ‘Decision on Defence request for reconsideration of the decision on the schedule for the third and fourth evidentiary blocks’, ICC-01/04-02/06-1143-Red (confidential version registered on the same date (ICC-01/04-02/06-1143-Conf)) (the ‘ Decision on the Request for Reconsideration ’), p. 7. 447 Decision on the Request for Reconsideration , para. 10.

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considered relevant to the Chamber’s determination’ in its original request. 448 It added

that ‘a reply should not serve to correct oversights or mistakes made in the initial

request’. 449 The Trial Chamber explained that in reaching the Decision on Revised

Witness Schedule, it ‘made an objective assessment on the basis of the situation as

known to the Chamber at the time’. 450

With respect to Mr Ntaganda’s submission that his initially proposed schedule

was an ‘oversight’, the Trial Chamber noted that ‘neither a reply […], nor a request

for reconsideration are appropriate avenues for seeking to amend the relief originally

sought’. 451 It observed that ‘new facts and arguments arising since the decision was

rendered may be relevant to the assessment’; however, it did not consider ‘the

information brought to its attention in this manner to qualify as such’. 452

On 8 February 2016, the Trial Chamber decided to adjourn the hearing to the

following day because of Mr Ntaganda’s Lead Counsel’s absence for medical

453 reasons.

At the hearing on 10 February 2016, Mr Ntaganda’s Lead Counsel indicated

that he could not cross-examine P-0290 after the Prosecutor’s examination of the

witness and that there would be a request to recall the witness at a later stage to

454 conduct the cross-examination. Mr Ntaganda’s Lead Counsel explained that this

decision was due to: (i) insufficient time to prepare after the testimony of the

455 preceding witness in view of the unavailability of the Associate Counsel;

456 (ii) investigative difficulties; and (iii) the Trial Chamber’s rejection of the request

457 for a five-day postponement.

448 Decision on the Request for Reconsideration , para. 10. 449 Decision on the Request for Reconsideration , para. 10. 450 Decision on the Request for Reconsideration , para. 10. 451 Decision on the Request for Reconsideration , para. 12. 452 Decision on the Request for Reconsideration , para. 12. 453 T-64 , p. 2, line 25 to p. 3, line 3, p. 4, lines 23-24. 454 T-65 , p. 4, line 25 to p. 5, line 1, p. 6, lines 21-24. 455 T-65 , p. 5, lines 2-9. 456 T-65 , p. 5, lines 10-19. 457 T-65 , p. 4, lines 9-12.

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Having heard Mr Ntaganda’s submissions, the Trial Chamber ruled ‘that it

458 should be possible to conduct cross-examination as intended’.

At the hearing on the following day, the Trial Chamber noted Mr Ntaganda’s ex

parte communication regarding further information with respect to the preparation for

459 the cross-examination of the witness. The Trial Chamber considered that ‘this

additional information has not changed its intention that the Defence should

460 commence its cross-examination once the Prosecution finishes’.

At the end of the Prosecutor’s examination of P-0290 on 12 February 2016, the

Trial Chamber again considered Mr Ntaganda’s Lead Counsel’s submission that he

was ‘not ready to proceed with the cross-examination of this witness’. 461 The Trial

Chamber indicated that it had considered Mr Ntaganda’s request and found that there

462 was no basis for postponing the cross-examination. Nevertheless, it invited Mr

Ntaganda’s Lead Counsel ‘to make further submission on [the] matter’. 463

Mr Ntaganda’s Lead Counsel stated that he was ‘not in a position to cross-

examine’ the witness and that he was seeking to recall the witness ‘at a later point to

complete his testimony’. 464 He admitted that the issues that were discussed during the

examination of P-0290 by the Prosecutor ‘could be addressed in cross-examination

with limited preparation time’. 465 However, he observed that cross-examination went

‘way further than answering the exact evidence that was […] elicited from the witness

466 during examination-in-chief’. Mr Ntaganda’s Lead Counsel indicated that he was

not able at that time ‘to put [his] case to the witness’ and he identified some of the

issues regarding the witness’s evidence on which he was not in a position to cross-

467 examine the witness.

458 T-65 , p. 11, lines 9-10. 459 T-66 , p. 2, lines 20-22. 460 T-66 , p. 2, lines 23-25. 461 T-67 , p. 22, lines 17-18. 462 T-67 , p. 22, lines 20-21. 463 T-67 , p. 22, lines 22-23. 464 T-67 , p. 23, lines 8-10. 465 T-67 , p. 24, lines 7-8. 466 T-67 , p. 24, lines 9-11. 467 T-67 , p. 24, lines 12-13, 22-24, p. 25, lines 14 to p. 26, line 16.

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During that same hearing, the Trial Chamber rendered its oral decision on

468 Mr Ntaganda’s request to postpone the cross-examination of P-0290. It stated that it

had ‘recognized the difficult circumstances that lead counsel […] faced’. 469

Nonetheless, the Trial Chamber did not ‘accept that an experienced counsel supported

by his team and on notice for over two and a half months of the scheduling of the

470 present witness testimony [was] not in a position to conduct the cross-examination’.

In addition, the Trial Chamber found that there was no ‘material change in

circumstances from when the Defence itself submitted the schedule, which included

471 the examination of this witness’. It considered that the ‘investigative leads referred

to by the Defence appear to have been on standing for some time and do not

472 themselves provide the basis for postponing the cross-examination’. The Trial

Chamber recalled that it was open for Mr Ntaganda’s Defence ‘to proceed with cross-

examination now and subsequently either seek to recall the witness should it be able

to properly justify such a request or to present relevant information as part of its own

defence case’. 473

As to the contention that Mr Ntaganda’s defence was ‘not in a position to put its

case to the witness’, the Trial Chamber recalled its previous ruling that ‘[t]he cross-

examining party is required to put to the witness any facts or evidence available at the

474 time and upon which it intends to rely to impeach his or her credibility.’ On that

basis, it ‘strongly recommend[ed] the Defence to proceed with its cross-examination

475 of Witness P-290’. The Trial Chamber underlined that while Mr Ntaganda was not

forced to do so, it required Mr Ntaganda’s Lead Counsel to ‘confirm that

Mr Ntaganda fully underst[ood] the potential consequences of this choice’ not to

476 proceed with the cross-examination, which could ‘be construed as a waiver of the

477 right to cross-examine’ the witness. The Trial Chamber acknowledged that it could

468 T-67 , p. 38, line 8 to p. 41, line 2. 469 T-67 , p. 39, line 10. 470 T-67 , p. 39, lines 12-14. 471 T-67 , p. 39, lines 17-19. 472 T-67 , p. 39, lines 20-22. 473 T-67 , p. 39, lines 23-25. 474 T-67 , p. 40, lines 1-5. 475 T-67 , p. 40, lines 6-7. 476 T-67 , p. 40, lines 7-10. 477 T-67 , p. 40, line 18.

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still be open for Mr Ntaganda to ‘subsequently request in the future that the witness

be recalled, but cogent reasons should exist to warrant such recalling’ and noted that

guarantee that such a request would be granted’. 478 there was ‘no

Following further submissions made by Mr Ntaganda’s Lead Counsel, the

Presiding Judge clarified that the Trial Chamber had the duty to guarantee a fair and

expeditious trial and pointed out that the Trial Chamber was ‘not only interested’ in

‘an expeditious trial at any rate’. 479

On 17 February 2017, the Trial Chamber rejected Mr Ntaganda’s request to

have P-0290 recalled before the end of the presentation of the Prosecutor’s evidence

or, in the alternative, to allow Mr Ntaganda to call the witness as a Defence

480 witness. The Trial Chamber found that Mr Ntaganda did not demonstrate ‘cogent reasons warranting the recall’ of P-0290 as he failed to ‘sufficiently substantiate’ his

481 request and essentially repeated prior submissions already addressed. The Trial

Chamber recalled that it had ‘cautioned the Defence that by deciding not to cross-

482 examine the Witness, it might lose the opportunity to cross-examine the Witness’.

The Trial Chamber further considered that contrary to Mr Ntaganda’s contention, the ‘absence of cross-examination does not per se “minimise” the

probative value of the Witness’s testimony’ and that this factor would ‘be taken into

account in the ultimate determination of the weight to be given to his testimony’. 483 It

484 added that Mr Ntaganda was ‘still in a position to challenge’ P-0290’s evidence. The Trial Chamber pointed out that the rejection of Mr Ntaganda’s request was

478 T-67 , p. 40, lines 20-22. 479 T-67 , p. 44, lines 2-5. 480 Public redacted version of Decision on Defence request for recall of Witness P-0290, 17 February 2017, ICC-01/04-02/06-1791-Red (confidential version registered on the same date (ICC-01/04-02/06- 1791-Conf)) (the ‘ Decision on Recall of Witness P-0290 ’), paras 5, 17, p. 10; Public redacted version of “Request on behalf of Mr Ntaganda seeking Trial Chamber VI to recall Witness P-0290”, 25 February 2017, ICC-01/04-02/06-1751-Conf , 3 March 2017, ICC-01/04-02/06-1751-Red2 (confidential ex parte version dated 24 January 2017 and registered on 25 January 2017 (ICC-01/04- 02/06-1751-Conf-Exp)). See also Conviction Decision , fn. 340. 481 Decision on Recall of Witness P-0290 , paras 11, 13, 17. 482 Decision on Recall of Witness P-0290 , para. 11. 483 Decision on Recall of Witness P-0290 , para. 12. 484 Decision on Recall of Witness P-0290 , para. 12.

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‘without prejudice to any future decision by the Chamber […] to itself recall the

Witness at a later stage’. 485

On 29 November 2017, the Trial Chamber indicated that it considered calling P-

486 0290 and invited the parties and the participants to file submissions on the matter.

On 6 December 2017, Mr Ntaganda filed his submissions, in which he opposed

the recall of P-0290 after the close of the Defence case, arguing that this would be

487 unfair and infringe his right to remain silent.

After considering: (i) Mr Ntaganda’s submissions on the matter; (ii) ‘the nature

and scope of the expected testimony in relation to evidence presented by the

Defence’; and (iii) ‘the totality of the evidence adduced so far in the case’, the Trial

Chamber was not convinced that it would be ‘necessary or appropriate to recall the

Witness at this stage of the proceedings’ to provide further evidence in the case. 488

(ii) Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that by rejecting his request to modify the witnesses

schedule, the Trial Chamber ‘failed to judiciously balance the competing interests at

489 play, and gave unwarranted precedence to the progress of the trial at all costs’. He

adds that the Trial Chamber erred in rejecting his request for reconsideration of the

490 Decision on Revised Witness Schedule. Mr Ntaganda submits that he had ‘reserved

the right to recall P-0290 for cross-examination at the end of the Prosecution’s

case’. 491 He argues that the Trial Chamber incorrectly exercised its discretion in

485 Decision on Recall of Witness P-0290 , para. 17. 486 Order setting deadline for submissions related to Witness P-0290 , ICC-01/04-02/06-2134, para. 6, p. 5. 487 Submissions concerning potential recall of Prosecution Witness P-0290, ICC-01/04-02/06-2143- Conf, paras 1, 49; Decision on presentation of evidence pursuant to Article 64(6)(b) and (d) and 69(3) of the Statute, 23 January 2018, ICC-01/04-02/06-2191 (the ‘ Decision on Potential Recall of Witness P-0290 ’), para. 8. 488 Decision on Potential Recall of Witness P-0290 , para. 13, p. 8. See also Conviction Decision , fn. 340. Mr Ntaganda’s Appeal Brief – Part II 489 , para. 55. 490 Mr Ntaganda’s Appeal Brief – Part II , para. 55. Mr Ntaganda’s Appeal Brief – Part II 491 , para. 56.

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rejecting his request to recall P-0290 which ‘compounded the unfairness of the

proceedings’. 492

(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda does not ‘show any unfairness’ in the

Trial Chamber’s reasoning. 493 The Prosecutor argues that contrary to Mr Ntaganda’s

contention the Trial Chamber ‘granted his request to postpone one of six scheduled

witnesses […] to the next evidentiary block’. 494 She further avers that Mr Ntaganda

fails to demonstrate that the Trial Chamber erred in dismissing his Request for

Reconsideration as he did not present any ‘new facts or arguments’ following the

495 rendering of the original decision.

(c) The victims’ observations

Victims Group 2 submit that the Trial Chamber’s decision to not recall P-0290

496 was within its discretion. They argue that Mr Ntaganda does no show that the Trial

497 Chamber failed to take into account relevant considerations.

(iii) Determination by the Appeals Chamber

The Appeals Chamber finds no merit in Mr Ntaganda’s argument that in

rejecting his request to amend the witness schedule, the Trial Chamber ‘failed to

judiciously balance the competing interests at play’. 498 Contrary to Mr Ntaganda’s

contention, the Trial Chamber partially granted his request to amend the schedule by

499 adopting the one proposed by Mr Ntaganda, including for P-0290’s testimony. The

Appeals Chamber finds that Mr Ntaganda merely repeats arguments presented at trial

and does not identify any errors in the Trial Chamber’s reasoning or specific findings.

In that regard, the Appeals Chamber notes that the Trial Chamber was fully

aware of the said ‘interests at play’. 500 It expressly acknowledged that the

Mr Ntaganda’s Appeal Brief – Part II 492 , para. 56. Prosecutor’s Response to Appeal – Part II 493 , paras 61, 67. Prosecutor’s Response to Appeal – Part II 494 , para. 61. Prosecutor’s Response to Appeal – Part II 495 , para. 63. 496 Observations of Victims Group 2 on Appeal – Part II , para. 36. 497 Observations of Victims Group 2 on Appeal – Part II , para. 36. Mr Ntaganda’s Appeal Brief – Part II 498 , para. 55. 499 Decision on Revised Witness Schedule , para. 12. Mr Ntaganda’s Appeal Brief – Part II 500 , para. 55.

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unavailability of Mr Ntaganda’s Associate Counsel was an ‘unexpected and exceptional’ circumstance. 501 It also recognised the additional burden that it would put on Mr Ntaganda’s Lead Counsel, noting however that ‘the wider Defence team’ could 502 provide support. Mr Ntaganda does not explain why these findings are, in his view, erroneous.

The Appeals Chamber further finds that Mr Ntaganda does not substantiate his argument that the Trial Chamber erred in rejecting his Request for Reconsideration of the Decision on Revised Witness Schedule ‘despite the new arguments raised therein’. 503 Mr Ntaganda neither identifies the said new arguments nor does he challenge the reasoning or any specific findings of the Trial Chamber. If Mr Ntaganda is to be understood to challenge the Trial Chamber’s rejection of his further submissions on the oversight concerning the proposed dates for the revised schedule, the Trial Chamber explained in detail why it did not consider his clarification to be 504 properly submitted. In particular, the Trial Chamber found Mr Ntaganda’s submissions to repeat the ones for which he unsuccessfully sought leave to reply and recalled that Mr Ntaganda had the duty to provide all relevant information in his 505 initial request. The Trial Chamber observed that the information provided by 506 Mr Ntaganda did not constitute new facts to warrant reconsideration. Mr Ntaganda does not present any arguments challenging these findings.

Turning to Mr Ntaganda’s contention that the Trial Chamber abused its discretion in rejecting his request to recall P-0290, the Appeals Chamber finds that he does not substantiate his claim. The Appeals Chamber notes that when Mr Ntaganda’s Lead Counsel was absent for medical reason, the Trial Chamber adjourned the 507 proceedings until his return to the Court. Furthermore, the Trial Chamber adopted a cautious approach, by taking into account Mr Ntaganda’s rights to adequate preparation of his defence and to have fair and expeditious proceedings. It made it clear that it was open to Mr Ntaganda’s Lead Counsel to cross-examine the witness on

501 Decision on Revised Witness Schedule , para. 7. 502 Decision on Revised Witness Schedule , para. 7. Mr Ntaganda’s Appeal Brief – Part II 503 , para. 55. 504 See Decision on the Request for Reconsideration , para. 10. 505 Decision on the Request for Reconsideration , para. 10. 506 Decision on the Request for Reconsideration , para. 12. 507 T-64 , p. 2, line 25 to p. 3, line 3, p. 4, lines 23-24.

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that day, or, alternatively, to request to recall the witness, subject to proper 508 justification, or to present relevant information as part of the defence case.

In addition, the Trial Chamber duly warned Mr Ntaganda of the consequences 509 of his choice not to proceed with the cross-examination of P-0290, as this could ‘be 510 construed as a waiver of the right to cross-examine him’. The Trial Chamber indicated that Mr Ntaganda could still seek to recall this witness if cogent reasons 511 were shown warranting such recalling.

The Appeals Chamber notes that when rejecting Mr Ntaganda’s request to recall P-0290, the Trial Chamber found that Mr Ntaganda did not provide cogent reasons for 512 the recall. Mr Ntaganda does not present any arguments to show that the Trial Chamber erred in reaching this finding. Rather, Mr Ntaganda repeats some of the arguments previously raised in his Request for Reconsideration and other submissions 513 related to requests for postponements. The Appeals Chamber considers that Mr Ntaganda was adequately cautioned by the Trial Chamber of the risk that he might not 514 be able to cross-examine P-0290 at a later stage in the proceedings. The Appeal Chamber further notes that on another occasion, Mr Ntaganda in fact opposed the 515 proposal of the Trial Chamber to recall the witness as a Chamber’s witness. Apart from disagreeing with the Trial Chamber’s rejection of his own request to recall the witness, Mr Ntaganda does not present any argument calling into question the reasonableness of the Trial Chamber’s reasoning or demonstrating that it abused its discretion.

(d) Conclusion

Having rejected the entirety of Mr Ntaganda’s arguments that the Trial Chamber prioritised expeditiousness at the expense of his right to a fair hearing, the Appeals Chamber rejects this sub-ground of appeal.

508 T-67 , p. 39, lines 23-25. 509 T-67 , p. 40, lines 7-10, 23-25. 510 T-67 , p. 40, lines 16-18. 511 T-67 , p. 40, lines 20-22. 512 Decision on Recall of Witness P-0290 , para. 13. 513 See Decision on Recall of Witness P-0290 , para. 11. 514 Decision on Recall of Witness P-0290 , para. 11. 515 Submissions on Recall as Chamber Witness, paras 1, 49.

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5 Overall conclusion In view of the foregoing considerations, the Appeals Chamber rejects this ground of appeal.

C. Third ground of appeal: Whether the conviction exceeded the charges

Under the third ground of appeal, Mr Ntaganda submits that the Trial Chamber 516 erred in convicting him of criminal acts that were outside the scope of the charges.

1 Background and relevant part of the Conviction Decision 517 On 10 January 2014, the Prosecutor filed the DCC. In the DCC, the Prosecutor charged Mr Ntaganda with a number of war crimes and crimes against humanity, based on 18 counts, under various modes of liability.

On 9 June 2014, the Pre-Trial Chamber confirmed charges against 518 Mr Ntaganda. In particular, the Pre-Trial Chamber found that:

There are substantial grounds to believe that, as part of the widespread and systematic attack against the non-Hema civilian population, pursuant to or in furtherance of the organisational policy adopted by the UPC/FPLC, and in the context of the Non-International Armed Conflict , UPC/FPLC soldiers, including, as the case may be, supporting civilians, committed the following acts in the course of the First Attack : (i) murder and attempted murder (counts 1 and 2) in Mongbwalu, Pluto, Nzebi, Sayo and Kilo; (ii) attacking civilians (count 3) in Mongbwalu and Sayo; (iii) rape (counts 4 and 5) in Mongbwalu, Kilo and Sayo; (iv) persecution (count 10) in Mongbwalu, Pluto, Nzebi, Sayo, Kilo; (v) pillaging (count 11) in Mongbwalu and Sayo; (vi) forcible transfer of population and displacing civilians (counts 12 and 13) in Mongbwalu and Nzebi; (vii) attacking protected objects (count 17) in Mongbwalu and Sayo; (viii) destroying the enemy’s property (count 18) in Mongbwalu and Sayo.

516 Mr Ntaganda’s Appeal Brief - Part I , para. 18, referring to Bemba Appeal Judgment , paras 74, 104. 517 DCC . 518 Confirmation Decision .

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There are substantial grounds to believe that Mr. Ntaganda himself committed the following acts in the course of the First Attack : (i) murder (counts 1 and 2) in Mongbwalu; (ii) attacking civilians (count 3) in Sayo; (iii) persecution (count 10) in Mongbwalu and Sayo[;] (iv) pillaging (count 11) in Mongbwalu and Sayo; (v) attacking protected objects (count 17) in Mongbwalu and Sayo. There are substantial grounds to believe, that as part of the widespread and systematic attack against the non-Hema civilian population, pursuant to or in furtherance of the organisational policy adopted by the UPC/FPLC, and in the context of the Non-International Armed Conflict , UPC/FPLC soldiers, including, as the case may be, supporting civilians, committed the following acts in the course of the Second Attack : (i) murder and attempted murder (counts 1 and 2) in Kobu, Sangi, Bambu, Lipri, Tsili, Ngongo and Jitchu; (ii) attacking civilians (counts 3) in Bambu, Kobu, Lipri, Jitchu, Camp P.M., Buli, Djuba, Sangi, Tsili, Katho, Gola, Mpetsi/Petsi, Avetso, Nyangaray, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali and Ngabuli; (iii) rape (counts 4 and 5) in Lipri, Kobu, Bambu, Sangi and Buli; (iv) sexual slavery (counts 7 and 8) in Kobu, Sangi, Buli, Jitchu, and Ngabuli; (v) persecution (count 10) in Kobu, Sangi, Bambu, Lipri, Tsili, Ngongo, Jitchu, Buli, Nyangaray, Gutsi, Camp P.M., Djuba, Sangi, Katho, Gola, Mpetsi/Petsi, Avetso, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali and Ngabuli; (vi) pillaging (count 11) in Bambu, Kobu, Lipri and Jitchu; (vii) forcible transfer of population and displacing civilians (counts 12 and 13) in Lipri, Kobu, Bambu, Nyangaray, Tsili, Buli, Jitchu and Gutsi; (viii) attacking protected objects (count 17) in Bambu; (ix) destroying the enemy’s property (counts 18) in Kobu, Lipri, Bambu, Camp P.M., Buli, Jitchu, Djuba, Sangi, Tsili, Katho, Gola, Mpetsi/Petsi, Avetso, Nyangaray, Pili, Mindjo, Langa, Dyalo, Wadda, Goy, Dhepka, Mbidjo, Thali 519 and Ngabuli. Regarding counts 6, 9, 14, 15 and 16, the Pre-Trial Chamber found: 519 Confirmation Decision , para. 36 (footnote omitted, emphasis in original).

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There are substantial grounds to believe that in the context of the Non- International Armed Conflict , the UPC/FPLC soldiers committed acts of enlistment, including Mr. Ntaganda himself, as well as acts of conscription of children under the age of 15 years between on or about 6 August 2002 and 31 December 2003, in Ituri, in the DRC.

There are also substantial grounds to believe that the UPC/FPLC soldiers used children under the age of 15 years to participate actively in hostilities between on or about 6 August 2002 and on or about 30 May 2003, including Mr. Ntaganda himself, between on or about 6 August and March 2003, in Ituri, in the DRC.

There are substantial grounds to believe that the UPC/FPLC soldiers committed acts of rape and sexual slavery against child soldiers under the age of 15 years between on or about 6 August 2002 and 31 December 2003, in Ituri, in the 520 DRC.

The Pre-Trial Chamber found that there were substantial grounds to believe that Mr Ntaganda was criminally responsible for the crimes charged under article 25(3)(a), 521 (b) and (d), as well as under article 28(a) of the Statute.

On 6 February 2015, the Trial Chamber directed the Prosecutor to file an updated DCC in accordance with the Trial Chamber’s instructions, as well as a pre-

522 trial brief. When determining the content of the updated DCC, the Trial Chamber considered the parties’ disputes as to various aspects of the Confirmation Decision. It

noted, inter alia :

38 Having regard to the required content of the charges, the Chamber finds that the factual information provided in the ‘operative paragraphs’ of the Confirmation Decision alone would be insufficient to meet the required standard of notification of the nature, cause and content of the charges to the accused. Moreover, the Confirmation Decision makes the interpretation and understanding of those ‘operative paragraphs’ necessarily dependent on other portions of the decision, including through the use of defined terms and through the indication that the findings in those paragraphs are ‘more specifically supported’ by facts contained in subsequent subsections of the decision.

39 The Chamber additionally notes that, rather than explicitly designating any specific portion of the Confirmation Decision as comprehensively articulating the relevant ‘facts and circumstances’ confirmed, the Pre-Trial Chamber instead confirmed the ‘charges presented by the Prosecutor’, to the extent specified in the ‘operative paragraphs’. In the Chamber’s view, this means that, although the

520 Confirmation Decision , para. 74 (emphasis in original). 521 Confirmation Decision , para. 97. 522 Decision on UDCC , pp. 39-40.

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parameters of the charges confirmed by the Pre-Trial Chamber are contained in the Confirmation Decision, unruled upon allegations in the DCC may also constitute the ‘facts and circumstances described in the charges’. As a general principle, [...] where the Pre-Trial Chamber was silent on a particular allegation in the DCC, it cannot be presumed to have been rejected, and such silence need 523 not automatically result in its removal from the Updated DCC.

The Trial Chamber further held:

70 The Chamber does not accept the Prosecution’s argument that paragraphs 29 and 36 of the Confirmation Decision should be read together in a manner which confirms the charged crimes for the entirety of the Banyali-Kilo and Walendu- Djatsi collectivités . This is apparent, inter alia , from the language of paragraph 29 itself, which defines the First Attack and Second Attack as having occurred in ‘a number of villages’ within those collectivités ‘as identified by the Chamber’. Moreover, in the Chamber’s view, paragraph 36 of the Confirmation Decision, and its supporting paragraphs, evidences a clear intention to specify differentiated locations for each of the different confirmed crimes. [...]

72 [...] [T]he Chamber considers the proposed use of the word ‘including’, in relation to locations in which crimes allegedly occurred, to be impermissibly broad in the context of the confirmed charges. The Chamber shall not, therefore, authorise its introduction into the Updated DCC in a manner which would have such an expansive effect. An exception is crimes relating to child soldiers [...], in relation to which the Pre-Trial Chamber stated that the exact locations in which these crimes allegedly occurred did not need to be specified, provided that the relevant acts occurred ‘within the temporal and geographical framework of the charges’. 524

On 16 February 2015, the Prosecutor filed the ‘Updated Document Containing the Charges’ 525 526 and, on 9 March 2015, the ‘Prosecution’s Pre-Trial Brief’.

On 2 July 2018, Mr Ntaganda filed the ‘Defence Closing Brief’, in which he argued that ‘[a] conviction [could] be entered for “individual crimes” only to the extent specified in the UDCC’. 527

On 17 July 2018, the Prosecutor and Victims Group 1 responded to 528 Mr Ntaganda’s arguments regarding the scope of the charges.

523 Decision on UDCC , paras 38-39 (footnotes omitted). 524 Decision on UDCC , paras 70, 72 (footnotes omitted). 525 UDCC . 526 Pre-Trial Brief . Mr Ntaganda’s Closing Brief 527 , para. 23. See also paras 22, 1541-1543. Prosecutor’s Response to Mr Ntaganda’s Closing Brief Victims’ Response to Mr 528 , paras 8-14; Ntaganda’s Closing Brief , paras 12-32.

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On 1 August 2018, Mr Ntaganda filed a reply to the Prosecutor’s response to his

529 closing brief, including on the issue of scope of the charges. He argued that he ‘could not properly be committed for trial for murder, rape, pillage and other crimes

defined no more specifically than that crimes occurred during a period totalling 29 days (or more), a vaguely-defined area consisting of at least 153 square kilometres (or more)’. 530 Mr Ntaganda also contended that ‘Counts 6, 9, 14, 15 and 16 are even less defined, spanning a period of 17 months with no geographic limitation’. 531 He listed a number of ‘specific criminal acts within the scope of the two attacks for which the

Prosecution [sought] a conviction where there [was] no counterpart charge in the UDCC’. 532

In the Conviction Decision, the Trial Chamber addressed the scope of the charges:

39 Certain charges can be properly framed only at the level of individual criminal acts. […]

40 Some charges may be properly framed more broadly ( e.g. deportation of ‘civilians’ across a range of times and places), and need not necessarily be framed as a specific incident or an aggregate of acts ( e.g. deportation of identified persons at a particular time and place). If in such a case a pre-trial chamber nonetheless refers to one or more specific incidents, which by themselves may amount to individual criminal acts, then these only serve as examples of the conduct falling within the parameters. In other words, the acts or the references to any individual victims become evidential details for proving that crimes within these parameters occurred. In these cases, the individual criminal acts do not delimit the charge, and other acts that were not explicitly mentioned in the confirmation decision but are proven beyond reasonable doubt can be equally used to prove this charge, as long as they fall within the specific parameters of the charge as confirmed by the pre-trial chamber.

41 Further, the Chamber may consider whether a specific type of criminal act ( e.g. murder as a crime against humanity) is committed in narrowly confined temporal and geographical space and/or other parameters. These charges can be framed by these parameters and need not be framed at the level of individual criminal acts, as long as they fall within the specific parameters of the charge as confirmed by the pre-trial chamber.

529 Mr Ntaganda’s Reply to Prosecutor’s Response to Closing Brief , paras 8-15. Mr Ntaganda’s Reply to Prosecutor’s Response to Closing Brief 530 , para. 10. Mr Ntaganda’s Reply to Prosecutor’s Response to Closing Brief 531 , para. 11 (emphasis in original omitted). Mr Ntaganda’s Reply to Prosecutor’s Response to Closing Brief 532 , para. 14.

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42 The Chamber may also consider whether the crimes charged are of a continuous nature. […] Past cases from this Court and elsewhere have discussed sexual slavery and enlisting and conscripting children under the age of 15 as 533 examples of potentially continuing crimes.

The Trial Chamber also addressed Mr Ntaganda’s arguments regarding specific

criminal acts, which in his view exceeded the facts and circumstances described in the

charges. In most cases, the Trial Chamber found the challenged acts to fall within the

534 scope of the charges.

2 Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda challenges his conviction in respect of 15 criminal acts, as well as

the corresponding acts underlying his conviction under count 10, on the basis that, in

his view, these acts do not fall within the ‘facts and circumstances described in the

535 charges’, within the meaning of article 74(2) of the Statute. He argues that

‘[s]imply listing the categories of crimes or stating, in broad general terms, the

temporal and geographical parameters of the charge […] does not allow for a

536 meaningful application of article 74(2)’ of the Statute. He submits that ‘[c]harges

537 are not confirmed on the basis of a sample of criminal acts within a category’.

Mr Ntaganda contends that expansion of the trial’s factual parameters after

538 confirmation is impermissible without recourse to article 61(9) of the Statute.

Mr Ntaganda avers that the ‘facts and circumstances’ in the charges of this case

539 were described at the level of individual criminal acts. Mr Ntaganda contends that

the Trial Chamber’s approach contradicts the approach taken by the Appeals Chamber

540 in the case of Bemba .

533 Conviction Decision , paras 39-42 (footnotes omitted). 534 Conviction Decision , paras 865, 868-870, 936, 938, 968-969, 1112-1113, 1153. 535 Mr Ntaganda’s Appeal Brief - Part I , paras 22-23, fn. 47. Mr Ntaganda’s Appeal Brief - Part I 536 , para. 19, referring , inter alia , to Bemba Appeal Judgment , para. 110. 537 Mr Ntaganda’s Appeal Brief - Part I , para. 20. Mr Ntaganda’s Appeal Brief - Part I 538 , para. 20. Mr Ntaganda’s Appeal Brief - Part I 539 , para. 21, quoting Bemba Appeal Judgment , para. 111 and referring to para. 115. Mr Ntaganda’s Appeal Brief - Part I 540 , para. 21.

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(b) The Prosecutor’s submissions

The Prosecutor argues that the scope of the charges for crimes other than crimes

against child soldiers was sufficiently specific because they were framed by reference

to ‘narrow temporal and geographical parameters’ and described the manner in which

541 the crimes were committed. She submits that Mr Ntaganda erroneously draws an

analogy between the present case and the Bemba case, as the present case ‘is pleaded

with a significantly higher degree of specificity’. 542 The Prosecutor argues that

‘charges need not always be pleaded to the level of specific victims’. 543

Regarding the ‘crimes against child soldiers’ – enlistment, conscription, rape

and sexual slavery – the Prosecutor submits that these charges are also sufficiently

544 specific. She argues that both the Pre-Trial Chamber and the Trial Chamber

accepted the broader parameters of these crimes in view of their continuous nature

545 and the fact that the perpetrators were continuously on the move.

(c) The victims’ observations

Victims Group 1 submit that the charges concerning crimes against children

under 15 years were ‘pleaded and confirmed by reference to confined parameters and

not, as suggested by Mr Ntaganda, specific criminal acts’ and that the degree of

specificity is consistent with the approach of the Court and the jurisprudence of other

546 tribunals. Victims Group 1 argue that, in addition, counts 6 and 9 were framed by

reference to a limited category of victims – ‘UPC/FPLC child soldiers under the age

of 15’. 547 Victims Group 1 submit, in relation to Mr Ntaganda’s challenge concerning

the charges of sexual slavery, that the continuing nature of this crime has been widely

548 recognised.

(d) Mr Ntaganda’s response to the victims

Mr Ntaganda submits that Victims Group 1’s averment that the charges were

formulated by reference to geographical and temporal parameters is incorrect, as the

Prosecutor’s Response to Appeal – Part I 541 , paras 1, 26, 27, 35-36; T-271 , p. 59, lines 15-19. Prosecutor’s Response to Appeal – Part I 542 , paras 26, 30-31; T-271 , p. 60, lines 10-25. Prosecutor’s Response to Appeal – Part I 543 , paras 33-34. Prosecutor’s Response to Appeal – Part I 544 , paras 37, 39. Prosecutor’s Response to Appeal – Part I 545 , paras 38-39; T-271 , p. 61, lines 3-5. 546 Observations of Victims Group 1 on Appeal – Part I , para. 16. 547 Observations of Victims Group 1 on Appeal – Part I , para. 18 (emphasis in original omitted). 548 Observations of Victims Group 1 on Appeal – Part I , para. 19.

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Confirmation Decision makes it clear that the charges were formulated by reference to 549 additional and exhaustive factual detail. Regarding the crimes against children under 15 years, Mr Ntaganda argues that the factual allegations underlying these crimes were not referred to in the relevant parts of the Confirmation Decision and thus 550 fall outside the facts and circumstances described in the charges.

(e) Mr Ntaganda’s reply to the Prosecutor

Mr Ntaganda submits that it is irrelevant that the ‘temporal and geographical parameters in the present case are narrower than those in Bemba ’, as his argument on appeal is that ‘criminal acts must be meaningfully, and exhaustively, identified as part of the confirmation process’. 551

3 Determination by the Appeals Chamber Mr Ntaganda’s central argument is that, in the confirmation of charges decision, ‘[c]riminal acts must be identified exhaustively’ 552 and that, apart from counts 14-16, the charges in the present case ‘were described, in relation to the crimes, at the level of individual criminal acts’. 553 He submits that his conviction was partly based on individual acts that had not been confirmed in the Confirmation Decision and that, to this extent, his conviction exceeds ‘the facts and circumstances described in the charges’. 554

The argument on appeal appears to be that: (i) the Confirmation Decision must be understood to only confirm charges with respect to identified criminal acts, and (ii) the Trial Chamber erred in reading the Confirmation Decision differently. The Appeals Chamber will therefore consider this ground of appeal as follows. It will start by analysing the legal argument of Mr Ntaganda that ‘[c]riminal acts must be 555 identified exhaustively’. It will then examine the argument that the Trial Chamber incorrectly understood the Confirmation Decision. Based on this analysis, the Appeals Chamber will then consider whether any of the criminal acts listed by Mr Ntaganda in

Mr Ntaganda’s Response to Observations of Victims Group 1 on Appeal - Part I 549 , paras 11, 13. Mr Ntaganda’s Response to Observations of Victims Group 1 on Appeal - Part I 550 , paras 14-16. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part I 551 , para. 15. 552 Mr Ntaganda’s Appeal Brief - Part I , para. 20. 553 Mr Ntaganda’s Appeal Brief - Part I , para. 21. 554 Mr Ntaganda’s Appeal Brief - Part I , paras 18, 22-23. 555 Mr Ntaganda’s Appeal Brief - Part I , para. 20.

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this ground of appeal were not confirmed and whether his conviction exceeds ‘the facts and circumstances described in the charges’, within the meaning of article 74(2) of the Statute.

(a) Whether charges must be formulated and confirmed with respect to individual criminal acts

The Appeals Chamber notes at the outset that the present ground of appeal concerns the level of detail required in the formulation and confirmation of charges 556 allowing for a meaningful application of article 74(2) of the Statute. It does not concern the question whether Mr Ntaganda was informed of the charges in detail and 557 sufficiently in advance. Regarding that latter question, the Appeals Chamber recalls that, pursuant to article 67(1)(a) of the Statute, the person must receive timely and 558 sufficiently detailed notice of the charges. However, Mr Ntaganda does not argue under this ground of appeal that he did not receive sufficient notice of the charges against him. In its present discussion, the Appeals Chamber will thus focus on the requirements of article 74(2) of the Statute.

Article 74(2) of the Statute provides in relevant part:

The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. Pursuant to this provision, the trial chamber may enter a conviction only with respect to allegations that fall within the factual scope of the charges, as confirmed or amended. The Appeals Chamber finds that article 74(2) of the Statute serves to limit the trial chamber’s power to convict the person to facts and circumstances alleged by the Prosecutor in the charging document and confirmed by the pre-trial chamber.

556 Mr Ntaganda argues that ‘[s]imply listing the categories of crimes or stating, in broad general terms, the temporal and geographical parameters of the charge [...] does not allow for a meaningful application of article 74(2)’ ( Mr Ntaganda’s Appeal Brief - Part I , para. 19). 557 See Bemba Appeal Judgment , para. 98. 558 Pursuant to rule 121(3) of the Rules, the Prosecutor shall provide to the pre-trial chamber and the person ‘a detailed description of the charges’. Regulation 52 of the Regulations of the Court reads, as far as relevant: ‘The document containing the charges […] shall include: […] (b) A statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court’. See also Lubanga OA15 / OA16 Judgment , fn. 163; Lubanga Appeal Judgment , para. 123.

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The factual scope of a given trial – the facts and circumstances described in the charges that may not be exceeded in the conviction decision – is delineated in the course of the pre-trial proceedings, starting with the warrant of arrest or the summons to appear. In subsequent proceedings, the Prosecutor may include further particulars in the document containing the charges. Eventually the charges formulated by the Prosecutor are considered by the pre-trial chamber, which sets the parameters of the charges by confirming or declining to confirm them in the confirmation decision. After confirmation, ‘further details about the charges’ may be provided in ‘auxiliary documents’ 559 or the charges may be modified by means of amendment.

For the purposes of article 74(2) of the Statute, the charges must be described in such a way that the trial chamber as well as the parties and participants are able ‘to determine with certainty which sets of historical events, in the course of which crimes under the jurisdiction of the Court are alleged to have been committed form part of the charges, and which do not’. 560 It is not necessarily the case that such determination is possible only where the charging documents list all criminal acts underlying each charge exhaustively. Depending on the circumstances of the case, the charges may be described in a less specific manner, for instance, by specifying a period of time during which and an area where criminal acts were allegedly committed by an identifiable 561 group of perpetrators against an identifiable group of victims. While in such a case the document containing the charges may also list or make reference to specific criminal acts, the scope of the case is not necessarily limited to them – ‘other criminal acts not mentioned in the document containing the charges may still fall within the – 562 broadly described – facts and circumstances of the charges’. Whether such description of the charges is sufficient for purposes of article 74(2) of the Statute will depend, inter alia , on the scale of criminality and the mode of individual criminal responsibility alleged.

The Appeals Chamber therefore finds that, contrary to Mr Ntaganda’s contention, it is not necessarily inconsistent with article 74(2) of the Statute for the

559 Lubanga Appeal Judgment , para. 124. 560 See Bemba Dissenting Opinion to Appeal Judgment , para. 27. 561 See Bemba Dissenting Opinion to Appeal Judgment , para. 27. 562 See Bemba Dissenting Opinion to Appeal Judgment , para. 28.

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Prosecutor to formulate and for the pre-trial chamber to confirm charges that do not

consist of an exhaustive list of individual criminal acts.

(b) Whether the charges in this case are limited to criminal acts identified in the charging documents

563 Turning to the Confirmation Decision and the UDCC in the present case, the

Appeals Chamber notes that these documents do not contain an exhaustive list of

individual criminal acts underlying each charged crime. The charges are described by

reference to certain parameters – for instance, location and time – and individual 564 criminal acts appear as examples.

In particular, the charges are described as follows:

(i) by reference to general parameters:

(a) most of the crimes charged cover the periods of 20 November

to 6 December 2002 (to which the charging documents refer to as ‘the First Attack’) and 12 to 27 February 2003 (‘the Second

Attack’), and the territories of Banyali-Kilo collectivité and

565 Walendu-Djatsi collectivité ;

(b) for some crimes, namely rape of UPC/FPLC children under

the age of 15 (Count 6), sexual slavery of UPC/FPLC children

under the age of 15 (Count 9) and enlistment and conscription of

children under the age of 15 and their use to participate actively in

563 In the present case, the Trial Chamber directed the Prosecutor to file an updated document containing the charges. This was in response to the wish for such a document, expressed by both parties ( Decision on UDCC , paras 1, 11, 14, 18-20), and following a procedure aimed at ensuring that the UDCC would ‘conform to the scope of the charges as confirmed in the Confirmation Decision’ ( Decision on UDCC , para. 19). Given the manner in which the Trial Chamber and the parties approached the matter, the Appeals Chamber finds it appropriate in its analysis of this ground of appeal to refer to both the Confirmation Decision and the UDCC. Both these documents will serve to identify ‘the facts and circumstances described in the charges’ in the present case. 564 For instance: the execution of two civilians at Nzebi ( UDCC , para. 69), the looting of ‘the orphanage, health facilities, schools, religious structures, and the headquarters of the Kilo Moto gold mining company’ in Bambu ( UDCC , para. 81), the murder of Burombi, a Lendu dignitary, in a banana field near Kobu ( UDCC , para. 90), the killing of priest Boniface Bwanalonga ( Confirmation Decision , para. 38), the attempted murder of P-0800 in Sayo ( Confirmation Decision , para. 40), the killing of a man and a woman in Mr Mulenda’s compound in Kobu ( Confirmation Decision , para. 42), the rape of a girl in Lipri ( Confirmation Decision , para. 51), and the rape of P-0113 on the road from Buli to Kobu ( Confirmation Decision , para. 51). 565 UDCC , para. 5.

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hostilities (Counts 14, 15 and 16), the relevant period is 6 August 2002 to 31 December 2003 and the geographical scope covers the 566 territory of Ituri, DRC;

(ii) in addition, for most of the charges, by reference to more specific detail in the UDCC: the names of the villages or towns in which the crimes were committed, sometimes the manner of commission, the specific date or a relatively short period of time (not exceeding two weeks) and, sometimes, the approximate number of victims and/or a general description of the group of victims concerned;

(iii) individual criminal acts provided as examples.

567 The Appeals Chamber therefore finds that, contrary to Mr Ntaganda’s contention, the UDCC and the Confirmation Decision do not simply list the categories of crimes or state ‘in broad general terms’ the parameters of the charges. 568

The Appeals Chamber notes that Mr Ntaganda was charged with the commission of crimes, inter alia , pursuant to a common plan, involving himself and other military leaders of the UPC/FPLC, including Thomas Lubanga and Floribert 569 Kisembo. The crimes with which he was charged were committed at numerous locations and included many individual criminal acts, such as the killing of ‘many civilians’ or rapes committed ‘routinely’. 570 Having regard to the mode of responsibility and the scale of criminality charged, the Appeals Chamber finds that the charges were formulated with sufficient detail for the purposes of article 74(2) of the Statute, enabling the Trial Chamber and the parties and participants to identify the historical events involving commission of crimes which formed part of the charges.

566 Confirmation Decision , para. 74. 567 Judge Hofmański indicates that, although he agrees that the level of detail of charges is different from that in the Bemba case, this is not the reason why he rejects the present ground of appeal. In his view, even if the level of detail were the same, Judge Hofmański would not consider it to be inconsistent with article 74(2) of the Statute ( see Bemba Dissenting Opinion to Appeal Judgment , paras 20, 27-32, 39). Mr Ntaganda’s Appeal Brief - Part I 568 , para. 19, referring , inter alia , to Bemba Appeal Judgment , para. 110. 569 UDCC , paras 111-119; Confirmation Decision , para. 105. 570 UDCC , paras 63-108; Confirmation Decision , paras 38-96.

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Accordingly, Mr Ntaganda has not demonstrated that the Trial Chamber erred in considering the criminal acts which he challenges under this ground of appeal to be included in the charges against him and in finding those charges to be described in sufficient detail. This concerns the following criminal acts:

(i) the murder of nine patients at Bambu hospital and the attempted 571 murder of a tenth;

572 (ii) the murder of various individuals in Kilo;

(iii) the murder of people in Mongbwalu and Sayo during the ratissage operations, including a Lendu woman accused of being a ‘chieftain’; 573

(iv) the murder of a woman, while she tried to defend herself against rape, 574 and of P-0018’s sister-in-law in Sangi, during the Second Operation;

(v) the murder of men raped by UPC/FPLC soldiers during the Second 575 Operation;

576 (vi) the attempted murder of P-0019 and P-0108;

(vii) the targeting, on the order of Mr Ntaganda personally, of civilians in 577 Sayo using a grenade launcher;

(viii) the rape of women and girls during and in the immediate aftermath of the UPC/FPLC assault on Mongbwalu, save the rape spoken about by P-0017 at Salumu’s camp, and of girls, save P-0022, in Kilo, during 578 the First Operation;

(ix) the rape of detained women in Kobu in so far as this finding relies on the findings: (a) that ‘UPC/FPLC soldiers detained several women and

571 Mr Ntaganda’s Appeal Brief - Part I , para. 22(i). 572 Mr Ntaganda’s Appeal Brief - Part I , para. 22(iii). 573 Mr Ntaganda’s Appeal Brief - Part I , para. 22(iv). 574 Mr Ntaganda’s Appeal Brief - Part I , para. 22(v). 575 Mr Ntaganda’s Appeal Brief - Part I , para. 22(vi). 576 Mr Ntaganda’s Appeal Brief - Part I , para. 22(vii). 577 Mr Ntaganda’s Appeal Brief - Part I , para. 22(viii). 578 Mr Ntaganda’s Appeal Brief - Part I , para. 22(ix).

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girls, in some instances for hours, in others over the course of several days’ and ‘raped them and otherwise subjected them to sexual violence on one or more occasions’; (b) that P-0019 ‘saw other women being raped inside and outside the house, including with sticks’; and (c) [crimes described in] paragraph 599 [of the Conviction Decision, 579 which concern rapes committed in] Sangi;

(x) the rape of women in Sangi in so far as this finding concerns the rape 580 of P-0018’s sister-in-law during the Second Operation;

(xi) the rape and sexual slavery of child soldiers in relation to P-0883 at 581 Camp Bule, and Mave; and

(xii) individual criminal acts corresponding to the ones challenged by Mr Ntaganda under this ground of appeal and underlying the crime of 582 persecution (count 10).

In addition, Mr Ntaganda raises some specific arguments with respect to a few other criminal acts. Regarding: (i) the ‘murder of two children “during the assault” to take over Kobu’ and (ii) the looting of items other than roofs of houses, the Appeals Chamber understands Mr Ntaganda to additionally argue that the Confirmation Decision narrowed the scope of the relevant charges and that his conviction exceeds 583 the charges thus described. In these cases, the description of crimes in the Confirmation Decision appears to be narrower than in the UDCC. In particular, the UDCC refers to ‘murder and attempted murder during and after the UPC/FPLC attack ’, 584 on Walendu-Djatsi collectivité whereas in the relevant part of the Confirmation Decision the Pre-Trial Chamber only examined evidence of criminal acts committed 585 after the assault on Kobu. In the second case, the UDCC refers to pillage in

579 Mr Ntaganda’s Appeal Brief - Part I , para. 22(x) (footnotes omitted). 580 Mr Ntaganda’s Appeal Brief - Part I , para. 22(xi). 581 Mr Ntaganda’s Appeal Brief - Part I , para. 22(xii). 582 Mr Ntaganda’s Appeal Brief - Part I , para. 23. 583 Mr Ntaganda’s Appeal Brief - Part I , para. 22(ii), (xiii) (emphasis in original omitted). 584 UDCC , para. 157(b). See also para. 80. 585 Confirmation Decision , para. 42.

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586 general, whereas the Confirmation Decision refers to evidence of the looting of ‘the roofs of houses in Bambu, Kobu and Lipri’. 587

The Appeals Chamber is of the view that this has no impact on the scope of the charged crimes. It agrees with the Trial Chamber’s finding with respect to

Mr Ntaganda’s challenge to the specificity of charging of the murder of two children in Kobu:

The Chamber notes that Kobu is one of the locations mentioned in paragraph 36 in relation to Counts 1 and 2 and that paragraph 42 of the Confirmation Decision states that: ‘after the UPC/FPLC had taken control of Kobu, UPC/FPLC patrols were organised and every civilian considered to be an enemy in Kobu was killed immediately or taken to Mr. Mulenda’s compound and executed there upon his orders. In particular , a man and a woman were executed in that compound by UPC/FPLC soldiers, including Commander Simba, and three Lendu men were also killed there by UPC/FPLC soldiers’ (footnotes omitted and emphasis added). In light of the foregoing, the Chamber finds that the killing of persons other than the ones specifically mentioned in paragraph 42 of the Confirmation Decision, particularly, the two children, falls 588 within the scope of the charges.

The Appeals Chamber also agrees with the following observation by the Trial Chamber:

As a general principle, [...] where the Pre-Trial Chamber was silent on a particular allegation in the DCC, it cannot be presumed to have been rejected, and such silence need not automatically result in its removal from the Updated 589 DCC.

The Appeals Chamber finds that there is no indication that the Pre-Trial Chamber intended to confirm the relevant charges only in part and to decline to confirm the remaining parts. Rather, the Pre-Trial Chamber considered evidence of some aspects of the crimes charged and, based on that evidence, confirmed the crimes charged in their entirety. The Appeals Chamber therefore finds that Mr Ntaganda’s

conviction for: (i) the murder of two children during the assault to take over Kobu and (ii) the looting of items other than roofs of houses did not exceed the charges.

586 UDCC , paras 72, 85. 587 Confirmation Decision , para. 62 (footnotes omitted). 588 Conviction Decision , para. 870 (emphasis in original). 589 Decision on UDCC , para. 39.

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Regarding another criminal act – the burning of a house in Sayo, Mr Ntaganda argues that ‘only burning caused by incendiary grenades was confirmed’. 590 The allegation in the UDCC relevant to this criminal act is that ‘UPC/FPLC troops

destroyed civilian houses in Mongbwalu and Sayo by deliberately targeting them with heavy weapons’. 591 The Pre-Trial Chamber made the following finding in relation to this allegation:

In the course of the First Attack, destruction of property of the adversary, which was protected from that destruction under international law of armed conflict, took place. More specifically, the UPC/FPLC troops used heavy weapons such as mortars in the attack on Mongbwalu, inhabited by a majority of Lendu, which resulted in the destruction of many infrastructures. Shortly after, UPC/FPLC troops systematically shelled Sayo, a predominantly Lendu village, using heavy weapons. UPC/FPLC soldiers also used incendiary grenades and burned houses while people were inside. The attack resulted in the destruction of many houses 592 and buildings in Sayo.

The Trial Chamber addressed Mr Ntaganda’s challenge to the inclusion of the

burning of houses in the charge of destruction of property:

The Defence argues that any acts of destruction of property in Sayo other than with heavy weapons are outside of the scope of the charges. However, the Chamber notes that, in the case of Sayo, unlike for Mongbwalu, the Confirmation Decision does not contain such limitation. The Confirmation Decision in fact makes reference to the burning of houses in Sayo. For this reason, the Chamber considers that the destruction of houses by burning falls 593 within the scope of the charges.

Mr Ntaganda does not present any arguments to challenge this finding of the Trial Chamber. The Appeals Chamber finds no error in this finding.

Mr Ntaganda also challenges his conviction for the crime of ‘using children

under the age of 15 to participate actively in hostilities in the First Operation in so far as this finding relies on evidence relating to Sayo’. 594 With respect to this crime, the Trial Chamber found that ‘individuals under the age of 15 participated in the assaults forming part of the First Operation’. 595 This finding was based, inter alia , on the

590 Mr Ntaganda’s Appeal Brief - Part I , para. 22(xv). 591 UDCC , para. 73. 592 Confirmation Decision , para. 72 (footnotes omitted). 593 Conviction Decision , para. 1153 (footnotes omitted). 594 Mr Ntaganda’s Appeal Brief - Part I , para. 22(xiv). 595 Conviction Decision , para. 1125, referring to para. 511.

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evidence of P-0886, who testified that ‘he saw persons 14 years of age amongst the attackers in Sayo’. 596

The Trial Chamber considered Mr Ntaganda’s challenge to the specificity of charging with respect to this criminal act:

the Chamber notes that active participation in hostilities is temporary in nature under IHL and that individuals cease to actively participate when not engaged in combat related activities. Any charge of active participation must therefore be framed in a more specific way. The Chamber notes that the Confirmation Decision indeed does so. Paragraph 74 of the Confirmation Decision, one of the operative bolded paragraphs which sets out the parameters for counts related to alleged child soldiers, including Count 16, sets out the temporal scope of the charge, i.e. from 6 August 2002 to 30 May 2003, whereas paragraphs 93 to 96 597 set out types of conduct, locations, and timeframes specific to this charge. Mr Ntaganda’s argument on appeal is specifically directed at the deployment of children under the age of 15 (count 16) in the assault on Sayo. The Appeals Chamber notes that the UDCC does not list Sayo among several locations where children were deployed in the attacks launched by the UPC/FPLC. However, it indicates that such deployment also occurred ‘elsewhere’. 598 Furthermore, as the children were deployed in the assaults carried out by the UPC/FPLC, during which other charged crimes were committed, it is relevant that Sayo features as the location where such crimes were committed. The Appeals Chamber therefore considers that in light of the description of those other crimes, it is sufficiently clear that the crime of deployment of children in hostilities may have also been committed in Sayo.

In the Confirmation Decision, the Pre-Trial Chamber found that ‘[t]here are […] substantial grounds to believe that the UPC/FPLC soldiers used children under the age of 15 years to participate actively in hostilities between on or about 6 August 2002 and on or about 30 May 2003, including Mr. Ntaganda himself, between on or about 599 6 August and March 2003, in Ituri, in the DRC’. There is no indication that the Pre- Trial Chamber intended to decline to confirm this charge in part, to the extent it concerned Sayo. On the contrary, the Pre-Trial Chamber confirmed the charge in its

596 Conviction Decision , fn. 1508. 597 Conviction Decision , para. 1113 (footnote omitted). 598 UDCC , para. 98. 599 Confirmation Decision , para. 74.

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600 entirety, as correctly noted by the Trial Chamber. Mr Ntaganda has not demonstrated that his conviction under count 16 with respect to Sayo exceeds the relevant charge.

(c) Overall conclusion

In view of the foregoing, the Appeals Chamber finds that the criminal acts which Mr Ntaganda challenges under this ground of appeal were included in the confirmed charges and that, therefore, the Trial Chamber did not err in convicting Mr Ntaganda of these acts, as they do not exceed the facts and circumstances described in the charges. Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s findings on the scope of the charges, the Appeals Chamber rejects this ground of appeal.

D. Fourth ground of appeal: Whether there was an ‘organizational policy’ within the meaning of article 7(2) of the Statute

Under the fourth ground of appeal, Mr Ntaganda challenges the Trial Chamber’s finding that there was a UPC/FPLC policy to attack the civilian 601 population. He raises one error regarding the Trial Chamber’s finding that the UPC/FPLC was an organisation within the meaning of article 7 of the Statute, but the majority of his arguments challenge the Trial Chamber’s assessment of evidence relevant to its finding of a policy to attack a civilian population. These are addressed separately below.

1 Alleged error in finding that the UPC/FPLC was an organisation prior to 9 August 2002

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda submits that the Trial ‘Chamber erred by concluding that the UPC/FPLC was an “organization” pursuant to article 7 before the UPC/FPLC was officially constituted’ and argues that it was not an ‘organization’ until 9 August 2002

600 Conviction Decision , para. 1113. Mr Ntaganda’s Appeal Brief – Part II 601 , paras 104-128.

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‘when it began exercising control over a territory’. 602 In support of this argument, he refers to decisions of the majority of Pre-Trial Chamber II in the Situation in the Republic of Kenya, which list non-exhaustive criteria relevant to determining whether a group is an ‘organisation’ within the meaning of article 7 of the Statute. 603

(ii) The Prosecutor’s submissions The Prosecutor contends that Mr Ntaganda’s argument ‘is undeveloped and should be dismissed’ and that he, in any event, ‘concedes that the UPC was an organisation at the relevant time, as of 9 August 2002’. 604

(b) Determination by the Appeals Chamber

Mr Ntaganda takes issue with the Trial Chamber’s finding that ‘the “organisation” that set out the “policy” for the purpose of Article 7(1) existed before the UPC/FPLC was officially constituted’. 605 However, he fails to set out the material effect of the alleged erroneous finding and it is not otherwise apparent how this finding, if overturned, would impact on Mr Ntaganda’s conviction. The Appeals Chamber notes that the Trial Chamber found that ‘[ d ] uring the temporal scope of the charges , when the “organizational policy” was allegedly implemented, the UPC/FPLC was a well-organised military armed group, consisted of a significant number of trained soldiers and possessed a significant arsenal of weapons, and resembled a conventional army’. 606 Mr Ntaganda does not challenge these findings or suggest that the UPC/FPLC was not officially constituted or that it did not exercise control over a territory during the period relevant to the charges in the present case. Therefore, Mr Ntaganda’s argument is dismissed for failure to show material effect.

Mr Ntaganda’s Appeal Brief – Part II 602 , para. 107, referring to Conviction Decision , paras 449, 676, 681. Mr Ntaganda’s Appeal Brief – Part II 603 , para. 107, referring to Kenya Decision Authorising Investigation , para. 93; Ruto et al. Confirmation Decision , para. 185. Prosecutor’s Response to Appeal – Part II 604 , para. 100. Mr Ntaganda’s Appeal Brief – Part II 605 , para. 107, referring to Conviction Decision , paras 676, 681. 606 Conviction Decision , para. 678 (emphasis added).

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2 Alleged errors in the assessment of evidence relevant to establishing a policy

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda argues that the Trial Chamber’s assessment of the evidence relevant to the UPC/FPLC’s policy was affected by the following errors: (i) the Trial Chamber erred in inferring that the UPC/FPLC had a policy to attack the civilian population and ignored other reasonable inferences, in particular given that documentary evidence referred to by the Chamber did not ‘evidence any intent to 607 target civilians of any ethnicity’; (ii) the Trial ‘Chamber erred by relying on […the] un-corroborated testimony [of P-0014] concerning a meeting in June 2002 that stands 608 out and goes way beyond the content of contemporaneous documents in evidence; (iii) the Trial Chamber failed to properly consider evidence that non-Iturians were members of the UPC/FPLC or welcomed to remain in Ituri and that there was no 609 policy regarding them; (iv) the Trial Chamber erred in finding that ‘the planning and unfolding of UPC/FPLC military actions directly contradicted the stated aim / ambition of the UPC/FPLC to defend the population as a whole’; 610 (v) the Trial Chamber failed to consider evidence of the UPC/FPLC’s efforts to build peace in Ituri, its multi-ethnic composition and its aim to protect the civilian population as a 611 whole; and (vi) the Trial Chamber erred by inferring that the policy to attack the civilian population was actively promoted and failed to consider that the ‘true UPC/FPLC policy to protect civilians without discrimination and to prohibit the commission of any crimes was clearly communicated to the troops by UPC/FPLC leaders and commanders’. 612

(ii) The Prosecutor’s submissions The Prosecutor argues that the Trial ‘Chamber thoroughly assessed the evidence and correctly concluded that the UPC constituted an organisation that actively

Mr Ntaganda’s Appeal Brief – Part II 607 , paras 108-110. Mr Ntaganda’s Appeal Brief – Part II 608 , para. 111. Mr Ntaganda’s Appeal Brief – Part II 609 , para. 112. Mr Ntaganda’s Appeal Brief – Part II 610 , para. 114. Mr Ntaganda’s Appeal Brief – Part II 611 , paras 116-120. Mr Ntaganda’s Appeal Brief – Part II 612 , paras 121-127.

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promoted a policy to attack civilians’. 613 She contends that Mr ‘Ntaganda merely repeats his trial submissions and complains that the Chamber did not consider certain 614 evidence, or disagreed with his interpretation of it’.

(iii) The victims’ observations Victims Group 2 submit that Mr Ntaganda ‘mainly reiterates previous argument unsuccessfully brought before the Trial Chamber, […] and generally disagrees with 615 the findings of the Trial Chamber and the latter’s interpretation of the evidence’. They argue that it is clear from ‘the Trial Chamber’s discussion of the evidence […that it] considered and weighed all the evidence before it and properly explained how it came to the conclusion that the evidence pointed to a policy targeting civilians’. 616

(iv) Mr Ntaganda’s response to the victims Mr Ntaganda argues that there was an ‘abundance of evidence’ providing ‘a contemporaneous account of UPC/FPLC military operations’ ‘in the form of UPC/FPLC documents, statements, speeches, audio-visual recordings and other exhibits admitted, such as Mr. Ntaganda’s logbook(s)’, yet ‘there is no documentary evidence which establishes the existence of a UPC/FPLC policy to attack and chase 617 away the Lendu civilians and those perceived as non-Iturians’. He reiterates that the Trial Chamber failed to consider the totality of the relevant evidence and failed to provide a reasoned opinion by explaining the link between its factual findings and 618 legal conclusions.

(b) Determination by the Appeals Chamber

Mr Ntaganda raises a number of linked arguments regarding the Trial Chamber’s overall assessment of the evidence relevant to its finding of an organisational policy. In the analysis below, the Appeals Chamber will first address those arguments that challenge the assessment of the evidence relevant to underlying factual findings relied upon to support the existence of an organisational policy. It will

Prosecutor’s Response to Appeal – Part II 613 , para. 99 (footnotes omitted). Prosecutor’s Response to Appeal – Part II 614 , para. 99 (footnote omitted). 615 Observations of Victims Group 2 on Appeal – Part II , para. 51 (footnote omitted). 616 Observations of Victims Group 2 on Appeal – Part II , para. 56. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 617 , para. 20. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 618 , para. 22.

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then consider Mr Ntaganda’s arguments as a whole to determine whether the Trial

Chamber’s overall conclusion regarding the existence of an organisational policy was

unreasonable.

However, certain arguments will not be considered further by the Appeals

Chamber in this context for the reasons that follow. A number of arguments have not

been substantiated in the appeal brief and the Appeals Chamber will not consider

619

them as to do so would allow the page limit for the appeal to be circumvented.

Therefore, these arguments are dismissed in limine . In addition, a number of

arguments relevant to this ground have been considered and rejected under other

620

grounds of appeal and will not be considered again in the present context.

619 Mr Ntaganda argues that the Trial Chamber ‘failed to consider significant UPC/FPLC undertakings revealing the true UPC/FPLC policy to defend the population as a whole’ ( Mr Ntaganda’s Appeal Brief – Part II , para. 119, referring to Conviction Decision , paras 325, 686; Mr Ntaganda’s Closing Brief , paras 163-171, 210, 260, 1036, 1038; P-0769: T-122 , p. 34; D-0300: T-220 , p. 12, line 25 to p. 13, line 11; p. 14, line 24 to p. 15, line 9 . See also Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , para. 35). The Appeals Chamber notes that, apart from two items of evidence that are alone insufficient to substantiate his arguments (P-0769: T-122 , p. 34 and his own testimony regarding the reorganisation of the UPC/FPLC), Mr Ntaganda refers only to his closing brief and attempts to incorporate by reference several pages of argumentation set out therein ( Mr Ntaganda’s Appeal Brief – Part II , para. 119, referring to Mr Ntaganda’s Closing Brief , paras 163-171, 210, 260, 1036, 1038). He does not otherwise explain how these efforts at organising, establishing experienced command and training the troops were linked with or demonstrate a policy to defend the civilian population as a whole. Regarding the meeting in Kampala, Mr Ntaganda argues that P-0014’s testimony was inconsistent, again attempting to incorporate by reference several paragraphs of argumentation set out in Mr Ntaganda’s Closing Brief attacking the credibility of P-0014’s observations on the presence and activities of child soldiers within the UPC/FPLC ( Mr Ntaganda’s Appeal Brief – Part II , para. 111, referring to Mr Ntaganda’s Closing Brief , paras 1461-1466). Mr Ntaganda also submits that the Trial Chamber failed ‘to consider the many punishments meted out to UPC/FPLC members who committed violations following Kahwa’s speech’ in Mandro before the First Operation ( Mr Ntaganda’s Appeal Brief – Part II , para. 123), but fails to substantiate his argument by reference to any supporting evidence. Therefore, these arguments are dismissed in limine . 620 Mr Ntaganda argues that the Trial Chamber erred in its interpretation of the expression ‘ kupiga na kuchaji ’, the seven orders relied upon by the Trial Chamber and the commission of crimes against civilians during certain operations which are rejected under the fifth, eighth and fourteenth grounds of appeal below ( Mr Ntaganda’s Appeal Brief – Part II , paras 114, 121, referring to Ground 5, paras 76- 102. See paragraphs 436-528, 739-745, 963-999 below). A number of arguments attacking the consistency of P-0014’s testimony are set out and rejected in the Appeals Chamber’s analysis of arguments raised under the thirteenth ground of Mr Ntaganda’s appeal below ( Mr Ntaganda’s Appeal Brief – Part II , para. 111. See paragraphs 892-902 below).

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(i) Arguments relating to the assessment of evidence supporting underlying factual findings

(a) Testimony of P-0014 regarding meeting in

Kampala

The Trial Chamber relied upon P-0014’s testimony to the effect that, at a meeting in Kampala in June 2002 attended by the political leaders of the emerging UPC/FPLC, ‘it was stated that one of the objectives of the emerging UPC/FPLC was to drive out the non-natives’ and that ‘targets were defined as first, the Nande and then, the Lendu’. 621

Mr Ntaganda argues that the Trial Chamber erred in relying on the uncorroborated testimony of P-0014 concerning this meeting ‘that stands out and goes 622 way beyond the content of contemporaneous documents in evidence’. In particular, he contends that the Trial Chamber failed to consider the fact that ‘P-0014 was a 623 [REDACTED], but never occupied this position’. However, Mr Ntaganda does not explain the significance of the [REDACTED] and why or how the Trial Chamber should have considered this in assessing the witness’s testimony. Therefore, the argument regarding P-0014’s position [REDACTED] is dismissed.

Mr Ntaganda also argues that most of P-0014’s testimony was hearsay evidence, referring generally to the transcripts covering two of the three days that the witness testified and, in particular, the witness’s testimony that [REDACTED]. 624 The Appeals Chamber considers that the witness’s [REDACTED] is of no relevance to whether he attended the meeting in Kampala, in June 2002, which is the central part of the witness’s testimony relied upon by the Trial Chamber to support its finding regarding the organisational policy. The Trial Chamber found that P-0014 ‘provided 625 first-hand evidence about the meeting’. Having reviewed the transcripts of P- 0014’s testimony referenced by Mr Ntaganda, the Appeals Chamber finds nothing to

621 Conviction Decision , para. 293. See also Conviction Decision , paras 290, 684. Mr Ntaganda’s Appeal Brief – Part II 622 , para. 111, referring to DRC-OTP-0066-0031; DRC-OTP- 0066-0039; DRC-OTP-0066-0047; DRC-OTP-0066-0048 . Mr Ntaganda’s Appeal Brief – Part II 623 , para. 111, fn. 288, referring to DRC-OTP-2054-0429, at 0440, lines 9-11; at 0442, lines 8-17. Mr Ntaganda’s Appeal Brief – Part II 624 , para. 111, referring to T-136 , T-137 , in particular T-137 p. 16, line 20 to p. 17, line 1. 625 Conviction Decision , para. 290, fn. 741.

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contradict this statement. Indeed, in one of the cited transcripts, the witness twice 626 clarified that he had been present during the meeting in Kampala in June 2002. Therefore, Mr Ntaganda’s argument regarding the hearsay nature of P-0014’s testimony is dismissed.

In light of the foregoing, the Appeals Chamber finds that the Trial Chamber’s reliance on the testimony of P-0014 concerning the meeting in Kampala in June 2002 was reasonable. Accordingly, Mr Ntaganda’s argument is rejected.

(b) Evidence regarding multi-ethnic

composition of the UPC/FPLC

Mr Ntaganda submits that the Trial Chamber ‘failed to consider the relationship between the UPC/FPLC’s policy and its multi-ethnic composition, political and military, which included Lendu civilians’. 627 He contends that ‘[t]he record is replete with examples of non-Iturians who were either members of the UPC/FPLC or who were welcomed to remain in Ituri’. 628 In particular, he mentions: (i) Denis Akobi and Shatchu Lilo, two Lendu civilians, who were National Secretaries of Transport and ‘ fonction publique, travail et prévoyances sociales ’; (ii) [REDACTED] and Lubanga’s right hand man, chaired the meetings of National secretaries and replaced Lubanga as President ad interim in his absence’; (iii) Tinanzabo, a Bira citizen, who ‘led the creation of the CTPR, was part of a UPC delegation also including a Logo and a Lendu in Ngongo, signed the CPI on behalf of the UPC and represented the UPC at a conference in Dar es Salam’; and (iv) ‘[t]he two Brigade commanders who led troops in the First Operation, the FPLC Deputy Chief of staff, the Rwampara commander, and the G2 [who] were also not Hema’. 629

The Trial Chamber acknowledged that members of the UPC/FPLC executive 630 were of diverse ethnic origin. However, it found that,

626 T-137 , p. 6, lines 14-18; p. 17, lines 7-10 . Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Appeal Brief – Part II 627 , para. 118. See also , para. 112. Mr Ntaganda’s Appeal Brief – Part II 628 , para. 112, referring to paras 116-120. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s 629 , para. 118 (footnotes omitted). See also Response to Observations of Victims on Appeal – Part II , para. 36. 630 Conviction Decision , para. 302 (footnotes omitted).

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most non-Hema members were without real or substantive influence. Attendance of some meetings was restricted on an ethnic basis. The posts of defence and finance, which were of a sensitive nature, were held by ethnic Hema. The UPC leadership, and in particular Thomas Lubanga, maintained close ties with influential Hema/Gegere businessmen, who financed the 631 organisation.

In this respect, the Trial Chamber relied upon the testimony of P-0005, P-0041 and P-0043, all of whom gave similar accounts supporting a view that 632 [REDACTED].

The Trial Chamber also dismissed Mr Ntaganda’s argument that ‘non-Hema

secretaries nationaux were truly empowered by UPC/RP and Thomas Lubanga to accomplish and to rule and to run this effective administration’ as it was not linked to any evidence other than the documents indicating the appointment of non-Hema 633 members of the Executive. Regarding members of the General Staff, the Trial Chamber found that those ‘who were not Hema or Tutsis were excluded from discussions concerning operations’. 634 In this regard, the Trial Chamber relied on 635 evidence from P-0016 that [REDACTED].

The Appeals Chamber is of the view that Mr Ntaganda’s argument regarding the multi-ethnic composition of the UPC/FPLC disregards important elements of the Trial Chamber’s reasoning and, therefore, is alone not capable of establishing an

error. As set out above, the Trial Chamber did consider the ethnic composition of the UPC/FPLC in reaching its conclusion as to the existence of an organisational policy. 636 It found that the UPC/FPLC worked on an ethnic basis, that ‘important positions in both the political and military branches were held by Hema and that individuals were excluded from certain discussions and meetings on an ethnic basis’. 637 Other than emphasising the multi-ethic composition of the UPC/FPLC, Mr Ntaganda has not challenged the Trial Chamber’s assessment of the relevant evidence as to the power

631 Conviction Decision , para. 302. 632 Conviction Decision , para. 302, referring to P-0005: T-184 , p. 14; T-185 , p. 26; P-0041: DRC-OTP- 0147-0002, at 0019, para. 103, 0026; P-0043: DRC-OTP-0126-0086, at 0090-0091, para. 26; T-190 , pp. 31-32 . 633 Conviction Decision , para. 302, fn. 777, referring to T-263 , p. 76. 634 Conviction Decision , para. 319, referring to P-0014: DRC-OTP-2054-0961 from 0985 to 0986; P- 0016: DRC-OTP-0126-0422, at 0439-0440 . 635 Conviction Decision , para. 319, referring to P-0016: DRC-OTP-0126-0422, at 0439-0440. 636 Conviction Decision , para. 685. 637 Conviction Decision , para. 685.

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and influence of members of certain ethnic groups. Therefore, his argument is

rejected.

(c) Evidence regarding punishment of

UPC/FPLC members who committed

violations

Mr Ntaganda argues that the Trial Chamber ‘failed to consider that the

UPC/FPLC policy to, inter alia , protect the civilian population as a whole, was also

communicated to the troops via punishments meted out against UPC/FPLC members who committed violations’.

638

He challenges the Trial Chamber’s finding that the

examples of punishment available on the evidence ‘do not affect its finding that some offenses were not considered punishable within the UPC/FPLC’.

639

He submits that the Trial Chamber: (i) ignored the fact ‘that UPC/FPLC members received IHL

training’;

640

(ii) ‘failed to consider the impact of the two instances when the punishment of death […] was imposed […] when a UPC/FPLC member looted from

641

the house of a Nande civilian in Bunia and when a UPC/FPLC member named Liripa killed a Lendu civilian in Mongbwalu’;

642

and (iii) ‘rejected numerous

examples of disciplinary measures imposed based on the purported “isolated character of these incidents”, thereby reversing the burden of proof, implying that the Defence

643

should have provided evidence of punishment for all crimes committed’.

Mr Ntaganda’s Appeal Brief – Part II 638 , para. 126. 639 Mr Ntaganda’s Appeal Brief – Part II , para. 126, referring to Conviction Decision , para. 332, fn. 893. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Closing Brief 640 , para. 126, referring to , para. 175, referring to P-0055: T-71 , p. 79, lines 8-21; P-0963: T-81 , p. 74, lines 14-18; P-0911: T-157 , p. 16, line 22 to p. 17, line 6 . Mr Ntaganda’s Appeal Brief – Part II 641 , para. 126, referring to D-0300: T-215 , p 42, line 9 to p. 43, line 10; T-227 , p. 47, lines 7-13; p. 83, lines 7-25; T-242 , p. 84, line 17 to p. 86, line 11; D-0017: T- 252 , p. 65, lines 10-25 . Mr Ntaganda’s Appeal Brief – Part II 642 , paras 72, 126, referring to DRC-OTP-0017-0033, at 0097- 0099 (DRC-OTP-2102-3854 at 3919-3921); Mr Ntaganda’s own testimony that Commander Liripa was a Hema Gegere and that the civilian he killed was a Lendu and the decision to execute him was taken by Kisembo, the chief of the general staff (D-0300: T-222 , p. 61, line 2 to p. 65, line 12); Mr Ntaganda’s Closing Brief , paras 175, 290-291, 685. See also Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , para. 28. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Closing Brief 643 , para. 126, referring to , paras 175, 1560. See also Mr Ntaganda’s Appeal Brief – Part II , para. 70, referring to an operation to reoccupy Komanda in August 2002, during which soldiers who looted were publicly punished and the goods burned.

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In the Conviction Decision, the Trial Chamber found that ‘UPC/FPLC soldiers […] did not consider that […] the killing of a Lendu, or the looting of Lendu property, were punishable offences’. 644 This finding was supported by reference to: (i) the testimony of P-0907 who said that he was not aware of any soldier being punished for killing an enemy, soldier or civilian, or looting or burning down their houses during 645 the attack on Komanda or the second operation in Mongbwalu; (ii) the testimony of P-0963 who stated that they were in the context of a tribal war and there were no 646 sanctions for killing an ordinary Lendu; and (iii) the witness statement of P-0016 647 who indicated that [REDACTED].

The Trial Chamber also took into account the testimony of three additional witnesses showing that members of the UPC/FPLC were not punished for looting and for killing Lendu persons during the First Operation: (i) the testimony of P-0017 who stated that he was not aware of any instance when Mr Ntaganda arrested or had 648 arrested anyone within the UPC for crimes against Lendu persons; (ii) the testimony of P-0768 who stated that the war had become a war between the Hema and the Lendu and that he never saw a soldier or an officer being sanctioned for having 649 killed a Lendu; and (iii) the testimony of P-0888 who stated that he did not see 650 anyone punished for beating up or killing civilians. The Trial Chamber also considered evidence showing that rape and sexual violence were not considered 651 punishable offences within the UPC/FPLC. In sum, the Trial Chamber’s finding in this regard was supported by the testimony of numerous witnesses.

Against this evidence, the Trial Chamber considered Mr Ntaganda’s arguments regarding isolated instances when UPC/FPLC members were punished for crimes against civilians (the burning of looted goods by Mr Ntaganda on one instance in August 2002, as well as an execution in Ndromo meant to serve as an example and

644 Conviction Decision , para. 332 (footnote omitted). 645 Conviction Decision , para. 332, referring to P-0907: T-89 , p. 48; T-90 , pp. 51 to 52 . 646 Conviction Decision , para. 332, referring to T-79 , p. 22 . 647 Conviction Decision , fn. 893, referring to P-0016, DRC-OTP-0126-0422, p. 0461. 648 Conviction Decision , fn. 893, referring to P-0017: T-63 , pp. 43, 54 . 649 Conviction Decision , fn. 893, referring to T-34 , p. 16 . 650 Conviction Decision , fn. 893, referring to P-0888: T-105 , p. 81 . 651 Conviction Decision , para. 332, referring to P-0768: T-34 , p. 56; P-0963: T-79 , p. 36; T-82 , p. 19; P-0017: T-59 , pp. 33-34; P-0907: T-90 , p. 52. See also Conviction Decision , para. 412.

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652 the detention of Abelanga, Pigwa and Thomas Kasangaki for stealing). The Trial

Chamber noted ‘the isolated character of these incidents and, having further

considered (i) the fact that looted items of high value were usually given to the

commanders […]; and (ii) the nature of the orders given to the troops before combat,

[…] [it found] that these examples of punishment [did] not affect its finding that some

offenses were not considered punishable within the UPC/FPLC’. 653

The Trial Chamber found Mr Ntaganda to be not ‘credible when he affirms that

he always fought and acted, including in 2002 and 2003, for the liberation and

freedom of the civilian population in general in Ituri and that this revolutionary

ideology was governing the functioning of the UPC/FPLC’. 654 It found that ‘this

statement is clearly contradicted by the other available evidence on the record which

shows that at least a part of the civilian population in Ituri, in particular the Lendu,

was actually the target of violent acts by the UPC/FPLC in 2002 and 2003’. 655

Regarding D-0017 (on whom Mr Ntaganda relies to argue that on one occasion

656 a death sentence was imposed for looting), the Trial Chamber noted that this

witness’s testimony reflected ‘a concern not to provide any incriminating evidence

with regard to the accused’ and ‘included a number of assertions that the Chamber

finds implausible, both in themselves and with regard to the overall evidence

presented in this case’. 657 Overall, it found that D-0017’s testimony lacked credibility

658 and did not rely on it.

Mr Ntaganda’s Closing Brief 652 Conviction Decision , para. 332, fn. 893, referring to , paras 175, 759- 764; D-0300: T-217 , pp. 57 to 58; T-222 , pp. 66 to 69; T-237 , pp. 9-10 . 653 Conviction Decision , para. 332, fn. 893, referring to para. 415 (the Trial Chamber’s finding ‘that “ kupiga na kuchaji ” was an expression commonly used in UPC/FPLC commanders’ orders to soldiers, and that it was understood by the soldiers to mean attacking all the Lendu, including civilians, and to loot their property’); para. 515 (the Trial Chamber’s finding that ‘[w]ithin the UPC/FPLC, looted items which were considered of high quality or value were usually given to the commanders, including Salumu Mulenda, under threat of punishment, while the soldiers could keep other goods. Other items that the UPC/FPLC soldiers looted were either sold off for money or used by the soldiers themselves’.). 654 Conviction Decision , para. 261. 655 Conviction Decision , para. 261. Mr Ntaganda’s Appeal Brief – Part II 656 , para. 126, fn. 348 . 657 Conviction Decision , paras 252-253. 658 Conviction Decision , para. 255.

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Regarding the execution of Liripa after the Fist Operation, the Trial Chamber noted: (i) ‘the reasons why the victim could apparently return to Mongbwalu’; 659 and (ii) that Liripa’s ‘execution was based on a number of reasons, inter alia , nonauthorised exit, premeditation, failure to observe instructions, abusive use of a weapon, waste of war ammunitions, public drunkenness, in addition to killings’. 660 It also found that Mr Ntaganda’s testimony regarding this matter lacked credibility 661 considering the way the First Operation was found to have unfolded.

From the foregoing, the Appeals Chamber notes that the Trial Chamber took into account various considerations in determining that some offences were not considered punishable within the UPC/FPLC, including: (i) the testimony of numerous witnesses that troops were not punished for crimes committed against Lendu civilians; (ii) the manner in which the First Operation unfolded; (iii) the fact that looted items of high value were usually given to commanders; and (iv) the orders 662 given to the troops before combat to attack indiscriminately. It weighed this evidence against the arguments and evidence in relation to isolated instances of punishment highlighted by Mr Ntaganda. In so doing, the Appeals Chamber considers that the Trial Chamber did not reverse the burden of proof. Rather, it established, on the basis of the evidence before it, that certain offences were not considered punishable within the UPC/FPLC and found that this conclusion was not affected by evidence of isolated instances where soldiers were punished for various reasons. Having considered the Trial Chamber’s overall assessment of the relevant evidence against the arguments and evidence advanced by Mr Ntaganda, the Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude that some offenses were not considered punishable within the UPC/FPLC, notwithstanding the examples of punishment Mr Ntaganda highlighted. Accordingly, his argument in this regard is rejected.

659 Conviction Decision , para. 332, fn. 893 . 660 Conviction Decision , para. 332, fn. 893, referring to logbook DRC-OTP-2102-3854, from 3919 to 3920; P-0859: T-51 , p. 43 . 661 Conviction Decision , para. 332, fn. 893, referring to D-0300: T-222 , pp. 62-64. 662 Conviction Decision , para. 332, fn. 893.

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(d) Evidence regarding training of troops

In his response to the victims’ observations, Mr Ntaganda argues that the Trial Chamber failed to consider P-0769’s testimony that ‘he was told during his training that “the UPC was not a tribal militia, that its aim was to “take over the Congo in its entirety”, and that they weren’t just fighting “enemies, be they Bahema or Balendu” but the government’”. 663 The Appeals Chamber notes that the Trial Chamber did in fact consider this aspect of the witness’s testimony in finding that recruits were taught that the Lendu and Ngiti were the enemy, and having weighed this against the testimony of P-0963, P-0888, P-0907, and P-0758, found that P-0769’s testimony did not contradict the evidence provided by these witnesses, given that, just after this statement, ‘P-0769 testified that songs calling for violence against the Lendu were sung’. 664 Mr Ntaganda has not shown any error in the Trial Chamber’s reasoning in this regard.

Mr Ntaganda also appears to challenge the credibility of P-0016, on whose testimony the Trial Chamber relied in finding that songs inciting soldiers to attack or 665 kill the Lendu were taught to troops as part of their training. However, Mr Ntaganda does not identify any error in the Trial Chamber’s finding and only 666 argues that P-0016 was ‘never a recruit in Mandro’. The Appeals Chamber notes 667 that the witness [REDACTED]. Accordingly, Mr Ntaganda’s argument regarding the reliability of this witness and the relevance of his evidence is rejected.

(ii) Whether the Trial Chamber’s overall conclusion regarding the existence of an organisational policy was reasonable The Trial Chamber gave the following legal interpretation of the ‘policy’ requirement under article 7(2)(a) of the Statute:

673 The Elements of Crimes specify that the concept of ‘policy’ requires the active promotion or encouragement of an attack against a civilian population by a State or organisation. In exceptional circumstances, such a policy may be

Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 663 , para. 35 (emphasis in original). 664 Conviction Decision , para. 373, fn. 1053. 665 Conviction Decision , para. 373. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 666 , para. 35. 667 DRC-OTP-0126-0422-R03, at 0430, para. 47 .

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implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attacks, but the existence of such a policy cannot be inferred solely from the absence of governmental or organisational action.

674 A policy may consist of a pre-established design or plan, but it may also crystallise and develop only as actions are undertaken by the perpetrators. The existence of a policy may be inferred from a number of factors, including: (i) the fact that the attack was planned or directed; (ii) the existence of a recurrent pattern of violence, for example, repeated actions occurring according to a same sequence; (iii) the use of public or private resources to further the policy; (iv) the involvement of the State or organisational forces in the commission of crimes; (v) statements, instructions, or documentation attributable to the State or the organisation condoning or encouraging the commission of crimes; (vi) an underlying motivation; and (vii) the existence of preparations or collective 668 mobilisation orchestrated and coordinated by that State or organisation.

The Trial Chamber also found that the crimes committed against civilians in the present case ‘were not the result of an uncoordinated and spontaneous decision of

individual perpetrators acting in isolation, but were the intended outcome of the 669 implementation of a policy which was actively promoted’.

The Trial Chamber’s legal definition or interpretation of the ‘policy’

670 requirement has not been challenged by Mr Ntaganda. Rather, he argues that the Trial Chamber erred in fact by inferring the existence of an organisational policy 671 based on the evidence in this case.

The Appeals Chamber notes that the Trial Chamber’s factual finding on the existence of an ‘organizational policy’ was principally supported by its analysis of the

political context and ethnic conflict in which the UPC/FPLC emerged, its objectives and organisation along ethnic lines, and the planning and execution of the military

operations during which crimes were committed. In this regard, it found:

683 In June 2002, the political leaders of the emerging UPC/FPLC indicated in written communications that Ituri must be saved, including by shedding ‘our’ blood. In the context of the perceived so-called ‘ethnic conflict’ between the

668 Conviction Decision , paras 673-674 (footnotes omitted). 669 Conviction Decision , para. 689. 670 Judge Ibáñez Carranza has included her views on the legal interpretation of the contextual elements for crimes against humanity in her separate opinion ( see Annex 3 , Separate opinion of Judge Luz del Carmen Ibáñez Carranza on Mr Ntaganda’s appeal). Judge Eboe-Osuji has written separately on the legal interpretation of ‘organizational policy’ within the meaning of article 7(2)(a) of the Statute ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Mr Ntaganda’s Appeal Brief – Part II 671 , paras 104-105, 127-128.

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Hema and the Lendu, where plans for genocide or control of the territory by a competing ethnic group were recurrent fears, the enemy, the RCD-K/ML, was criticised by the emerging UPC/FPLC for putting in place discriminatory policies and for failing to properly represent the interests of the ‘Iturians’, which were opposed to the ‘Kivu citizens’, designated as ‘negative forces’. […]

684 Furthermore, as expressed in the relevant documents, certain ethnic groups were perceived by political leaders of the emerging UPC/FPLC as associated with political and military enemy group. […] In June 2002, in Kampala, it was stated that one of the objectives of the emerging UPC/FPLC was to drive out the non-natives; targets were defined as being first, the Nande, and then, the Lendu.

685 Although the UPC/FPLC denounced the RCD-K/ML’s political and administrative management of Ituri as being ethnically biased, it also worked on an ethnic basis. The Chamber found that following the formalisation of the UPC/FPLC in September 2002, important positions in both the political and military branches were held by Hema and that individuals were excluded from certain discussions and meetings on an ethnic basis. Furthermore, the political leaders of the UPC/FPLC, by opposing the Iturians to the non-Iturians (the so called ‘Kivu Holding’), as indicated above, also contributed to setting certain 672 parts of the population against each other.

The Trial Chamber noted that ‘some of the documents produced by the

UPC/FPLC indeed promoted peace, or denounced the crimes committed against the local population of Ituri’ and that its stated ambition was to ‘defend the population’ as a whole, but found ‘that the internal communications and documents as well as

military actions undertaken by the UPC/FPLC show that in parallel its goal was to actively chase away the RCD-K/ML, and those who were perceived as non- Iturians’. 673 It based this primarily on the following:

687 UPC/FPLC recruits, during their training, were taught that the Lendu as such were the enemy. A song inciting recruits to kill the Lendu was recited during training.

688 Further, the expression ‘ kupiga na kuchaji ’ was commonly used within the UPC/FPLC, and was understood by the soldiers to mean attacking all the Lendu, including civilians, and to loot their property. UPC/FPLC troops generally acted following a certain modus operandi , characterised by an initial assault and the taking of control over the town or village, followed by a ratissage operation, extending up to several days after the initial assault, aimed at eliminating any survivors, including civilians, as well as looting. It was found that ‘ kupiga na kuchaji ’ orders were given before the First and Second Operation and that the troops behaved as instructed; indeed, they committed

672 Conviction Decision , paras 683-685 (footnotes omitted). 673 Conviction Decision , paras 686-687.

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different types of violent acts targeting the civilians specifically. In sum, the unfolding of its military operations demonstrates how the UPC/FPLC was not

674

only attempting to chase away the RCD-K/ML, but also the Lendu.

Mr Ntaganda argues that the Trial Chamber’s finding regarding the existence of

an organisational policy was unreasonable because the Trial Chamber failed to:

(i) give sufficient weight to the legitimate aim of the UPC/FPLC military operations it considered and to consider ‘the aim and purpose of [other] UPC/FPLC military

operations’;

675

and (ii) consider evidence and arguments regarding the peace-building

676

efforts of the UPC/FPLC and to ‘explain why [these events] were, or were not,

relevant to the existence of a UPC/FPLC policy and, if so, what weight they were attributed’.

677

Essentially, Mr Ntaganda’s submission is that the purpose and conduct of all

military operations of the UPC/FPLC over the time-frame of the charges, as well as

its peace-building initiatives, should have been considered in determining whether the

attack was carried out pursuant to or in furtherance of an organisational policy. In so

arguing, he seems to equate the policy required under article 7 of the Statute to the

overarching political or military goals of the organisation or to the military purpose of

particular operations.

674 Conviction Decision , paras 687-688 (footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Appeal 675 , para. 114, referring to Ground 5, Brief – Part II , paras 60-74. Mr Ntaganda’s Appeal Brief – Part II 676 , paras 116-117. Mr Ntaganda argues that the Trial Chamber failed to consider evidence and his arguments regarding: (i) ‘the creation of the CTPR [Commission of Truth, Peace and Reconciliation] composed of representatives of all ethnic groups including Lendu civilians’; (ii) ‘pacification missions conducted by the CTPR as well as the reports it produced on its activities’; (iii) ‘the Arua peace negotiations, convened by Uganda, in the presence of Lendu representatives and attended by a multi-ethnic UPC/FPLC delegation led by P-0005’; (iv) ‘Lubanga’s order transmitted through Mr. Ntaganda not to shoot down the plane that transported the Lendu representatives to this meeting’; (v) ‘Lubanga’s speech in Bunia at the pères blancs congregation, clearly illustrating the UPC/FPLC’s policy towards Lendu civilians and reconciliation’; (vi) ‘the Ngongo negotiations attended by a multi-ethnic UPC delegation (sent by Lubanga) and Lendu notables to achieve peace, which resulted in the secondary road between Bunia and Lipri being reopened for the benefit and [ sic ] all civilians regardless of ethnicity’; (vii) ‘the implementation of the UPC/FPLC’s plan to provide weapons to Lendu combatants for the purpose of joining forces with the aim of chasing the UPDF from Ituri’; and (viii) ‘the UPC/FPLC’s continued willingness to cooperate with the CPI and the Sun City negotiations’. Most importantly, in Mr Ntaganda’s view, the Trial Chamber failed to consider the ‘UPC/FPLC’s greatest achievement, the conclusion of an Ituri-wide peace agreement promoted by the UPC/FPLC’, referring to a meeting that took place in early February 2003 in Bunia . See also Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , para. 27. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 677 , para. 24.

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The Appeals Chamber notes that, according to article 7(2) of the Statute, the required ‘State or organizational policy’ is a policy to commit an attack, being ‘a course of conduct involving the multiple commission of [criminal] acts […] against any civilian population’. Therefore, in the present case, the focus of the Trial Chamber’s enquiry was whether the alleged attack (carried out during the specific operations that were the subject of the charges and established by the Trial Chamber) 678 was committed pursuant to or in furtherance of a policy. The Trial Chamber was not required to establish that all the activities of the UPC/FPLC could be explained by reference to a policy to attack the civilian population or to exhaustively define the objectives, aims or policies of the UPC/FPLC as an organisation. Indeed, a single incident or operation in which multiple crimes are committed could amount to a crime against humanity provided that the relevant contextual elements are met, irrespective of the wider activities of the state or organisation concerned.

In the present case, the Trial Chamber’s finding that the crimes committed were the intended outcome of the implementation of a policy which was actively promoted was largely based on the planning and unfolding of the military operations during 679 which crimes were committed. It found that: (i) recruits were taught that the Lendu as such were the enemy; (ii) orders were given to attack the Lendu, civilian or combatant, including by Mr Ntaganda as Deputy Chief of Staff; and (iii) during the operations considered by the Trial Chamber, civilians were attacked, including after 680 the initial assault when the area was under the control of the UPC/FPLC. The Trial Chamber appears to have accepted that the UPC/FPLC had a parallel interest in achieving peace, and recognised ‘that some of the documents produced by the UPC/FPLC […] promoted peace, or denounced the crimes committed against the local population of Ituri’. 681 However, it considered that this did not displace its

678 In the present case, the Trial Chamber found that the attack was carried out during the First Operation, the Second Operation, the assault on Songolo at the end of August 2002, the assault and ratissage operation in Zumbe in October 2002, the assault and ratissage operation in Komanda in November 2002 and the assault on Bunia in May 2003. See Conviction Decision , paras 664-665. 679 Conviction Decision , paras 687-689. 680 Conviction Decision , paras 687-688. See also Conviction Decision , paras 373, 415, 484, 488, 561. 681 Conviction Decision , para. 686 (emphasis added). Furthermore, the Trial Chamber noted, in another context, official UPC/FPLC documents addressing how to ‘re-create a climate of trust between the peoples of the north-east’, pronouncing ‘adherence to the spirit of the Luanda accords concerning the setting up of a pacification commission in Ituri, subject to certain conditions’, and stating the intent to bring peace and reconciliation to Ituri ( Conviction Decision , paras 297, 299). The Trial Chamber also

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finding regarding the existence of a UPC/FPLC policy to ‘actively chase away the 682 RCD-K/ML, and those who were perceived as non-Iturians’. It also noted Mr Ntaganda’s arguments that UPC/FPLC operations solely served a military purpose and conducted operations during which civilians were not attacked, but found that this had ‘no bearing on the validity of the factual findings of the Chamber that during several specific assaults, on which evidence has been presented to the Chamber, civilians were deliberately attacked’. 683

In view of the foregoing, the Appeals Chamber is not persuaded that the Trial Chamber failed to properly consider evidence relating to the UPC/FPLC’s multiple peace-building initiatives, other operations during which crimes against the civilian population were not committed, and the legitimate military aims of its operations. It finds that the Trial Chamber properly evaluated these factors in light of the entirety of the relevant evidence, especially evidence regarding the manner in which the attack in the present case was carried out, the training of the troops and the orders to attack civilians. Accordingly, Mr Ntaganda’s arguments are rejected.

Mr Ntaganda also argues that the documentary evidence cited by the Trial Chamber did not mention Lendu civilians or demonstrate an intention to target 684 civilians of any ethnicity, and that the Trial Chamber itself recognised that some of them ‘indeed “promoted peace, or denounced the crimes committed against the local population of Ituri” and that it was the UPC/FPLC’s stated ambition / aim to defend the population as a whole’. 685

The Trial Chamber relied upon the documentary evidence to which Mr Ntaganda refers to find that political leaders of the emerging UPC/FPLC perceived certain ethnic groups as being associated with political and military enemy groups – the Nande people with the RCD-K/ML and the Lendu combatants with the

noted that, following the conclusion of the Luanda Accords between the governments of Uganda and the DRC in early September 2002, ‘[f]urther initiatives for achieving pacification in Ituri in the second half of 2002 and beginning of 2003 did not yield any effective results’ ( Conviction Decision , para. 417, fn. 1198). 682 Conviction Decision , para. 686. 683 Conviction Decision , para. 665. Mr Ntaganda’s Appeal Brief – Part II 684 , para. 110, referring inter alia to Conviction Decision , paras 682-686. Mr Ntaganda’s Appeal Brief – Part II 685 , para. 109, referring to Conviction Decision , paras 686-687.

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686 APC. The Appeals Chamber accepts Mr Ntaganda’s argument that the documents referred to by the Trial Chamber do not demonstrate any intention to target civilians, but notes that the Trial Chamber did not rely on them for this purpose. Rather the Trial Chamber’s analysis of this evidence was relied upon together with other evidence to support its findings regarding the context and background against which the UPC/FPLC’s policy to attack the civilian population was formulated. 687 It considered the context provided by this documentary evidence together with P-0014’s testimony that ‘one of the objectives of the emerging UPC/FPLC was to drive out the 688 non-natives’ and that the Nande and the Lendu were defined as targets.

The Appeals Chamber is not persuaded that Mr Ntaganda’s arguments demonstrate that the Trial Chamber’s finding was unreasonable. The fact that the official documents issued by the UPC/FPLC did not expressly articulate a policy to attack the civilian population does not negate the existence of such a policy. The absence of such documentary evidence does not appear to be significant when weighed against the Trial Chamber’s findings regarding the training of the troops, the orders given, and the manner in which the attack was carried out over the course of several different military operations as set out above.

Finally, Mr Ntaganda argues that the Trial Chamber erred in its consideration of speeches to the troops by Chief Kahwa in Mandro before the First Operation, in which he emphasised the importance of discipline and protecting the civilian 689 population, and Thomas Lubanga in Rwampara before the Second Operation, in which he spoke of the UPC’s aim to ensure the security of citizens and the fact that

686 Conviction Decision , para. 684. 687 The Trial Chamber derived the following conclusions from its analysis of the documentary evidence in question: (i) that the ‘emerging UPC/FPLC took steps to put an end to the power exercised by the RCD-K/ML’ in Ituri; (ii) that, from a military perspective, the strategy was to liberate Bunia and take control of key locations; (iii) that ‘[i]n the context of the perceived so-called “ethnic conflict” between the Hema and the Lendu, where plans for genocide or control of the territory by a competing ethnic group were recurrent fears, the enemy, the RCD-K/ML, was criticised by the emerging UPC/FPLC for putting in place discriminatory policies and for failing to properly represent the interests of the “Iturians”’; and (iv) that the emerging UPC/FPLC opposed ‘Iturians’ to ‘Kivu citizens’, who were ‘designated as “negative forces” [and] considered to be over-represented within the RCD-K/ML’ and, in so doing, the political leaders of the UPC/FPLC contributed to setting parts of the population against one another ( Conviction Decision , paras 682-683, 685). 688 Conviction Decision , para. 684. Mr Ntaganda’s Appeal Brief – Part II 689 , para. 123, referring to Conviction Decision , para. 305, fn. 790. See also Mr Ntaganda’s Appeal Brief – Part II , para. 299.

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690 the army did not have one tribal enemy. Mr Ntaganda also argues that the Trial ‘Chamber failed to consider the evidence of P-0005, who testified that the issue of

non-Iturians, referred to as Kivu Holding, was political and did not involve attacking

or chasing away non-Iturians’ and that he was not aware of any UPC/FPLC policy

691 regarding non-Iturians. He submits that, setting aside the Trial Chamber’s finding

regarding the orders issued, ‘there is no evidence showing how the implied

UPC/FPLC policy to attack Lendu civilians was communicated to its members’. 692

The Trial Chamber noted that, in an address by Chief Kahwa in Mandro, he

‘explained that the UPC/FPLC decided to launch a “new revolution” because armies

like the FAC or the APC only harassed the population, whereas the UPC/FPLC army

would be one without discrimination, for all Congolese, and that it was not intended

to be an ethnic one, but one that protects all ethnicities, people and their belongings, and that there was no “tribalism” in the army’. 693 It also noted that during the speech Chief Kahwa ‘told soldiers that any soldier who stole from inhabitants or raped

women or girls would be shot’. 694

However, the Trial Chamber did ‘not consider the statements in [Chief Kahwa’s]

speech to reflect the reality of the disciplinary system within the UPC/FPLC as

regards looting and rape of civilians associated with the enemy, during UPC/FPLC operations’. 695 The Trial Chamber referred in this regard to its findings on how the operations during which the crimes were committed unfolded and ‘the looting and

696 rapes which occurred without punishment’. It did not further refer to this speech in

determining whether there was an organisational policy to attack civilians.

In view of the Trial Chamber’s assessment of the relevant evidence regarding

the offences considered punishable within the UPC/FPLC, the Appeals Chamber is

not persuaded by Mr Ntaganda’s argument that the Trial Chamber erred in finding

Mr Ntaganda’s Appeal Brief – Part II 690 , para. 125. Mr Ntaganda’s Appeal Brief – Part II 691 , para. 112, referring to P-0005: T-185 , p. 28, lines 6-23. See also Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , para. 38. Mr Ntaganda’s Appeal Brief – Part II 692 , para. 121. 693 Conviction Decision , para. 305, referring to DRC-OTP-0082-0016, from 00:11:30 to 00:18:15 (transcript DRC-OTP-0164-0567; translation DRC-OTP-0164-0710, at 0719). 694 Conviction Decision , para. 305, fn. 790, referring to DRC-OTP-0082-0016, from 00:25:17 to 00:26:47 (translation DRC-OTP-0164-0710, at 0723, lines 375 to 387). 695 Conviction Decision , para. 305, fn. 790. 696 Conviction Decision , para. 305, fn. 790.

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that ‘the statements in [Chief Kahwa’s] speech [did not] reflect the reality of the disciplinary system within the UPC/FPLC as regards looting and rape of civilians associated with the enemy, during UPC/FPLC operations’. 697 Accordingly, the Appeals Chamber rejects Mr Ntaganda’s argument that the Trial Chamber should have expressly considered Chief Kahwa’s address to the troops in determining whether the attack was carried out pursuant to an organisational policy.

Regarding the speech given by Thomas Lubanga to the troops in Rwampara, the Appeals Chamber notes that the content of this speech was similar to that of Chief Kahwa’s and was inconsistent with other evidence supporting the Trial Chamber’s findings, in particular, its findings that the troops were taught, including by means of a song inciting recruits to kill the Lendu, that the Lendu as such were the enemy, that orders were given to attack the Lendu, including civilians, that the troops behaved as instructed and that UPC/FPLC soldiers did not consider such attacks against the 698 Lendu to be punishable.

The Trial Chamber expressly noted Mr Ntaganda’s visit on 12 February 2003 to the training camp, together with Thomas Lubanga and other commanders but did not specifically note Mr Lubanga’s speech. 699 Nevertheless, having considered the careful evaluation of the evidence relied upon by the Trial Chamber to support its findings, the Appeals Chamber concludes that it was reasonable for it to disregard the contents of Thomas Lubanga’s speech. The events subsequent to these speeches and the testimony of various witnesses show that the UPC/FPLC soldiers understood that the policy vis-à-vis the civilian population was not that ostensibly conveyed in these 700 speeches. The evidence considered by the Trial Chamber shows that the policy to attack the civilian population was communicated directly, through orders to attack the Lendu, combatants and civilians, and that, contrary to Mr Ntaganda’s argument,

Mr Ntaganda’s Appeal Brief – Part II 697 , para. 123, referring to Conviction Decision , para. 305, fn. 790. 698 Conviction Decision , paras 687-688; 800. 699 Conviction Decision , para. 369, referring to P-0010: T-47 , p. 53. 700 Conviction Decision , paras 688, 800.

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crimes committed against civilians in the course of the military operations were not 701 punished.

Regarding P-0005’s testimony to the effect that he was unaware of any 702 UPC/FPLC policy regarding non-Iturians, the Appeals Chamber notes that the witness clarified in this regard that he didn’t ‘know whether their thoughts were kept 703 secret and held in their hearts’, but that he ‘didn’t notice anything openly’. The Prosecutor also refers to P-0005’s testimony as ‘to the limited influence of the few Lendu and other ethnicities within the UPC Executive’. 704 In view of this testimony, the Appeals Chamber considers that P-0005’s lack of awareness of a UPC/FPLC policy regarding non-Iturians does not impact on the Trial Chamber’s finding as to the existence of this policy, which manifested itself through the military activities of the organisation.

In sum, the Appeals Chamber has considered Mr Ntaganda’s arguments regarding the peace-building activities of the UPC/FPLC, the legitimate military aims pursued in its military operations, its wider military operations, the documents it produced, the content of speeches given by Thomas Lubanga and Chief Kahwa and the testimony of P-0005 that he was unaware of a UPC/FPLC policy regarding non- Iturians. However, it is not persuaded that these arguments show that the Trial Chamber erred in concluding that a policy to attack civilians existed. As set out above, the Trial Chamber’s conclusion was based on factual findings regarding the context of inter-ethnic war in which the UPC/FPLC was created and operated, the meeting in Kampala where political leaders of the UPC/FPLC discussed the objective of driving out the non-natives, the training of recruits who understood that the Lendu as such were the enemy, the orders given by military commanders at all levels to attack the Lendu, civilian or combatant, and the manner in which the crimes were committed, including in circumstances when the areas attacked were under the control 705 of the UPC/FPLC. In view of these considerations, the Appeals Chamber finds that

701 Conviction Decision , paras 688, 800. Mr Ntaganda’s Appeal Brief – Part II 702 , para. 112, referring to P-0005: T-185 , p. 28, lines 6-23. See also Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , para. 38. 703 P-0005: T-185 , p. 28, lines 7-9. Prosecutor’s Response to Appeal – Part II 704 , para. 104, fn. 469, referring to P-0005: T-185 , p. 25, line 21 to p. 26, line 25. 705 Conviction Decision , paras 687-688.

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the Trial Chamber’s conclusion regarding the existence of an organisational policy 706 was reasonable.

3 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that the ‘course of conduct took place pursuant to a policy of the UPC/FPLC to attack and chase away the Lendu civilians as well as those who were perceived as non-Iturians’, the Appeals Chamber rejects this ground of appeal.

E. Fifth ground of appeal: Whether an attack was directed against a civilian population

Under the fifth ground of appeal, Mr Ntaganda argues that ‘[t]he Trial Chamber erred in law and in fact in finding that the multiple commission of acts […] by the UPC/FPLC’ constituted an attack directed against a civilian population within the 707 meaning of article 7(1) of the Statute. To support this argument, Mr Ntaganda alleges that the Trial Chamber: (i) failed to find that a civilian population was the primary object of the attack; (ii) erred by limiting its analysis of the evidence to six military operations; (iii) failed to accord sufficient weight to the legitimate purpose of the six military operations it considered; (iv) failed to consider relevant evidence regarding other UPC/FPLC operations; and (v) erred in finding that orders to attack 708 civilians were issued.

The Appeals Chamber will address arguments (i)-(iv) together as they collectively challenge the Trial Chamber’s approach to establishing that an attack was directed against any civilian population. To a large extent, these arguments depend on the legal interpretation of this contextual element of crimes against humanity and the manner in which it can be established. Thereafter, the Appeals Chamber shall address the alleged errors in the Trial Chamber’s assessment of the evidence relevant to its finding that orders to attack civilians were issued.

706 Conviction Decision , para. 689. Mr Ntaganda’s Appeal Brief – Part II 707 , para. 58. Mr Ntaganda’s Appeal Brief – Part II 708 , paras 59-103.

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1 Alleged errors in the Trial Chamber’s approach to finding that

there was an attack directed against the civilian population

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that the Trial Chamber failed to find that the primary

709 object of the attack was a civilian population. In his view, this invalidates all

710 findings of guilt entered in respect of crimes against humanity. Mr Ntaganda

contends that the Trial Chamber’s own findings and the evidence concerning the six

operations relied upon ‘show that civilians were not the UPC/FPLC’s primary object

and even less so a civilian population’. 711 To support his position, Mr Ntaganda

712 highlights the legitimate military and strategic aim of each of these operations.

Mr Ntaganda contends that, in determining the existence of an attack against a

civilian population, the Trial Chamber limited its analysis to six military operations,

namely the First and Second Operations, and the alleged assaults on Songolo, Zumbe,

713 Komanda and Bunia. He further submits that the Trial Chamber erred in finding

that the fact that the UPC/FPLC may have also conducted operations during which

714 civilians were not attacked did not impact its legal finding. According to

Mr Ntaganda, the Trial Chamber was ‘required to direct its inquiry to all UPC/FPLC

military operations during the relevant period’. 715 He argues that the Trial Chamber

failed ‘to consider relevant evidence regarding other UPC/FPLC operations, which

shows that the Lendu civilian population was not their primary object’. 716

(b) The Prosecutor’s submissions

The Prosecutor argues that Mr Ntaganda ‘selectively reads the Judgment when

he argues that the Trial Chamber failed to determine whether the civilian population

717 was the primary object of the attack’. She submits that ‘the attack need only be

718 primarily and not exclusively directed against the civilian population’. In addition,

Mr Ntaganda’s Appeal Brief – Part II 709 , para. 59. Mr Ntaganda’s Appeal Brief – Part II 710 , para. 59. Mr Ntaganda’s Appeal Brief – Part II 711 , para. 61 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 712 , paras 62-67. Mr Ntaganda’s Appeal Brief – Part II 713 , para. 60. Mr Ntaganda’s Appeal Brief – Part II 714 , para. 60. Mr Ntaganda’s Appeal Brief – Part II 715 , para. 60. Mr Ntaganda’s Appeal Brief – Part II 716 , para. 69. See also paras 70-74. Prosecutor’s Response to Appeal – Part II 717 , para. 75. See also para. 76. Prosecutor’s Response to Appeal – Part II 718 , para. 71 (emphasis in original).

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the Prosecutor contends that ‘the civilian population must be the primary target and

719 not the primary purpose or motive of the attack’. She suggests that the purpose of

720 the attack, including any military purpose, is immaterial. The Prosecutor argues that

the Trial Chamber ‘reasonably weighed the evidence related to the UPC military

objectives in general and the context and purpose of the six military operations in

particular’. 721 She contends that Mr Ntaganda fails to show an error in the Trial

Chamber’s conclusion that the UPC deliberately targeted civilians. 722

In relation to whether the Trial Chamber should have taken all of the

UPC/FPLC’s military operations during the relevant period into account, the

Prosecutor submits that ‘[t]he existence of legitimate military operations is

immaterial’. 723 She argues that the Trial Chamber considered Mr Ntaganda’s

724 arguments that the UPC/FPLC did not target civilians. She contends that it did not

err in its conclusion that the fact that the UPC/FPLC may have carried out operations

during which civilians were not attacked had no bearing on its finding that during

725 specific assaults civilians were deliberately attacked.

(c) The victims’ observations

Victims Group 2 submit that Mr Ntaganda ‘misrepresents’ the Conviction

726 Decision. In their view, there is nothing to suggest that the Trial Chamber ‘did not

727 find beyond reasonable doubt that the civilian population was targeted as such’.

They argue that the Trial Chamber ‘was guided by the correct legal standard and […]

applied it to the facts before it’. 728

As to the alleged failure to accord sufficient weight to the legitimate purpose of

the six military operations considered by the Trial Chamber, Victims Group 2 submit

that Mr Ntaganda ‘simply disagrees with the Trial Chamber’s reasoning without

demonstrating any error in the exercise of its discretion in the assessment of the

Prosecutor’s Response to Appeal – Part II 719 , para. 71 (emphasis in original). Prosecutor’s Response to Appeal – Part II 720 , para. 71. Prosecutor’s Response to Appeal – Part II 721 , para. 72. See also paras 73-74. Prosecutor’s Response to Appeal – Part II 722 , para. 72. Prosecutor’s Response to Appeal – Part II 723 , para. 71. Prosecutor’s Response to Appeal – Part II 724 , para. 78. Prosecutor’s Response to Appeal – Part II 725 , paras 78-79. 726 Observations of Victims Group 2 on Appeal – Part II , para. 39. 727 Observations of Victims Group 2 on Appeal – Part II , para. 40. 728 Observations of Victims Group 2 on Appeal – Part II , para. 40.

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evidence’. 729 They contend that Mr Ntaganda repeats arguments that were rejected at

trial without demonstrating an error warranting the intervention of the Appeals

730 Chamber. Victims Group 2 argue that ‘[w]hether an attack could have a legitimate

military advantage or objective is irrelevant where, due to its nature, it was unlawfully

directed against a civilian population’. 731 They submit that the issue is whether the

way the military action was carried out was criminal and that the Trial Chamber found

732 that it was.

In relation to whether the Trial Chamber should have taken all of the

UPC/FPLC’s military operations during the relevant period into account, Victims

Group 2 argue that Mr Ntaganda fails to demonstrate that the Trial Chamber took into

account irrelevant factors or otherwise failed to take into consideration relevant

733 ones. They further submit that the Trial Chamber had a ‘duty to remain within the

boundaries of the charges and to consider the evidence submitted to support the

same’. 734 Victims Group 2 aver that it is improper to suggest that the Trial Chamber

735 erred by not venturing out of these parameters. They contend that Mr Ntaganda’s

argument regarding other UPC/FPLC operations is based on his own testimony and/or

the testimony of D-0017, and the fact that the Trial Chamber ignored this evidence

does not establish a ‘clear error of reasoning’ given its concerns regarding the

736 credibility and trustworthiness of D-0017.

(d) Mr Ntaganda’s reply to the Prosecutor and response to the victims

Mr Ntaganda maintains that when assessing whether a civilian population is the

primary object of an attack, ‘the words target, purpose and objective have a similar

meaning’ and in this case ‘the UPC/FPLC’s primary aim/target/object was well

identified and it was not a civilian population’. 737 Mr Ntaganda argues that replacing

the inquiry of whether the civilian population was the primary object of the attack

729 Observations of Victims Group 2 on Appeal – Part II , para. 42. 730 Observations of Victims Group 2 on Appeal – Part II , para. 42. 731 Observations of Victims Group 2 on Appeal – Part II , para. 42. 732 Observations of Victims Group 2 on Appeal – Part II , para. 42. 733 Observations of Victims Group 2 on Appeal – Part II , para. 41. 734 Observations of Victims Group 2 on Appeal – Part II , para. 44. 735 Observations of Victims Group 2 on Appeal – Part II , para. 44. 736 Observations of Victims Group 2 on Appeal – Part II , para. 45. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 737 , para. 33.

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with the question of whether the civilian population was intentionally targeted is 738 unconvincing.

In response to the observations of Victims Group 2, Mr Ntaganda submits that the Trial Chamber ‘placed undue weight on the legality of certain military operations to the detriment of the primary object criteria, yet failed to consider relevant factors’. 739 He further submits that ‘the existence of a common plan and whether the civilian population was the primary object of an “article 7 attack” are two distinct issues’. 740 In his view, Victims Group 2 confuse ‘IHL with the law applicable to crimes against humanity and ignor[e] the difference between an “article 7 attack” and the war crime of intentionally directing attacks against the civilian population’. 741

(e) Relevant part of the Conviction Decision

In the section containing the Trial Chamber’s legal findings on the contextual elements of crimes against humanity, the Trial Chamber established ‘an attack directed against any civilian population’ by determining that: (i) there was a course of conduct involving the multiple commission of acts referred to in article 7(1) of the Statute; (ii) it was directed against any civilian population; and (iii) it was pursuant to 742 or in furtherance of a State or organizational policy to commit such attack.

In determining the existence of a course of conduct involving the multiple commission of acts referred to in article 7(1) of the Statute, the Trial Chamber referred to its findings concerning the commission of ‘several acts constituting murder, rape, sexual slavery, persecution, and forcible transfer of civilians, during the First and Second Operation’. 743 It further referred to crimes committed during the assaults on Songolo (killing of civilians and looting of houses and shops), Zumbe (killing of civilians and burning of houses), Komanda (killing of civilians, looting of

Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 738 , para. 34. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 739 , para. 11 (emphasis in original). Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 740 , para. 13 (emphasis in original). Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 741 , para. 14. 742 Conviction Decision , paras 661-690. 743 Conviction Decision , para. 664.

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goods and rape), and Bunia (killing of civilians, burning of houses and looting of 744 goods).

The Trial Chamber noted Mr Ntaganda’s argument that the UPC/FPLC

745 conducted military operations during which no attacks were directed at civilians. It stated:

The Defence does not refer to specific events, and the Chamber has not made factual findings going beyond the allegations of the Prosecution. In any case, the fact that the UPC/FPLC may have also conducted operations that were solely serving a military purpose and during which civilians were not attacked has no bearing on the validity of the factual findings of the Chamber that during several specific assaults, on which evidence has been presented to the Chamber, 746 civilians were deliberately attacked.

On the basis of its findings, the Trial Chamber was ‘satisfied beyond reasonable

doubt of the existence of a course of conduct which involved the multiple commission of acts referred to in Article 7(1)’. 747

The Trial Chamber found that ‘[t]he requirement that the attack be directed against the civilian population […] means that the civilian population must be the , as opposed to an incidental, object of the attack’. 748 primary The Trial Chamber found that it may ‘consider whether a military operation, alleged to form part of the

alleged attack against a civilian population, complied with the requirements of IHL, including the principle of distinction between legitimate targets and protected persons 749 or objects and the duty to take precautionary measures’. In its assessment of whether the attack was directed against a civilian population, the Trial Chamber considered several factors, including the training of the troops, the orders that were 750 given to them, and the manner in which the crimes were committed. The Trial Chamber concluded ‘beyond reasonable doubt that the attack was directed against a civilian population’. 751

744 Conviction Decision , para. 665. 745 Conviction Decision , para. 665. 746 Conviction Decision , para. 665. 747 Conviction Decision , para. 666. 748 Conviction Decision , para. 668 (emphasis in original). 749 Conviction Decision , para. 668. 750 Conviction Decision , para. 671. 751 Conviction Decision , para. 672.

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(f) Determination by the Appeals Chamber

(i) Introduction The first four arguments raised under this ground of appeal primarily challenge the Trial Chamber’s approach to the assessment of whether an attack was directed against any civilian population. The Appeals Chamber will first address alleged errors in the manner in which the Trial Chamber interpreted this contextual element as a matter of law, and will thereafter address any remaining arguments challenging the Trial Chamber’s factual conclusions.

Article 7(1) of the Statute states in relevant part: For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] Article 7(2)(a) of the Statute provides:

For the purpose of paragraph 1: (a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; Furthermore, paragraph 3 of the introduction to article 7 in the Elements of the Crimes states in relevant part: ‘Attack directed against a civilian population’ in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack.[…] Article 7(1) of the Statute requires, inter alia , the relevant criminal acts to be committed as part of a widespread or systematic attack. An attack is further defined in article 7(2)(a) of the Statute as: (i) a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1; (ii) directed against any civilian population; and (iii) pursuant to or in furtherance of a State or organizational policy to commit such attack. These contextual elements set a threshold that exclude

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‘isolated and random acts, and ordinary crimes under national law, from the ambit of the Court’s jurisdiction over crimes against humanity’. 752

(ii) Whether the Trial Chamber erred by failing to find that a civilian population was the primary object of the attack Mr Ntaganda argues that the Trial Chamber failed to make the ‘necessary determination’ that the civilian population was ‘the primary, as opposed to incidental, object of the attack’. 753

The Appeals Chamber notes that article 7 of the Statute requires a finding that the attack was ‘directed against any civilian population’ and does not require a separate finding that the civilian population was the primary object of the attack. The Trial Chamber used this language to interpret or explain the circumstances in which 754 an attack may be considered to be directed against the civilian population. It did not establish an additional legal requirement that must be satisfied. Accordingly, Mr Ntaganda’s argument is rejected.

(iii) Whether the Trial Chamber erred by failing to attach sufficient weight to the legitimate aim and purpose of the six military operations it considered The Trial Chamber found that ‘[t]he requirement that the attack be directed against the civilian population […] means that the civilian population must be the 755 primary , as opposed to an incidental, object of the attack’. The Trial Chamber based its understanding on the conviction decisions in the cases of Bemba and 756 Katanga .

Mr Ntaganda argues that the ‘[Trial] Chamber erred by failing to attach sufficient weight to the legitimate aim and purpose of the six military operations it considered’. 757 He suggests that, had the evidence related to these aims and purposes been considered, it would have shown ‘that civilians were not the UPC/FPLC’s

752 C. K. Hall and K. Ambos, ‘Article 7: Crimes Against Humanity’, in Triffterer, p. 156. Mr Ntaganda’s Appeal Brief – Part II 753 , para. 59. 754 See paragraph 411 above. 755 Conviction Decision , para. 668 (emphasis in original). 756 Conviction Decision , para. 668, referring to Bemba Conviction Decision , para. 154; Katanga Conviction Decision , para. 1105. Mr Ntaganda’s Appeal Brief – Part II 757 , para. 61.

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primary object’. 758 The logic of his argument appears to be that an attack cannot be considered to be directed against the civilian population if the military operation during which the attack occurred was primarily aimed at a legitimate military or strategic goal.

The Appeals Chamber considers that this argument is based on an erroneous interpretation of the Trial Chamber’s statement that the civilian population must be the ‘primary object’ of the attack. It accepts that the phrase, read in isolation, may be susceptible to misinterpretation, specifically in the sense that it may suggest that an attack on civilians must be the primary purpose or aim of the military operation(s) during which the attack was carried out in order to satisfy the requirements of article 7 of the Statute. However, the Appeals Chamber underlines that this is not how the phrase ‘primary object’ has been understood or applied in the relevant jurisprudence.

In particular, the Appeals Chamber notes that, in the appeal judgment in the case of Kunarac et al . the ICTY Appeals Chamber set out a number of factual considerations relevant to establishing whether the civilian population is the primary object of an attack. It found: As stated by the Trial Chamber, the expression ‘directed against’ is an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack’. In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia , the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and 759 the legality of the acts committed in its midst. The Appeals Chamber further notes that, in adjudicating arguments similar to those raised by Mr Ntaganda in this case, the Appeals Chamber of the SCSL in the case of Fofana and Kondewa provided a similar clarification. In that case, the Trial Chamber had found that it was not established beyond reasonable doubt that the

Mr Ntaganda’s Appeal Brief – Part II 758 , para. 61 (emphasis in original omitted). See also paras 62-67. 759 Kunarac et al. Appeal Judgment , para. 91 (footnote omitted).

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civilian population was the primary object of the attack because the military operations ‘were directed against the rebels or juntas that controlled towns, villages, and communities throughout Sierra Leone’. 760 The Appeals Chamber concluded that the trial chamber appeared ‘to have misdirected itself’ when applying the principle it had already stated, and found that the purpose pursued by the armed group ‘is immaterial’ in assessing whether the civilian population is the primary object of the 761 attack.

In the view of the Appeals Chamber, this jurisprudence correctly outlines the analysis applicable to determining whether an attack has been directed against a civilian population. While this requirement is sometimes described in terms of whether the civilian population is the ‘primary object’ of the attack, the Appeals Chamber understands this to mean no more than that the attack targeted the civilian 762 population. Although the phrase suggests otherwise, it does not establish a legal requirement that the main aim or object of the relevant acts was to attack civilians. An attack directed against a civilian population may also serve other objectives or motives. The question of whether an attack was directed against a civilian population is essentially a factual issue that may be assessed by considering, inter alia , the 763 criteria set out by the ICTY Appeals Chamber in the Kunarac et al . case.

In the present case, the Appeals Chamber considers that the Trial Chamber properly directed itself as to the relevant considerations. It noted that: (i) ‘at the training camps, UPC/FPLC recruits were taught that the Lendu as such, including civilians, were the enemy’ and ‘sang songs inciting them to attack and kill the Lendu’; (ii) ‘[d]uring deployment, the expression ‘ kupiga na kuchaji’ , which was understood to mean attacking all the Lendu, including civilians, and to loot their property, was

760 Fofana and Kondewa Trial Judgment , para. 693. 761 Fofana and Kondewa Appeal Judgment , paras 299-300: ‘[t]he Appeals Chamber approves the opinion of the Trial Chamber that the expression ‘directed against’ a civilian population requires that ‘the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack.’ The Appeals Chamber emphasizes that what must be primary is the civilian population as a target and not the purpose or the objective of the attack. […] The Appeals Chamber is of the view that the Trial Chamber appears to have misdirected itself when applying the principle it had already stated, by confusing the target of the attack with the purpose of the attack. When the target of the attack is the civilian population, the purpose of that attack is immaterial’. 762 See C. Eboe-Osuji, Crimes Against Humanity: Directing Attacks Against A Civilian Population , African Journal of Legal Studies 2 (2008), pp. 118-129 at p. 122. 763 Kunarac et al. Appeal Judgment , para. 91.

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commonly used in UPC/FPLC commanders’ orders to soldiers’; (iii) orders were

given to direct fire at civilians and forcibly transfer the civilian population; and

(iv) ‘[d]uring the assaults that followed these orders, civilians were murdered and

raped’ and UPC/FPLC soldiers ‘looted items belonging to civilians and destroyed their houses’ in acts that ‘formed part of a planned and coordinated military

campaign’. 764 In these circumstances, the Trial Chamber reasonably concluded that

the attack was directed against a civilian population.

Therefore, Mr Ntaganda’s argument that the ‘[Trial] Chamber erred by failing

to attach sufficient weight to the legitimate aim and purpose of the six military operations it considered’ is rejected. 765

(iv) Whether the Trial Chamber erred by limiting its analysis to six military operations and failing to consider other UPC/FPLC operations and activities in determining whether an attack was directed against a civilian population The Trial Chamber found that ‘[t]he requirement that the acts form part of a

“course of conduct” indicates that Article 7 is meant to cover a series or overall flow

of events, as opposed to a mere aggregate of random or isolated acts’. 766 It held that

the criminal acts committed by the UPC/FPLC during six of the operations presented 767 by the Prosecutor – the First Operation, Second Operation, as well as the assaults

on Songolo, Zumbe, Komanda and Bunia – demonstrated the existence of a ‘course of conduct’ within the meaning of article 7 of the Statute. 768 It found beyond reasonable doubt that the attack perpetrated during these operations was ‘directed against a

civilian population’. 769

764 Conviction Decision , para. 671. Mr Ntaganda’s Appeal Brief – Part II 765 , para. 61. 766 Conviction Decision , para. 662. 767 The Prosecutor had alleged that the attack against the civilian population occurred during eight military operations carried out by the UPC/FPLC ( See Pre-Trial Brief , paras 37, 40-72). 768 Conviction Decision , paras 664-666. In relation to the two remaining military operations presented by the Prosecutor, the Trial Chamber found that it could not establish that acts referred to in article 7(1) of the Statute were committed ( Conviction Decision , sections IV.B.3; IV.B.4; IV.B.5; IV.B.6; IV.B.7; IV.B.8; IV.B.9; IV.B.10; paras 443-449 (Bunia on or about 6 to 9 August 2002) and paras 647-653 (Bunia on 6 March 2003)). 769 Conviction Decision , para. 672.

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In reaching its findings, the Trial Chamber indicated that it had not taken into

account arguments raised by Mr Ntaganda ‘that the UPC/FPLC conducted its military

operations on a quasi-daily basis in 2002-2003, during which no attacks were directed

at civilians’. 770 It found that ‘the fact that the UPC/FPLC may have also conducted

[such] operations […] has no bearing on the validity of the factual findings of the

Chamber that during several specific assaults, on which evidence has been presented

to the Chamber, civilians were deliberately attacked’. 771

Mr Ntaganda argues that the Trial Chamber was ‘required to direct its inquiry to

772 all UPC/FPLC military operations during the relevant period’. He suggests that the

Trial Chamber erred in dismissing as irrelevant his arguments and the associated

evidence regarding other UPC/FPLC operations that allegedly solely served a military

purpose and during which civilians were not attacked and measures taken to prevent

773 or repress the commission of crimes elsewhere. In his view, the Trial Chamber’s

error affected its conclusion relating to two of the legal requirements for crimes

against humanity, namely: (i) that the acts form part of a ‘course of conduct’; and

774 (ii) that the attack be directed against any civilian population. He submits that a

reasonable trier of fact could not have ‘reached the conclusion that a civilian

population was the primary object of UPC/FPLC military operations during the period

from August 2002 to May 2003’ based on the full record of events. 775

The Appeals Chamber concurs with the Trial Chamber’s view that ‘[t]he

requirement that the acts form part of a “course of conduct” indicates that Article 7 is

770 Conviction Decision , para. 665. 771 Conviction Decision , para. 665. Mr Ntaganda’s Appeal Brief – Part II 772 , para. 60. Mr Ntaganda’s Appeal Brief – Part II 773 , para. 60, referring to Conviction Decision , para. 665. See also paras 69-74, referring to an operation conducted by UPC/FPLC forces in Loga before the First Operation; an operation to re-occupy Komanda in August 2002 led by Mr Ntaganda; operations conducted in September and October 2002 in Chai/Marabo and in Kunda; numerous lawful military operations following the First Operation, conducted on three fronts, namely: between Mongbwalu and Mahagi involving mainly 505 Bde; on the Mongbwalu-Kilo-Nyangaray-Bunia axis involving mostly 409 Bde; as well as on the Bunia-Komanda-Beni axis involving mainly 201 Bde in Komanda and 9 Bn in Boga; and a two-week period of heavy fighting between the UPC/FPLC and UPDF forces / APC / and Lendu fighters around 6 March 2003. He also argues that the Trial Chamber ignored ‘the prevailing situation in Mongbwalu involving 401 Bde commanded by Emmanuel Ndugetse’ and that it was unable to conclude that crimes were committed by emerging UPC/FPLC forces during the events in Bunia from 6 to 9 August 2002. Mr Ntaganda’s Appeal Brief – Part II 774 , para. 60 referring to Conviction Decision , paras 662, 665; Mr Ntaganda’s Appeal Brief – Part II , paras 69, 74. 775 Mr Ntaganda’s Appeal Brief – Part II , para.74.

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meant to cover a series or overall flow of events, as opposed to a mere aggregate of random or isolated acts’. 776 As indicated above, this is the necessary implication of the objective criteria necessary to establish an ‘attack’ within the meaning of article 7 of the Statute, namely that the multiple criminal acts constituted a course of conduct amounting to a widespread or systematic attack directed against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such attack. An aggregate of random or isolated acts could not fulfil these criteria.

However, this does not mean that a trial chamber must have regard to the totality of the activities and military operations of a state or organisation for the purposes of establishing that there was a ‘course of conduct involving the multiple commission of acts referred to in [article 7,] paragraph 1’ or that the attack targeted a civilian population as suggested by Mr Ntaganda. The Appeals Chamber considers that these determinations can be made through an examination of the circumstances and manner in which the criminal acts were carried out. It is not necessary for this purpose to have regard to other military operations or the wider activities of the state or organisation in question, including activities that did not involve the commission of crimes. As previously stated, a single incident or operation in which multiple crimes are committed could amount to a crime against humanity provided that the relevant 777 contextual elements are met. In the present case, the Trial Chamber found that multiple ‘acts constituting murder, rape, sexual slavery, persecution, and forcible transfer of civilians’ were committed during the First and Second Operations, noting, inter alia : (i) the killing of people during assaults and ratissage operations in Mongbwalu, Sayo, Nzebi, Kilo, 778 Sangi and Kobu, and hospital patients in Bambu; (ii) the rape of men, women and 779 girls in Mongbwalu, Kilo, Kobu, Sangi and Buli; (iii) the sexual slavery of women 780 and girls, including an 11-year old, captured in Kobu, Sangi, Buli, and Jitchu; (iv) the ‘crimes committed during and in the aftermath of the UPC/FPLC takeover of Mongbwalu, Sayo, Nzebi, Kilo, Nyangaray, Kobu, Sangi, Bambu, Lipri, Tsili, Jitchu,

776 Conviction Decision , para. 662. 777 See paragraph 381 above. 778 Conviction Decision , paras 664, 873. 779 Conviction Decision , paras 664, 940. 780 Conviction Decision , paras 664, 954.

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Buli, and Gola, as well as following the capture of persons at the “pacification meeting” in Sangi and during related events during the “Kobu massacre”’, which it found to have effectively targeted the Lendu ethnic group and constituted 781 persecution; and (v) the forcible transfer of persons from Mongbwalu, Lipri, Tsili, 782 Kobu, and Bambu. As set out above, the Trial Chamber also relied on its findings 783 that: (i) recruits were taught that the Lendu as such were the enemy; (ii) the expression kupiga na kuchaji , understood to mean attack all Lendu, was commonly used in commanders’ orders, including those given by Mr Ntaganda, Deputy Chief of Staff in charge of Operations and Organisation, prior to the First Operation, and Salumu Mulenda, brigade commander, prior to the attacks on Mongbwalu and 784 Kobu; (iii) senior commanders ordered the troops to forcibly transfer the civilian population (including Floribert Kisembo, the UPC/FPLC Chief of Staff, who instructed troops ‘to drive out all the Lendu’ prior to the Second Operation); 785 and (iv) Mr Ntaganda ordered Salumu Mulenda’s brigade to fire with a grenade launcher 786 at civilians in Sayo.

The Trial Chamber also noted its findings regarding the following events: (i) in Songolo, soldiers, following orders of their commanders, including Mr Ntaganda, searched for survivors, killed or beat them regardless of whether they were combatants, killed elderly people and children, including babies, looted items from homes and shops (keeping some items for themselves but handing over more valuable 787 items to their superiors), and burned the houses; (ii) in Zumbe, troops who had been informed prior to the attack that everyone was an enemy and that they should strike hard and show no mercy, killed everyone, including elderly people and women, burned down some houses, and were told that they could take only one item of the 788 goods that had been looted; (iii) in Komanda, troops, who had been ordered not to kill, loot or burn houses, still carried out such acts and raped women because they believed that everyone before them was an enemy and the witness who testified to

781 Conviction Decision , paras 664, 1022. 782 Conviction Decision , paras 664, 1050-1051. 783 Conviction Decision , paras 373, 671. 784 Conviction Decision , paras 415, 484, 488, 561, 671. 785 Conviction Decision , paras 560, 671. 786 Conviction Decision , paras 508, 671. 787 Conviction Decision , paras 453-454, 665. 788 Conviction Decision , paras 456-457, 665.

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789 these events was not aware of anyone being punished for them; and (iv) in Bunia, troops carrying out orders to kill anyone who remained behind including civilians, 790 killed fleeing civilians, burned down houses and looted goods.

Against this background and assuming the UPC/FPLC carried out several military operations during which crimes against civilians did not occur and punished crimes against civilians elsewhere, the Appeals Chamber is satisfied that this would not affect the Trial Chamber’s conclusions that separately there was a course of conduct involving the multiple commission of criminal acts, which targeted civilians.

Therefore, the Appeals Chamber finds that the Trial Chamber did not err in finding that ‘the fact that the UPC/FPLC may also have conducted operations that were solely serving a military purpose and during which civilians were not attacked has no bearing on the validity of the factual findings of the Chamber that during several specific assaults […] civilians were deliberately attacked’. 791 Mr Ntaganda’s 792 arguments are therefore rejected.

(v) Whether the Trial Chamber erred in fact in determining that an attack was directed against the civilian population Mr Ntaganda argues that the Trial Chamber erred in fact in finding that orders were issued and civilians were attacked during the First Operation, as well as during 793 the operations in Songolo, Zumbe and Komanda. The Appeals Chamber will address these arguments below.

In relation to Songolo, Mr Ntaganda contends that the Trial Chamber erred ‘by relying exclusively on the uncorroborated evidence of P-0088’ to find that civilians 794 were killed in the aftermath of this operation.

In the relevant part of the Conviction Decision, the Trial Chamber found that orders were given ‘to P-0888 to search each house for survivors’, that the troops

789 Conviction Decision , paras 464-465, 665. 790 Conviction Decision , paras 656-657, 665. 791 Conviction Decision , para. 665. Mr Ntaganda’s Appeal Brief – Part II 792 , paras 60, 69-74. Mr Ntaganda’s Appeal Brief – Part II 793 , paras 63-65. Mr Ntaganda’s Appeal Brief – Part II 794 , para. 63.

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obeyed and ‘went from house to house looking for people, and survivors found hiding

795 were beaten or killed, regardless of whether or [not] they were “combatants”’. It further found that ‘[s]oldiers killed both men and women, as well as the elderly and

children, including babies’, ‘took items from the houses and shops’ and ‘were ordered

796 to burn the houses which were made of straw’.

In order to reach these findings, the Trial Chamber relied primarily on the

testimony of P-0888 and the prior recorded statement of P-0012. The Trial Chamber

relied on several aspects of P-0888’s testimony, including that soldiers ‘were told that

[they] had to check each house to see if anyone was hiding in there’, and were ordered

797 to kill civilians that were not of their ethnic group, such as the Lendu and Ngiti.

According to P-0888, the victims included men, women, elderly persons, children,

798 and babies. The Trial Chamber further relied on his testimony that all items of

799 value were removed from the houses which were subsequently torched, and that the

soldiers were told that the houses belonged to their enemies and that they should

800 destroy everything that they found, all the possessions of their enemies. The witness further explained that they ‘were ordered to chase out civilians who did not

belong to [their] tribe, namely the Lendus and Ngitis’ and they ‘beat up some of them

and […] killed others’. 801

Mr Ntaganda questions the Trial Chamber’s reliance on P-0888 on the basis that

his testimony was uncorroborated and that he was a witness ‘subject of serious

credibility and reliability concerns’. 802 In the latter regard, he highlights that the Trial

Chamber generally treated P-0888’s testimony with caution, largely because it could

not ‘exclude that P-0190 and P-0888 discussed their respective involvement with the

795 Conviction Decision , para. 454. 796 Conviction Decision , para. 454 (footnote omitted). 797 P-0888: T-105 , p. 47, lines 6-7; p, 51, lines 1-3; p. 56, lines 6-9. 798 P-0888: T-105 , p. 47, lines 3-4; p. 54, lines 19-25. 799 P-0888: T-105 , p. 47, lines 10-12. 800 P-0888: T-105 , p. 58, lines 11-14. 801 P-0888: T-105 , p. 61, lines 5-6. Mr Ntaganda’s Appeal Brief – Part II 802 , para. 63, referring to Conviction Decision , paras 196-199, 137.

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Court, including certain aspects of their testimony, and that those aspects may be affected by their potential interaction’. 803

Despite the caution with which the Trial Chamber approached P-0088’s testimony generally, it observed that he

provided detailed and mostly coherent information about many aspects related to his involvement with the UPC/FPLC, notably his training and his participation in certain operations, which are, furthermore, largely consistent with the testimony of other former UPC/FPLC soldiers who testified before the Chamber. He also clarified the basis of his knowledge, and admitted when he did not remember certain details. Recalling that, on certain aspects, the witness’s testimony in this regard departed from that of P-0190, the Chamber finds that this part of his testimony is unaffected by any interaction with P-0190 804 and can generally be relied upon.

In particular, the Appeals Chamber notes that the Trial Chamber found P-0888’s ‘testimony on the preparation and the unfolding of the assault on Songolo […] to be detailed and credible’. 805 It further noted ‘that the witness appeared open and honest about his own role in the attack, as well as the limits of his, at-times incomplete, recollection of the events’. 806

The Appeals Chamber also notes that, contrary to Mr Ntaganda’s argument, the

testimony of P-0888 regarding the assault on Songolo was not uncorroborated in its entirety. Together with the testimony of P-0888, the Trial Chamber relied upon the prior recorded statement of P-0012 to support its findings that soldiers went from house to house and beat or killed survivors found hiding, killing men, women and 807 elderly persons. Mr Ntaganda does not refer to this additional item of evidence that indeed corroborates P-0888’s testimony.

Mr Ntaganda also argues that the Trial Chamber erred in relying on the testimony of P-0888 to find that civilians were killed during the search for survivors after the Songolo operation, given that D-0017 and D-0300 had testified that the

Mr Ntaganda’s Appeal Brief – Part II 803 , para. 63, fn 155, quoting Conviction Decision , paras 196-199, 137. 804 Conviction Decision , para. 198 (footnote omitted). 805 Conviction Decision , para. 452, fn. 1277. 806 Conviction Decision , para. 452, fn. 1277. 807 Conviction Decision , para. 454, fns 1288-1289, referring to DRC-OTP-0105-0085, at 0148, para. 347.

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808 assault on Songolo was unsuccessful. The Appeals Chamber notes that the Trial Chamber found that D-0017 was at times evasive and uncooperative, gave inconsistent testimony on crucial issues, ‘displayed a tendency to negate knowledge of any potentially incriminating facts’, and generally denied the commission of crimes by the UPC/FPLC in contrast to the consistent evidence provided by a number of 809 credible witnesses. It concluded that D-0017’s testimony lacked credibility and 810 determined that it would not rely on it. As to the credibility assessment of D-0300 (Mr Ntaganda), the Trial Chamber stated that it did not ‘find Mr Ntaganda credible when he affirms that he always fought and acted, including in 2002 and 2003, for the liberation and freedom of the civilian population in general in Ituri and that this 811 revolutionary ideology was governing the functioning of the UPC/FPLC’. The Trial Chamber observed that ‘this statement is clearly contradicted by the other available evidence on the record which shows that at least a part of the civilian population in Ituri, in particular the Lendu, was actually the target of violent acts by the UPC/FPLC in 2002 and 2003’. 812

The Trial Chamber considered the testimony of D-0017 and D-0300 in relation to the attack on Songolo but recalled that ‘it does not rely on the testimony of D-0017’ and stated that it had ‘reservations as to the credibility and reliability of this part of Mr Ntaganda’s testimony, which tends to diminish his involvement in the Songolo operation’. 813 The Trial Chamber considered that, even if, as Mr Ntaganda testified, ‘an unsuccessful assault on Songolo took place mid-2002, there is also credible and reliable evidence which shows that, around the end of August 2002, the UPC/FPLC was successful in taking control of Songolo’. 814 As a result, the Trial Chamber ‘mainly consider[ed] the testimony of P-0888 in relation to the successful attack on Songolo’, given its assessment that ‘P-0888 provided a credible narrative on this

Mr Ntaganda’s Appeal Brief – Part II 808 , para. 63, referring to D-0017: T-252 , p. 85, lines 2-7; D- 0300: T-215 , p. 27, lines 9-18. 809 Conviction Decision , paras 251-254. 810 Conviction Decision , para. 255. 811 Conviction Decision , para. 261. 812 Conviction Decision , para. 261. 813 Conviction Decision , para. 452, fn. 1277. 814 Conviction Decision , para. 452, fn. 1277.

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incident, based on what he could observe and on what he personally did’ during the

815 assault.

In light of the evidence and reasoning provided by the Trial Chamber, the

Appeals Chamber does not consider its finding that acts referred to in article 7(1) of

the Statute were committed during the operation in Songolo to be unreasonable.

In relation to the operations in Zumbe and Komanda, Mr Ntaganda challenges

the Trial Chamber’s reliance on the uncorroborated testimony of P-0907 to find that

816 crimes were committed in the aftermath of these operations. He further submits that

the Trial Chamber erred by rejecting the evidence of D-0017 in relation to both

operations, referring to the testimony of D-0017 that the civilians had fled Zumbe and

817 Komanda prior to the fighting and that he did not see civilians being killed.

In relation to the operation in Zumbe, the Trial Chamber found that ‘[t]he

soldiers “killed everyone”, including elderly people and women, and burned down

some houses’. 818 It further found that ‘[t]he soldiers were told that they could only

take one item of the goods that had been looted, and placed anti-personnel mines on

paths and roads – including those leading to the river and to the market and the

church’. 819 In order to reach these findings, the Trial Chamber relied exclusively on

820 the testimony of P-0907.

In relation to the assault on Komanda, the Trial Chamber found that civilians

were killed, some of them ‘while they were fleeing’. 821 It further found that during the

ratissage operation carried out after the taking over of the town, civilians ‘were also

taken captive, while others were killed, some of them inside their homes’. 822 The Trial

Chamber found that houses ‘were burned down’, ‘UPC/FPLC soldiers also looted

815 Conviction Decision , para. 452, fn. 1277. Mr Ntaganda’s Appeal Brief – Part II 816 , para. 64. Although Mr Ntaganda refers to the operations in Zumbe and Komanda, paragraph 457 of the Conviction Decision referred to by Mr Ntaganda concerns only the operation in Zumbe. Mr Ntaganda’s Appeal Brief – Part II 817 , para. 64, referring to D-0017: T-253 , p. 18, lines 3-24; p. 19, lines 3-12; T-254 , p. 72, lines 14-20. 818 Conviction Decision , para. 457. 819 Conviction Decision , para. 457. 820 Conviction Decision , para. 457, fns 1305-1309. 821 Conviction Decision , para. 463. 822 Conviction Decision , para. 464.

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houses in Komanda’ and ‘raped women during the operation’. 823 ratissage In order to 824 reach these findings, the Trial Chamber relied on the testimony of P-0907.

In its credibility assessment of P-0907, the Trial Chamber considered ‘P-0907 to be a credible witness’ and determined that it would ‘fully rely on his testimony’. 825 As noted in paragraph 443 above, the Trial Chamber found that the testimony of D-0017 826 lacked credibility and decided not to rely on it. It did not refer to D-0017’s testimony that no civilians were killed during the assault on Zumbe. In relation to the assault on Komanda, the Trial Chamber noted that Mr Ntaganda had challenged the credibility of P-0907’s account of events arguing that it was implausible and that D- 827 0017 had testified that he did not remember that P-0907 was there. It noted however that ‘P-0907’s account […] [was] rich in details, notably regarding the conduct of UPC/FPLC troops towards what he referred to as “civilians”, and that the witness clearly differentiated between information he was in a position to provide and 828 information he was not in a position to provide’. After recalling its conclusion concerning the credibility of D-0017 and P-0907, the Trial Chamber found ‘that P- 0907’s evidence concerning the November 2002 UPC/FPLC assault on Komanda [was] credible and […] relied on his account of its unfolding’. 829

Considering the foregoing and in the absence of further specific arguments from Mr Ntaganda, the Appeals Chamber does not consider the Trial Chamber’s reliance on P-0907’s testimony to find that crimes were committed in the aftermath of the operations in Zumbe and Komanda to be unreasonable.

Finally, Mr Ntaganda challenges the Trial Chamber’s finding that crimes were 830 committed during the First Operation. The arguments raised by Mr Ntaganda in this regard are addressed and rejected under the eighth ground of appeal.

823 Conviction Decision , para. 464. 824 Conviction Decision , paras 463-464, fns 1322, 1325-1328. 825 Conviction Decision , para. 224. 826 Conviction Decision , para. 255. 827 Conviction Decision , para. 461, fn. 1314. 828 Conviction Decision , para. 461, fn. 1314. 829 Conviction Decision , para. 461, fn. 1314. 830 Mr Ntaganda’s Appeal Brief – Part II , para. 65.

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Considering the above, the Appeals Chamber rejects Mr Ntaganda’s arguments

that the Trial Chamber erred in finding that civilians were attacked during the First

Operation, as well as during the operations in Songolo, Zumbe and Komanda.

2 Alleged error in finding that orders to attack civilians were issued

Mr Ntaganda contends that the Trial Chamber’s finding that the course of

conduct was directed against a civilian population is based on seven orders, three of

831 which relate to the phrase kupiga na kuchaji . Mr Ntaganda first challenges the Trial

Chamber’s interpretation of the phrase kupiga na kuchaji and thereafter raises specific

832 errors in relation to each of the seven orders. The Appeals Chamber will address

these alleged errors below.

(a) Alleged error regarding the meaning of the phrase kupiga na kuchaji

(i) Mr Ntaganda’s submissions

Mr Ntaganda challenges the Trial Chamber’s finding that the expression kupiga

833 na kuchaji was an instruction to attack all Lendu. He argues that the Trial Chamber

erred by relying on two witnesses – P-0907 and P-0963 – to support its finding,

although nine other witnesses stated that they understood the phrase differently,

generally linking it ‘to military combat and seizing property after defeating the

enemy’. 834

(ii) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda’s challenge lacks merit. 835 In her

view, the Trial Chamber correctly found that the UPC/FPLC issued orders to attack

836 all the Lendu, including civilians. She also notes that the ‘orders to attack civilians

were only one of several factors considered […] to find that there was an attack

against the civilian population’. 837 The Prosecutor submits that Mr Ntaganda’s

‘portrayal of the phrase as a legitimate military order limited to looting enemy

Mr Ntaganda’s Appeal Brief – Part II 831 , para. 75. Mr Ntaganda’s Appeal Brief – Part II 832 , paras 75-102. Mr Ntaganda’s Appeal Brief – Part II 833 , paras 76-90. Mr Ntaganda’s Appeal Brief – Part II 834 , paras 78-80, referring to the testimony of D-0300, P-0010, P- 0055, P-0016, P-0017, P-0888, P-0901, P-0768 and D-0038. Prosecutor’s Response to Appeal – Part II 835 , para. 81. Prosecutor’s Response to Appeal – Part II 836 , para. 81. Prosecutor’s Response to Appeal – Part II 837 , para. 81.

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military goods is implausible given the evidence in the record, which the Chamber reasonably considered’. 838

(iii) The victims’ observations Victims Group 2 submit that Mr Ntaganda misrepresents the Conviction Decision and the relevant testimony underpinning the finding of the Trial Chamber 839 regarding the meaning of the expression kupiga na kuchaji . In their view, Mr Ntaganda misconstrues the testimony of P-0963 and P-0901 and takes the relevant 840 portions out of context. Victims Group 2 submit that the Trial Chamber properly ‘viewed the evidence in its entirety and in light of all the evidence in the case’. 841 They further contend that Mr Ntaganda does not point to any evidence that the Trial Chamber disregarded and that his ‘submissions do not go beyond a disagreement with the Trial Chamber’s assessment of the evidence’. 842

(iv) Relevant part of the Conviction Decision In the section setting out the Trial Chamber’s factual findings concerning the participation of the UPC/FPLC in military operations, the Trial Chamber found that ‘“ kupiga na kuchaji ” was an expression commonly used in UPC/FPLC commanders’ orders to soldiers, and that it was understood by the soldiers to mean attacking all the 843 Lendu, including civilians, and to loot their property’. The Trial Chamber relied on 844 this finding to determine that the attack was directed against a civilian population.

The Trial Chamber derived its interpretation of kupiga na kuchaji from the testimony of the following witnesses: (i) P-0010, P-0016, P-0017, P-0888, P-0901, P- 0963 and D-0251, insider witnesses whom the Trial Chamber found to have ‘indicated that [ kupiga na kuchaji ] was an order which meant to attack and to loot’; (ii) P-0017, P-0055, P-0901, P-0768 and P-0963, insider witnesses whom the Trial Chamber found to have ‘explained that this expression was understood to mean taking possession of the opponent’s belongings, but also any kind of property, including that

Prosecutor’s Response to Appeal – Part II 838 , para. 82. 839 Observations of Victims Group 2 on Appeal – Part II , para. 47. 840 Observations of Victims Group 2 on Appeal – Part II , para. 47. 841 Observations of Victims Group 2 on Appeal – Part II , para. 47. 842 Observations of Victims Group 2 on Appeal – Part II , para. 48. 843 Conviction Decision , para. 415. 844 Conviction Decision , para. 671. See also para. 672.

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belonging to “civilians”’; and (iii) P-0907 and P-0963 (also referring to P-0768 in this

context), insider witnesses whom the Trial Chamber found to have ‘explained that this

order was understood to mean also get rid of everyone and everything, referring to all

the Lendu, including civilians and their possessions’. 845

(v) Determination by the Appeals Chamber

According to Mr Ntaganda, eleven witnesses testified that ‘“ kupiga ” and “ na

kuchaji ” referred respectively to the general ideas of “attack the enemy” and “take

property”’. 846 He avers that ‘[d]ivergences arose as to whether taking property meant

seizing the military equipment of the enemy following their defeat, or more generally

referred to pillaging or looting property, including of civilians’. 847 In his assessment,

P-0055, D-0300 and D-0038 testified that kupiga na kuchaji was a military term

meaning to attack and disarm the enemy, P-0010, P-0017, P-0888, P-0907, and P-

0963 testified that it meant to loot, pillage or plunder, while only P-0901 and P-0768

848 testified that this could extend to the taking of civilian property. In his view, the

Trial Chamber’s finding that this phrase meant to attack all the Lendu, including

civilians was based only on the testimony of P-0907 and P-0963 and that this was

849 based on a misinterpretation of their testimony.

The Appeals Chamber is not persuaded by Mr Ntaganda’s argument that the

evidence relied upon by the Trial Chamber was generally uniform ‘in linking the

phrase to military combat and seizing property after defeating the enemy’. 850 To the

contrary, only two witnesses, whose evidence the Trial Chamber deemed not to be

851 credible (D-0300 and D-0038), testified that the phrase was limited to attacking and

seizing property of only enemy combatants.

The remaining witnesses relied upon by the Trial Chamber broadly agreed that

852 the phrase kupiga na kuchaji was an order to attack ( kupiga ) and loot ( kuchaji ).

845 Conviction Decision , para. 415. Mr Ntaganda’s Appeal Brief – Part II 846 , para. 78. Mr Ntaganda’s Appeal Brief – Part II 847 , para. 78. Mr Ntaganda’s Appeal Brief – Part II 848 , para. 79. Mr Ntaganda’s Appeal Brief – Part II 849 , paras 80-82. Mr Ntaganda’s Appeal Brief – Part II 850 , para. 80. 851 Conviction Decision , para. 415, referring to D-0300, T-213 , p. 9; D-0038, T-249 , pp. 18-19. 852 On this point Mr Ntaganda appears to agree with the Trial Chamber’s assessment of the evidence. Mr Ntaganda’s Appeal Brief – Part II , para. 78; Conviction Decision , para. 415.

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When further questioned on the type of property that could be looted when this order

was given, three of the witnesses, P-0017, P-0901 and P-0055 (whose evidence

853 Mr Ntaganda seems to take out of context ) further explained that it was understood

854 as an order to take possession of any kind of property, including that of civilians .

D-0251, a defence witness, also indicated that the expression meant looting after a

battle, although she denied ever having seen anything related to this and stated that it

855 was not allowed. Based on this assessment, the Appeals Chamber cannot accept the

premise of Mr Ntaganda’s argument that the evidence generally linked the phrase

kupiga na kuchaji ‘to military combat and seizing property after defeating the

enemy’. 856

Mr Ntaganda also challenges the Trial Chamber’s interpretation of the

testimony of two ‘two “key insider” witnesses’, P-0907 and P-0963. 857 According to

the Trial Chamber, these witnesses ‘explained that this order was understood to mean

also get rid of everyone and everything, referring to all the Lendu, including civilians

and their possessions’. 858 Mr Ntaganda argues that the Trial Chamber took their

testimony out of context and that ‘neither witness discussed the meaning of the

’ in the cited testimony. 859 phrase, let alone what it meant to other soldiers

The Appeals Chamber accepts Mr Ntaganda’s argument that the testimony of

P-0907 and P-0963 regarding the meaning of kupiga na kuchaji arose in the context of

questioning regarding instructions generally received prior to the assault on

860 Mongbwalu. It further notes that, as argued by Mr Ntaganda, neither witness stated

in the direct and express terms articulated by the Trial Chamber that kupiga na

861 kuchaji meant to get rid of everyone and everything. Nevertheless, the Appeals

Mr Ntaganda’s Appeal Brief – Part II 853 , para. 79, submitting that P-0055 confirmed that the term ‘was a “military expression” “used in the army” which meant “attack the enemy and then pillage by taking away his weapon and all his whatever he has, uniform, military attire, bayonets and whatever they possess, in fact meaning that the enemy should be disarmed”’ (emphasis in original omitted), and quoting P-0055, T-72 , p. 10, lines 6-13. 854 P-0017: T-58 , p. 56; P-0901: T-29 , p. 20. 855 Conviction Decision , para. 415, fn. 1186, referring to D-0251: T-260 , pp. 27, 99-100. Mr Ntaganda’s Appeal Brief – Part II 856 , para. 80. Mr Ntaganda’s Appeal Brief – Part II 857 , paras 80-82. 858 Conviction Decision , para. 415, fn. 1188, referring to P-0907: T-90 , p. 8; P-0963: T-78 , pp. 72-73, line 9. Mr Ntaganda’s Appeal Brief – Part II 859 , para. 81 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 860 , para. 81. Mr Ntaganda’s Appeal Brief – Part II 861 , para. 82.

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Chamber considers that the Trial Chamber’s interpretation of the explanation given by the two witnesses does not appear to be unreasonable when the witnesses’ testimony on this point is assessed as a whole.

P-0907 testified that the phrase kupiga na kuchaji was used in instructions given prior to the operation in Mongbwalu, and that this meant that ‘each one can help 862 himself, can serve himself’. When further questioned as to whether specific instructions were given regarding civilians in Mongbwalu, the witness stated that they were told that

all the people there were enemies, […] we were told to spare no one. […] During the first planning meeting we met in Nizi during a general parade. There was Commander Salumu, Commander Americain, Tango Romeo and many other commanders. They were all saying the same thing, “Go to Mongbwalu, strike the enemy. And all the people there in Mongbwalu are your enemies. We must strike. You must loot. You must take advantage of the situation […] it was the same message that we received from various commanders; the brigade commanders, Commander Salumu, Christ, or other commanders. They all told us the same thing, “Piga na kuchaji, attack and loot.” […] We were told that, once again, kupiga na kuchaji, strike, loot, hit the enemy. And that was the same 863 message from the very beginning right to the very end.

P-0963 gave similar testimony to the effect that the phrase kupiga na kuchaji was used in instructions given prior to the attack on Mongbwalu and that this meant to ‘fight and regain the place or the town and then pillage and loot’. 864 The witness explained that they were expected to pillage ‘material possessions’. 865 When questioned as to whether instructions were issued regarding the civilian population of Mongbwalu, the witness indicated that the aim ‘was to drive everyone out--well, to drive all the Lendus out’ because ‘it was a tribal war, and the purpose was to drive out the Lendu or eliminate all of them, loot their possessions, their various goods, possessions, financial means, occupy their houses’. 866 In discussing instructions given prior to a subsequent attack during the Second Operation, the witness testified that,

862 P-0907: T-90 , p. 8, lines 4-9. 863 P-0907: T-90 , p. 8, line 16 to p. 9, line 19. 864 P-0963: T-78 , p. 70, lines 13-17. 865 P-0963: T-78 , p. 73, lines 1-2. 866 P-0963: T-78 , p. 73, lines 3-9.

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it was the same operation piga na kuchaji. And we were fighting the Lendu. The 867 orders were clear: Shoot at everyone. In light of the evidence given by P-0907 and P-0963, the Appeals Chamber considers that the Trial Chamber reasonably concluded that ‘this order was understood to mean also get rid of everyone and everything, referring to all the Lendu, 868 including civilians and their possessions’.

The Trial Chamber further referred to the testimony of P-0768, an insider witness, who explained that the expression kuchaji was used to mean ‘attack civilians and loot the property that belonged to civilians’. 869 The Appeals Chamber considers that the Trial Chamber properly evaluated this testimony together with the evidence of P-0010, P-0016, P-0888, P-0901, and P-0055 that kupiga na kuchaji meant to attack and loot, and in light of the clarification provided by P-0017, P-0055 and P-0901 that 870 all property was encompassed by this order, including the property of civilians.

The Appeals Chamber finds no merit in Mr Ntaganda’s submission that the evidence of P-0907 and P-0963 does not support ‘a finding that kupiga na kuchaji was 871 understood by all soldiers as an instruction to attack “all the Lendu”’. Both witnesses, UPC/FPLC soldiers at the relevant time, were questioned on their own understanding of the meaning of the phrase. Given that their evidence, as explained above, is largely consistent with that provided by other witnesses, the Appeals Chamber considers the Trial Chamber’s finding that the phrase ‘was understood by the soldiers to mean attacking all the Lendu, including civilians, and to loot their property’ to be reasonable. 872

The Appeals Chamber further notes that the Trial Chamber’s analysis took account of contradictory evidence. It noted that D-0300 testified that the expression kupiga na kuchaji ‘only meant to charge at the fleeing enemy after having beaten

867 Although the Trial Chamber did not refer to this part of the witness’s testimony, the Prosecutor highlighted it in her response. See Prosecutor’s Response to Appeal – Part II , para. 83, quoting P-0963: T-79 , p. 47, lines 7-8. 868 Conviction Decision , para. 415. 869 Conviction Decision , para. 415, fn. 1188, quoting P-0768: T-33 , pp. 64-65. 870 Conviction Decision , para. 415. Mr Ntaganda’s Appeal Brief – Part II 871 , para. 82 (emphasis in original). 872 Conviction Decision , para. 415.

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873 them, and to take all their equipment’ and that this was confirmed by D-0038. The

Trial Chamber also noted that D-0300 stated that this ‘did not involve looting,

because it was forbidden to steal from the civilian population’ 874 and ‘that he ‘did not

use the expression “ kupiga na kuchaji ” because he wanted his army to be

exemplary’. 875 However, after considering all the other evidence on this matter, the

876 Trial Chamber did not find D-0300’s testimony to be credible.

In light of the Trial Chamber’s analysis and the content of the evidence relied

upon, the Appeals Chamber finds no merit in Mr Ntaganda’s submission that the Trial

877 Chamber erred in its assessment of this evidence. The Trial Chamber assessed the

relevant evidence on the matter and provided reasoning in support of its ultimate

conclusion. In light of the evidence relied upon by the Trial Chamber, the Appeals

Chamber deems this conclusion to be reasonable.

The reasonableness of the Trial Chamber’s finding is further confirmed when

considered in light of other factual findings reached by the Trial Chamber relevant to

the manner in which the UPC/FPLC soldiers were trained, whom they perceived the

enemy to be and how they conducted attacks. The Appeals Chamber notes in

particular the findings that: UPC/FPLC recruits were taught that the Lendu and Ngiti

878 ethnic groups were the enemy; songs were taught to recruits as part of their training

inciting soldiers to attack or kill the Lendu and that recruits would get everything,

879 including women; orders were given in other terms before and during battle to fight

880 the enemy, including Lendu civilians; and the UPC/FPLC committed crimes

881 against Lendu civilians.

Considering the above, the Appeals Chamber rejects Mr Ntaganda’s arguments

raised in paragraphs 76-90 of the appeal brief. It finds that the Trial Chamber’s

conclusion that the phrase kupiga na kuchaji ‘was an expression commonly used in

873 Conviction Decision , para. 415, fn. 1189, referring to D-0300: T-213 , p. 9; D-0038: T-249 , pp. 18- 19. 874 Conviction Decision , para. 415, fn. 1190, referring to D-0300: T-213 , p. 10. 875 Conviction Decision , para. 415, referring to D-0300: T-235 , p. 57. 876 Conviction Decision , para. 415. Mr Ntaganda’s Appeal Brief – Part II 877 , para. 89. 878 Conviction Decision , para. 800. 879 Conviction Decision , para. 373. 880 See e.g. Conviction Decision , paras 656-657. 881 Conviction Decision , section V.C.4.

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UPC/FPLC commanders’ orders to soldiers, and that it was understood by the soldiers

to mean attacking all the Lendu, including civilians, and to loot their property’ was

882 reasonable.

Mr Ntaganda also challenges the credibility of P-0963’s testimony regarding the

order given, suggesting that he ‘lied about having travelled from Mabanga to

Mongbwalu to take part in the first operation’ 883 and arguing that ‘[n]o reasonable

Trial Chamber […] could have found beyond reasonable doubt […] that P-0963 was

present when Salumu issued instructions prior to the fighting in Mongbwalu’. 884 He

argues that the Trial Chamber should not have relied on P-0963 and P-0017 as

corroborating each other’s testimony regarding this meeting given the divergences

between their accounts as to the location of the attendees and other details of the

885 gathering.

In the Conviction Decision, the Trial Chamber found, based on the testimony of

P-0017 and P-0963, that ‘[w]hile en route to Mongbwalu, the brigade led by Salumu

Mulenda stopped in or near Mabanga, where Salumu Mulenda addressed the soldiers

at a gathering’. 886 It noted that during this gathering the soldiers received instructions

887 and Salumu Mulenda used the expression kupiga na kuchaji . The Trial Chamber

acknowledged that these witnesses gave different accounts of where the meeting took

place – while P-0963 referred to the meeting taking place in Mabanga, P-0017

888 indicated that Lalu was the place where the gathering occurred. However, the Trial

Chamber also noted that P-0017 did refer to Mabanga as a location where the troops

889 stopped before arriving in Lalu.

The Trial Chamber noted that P-0963 placed Mr Ntaganda at the gathering,

890 while P-0017 did not, and accordingly made ‘no finding on this matter’. However,

‘[n]oting the time passed since the events and the overall similarities between the

882 Conviction Decision , para. 415. Mr Ntaganda’s Appeal Brief – Part II 883 , para. 83. 884 Mr Ntaganda’s Appeal Brief – Part II , para. 87. Mr Ntaganda’s Appeal Brief – Part II 885 , paras 83-87. 886 Conviction Decision , para. 488. 887 Conviction Decision , para. 488. 888 Conviction Decision , para. 488, fn. 1401. 889 Conviction Decision , para. 488, fn. 1401. 890 Conviction Decision , para. 488, fn. 1401.

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witnesses in relation to the gathering as discussed above, the [Trial] Chamber [did] not consider this inconsistency to affect the overall credibility or reliability of P- 0963’. 891 The Appeals Chamber does not consider this conclusion to be unreasonable, particularly in light of the similarities in the witnesses’ description of the gathering as explained below.

In concluding that P-0017 and P-0963 referred to the same gathering, the Trial Chamber noted that both witnesses: (i) placed Salumu Mulenda at the gathering as the person using the expression kupiga na kuchaji ; (ii) testified that the soldiers were told during this meeting that the purpose of the operation was to regain Mongbwalu, a strategically important mining region that had been taken over by the APC and the Lendu, and that one of the objectives ‘was to cut off the supplies to the Lendu and their headquarters, and to drive out the Lendu’; (iii) testified that they were ‘briefed on the two axis nature of the planned assault’; (iv) referred to singing at the gathering; and (v) referred to Hema civilians accompanying them from the place of the meeting 892 to Mongbwalu and helping them to transport ammunition.

Mr Ntaganda argues that the Trial Chamber failed to consider a number of contradictions between the testimony of P-0963 and P-0017 on this issue and failed to 893 explain why these contradictions did not impact on P-0963’s credibility. For the reasons set out below, the Appeals Chamber finds that the contradictions alleged by Mr Ntaganda are not borne out by reference to the evidence that he cites.

First, he argues that P-0017 ‘identified all members of the Salumu Bde [REDACTED] he was with in Lalu […] and did not include P-0963 as being one of them’, and that he ‘recalled seeing P-0963 for the first time in the context of the Second Operation when the latter arrived along with reinforcements’. 894

The Appeals Chamber notes that P-0017 did not mention P-0963 as being part 895 of the group in the excerpts of the testimony relied upon by Mr Ntaganda.

891 Conviction Decision , para. 488, fn. 1401. 892 Conviction Decision , para. 488, fns 1402-1403. Mr Ntaganda’s Appeal Brief – Part II 893 , paras 85-86. Mr Ntaganda’s Appeal Brief – Part II 894 , para. 85. 895 P-0017: T-60 , p. 83, lines 5-10; p. 84, line 15 to p. 85, line 13; T-61 , p. 5, lines 6-12; p. 23, lines 5- 25; T-59 , p. 63, line 12 to p. 64, line 9.

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896 However, while P-0017 mentioned [REDACTED]. P-0017 testified that

897 [REDACTED]. Given the context in which this question was asked, the lapse of

time since the witness named the other [REDACTED] the Appeals Chamber

concludes that the witness’s answer to this question cannot be understood as

confirming that the [REDACTED] individuals he named were the only members of

the [REDACTED]. The Appeals Chamber therefore rejects Mr Ntaganda’s argument

that P-0017 ‘identified all members of the Salumu Bde [REDACTED] he was with in

Lalu’. 898 Finally, the Appeals Chamber notes that the excerpt of P-0017’s testimony

referred to by Mr Ntaganda related to the [REDACTED] the Second Operation does

not bear out his argument that P-0017 ‘recalled seeing P-0963 for the first time’

899 there. Rather, the witness indicated that P-0963 [REDACTED] for the purposes of

900 that operation.

Second, Mr Ntaganda refers to P-0963’s inability to recall [REDACTED],

901 according to P-0017. The Appeals Chamber notes that P-0963 was not specifically

asked about [REDACTED] in the part of the testimony referred to by Mr Ntaganda

902 and, in any event, he expressly indicated that he did not remember [REDACTED].

In addition, Mr Ntaganda highlights the fact that P-0963 claimed that the

[REDACTED] section did not have a commander, while P-0017 referred to

903 [REDACTED] as a person [REDACTED]. The Appeals Chamber finds that the

parts of the testimony of P-0963 referred to by Mr Ntaganda were not conclusive

regarding the question of whether the section had a commander. His response was that

904 [REDACTED]. Similarly, P-0017’s response was to a question as to whether

905 [REDACTED]. In these circumstances, the Appeals Chamber does not find any

contradiction between the witnesses’ testimony on this point.

896 P-0017: T-60 , p. 85, lines 12-13. 897 P-0017: T-61 , p. 23, lines 5-25. Mr Ntaganda’s Appeal Brief – Part II 898 , para. 85. Mr Ntaganda’s Appeal Brief – Part II 899 , para. 85. 900 P-0017: T-59 , p. 63, line 12 to p. 64, line 9. Mr Ntaganda’s Appeal Brief – Part II 901 , para. 86, fn. 227, referring to P-0963: T-78 , p. 68, lines 3-19; P-0017: T-61 , p. 23, lines 5-25. 902 P-0963: T-78 , p. 68, lines 3-19. Mr Ntaganda’s Appeal Brief – Part II 903 , para. 86, fns 226-227, referring to P-0963: T-82 , p. 18, lines 9-15; p. 19, lines 3-5; P-0017, T-61 , p. 23, lines 5-25. 904 P-0963: T-82 , p. 18, lines 13-15 (emphasis added). 905 P-0017: T-61 , p. 23, lines 9-13.

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Third, Mr Ntaganda submits that P-0963 ‘had no knowledge of the exchange of

ammunition between Salumu’s brigade and Seyi’s forces that P-0017 described in

detail’. 906 The Appeals Chamber again finds that P-0963’s testimony was not as

907 conclusive on this issue as Mr Ntaganda has portrayed it to be. In response to the

question of whether he had information concerning the exchange, the witness’s

908 response was [REDACTED]. In the Appeals Chamber’s view, the witnesses’

testimony on this point does not contradict the testimony of P-0017.

Fourth, Mr Ntaganda argues that P-0963 referred to a [REDACTED], while P-

909 0017 stated that they did not have these [REDACTED]. However, the Appeals

Chamber notes that, contrary to Mr Ntaganda’s assertion, P-0017 did not expressly

910 deny that they had a [REDACTED], and thus does not contradict P-0963’s

911 testimony.

Fifth, Mr Ntaganda argues that P-0963 testified that they only made one stop in

Mabanga while P-0017 stated that they spent one night in Mabanga before moving to

912 Lalu and then to Mongbwalu. The Appeals Chamber notes that the excerpts of P-

0963’s testimony referred to by Mr Ntaganda do not bear out his argument; the

witness did not testify that the troops made only one stop but rather stated that

913 Mabanga was the first stop.

In view of the foregoing, the Appeals Chamber rejects Mr Ntaganda’s argument

that the Trial Chamber should have referred to these specific aspects of P-0963’s

testimony and explained why they did not impair his reliability on this issue.

Mr Ntaganda also argues that P-0963 testified that the [REDACTED] section

travelled to Mongbwalu by vehicle while P-0017, D-0300 and P-0901 described the

914 [REDACTED] section moving to Mongbwalu on foot. This apparent contradiction

Mr Ntaganda’s Appeal Brief – Part II 906 , para. 86, fn. 228, referring inter alia to P-0017: T-61 , p. 24, lines 20-22. Mr Ntaganda’s Appeal Brief – Part II 907 , para. 86. 908 P-0963: T-82 , p. 24, lines 10-14. 909 Mr Ntaganda’s Appeal Brief – Part II , para. 86, fns 230, 233. 910 P-0017: T-58 , p. 62, lines 2-10. 911 P-0963: T-78 , p. 69, lines 2-5. Mr Ntaganda’s Appeal Brief – Part II 912 , para. 86, fns 234-235. 913 P-0963: T-81 , p. 82, lines 6-10. Mr Ntaganda’s Appeal Brief – Part II 914 , para. 86.

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was addressed by the Trial Chamber. It noted that P-0963 had initially ‘testified that he travelled from Bunia to Mongbwalu in a vehicle […], [but] later clarified that the group advanced on foot with vehicles travelling behind them’. 915 It also found that there were inconsistencies in the evidence on the question of whether it was possible 916 for vehicles to navigate the road to Mongbwalu. It concluded that it was ‘unable to make a finding on the use of vehicles in this context’, but did ‘not consider this issue 917 to affect the overall credibility of P-0963’. The Appeals Chamber notes that all of the witnesses to whose testimony Mr Ntaganda refers, including the testimony of P- 0963, are consistent on the point that the troops advanced on foot to Mongbwalu, and differ only on the question of where the vehicles were left or whether they took 918 another route. In these circumstances, the Appeals Chamber considers that the Trial Chamber reasonably concluded that the divergence in the various accounts of how weapons were transported to Mongbwalu does not impact on P-0963’s credibility.

Finally, Mr Ntaganda argues that the Trial Chamber failed to address the most important contradiction between the testimony of P-0017 and P-0963 regarding the meeting prior to the attack on Mongbwalu, which is that, ‘according to P-0017’s version of what was said at the meeting, nobody suggested that civilians were to be attacked’. 919 The Appeals Chamber considers that Mr Ntaganda’s argument is without merit. As explained above, P-0017’s testimony was reasonably relied upon to determine that the phrase kupiga na kuchaji was understood as an order to take possession of any kind of property, including that of civilians in the context in which 920 it was used in the UPC/FPLC. Specifically when discussing instructions received during this gathering, P-0017 referred to capturing Mongbwalu, receiving money, sleeping on mattresses, having food, having women and forgetting ‘all the suffering

915 Conviction Decision , para. 487, fn. 1400. 916 Conviction Decision , para. 487, fn. 1400, referring to P-0017, T-61 , pp. 44-45; P-0901, T-31 , p. 63. 917 Conviction Decision , para. 487, fn. 1400. 918 P-0963: T-78 , p. 69, lines 16-17; T-82 , p. 4, line 16 to p. 6, line 13; P-0017: T-61 , p. 32, line 25 to p. 33, line 1; P-0901: T-31 , p. 62, line 15 to p. 63, line 3; D-0300: T-217 , p. 24, line 12 to p. 26, line; p. 32 line 19 to p. 33, line 4; T-217 , p. 32, line 19 to p. 33, line 4. Mr Ntaganda’s Appeal Brief – Part II 919 , para. 87. 920 Conviction Decision , para. 415, fn.1187, referring to P-0017: T-58 , p. 56.

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that they had endured’. 921 It was in this context that P-0017 referred to the expression

922 kupiga na kuchaji being used by Salumu Mulenda.

The Appeals Chamber notes that both P-0963 and P-0017 referred to the phrase

kupiga na kuchaji being used by Salumu Mulenda prior to the attack on Mongbwalu

and their testimony was relied upon by the Trial Chamber to support its finding that

923 this order meant that they should attack and loot. The testimony of both witnesses

was relied upon to support the Trial Chamber’s finding that the order related to ‘the

opponent’s belongings, but also any kind of property, including that belonging to

“civilians”’. 924 The Appeals Chamber considers that P-0963’s further clarification, in

response to a question as to whether they had received any instructions regarding the

civilian population, that they were instructed to drive all the Lendu out or eliminate all

of them, and loot their possessions is not inconsistent with P-0017’s testimony.

In view of the foregoing, the Appeals Chamber rejects Mr Ntaganda’s argument

that ‘[n]o reasonable Trial Chamber […] could have found beyond reasonable doubt

that P-0017 and P-0963 received instructions at the same meeting and that P-0963

was present when Salumu issued instructions prior to the fighting in Mongbwalu’. 925

(b) Alleged errors in the Trial Chamber’s consideration of the orders/instructions

Mr Ntaganda argues that the Trial Chamber erred in finding that seven orders to

926 attack civilians were issued. He submits generally that the Trial Chamber

erroneously assessed the evidence and then raises specific errors in relation to each of

927 the seven orders. His arguments in relation to three of these orders are set out in

detail elsewhere in his appeal brief and they are addressed by the Appeals Chamber in

928 conjunction with those (sub)grounds of appeal. The Appeals Chamber will address

921 Conviction Decision , para. 488, fn. 1403, quoting P-0017: T-58 , p. 54. 922 Conviction Decision , para. 488, fn. 1405, referring to P-0017: T-58 , p. 54. 923 Conviction Decision , para. 415, fn. 1186, referring to P-0017: T-58 , pp. 54-55; P-0963: T-78 , p. 70. 924 Conviction Decision , para. 415, fn. 1187, referring to P-0017: T-58 , pp. 56; P-0963: T-78 , pp. 72- 73; T-79 , pp. 19, 79. Mr Ntaganda’s Appeal Brief – Part II 925 , para. 87. Mr Ntaganda’s Appeal Brief – Part II 926 , paras 91-102. Mr Ntaganda’s Appeal Brief – Part II 927 , paras 91-102. Mr Ntaganda’s Appeal Brief – Part II 928 , paras 93-95, challenging the Trial Chamber’s findings that: (i) Mr Ntaganda ordered the troops to attack using the phrase kupiga na kuchaji the night before leaving Bunia for Mongbwalu; (ii) Salumu Mulenda gave an order to attack all the Lendu using the phrase kupiga na kuchaji while en route to Mongbwalu; and (iii) Mr Ntaganda gave an order to attack

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the remaining arguments below, beginning with general arguments on evidentiary

matters that concern all of the orders before moving on to the arguments that are

specific to each of the challenged orders.

(i) Alleged erroneous assessment of the evidence

Mr Ntaganda submits that the ‘[Trial] Chamber’s reliance on seven orders/instructions is infected by its erroneous assessment of the evidence’. 929 He

maintains that the Trial Chamber failed to consider: (i) its own finding concerning the

difficulty in identifying Lendu combatants as they did not have a common military uniform and included women and children; and (ii) ‘evidence provided by both P-

0017 and P-0963 concerning the firing procedure during the fighting in Mongbwalu,

which demonstrates that orders were issued to target military objectives and enemy

forces, which is inconsistent with attacking civilians’. 930 The Prosecutor responds that

any difficulty in distinguishing combatants and non-combatants ‘does not justify

931 ignoring the principle of distinction and targeting all Lendu’. She further submits

that the fact that orders were issued to target military objectives does not negate that

932 orders to attack civilians were also issued.

The Appeals Chamber considers that the difficulty in distinguishing combatants

from civilians may be indeed a relevant consideration when determining whether the

civilian population as such was the object of the attack. At the same time, it accepts the Prosecutor’s submission that such difficulties cannot justify the targeting of an

entire ethnic group without distinction between civilians and combatants. The

relevance of this consideration to each of the specific factual findings relied upon by

the Lendu without distinguishing between civilians and militia at Camp Goli. The first challenge relates to paragraph 484 of the Conviction Decision and the relevant arguments are addressed by the Appeals Chamber in the section on the meaning of the phrase kupiga na kuchaji above and in the fourteenth ground of appeal below. The second challenge relates to paragraph 488 of the Conviction Decision and the relevant arguments are addressed by the Appeals Chamber in the section on the meaning of the phrase kupiga na kuchaji above. Mr Ntaganda adds that ‘P-0017 and P-0963’s evidence concerning the [REDACTED] firing procedure during the fighting in Mongbwalu demonstrates the opposite’ and references arguments made under the eighth ground of appeal. However, he does not explain how the arguments under the eighth ground of appeal relate to the instructions given en route to Mongbwalu. Therefore, this aspect of his argument is dismissed in limine . The third challenge relates to paragraph 493 of the Conviction Decision and the relevant arguments are addressed by the Appeals Chamber in the section on the fourteenth ground of appeal below. Mr Ntaganda’s Appeal Brief – Part II 929 , para. 91. Mr Ntaganda’s Appeal Brief – Part II 930 , para. 91. Prosecutor’s Response to Appeal – Part II 931 , para. 89 (emphasis in original). Prosecutor’s Response to Appeal – Part II 932 , para. 89.

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the Trial Chamber is assessed on a case-by-case basis where it is specifically raised by Mr Ntaganda below.

As to Mr Ntaganda’s second argument that the Trial Chamber ignored evidence 933 that orders were issued to target military objectives and enemy forces, the Appeals 934 Chamber considers that, as argued by the Prosecutor, the fact that such orders may have been issued has no bearing on the question of whether orders to attack civilians were issued during the course of the attack.

(ii) Order to fire a grenade launcher in Sayo Mr Ntaganda challenges the Trial Chamber’s finding that he gave an order to Salumu Mulenda’s brigade ‘[a]s the operation in Sayo was nearing its end’ 935 to ‘fire with a grenade launcher at the slope of the mountain where a number of men and women wearing civilian clothing were walking in a single file’ and that the order was 936 executed.

(a) Mr Ntaganda’s submissions

Mr Ntaganda refers to the arguments raised under the eighth ground of appeal to submit that the Trial Chamber erred in finding that he ordered that a grenade launcher 937 be fired at a slope where people were walking in single file. He contends that the ‘[Trial] Chamber failed to consider the exceptionality of this order’ in the sense that ‘[i]f there had been an attack directed against the civilian population at the time, it can 938 be presumed that many such orders to fire on civilians would have been issued’. Mr Ntaganda submits that the ‘[Trial] Chamber also erred by failing to consider P-0017’s evidence related to the [REDACTED] firing procedure and the orders issued before this order was given’. 939

Mr Ntaganda’s Appeal Brief – Part II 933 , para. 91. Prosecutor’s Response to Appeal – Part II 934 , para. 89. 935 Conviction Decision , para. 507. 936 Conviction Decision , para. 508. Mr Ntaganda’s Appeal Brief – Part II 937 , para. 96. Mr Ntaganda’s Appeal Brief – Part II 938 , para. 96. Mr Ntaganda’s Appeal Brief – Part II 939 , para. 96.

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(b) The Prosecutor’s submissions

The Prosecutor refers to her submissions raised in response to arguments

940 advanced under the eighth ground of appeal on which Mr Ntaganda relies. In

addition, she maintains that the Trial Chamber reasonably found that Mr Ntaganda

941 ordered soldiers to fire a grenade launcher at fleeing civilians. In this regard, she

refers to the evidence of P-0010, P-0963, P-0768 and P-0017 on the issuance of orders

to attack civilians during the First Operation to show that such an order was not

942 exceptional.

(c) Relevant part of the Conviction Decision

In the context of discussing the operation in Sayo, the Trial Chamber found that

‘Mr Ntaganda issued an order to Salumu Mulenda’s brigade to fire with a grenade

launcher at the slope of the mountain where a number of men and women wearing

943 civilian clothing were walking in a single file’. The Trial Chamber relied upon this

finding to determine that ‘orders were given to direct fire at civilians’. 944 This was one

of the factors relied upon by the Trial Chamber to determine that an attack was

945 directed against a civilian population.

(d) Determination by the Appeals Chamber

The Appeals Chamber notes that Mr Ntaganda refers to arguments raised under

946 the eighth ground of appeal in relation to this order. These arguments together with

his arguments on the [REDACTED] firing procedure are addressed and rejected in the

947 determination of the eighth ground of appeal. Regarding the orders issued before

the order to fire a grenade launcher in Sayo was given, Mr Ntaganda does not explain

what orders he is referring to or their significance in this context. Therefore, the

Appeals Chamber dismisses these arguments in limine .

940 Prosecutor’s Response to Appeal – Part II , para. 89, fn. 386. Prosecutor’s Response to Appeal – Part II 941 , para. 89. Prosecutor’s Response to Appeal – Part II 942 , para. 89, fn. 387. 943 Conviction Decision , para. 508 (footnote omitted). 944 Conviction Decision , para. 671. 945 Conviction Decision , paras 671-672. Mr Ntaganda’s Appeal Brief – Part II 946 , para. 96. 947 See paragraphs 739-745 below.

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As to Mr Ntaganda’s argument concerning the alleged exceptionality of the order, the Appeals Chamber notes that the evidence and related findings of the Trial Chamber do not support Mr Ntaganda’s contention that an order to attack civilians was exceptional. The Appeals Chamber notes that the Trial Chamber also relied on its finding that the phrase kupiga na kuchaji ‘was commonly used in UPC/FPLC commanders’ orders to soldiers’ to support its finding that an attack was directed 948 against the civilian population. The Appeals Chamber therefore rejects Mr Ntaganda’s argument that the Trial Chamber should have considered the exceptionality of this order.

(iii) Alleged error in relation to Floribert Kisembo’s briefing in Mongbwalu on or about 17 February 2003 Mr Ntaganda challenges the Trial Chamber’s finding that Floribert Kisembo gave a briefing in Mongbwalu on or about 17 February 2003 concerning the ‘objectives of the upcoming UPC/FPLC assault on Kobu’ during which he stated that they were to ‘[d]rive out all the Lendu’. 949

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that the ‘[Trial] Chamber erred in relying on P-0963’s understanding of this order, in support of the proposition that civilians were to be targeted’. 950 He contends that the Trial Chamber erred in relying on P-0963’s testimony because: (i) it ‘omitted to consider the reliability of P-0963’s evidence on this issue, which is directly related to his lie about the instructions he claimed were given by Mr. Ntaganda in Mabanga’; (ii) ‘on its face, the order reveals a military operation directed at lawful military objectives’; and (iii) it was unreasonable to ‘conclude simply on the basis of the omission of the word “combatant” in Kisembo’s instructions’ that Lendu civilians were to be targeted. 951 He submits that ‘[a]nother reasonable and plausible interpretation is that Kisembo was referring to the Lendu

948 Conviction Decision , para. 671. Mr Ntaganda’s Appeal Brief – Part II 949 , para. 97, referring to Conviction Decision , paras 560, 671, 1066. Mr Ntaganda’s Appeal Brief – Part II 950 , para. 98. Mr Ntaganda’s Appeal Brief – Part II 951 , para. 98.

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taking part in the hostilities’, referring in this regard to the testimony of P-0963, P- 952 0017, D-0017, and P-0758.

(b) The Prosecutor’s submissions

The Prosecutor responds that the Trial Chamber carefully assessed the 953 testimony of P-0963 on Kisembo’s briefing. The Prosecutor further contends that the order ‘does not on its face reveal a legitimate military objective’ and that Mr ‘Ntaganda’s interpretation that Kisembo meant all Lendu combatants is not supported by the evidence’. 954 She finally submits that ‘the testimony of UPC insiders (that they fought some UPC combatants) does not undermine the Chamber’s finding that Kisembo ordered his troops to attack all Lendu and that crimes were indeed committed against civilians as a result’. 955

(c) Relevant part of the Conviction Decision

In the section of the Conviction Decision describing the planning of the Second Operation, the Trial Chamber found that ‘Floribert Kisembo spoke to troops about the objectives of the upcoming UPC/FPLC assault on Kobu’ during a briefing in Mongbwalu, on or about 17 February 2003, and ‘said that they were going to Kobu to destroy Lendu headquarters, bring back the lost weapons system, open the road, and that they were to drive out all the Lendu’. 956 The Trial Chamber relied upon this finding, inter alia , to determine that orders to attack all the Lendu, including civilians, 957 were commonly used during the deployment of the troops. This was one of the factors relied upon by the Trial Chamber to determine that an attack was directed 958 against a civilian population.

(d) Determination by the Appeals Chamber

The Appeals Chamber notes that the Trial Chamber relied exclusively on the testimony of P-0963 to reach its finding that Kisembo issued an order to attack the

Mr Ntaganda’s Appeal Brief – Part II 952 , para. 98. Prosecutor’s Response to Appeal – Part II 953 , para. 90. Prosecutor’s Response to Appeal – Part II 954 , para. 90 (emphasis in original). Prosecutor’s Response to Appeal – Part II 955 , para. 90 (emphasis in original). 956 Conviction Decision , para. 560. 957 Conviction Decision , para. 671, fn. 2124. 958 Conviction Decision , paras 671-672.

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959 Lendu, including civilians. The Trial Chamber referred to P-0963’s understanding

‘that the Lendu “civilians” at Kobu, Bambu, and Lipri were to be driven out by the

UPC/FPLC, and that it was up to the UPC/FPLC to “occupy” the location, and for

“civilians” to either leave or be killed’. 960 In its assessment of the evidence of P-0963,

the Trial Chamber noted that the witness ‘had a solid basis of knowledge in relation to

the briefing and gave detailed testimony on this point’. 961

With respect to the argument that P-0963 lied about an order given by

962 Mr Ntaganda while en route to Mongbwalu, the Appeals Chamber notes that it has

addressed and rejected these arguments in the context of determining the

reasonableness of the Trial Chamber’s finding on the meaning of the phrase kupiga na

963 kuchaji .

In relation to Mr Ntaganda’s argument that ‘on its face, the order reveals a

military operation directed at lawful military objectives’ and that Kisembo was

964 referring to driving out the Lendu combatants rather than civilians, the Appeals

Chamber considers that the alleged order, examined in isolation, could be interpreted

in this way. However, the order must be interpreted in context, taking into account

other relevant findings of the Trial Chamber. In this regard, the Appeals Chamber

notes, in particular, the Trial Chamber’s findings that UPC/FPLC recruits were taught

965 that the Lendu and Ngiti ethnic groups were the enemy; songs were taught to

966 recruits as part of their training inciting soldiers to attack or kill the Lendu; and the

967 UPC/FPLC committed crimes against Lendu civilians. Specifically in relation to

this order, the Appeals Chamber considers it relevant that the Trial Chamber found

that crimes against civilians were subsequently committed during the assault on

959 Conviction Decision , para. 560, fns 1701-1703. 960 Conviction Decision , para. 560. 961 Conviction Decision , para. 560, fn. 1701. Mr Ntaganda’s Appeal Brief – Part II 962 , para. 98. 963 See paragraphs Error! Reference source not found. 479-484 above. Mr Ntaganda’s Appeal Brief – Part II 964 , para. 98. 965 Conviction Decision , para. 800. 966 Conviction Decision , para. 373. 967 Conviction Decision , section V.C.4.

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968 Kobu. Viewed in this context, the Appeals Chamber finds that the Trial Chamber’s interpretation of this order was reasonable.

969 Finally, as noted by the Prosecutor, Mr Ntaganda’s reference to insider witnesses who testified that they fought combatants does not per se undermine the Trial Chamber’s findings that Kisembo ordered the troops to attack civilians and that these orders were executed with the resulting commission of crimes against Lendu civilians.

In view of the foregoing, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that ‘Floribert Kisembo spoke to troops about the objectives of the upcoming UPC/FPLC assault on Kobu’, during a briefing in Mongbwalu on or about 17 February 2003, and ‘said that […] they were to drive out 970 all the Lendu’.

(iv) Alleged error in relation to Salumu Mulenda’s briefing to the troops in Kilo in the context of the Second Operation Mr Ntaganda challenges the Trial Chamber’s finding regarding a briefing that Salumu Mulenda gave to UPC/FPLC troops in Kilo, in the context of the Second Operation, in which he explained that they would have ‘an operation in Kobu and at the same time in Lipri and Bambu in order to destroy that triangle which was a pocket of resistance to the UPC’. 971 The Trial Chamber found that this was understood by P- 972 0017 as an instruction to attack the enemy, including civilians.

(a) Mr Ntaganda’s submissions

Mr Ntaganda contends that the Trial Chamber erred in relying on the testimony of P-0017’s testimony to find that Salumu Mulenda issued an order to attack civilians during a briefing in Kilo in the context of the Second Operation in respect of this 973 order. He submits that the Trial Chamber failed to assess ‘P-0017’s understanding

968 See e.g. Conviction Decision , paras 577-579, 1199. Prosecutor’s Response to Appeal – Part II 969 , para. 90. 970 Conviction Decision , para. 560. Mr Ntaganda’s Appeal Brief – Part II 971 , para. 99, referring to Conviction Decision , paras 558, 671, 1065. 972 Conviction Decision , paras 558, 1065. Mr Ntaganda’s Appeal Brief – Part II 973 , para. 99.

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of this order in the light of’: (i) ‘his testimony concerning the instructions issued by Salumu in Lalu before the First Operation’ (considered above and under the eight ground of appeal); (ii) ‘his evidence on the [REDACTED] firing procedure and the orders issued to him during the fighting in Mongbwalu’; and (iii) ‘his knowledge that Lendu combatants included women and children and that they did not wear uniforms’. 974 He further submits that the Trial Chamber failed to consider that P-0017 is an accomplice witness and that, ‘it was only when pushed to provide more detail on who was viewed as the enemy that [he] provided his own subjective interpretation’ without providing evidence of ‘any express order […] to attack Lendu civilians’. 975

(b) The Prosecutor’s submissions

The Prosecutor responds that the ‘[Trial] Chamber reasonably relied on P-0017 to conclude that prior to the Second Operation, Mulenda ordered the UPC troops to attack civilians’. 976 She submits that the fact that the witness ‘began his answer from his own perspective, and later testified that the UPC understood that all Lendu were enemies, does not diminish the reliability of his testimony’. 977

(c) Relevant part of the Conviction Decision

In the section describing the planning of the Second Operation, the Trial Chamber found that ‘[i]n a briefing to UPC/FPLC troops in Kilo prior to the Second Operation, Salumu Mulenda explained that the objective of the operation in Kobu, Lipri, and Bambu was to “destroy that triangle which was a pocket of resistance to the UPC”’. 978 It noted that this order was understood by P-0017, a UPC/FPLC solider present during the briefing, to mean destroying the enemy force occupying these three places, including ‘all individuals belonging to the Lendu ethnic group, whether a child, a woman or a man’. 979 The Trial Chamber relied upon this finding to determine that ‘Salumu Mulenda instructed the troops to perform acts as a result of which the displacement of a significant proportion of the civilian population […] would

Mr Ntaganda’s Appeal Brief – Part II 974 , para. 100. Mr Ntaganda’s Appeal Brief – Part II 975 , para. 101. Prosecutor’s Response to Appeal – Part II 976 , para. 91. Prosecutor’s Response to Appeal – Part II 977 , para. 91. 978 Conviction Decision , para. 558. 979 Conviction Decision , para. 558.

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necessarily occur.’ 980 This was one of the factors relied upon by the Trial Chamber to

981 determine that an attack was directed against a civilian population.

(d) Determination by the Appeals Chamber

The Appeals Chamber notes that the Trial Chamber’s finding concerning the

982 challenged order was solely based on P-0017’s testimony. Mr Ntaganda argues that ‘P-0017’s subjective interpretation of otherwise legitimate military orders’ should not

983 have been relied upon by the Trial Chamber to make this finding.

The Appeals Chamber notes that, when asked what he understood by the word ‘destroy’, P-0017 referred to destroying the enemy force that occupied Kobu, Lipri

984 and Bambu. When asked who were the Lendu that were viewed as the enemy, the witness responded that, for him, ‘all the Lendu, whether man or woman […] [w]hen

they were part of the ethnic group called Lendu it was considered as an enemy of the

UPC, including children’. 985 This understanding was reiterated by the witness when

he was asked who were considered to be the enemies in the context of discussing

986 orders given to shoot at fleeing persons. In response, he stated, ‘[i]n that region we

are referring simply to the Lendu’ and no distinction was made between civilians or

987 fighters.

The Appeals Chamber notes that P-0017 was not alone in his understanding that

the Lendu, including Lendu civilians, were the ‘enemy’. The Trial Chamber found that ‘recruits were taught that the Lendu and the Ngiti were the enemy’ during their

training and that songs inciting the soldiers to attack and kill the Lendu were taught to

988 the recruits. These findings were based on the evidence of P-0963, P-0769, P-0888,

980 Conviction Decision , para. 1094. 981 Conviction Decision , para. 671, fn. 2126. 982 Conviction Decision , para. 558, fns 1695-1699. The Trial Chamber also refers to the testimony of P- 0901 in footnote 1695 to support the finding concerning the objective as explained by Salumu Mulenda during the briefing: P-0901: T-29 , p. 17. Mr Ntaganda’s Appeal Brief – Part II 983 , para. 99. 984 P-0017: T-59 , p. 61, lines 20-22 . 985 P-0017: T-59 , p. 62, lines 24-25 . 986 P-0017: T-63 , p. 41, lines 7-13 . 987 P-0017: T-63 , p. 41, lines 7-17. 988 Conviction Decision , para. 373, where the Trial Chamber held that ‘[s]ongs were taught to recruits as part of their training,[…][including] songs [which] incited soldiers to attack or kill the Lendu […]. The lyrics in another song suggested that soldiers would “get” everything, including women, “for free”

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989 P-0907, P-0758, P-0016 and P-0016. The Trial Chamber also found that ‘the unfolding of its military operations demonstrates how the UPC/FPLC was not only 990 attempting to chase away the RCD-K/ML, but also the Lendu’. When interpreted in context, the Appeals Chamber considers the Trial Chamber’s finding on the significance of the order to be reasonable and rejects Mr Ntaganda’s argument in this 991 regard.

The Appeals Chamber considers that Mr Ntaganda’s argument that the Trial Chamber failed to consider P-0017’s testimony in light of his testimony concerning the instructions issued by Salumu Mulenda in or near Mabanga before the First 992 Operation (the second order) is without merit. The Appeals Chamber notes that it has rejected Mr Ntaganda’s interpretation of P-0017’s testimony regarding the 993 instruction given in or near Mabanga. Given that P-0017’s understanding of the order given in Kilo corresponds to his understanding of the order given in or near Mabanga, the Appeals Chamber cannot see how consideration of one in light of the other would have altered the Trial Chamber’s conclusion.

Mr Ntaganda’s arguments regarding P-0017’s testimony on the firing procedure of [REDACTED] during the fighting in Mongbwalu and his challenges to the Trial Chamber’s reliance on the evidence of an accomplice witness are addressed and 994 rejected below under the eighth ground of appeal.

Finally, the Appeals Chamber is not persuaded by Mr Ntaganda’s submission that the Trial Chamber should have assessed P-0017’s understanding of the order in light of ‘his knowledge that Lendu combatants included women and children and that they did not wear uniforms’. 995 The witness clearly stated that his understanding was that the Lendu ethnic group as such, without distinction between civilians or fighters,

in the UPC/FPLC. During their training, recruits were taught that the Lendu and the Ngiti were the enemy’ (footnotes omitted). 989 Conviction Decision , para. 373. 990 Conviction Decision , para. 688. Mr Ntaganda’s Appeal Brief – Part II 991 , para. 101. Mr Ntaganda’s Appeal Brief – Part II 992 , para. 100. 993 See paragraphs 486-488480 above. Mr Ntaganda’s Appeal Brief – Part II 994 , paras 100-101. See paragraphs 732-736, 743-745 below. Mr Ntaganda’s Appeal Brief – Part II 995 , para. 100.

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996 was the enemy. Whether Lendu combatants could have been easily distinguished from the civilians has no bearing on this understanding.

In view of the foregoing, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that ‘[i]n a briefing to UPC/FPLC troops in Kilo prior to the Second Operation, Salumu Mulenda explained that the objective of the operation in Kobu Lipri, and Bambu was to “destroy that triangle which was a pocket of resistance to the UPC”’ 997 and that this was understood by P-0017 to mean ‘destroying [the] enemy’, which ‘included […] all individuals belonging to the Lendu 998 ethnic group, whether a child, a woman or a man’.

(v) Alleged error in relation to Salumu Mulenda’s instructions in Kilo prior to the assault on Kobu The Appeals Chamber notes that Mr Ntaganda’s appeal brief does not specifically identify the factual finding challenged with reference to the Conviction 999 Decision. However, from the description he provides, the Appeals Chamber understands his arguments to concern the Trial Chamber’s finding that Salumu Mulenda gave orders including the phrase kupiga na kuchaji in Kilo on or about the morning of 18 February 2003 before the assault on Kobu, and that these orders were 1000 understood by P-0963 as orders to ‘[s]hoot at everyone’.

(a) Mr Ntaganda’s submissions

Mr Ntaganda challenges the Trial Chamber’s reliance on P-0963’s testimony to find that instructions using the phrase kupiga na kuchaji were issued on or about 1001 18 February 2003 during a briefing to the troops in Kilo. He submits that the ‘[Trial] Chamber failed to consider the reliability of P-0963’s evidence on this issue which is directly related to his lie about the instructions he claimed were given by 1002 Mr. Ntaganda in Mabanga’. Mr Ntaganda further contends that the ‘[Trial] Chamber erred in relying on P-0963’s subjective understanding of the expression’ and

996 P-0017: T-63 , p. 41, lines 10-17; T-59 , p. 62, lines 24-25. 997 Conviction Decision , para. 558. 998 Conviction Decision , paras 558, 1065. Mr Ntaganda’s Appeal Brief – Part II 999 , para. 102. Mr Ntaganda’s Appeal Brief – Part II 1000 , para. 102; Conviction Decision , para. 561. Mr Ntaganda’s Appeal Brief – Part II 1001 , para. 102. Mr Ntaganda’s Appeal Brief – Part II 1002 , para. 102.

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in failing ‘to consider P-0963’s evidence about the [REDACTED] firing procedure and the orders supposedly issued to him during the fighting in Mongbwalu’. 1003 Finally, Mr Ntaganda contends that the ‘[Trial] Chamber failed to consider P-0963’s knowledge that Lendu combatants included women and children and that they did not wear uniforms’, as well as his status as an accomplice witness. 1004

(b) The Prosecutor’s submissions

The Prosecutor responds that the Trial Chamber correctly found that Salumu Mulenda ordered UPC/FPLC troops to attack civilians during a briefing in Kilo on or 1005 about 18 February 2003. She responds that the Trial Chamber reasonably relied on P-0963’s testimony to make this finding and that Mr Ntaganda ‘merely disagrees with the Chamber’s interpretation of the evidence’. 1006

(c) Relevant part of the Conviction Decision

In the section describing the planning of the Second Operation, the Trial Chamber found that Salumu Mulenda ‘gave orders, including “ [ku]piga na kuchaji ”’ during a briefing in Kilo on or about 18 February 2003, and that P-0963 understood these orders to mean ‘[s]hoot at everyone’. 1007 The Trial Chamber relied upon this finding to determine that ‘the expression “ kupiga na kuchaji ”, which was understood to mean attacking all the Lendu, including civilians, and to loot their property, was commonly used in UPC/FPLC commanders’ orders to soldiers’. 1008 This was one of the factors relied upon by the Trial Chamber to determine that an attack was directed 1009 against a civilian population.

(d) Determination by the Appeals Chamber

The Appeals Chamber notes that the Trial Chamber’s finding concerning the orders allegedly issued by Salumu Mulenda is based primarily on the evidence of P-

Mr Ntaganda’s Appeal Brief – Part II 1003 , para. 102. Mr Ntaganda’s Appeal Brief – Part II 1004 , para. 102. Prosecutor’s Response to Appeal – Part II 1005 , para. 92. Prosecutor’s Response to Appeal – Part II 1006 , para. 92. 1007 Conviction Decision , para. 561. 1008 Conviction Decision , para. 671, fn. 2124. 1009 Conviction Decision , paras 671-672.

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1010 0963. When asked about the briefing, the witness stated that Salumu Mulenda

‘explained to [them] what the objective was […] [and] talked about the position of

each company, each unit, each platoon on the front’. 1011 When asked what the troops

were to do when they encountered the civilian population, P-0963 responded ‘[i]t was

the same operation piga na kuchaji. And we were fighting the Lendu. The orders were

clear: Shoot at everyone’. 1012

In relation to Mr Ntaganda’s argument that the Trial Chamber should have

taken into account the fact that P-0963 lied in stating that Mr Ntaganda gave

1013 instructions in Mabanga, the Appeals Chamber notes that the Trial Chamber made

1014 no finding that P-0963 lied in this context. Rather, it found that it was unable to

determine whether Mr Ntaganda was present in Mabanga given the inconsistency in

P-0963 and P-0017’s testimony as to this point. It also found that this did not ‘affect

the overall credibility or reliability of P-0963’ given ‘the time passed since the events

1015 and the overall similarities between the witnesses in relation to the gathering’.

Mr Ntaganda has not demonstrated any error in the Trial Chamber’s reasoning in this

regard. Therefore, the Appeals Chamber rejects his argument that this aspect of the

witness’s testimony should have been considered by the Trial Chamber in assessing

his testimony on the order given in Kilo prior to the assault on Kobu.

Mr Ntaganda’s challenges to P-0963’s understanding of the phrase kupiga na

1016 1017 kuchaji have been addressed and rejected above and his arguments regarding P-

0963’s status as an accomplice witness are addressed and rejected under the eighth

1018 ground of appeal. Regarding ‘P-0963’s evidence on the [REDACTED] firing

procedure and the orders purportedly issued to him during the fighting in

1010 Conviction Decision , para. 561, fns 1704-1707. The Trial Chamber also refers to P-0017’s testimony which mentions a briefing by Salumu Mulenda prior to the attack on Kobu: P-0017: T-63 , pp. 12-13. 1011 P-0963: T-79 , p. 47, lines 2-4. 1012 P-0963: T-79 , p. 47, lines 5-8. Mr Ntaganda’s Appeal Brief – Part II 1013 , para. 102. 1014 Conviction Decision , para. 488, fn. 1401. 1015 Conviction Decision , para. 488, fn. 1401. Mr Ntaganda’s Appeal Brief – Part II 1016 , para. 102. 1017 See paragraphs 462-468 above. 1018 See paragraphs 714-715 below.

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Mongbwalu’, Mr Ntaganda does not explain the significance of this evidence in this 1019 context. Therefore, the Appeals Chamber dismisses these arguments in limine .

Finally, the Appeals Chamber is not persuaded by Mr Ntaganda’s argument that the Trial Chamber should have considered ‘P-0963’s knowledge that Lendu combatants included women and children and that they did not wear uniforms’. 1020 The witness clearly stated that his understanding was that they were to shoot at 1021 everyone. Whether Lendu combatants could have been easily distinguished from the civilians has no bearing on this understanding. His argument in this regard is without merit.

In view of the foregoing, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that Salumu Mulenda ‘gave orders, including “ [ku]piga na kuchaji ”’ during a briefing in Kilo on or about 18 February 2003, and that P-0963 understood these orders to mean ‘[s]hoot at everyone’. 1022

(c) Conclusion on the issuance of orders to attack civilians

Having rejected the totality of Mr Ntaganda’s arguments, the Appeals Chamber finds the Trial Chamber’s conclusion that orders to attack civilians were issued to be 1023 reasonable.

3 Overall conclusion Having rejected Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that there was an attack directed against a civilian population, the Appeals Chamber rejects this ground of appeal.

F. Sixth ground of appeal: Whether the war crime of ordering displacement of the civilian population was committed

Under the sixth ground of appeal, Mr Ntaganda argues that the Trial Chamber erred in convicting him for the war crime of ordering the displacement of the civilian 1024 population under article 8(2)(e)(viii) of the Statute.

Mr Ntaganda’s Appeal Brief – Part II 1019 , para. 102. Mr Ntaganda’s Appeal Brief – Part II 1020 , para. 102. 1021 Conviction Decision , para. 561, quoting P-0963: T-79 , p. 47. 1022 Conviction Decision , para. 561. 1023 Conviction Decision , para. 671.

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1 Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda argues that territorial control is a condition of ordering displacement as a war crime and that the Trial Chamber therefore erred by relying ‘on

orders issued during the conduct of hostilities but prior to the relevant territory falling

1025

under the control of the UPC/FPLC to found the conviction’ for this crime. He

submits that article 8(2)(e)(viii) of the Statute is based on article 49 of the Fourth Geneva Convention, which prohibits ‘[i]ndividual or mass forcible transfers, as well

as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country’.

1026

He argues that article 17 of

Additional Protocol II provides a similar prohibition in the context of armed conflicts

not of an international character, and that the ICRC’s Commentary on Additional Protocols ‘establishes that article 17 similarly requires territorial control’.

1027

Mr Ntaganda argues that ‘[a]n order to displace can only be given if the person

issuing it is in a position to give effect to the order, i.e. , the civilians are within that person’s power and control’.

1028

In his view, ‘ordering acts that might result in population movement, i.e. , indiscriminate shelling’ does not amount to ordering the

1029

displacement of the civilian population under article 8(2)(e)(viii) of the Statute. He

highlights that the limited protective purposes that would allow a military force to displace a population also shows ‘that the relevant force must have responsibility for

1030

and control over that population’.

Mr Ntaganda’s Appeal Brief – Part II 1024 , paras 129-135. Mr Ntaganda’s Appeal Brief – Part II 1025 , para. 130 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 1026 , paras 130-131 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 1027 , para. 131, referring to ICRC’s Commentary on Additional Protocols, para. 4859, which concerns article 17(2) and provides: ‘First, there is a question whether, within the meaning of this provision, the term “territory” is equivalent to country. The ICRC draft referred to “national territory”. Some amendments proposed substituting the formula “across the frontiers of the country of origin”. It is clear that there was never any doubt in anyone’s mind that the phrase was intended to refer to the whole of the territory of a country. However, the text states that it is prohibited to compel civilians to leave “their own territory”. In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel civilians to leave the area under their authority’. (Footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II 1028 , para. 132. Mr Ntaganda’s Appeal Brief – Part II 1029 , para. 132. Mr Ntaganda’s Appeal Brief – Part II 1030 , para. 132.

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Mr Ntaganda also refers to his arguments under other grounds of appeal

alleging errors in the Trial Chamber’s assessment of the orders relied upon to find that

Mr Ntaganda, Salumu Mulenda and Floribert Kisembo ordered the displacement of

1031 the civilian population. He contends that these errors invalidate the Trial

Chamber’s finding that Mr Ntaganda ordered the displacement of the civilian

1032 population.

(b) The Prosecutor’s submissions

The Prosecutor contends that ‘[t]erritorial control is not a legal element of

article 8(2)(e)(viii)’ and that the Elements of Crimes require rather that the perpetrator

‘was in a position to effect such a displacement by giving such order’. 1033 Similarly,

she argues that ‘[a]rticle 17 of [Additional Protocol] II, which inspired article

8(2)(e)(viii), [does not] contain […] a precise analogue to the occupation regime in

international armed conflict’. 1034 She submits that, in any event, article 8(2)(e)(viii) of

the Statute is not ‘conditioned on the application of [Additional Protocol] II’. 1035

The Prosecutor notes that the Trial Chamber ‘did not find it necessary to make

express findings concerning the degree of control exercised by UPC fighters over

displaced civilians’, but suggests that this was ‘established by its other findings

including under article 7(1)(d)(forcible transfer)’. 1036 According to the Prosecutor,

‘even if territorial control were to be a legal requirement, it was satisfied’. 1037

Finally, the Prosecutor submits that the Chamber ‘technically (but harmlessly)

erred in law by concluding that, under article 8(2)(e)(viii)’: (i) ‘the perpetrator must

“instruct another person in any form” either to displace “a civilian population” or to

carry out an act or omission leading to that result — as opposed to merely “order[ing]

a displacement” including by means of instructing (expressly or by implication) one

or more civilians to leave the place where they were lawfully present’ and (ii) ‘the

term “a civilian population” […] means at least “a certain number of individuals”,

Mr Ntaganda’s Appeal Brief – Part II 1031 , para. 134, referring , inter alia , to Conviction Decision , paras 1085-1086, 1089-1091. Mr Ntaganda’s Appeal Brief – Part II 1032 , para. 134. Prosecutor’s Response to Appeal – Part II 1033 , p. 48, para. 110. Prosecutor’s Response to Appeal – Part II 1034 , para. 111. Prosecutor’s Response to Appeal – Part II 1035 , para. 111. Prosecutor’s Response to Appeal – Part II 1036 , para. 112. See also paras 113-114. Prosecutor’s Response to Appeal – Part II 1037 , para. 112.

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assessed on a case by case basis’ as opposed to one or more civilians provided there is

1038 a nexus to a non-international armed conflict. The Prosecutor suggests that the

Appeals Chamber should not rule on these issues as they have no bearing on the

arguments raised by Mr Ntaganda under this ground of appeal, and requests that the

Appeals Chamber ‘neither endorse nor criticise’ the Trial Chamber’s analysis. 1039

(c) The victims’ observations

Victims Group 2 submit that article 8(2)(e)(viii) of the Statute contains no ‘requirement for the perpetrator to exercise territorial control over the area in which

the civilians live whom he seeks to expel’ and that such a requirement ‘would run counter to the prohibition of using force to expel’. 1040 They argue that ‘[t]he fact that

the perpetrator is in a position to order unlawful measures aimed at dispelling

1041 civilians, such as indiscriminate shelling, is the starting point’ . They argue that

even if ‘there were such a requirement, [it] would still be fulfilled in the brief moment

of the effected takeover of a specific place which results in the chasing away of the population’. 1042

Regarding the technical errors identified by the Prosecutor, Victims Group 2

submit that these issues should be resolved by the Appeals Chamber in the interests of

1043 fairness, judicial economy and legal certainty. They argue that the Trial Chamber

1044 correctly interpreted the law and properly applied the law to the facts.

(d) The Prosecutor’s response to the victims

The Prosecutor underlines that the ‘implication of the Trial Chamber’s

reasoning on article 8(2)(e)(viii) would seem to be that, in non-international armed

conflict, it is not prohibited under the Statute—for example—for the perpetrator,

without justification under international law, to directly compel individual civilians to leave their homes’. 1045 She submits that this would be inconsistent with the legal

Prosecutor’s Response to Appeal – Part II 1038 , para. 116 (emphasis in original, footnote omitted). Prosecutor’s Response to Appeal – Part II 1039 , para. 117. 1040 Observations of Victims Group 2 on Appeal – Part II , para. 59. 1041 Observations of Victims Group 2 on Appeal – Part II , para. 59. 1042 Observations of Victims Group 2 on Appeal – Part II , para. 60. 1043 Observations of Victims Group 2 on Appeal – Part II , para. 61. 1044 Observations of Victims Group 2 on Appeal – Part II , paras 63-65. Prosecutor’s Response to Observations of Victims on Appeal – Part II 1045 , para. 13 (emphasis in original).

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protections in customary international law in relation to non-international armed

conflicts ‘and thereby inconsistent with the chapeau of article 8(2)(e), and the context

and object and purpose of the Statute’. 1046 However, she maintains her view that the

Appeals Chamber should not address these issues and that it should refrain from

endorsing or criticising the Trial Chamber’s reasoning. 1047

(e) Mr Ntaganda’s reply to the Prosecutor

Mr Ntaganda argues that the Prosecutor’s response shows that she agrees with

his ‘contention that territorial control is required before a crime can be committed

under article 8(2)(e)(viii) of the Statute’. 1048 He contends that the Prosecutor

‘concedes that some form of control over the victims is required for the actus reus of

the crime to be committed, albeit that the “nature and degree of the perpetrators’

control over [the] victims” is a question of fact’. 1049 He argues that the Prosecutor

‘resorts to findings based on territorial control to try to satisfy [this] element of the

crime’ and does not explain how else it could be established; in his view, ‘[t]he

“nature and degree” of the required control must be territorial’. 1050

He further submits that the Trial Chamber failed to enter the requisite ‘findings

1051 on the degree of control exercised by UPC fighters over civilians’. In his view, the

evidence underlying the Trial Chamber’s findings made under count 12 in relation to

the crime against humanity of forcible transfer would not suffice in this context

because it ‘relates to civilians fleeing prior to the UPC taking control of a village or as

the assault unfolded’ and does not support a conclusion that civilians were ‘displaced

while within territory under the control of the UPC’. 1052

Mr Ntaganda submits that the ‘creation of a coercive environment’ cannot

establish the ‘requisite degree of control’ for the purposes of the war crime of

ordering the displacement of the civilian population because ‘this element is particular

to the crime against humanity of deportation or forcible transfer’ and expressly

Prosecutor’s Response to Observations of Victims on Appeal – Part II 1046 , para. 13. Prosecutor’s Response to Observations of Victims on Appeal – Part II 1047 , para. 14. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1048 , para. 36. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1049 , para. 37. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1050 , para. 37. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1051 , para. 40. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1052 , paras 40-41.

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1053 mentioned in the Elements of Crimes specific to the latter crime. He argues that

‘[t]here is no evidence to show that any rape or pillage perpetrated once a location had

1054 fallen under the control of the UPC had the effect of displacing civilians’.

2 Relevant part of the Conviction Decision

The Trial Chamber found that ‘the war crime of ordering the displacement of

civilians […] requires establishing the existence of an order to displace, and not of the

resulting displacement as such’. 1055 It considered that ‘[t]he order itself needs only to

instruct another person in any form to: (i) displace a civilian population; or

(ii) perform an act or omission as a result of which such a displacement would

occur’. 1056 It noted that ‘the order to displace must emanate from a person who was in

a position to effect such displacement by giving such order’. 1057 According to the

Trial Chamber, ‘[t]he reference to “a civilian population” […] indicates that the

1058 displacement needs to cover a certain number of individuals’.

The Trial Chamber considered a number of orders as establishing the existence

of an order to displace in the present case. In relation to the First Operation, the Trial

Chamber considered: (i) ‘the night before the UPC/FPLC troops left Bunia for

Mongbwalu’, Mr Ntaganda ordered them to attack the Lendu without distinguishing

1059 between civilians and combatants and used the term kupiga na kuchaji ; and (ii) on

the way to Mongbwalu, Salumu Mulenda ordered the troops to ‘drive out the Lendu’

1060 and used the term kupiga na kuchaji . The Trial Chamber found that, ‘by ordering

the UPC/FPLC troops to indiscriminately attack the Lendu present in Mongbwalu,

with the purpose of either eliminating them or driving them out, Mr Ntaganda

instructed the troops to perform an act as a result of which the displacement of a

significant proportion of the civilian population of Mongbwalu – the majority of

1061 which was Lendu – would necessarily occur’.

1053 Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II , para. 42. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1054 , para. 42. 1055 Conviction Decision , para. 1080 (emphasis in original). 1056 Conviction Decision , para. 1081. 1057 Conviction Decision , para. 1082. 1058 Conviction Decision , para. 1083. 1059 Conviction Decision , para. 1085. 1060 Conviction Decision , para. 1086. 1061 Conviction Decision , para. 1088.

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In relation to the Second Operation, the Trial Chamber considered: (i) a briefing in Kilo, in which Salumu Mulenda instructed the troops to ‘destroy that triangle [in Kobu, Lipri, and Bambu] which was a pocket of resistance to the UPC’, which was understood by P-0017 who testified as to this briefing to mean that they should target 1062 the Lendu ethnic group as such; (ii) a briefing in Mongbwalu, in which Floribert Kisembo instructed the troops to ‘drive out all the Lendu’, which was understood by P-0963 who testified as to this briefing to mean that the Lendu civilians must be 1063 driven out or killed; and (iii) a briefing in Kilo, in which Salumu Mulenda gave orders including the phrase kupiga na kuchaji , which was understood by P-0963 who testified as to this briefing to mean that they should attack the Lendu group as 1064 such. On this basis, the Trial Chamber was satisfied that ‘Floribert Kisembo and Salumu Mulenda instructed the troops to perform acts as a result of which the displacement of a significant proportion of the civilian population of Lipri, Tsili, Kobu, and Bambu’, which was predominantly Lendu ‘would necessarily occur’. 1065 It further found that Mr Ntaganda, Salumu Mulenda and Floribert Kisembo were in a position to effect the displacement by giving the above orders by virtue of their high positions within the UPC/FPLC and their specific duties and responsibilities in 1066 respect of the First Operation and Second Operation. Finally, it found that the 1067 orders were not justified by the security of the civilians or by military necessity.

3 Determination by the Appeals Chamber The question raised by Mr Ntaganda under this ground of appeal is whether territorial control is a prerequisite to ordering the displacement of the civilian population as a war crime under article 8(2)(e)(viii) of the Statute in the context of non-international armed conflicts.

Article 8(2)(e)(viii) of the Statute criminalises ‘[o]rdering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand’. The legal elements

1062 Conviction Decision , para. 1089. 1063 Conviction Decision , para. 1090. 1064 Conviction Decision , para. 1091. 1065 Conviction Decision , para. 1094. See also para. 1093. 1066 Conviction Decision , paras 1095-1097. 1067 Conviction Decision , paras 1098-1100.

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particular to this war crime are the following: (i) ‘[t]he perpetrator ordered a displacement of a civilian population’; (ii) the ‘order was not justified by the security of the civilians involved or by military necessity’; and (iii) ‘[t]he perpetrator was in a position to effect such displacement by giving such order’. 1068 Neither the article itself nor the corresponding elements of crimes establish territorial control as a requirement for the war crime of displacement to take place.

The chapeau to article 8(2)(e)(viii) of the Statute characterises this crime as a serious violation ‘of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’. The Elements of Crimes further specify that ‘war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict […]’. 1069 In this respect, the Appeals Chamber has held that

the expression ‘the established framework of international law’ in the chapeaux of article 8 (2) (b) and (2) (e) as well as in the Introduction to the Elements of Crimes for article 8 of the Statute, when read together with article 21 of the Statute, requires the former to be interpreted in a manner that is ‘consistent with international law, and international humanitarian law in particular’. 1070

The relevant framework of the international law of armed conflict applicable to article 8(2)(e)(viii) of the Statute is provided by article 17 of Additional Protocol II and customary international humanitarian law. Article 17(1), first sentence, prohibits the displacement of civilians in non-international armed conflicts in terms that are almost identical to article 8(2)(e)(viii) of the Statute: ‘[t]he displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand’. 1071 Article 17(2) provides that ‘[c]ivilians shall not be compelled to leave their own territory for reasons connected with the conflict’. A similar prohibition exists under

1068 Elements of Crimes, Article 8(2)(e)(viii): War crime of displacing civilians. In addition, the Elements of Crimes set out the contextual elements applicable to war crimes in armed conflicts not of an international character: (i) ‘[t]he conduct took place in the context of and was associated with an armed conflict not of an international character’; and (ii) ‘[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict’. 1069 Elements of Crimes, Introduction to Article 8. 1070 Ntaganda OA5 Judgment , para. 53 (footnote omitted). 1071 Article 17(1) of Additional Protocol II continues: ‘Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition’.

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customary law and is set out in rule 129(B) of the ICRC’s compilation of customary

rules of international humanitarian law, again in terms that are almost identical to

those of article 17(1), first sentence, of Additional Protocol II and article 8(2)(e)(viii) of the Statute: ‘[p]arties to a non-international armed conflict may not order the

displacement of the civilian population, in whole or in part, for reasons related to the

conflict, unless the security of the civilians involved or imperative military reasons so 1072 demand’.

From the foregoing, the Appeals Chamber derives that there is no explicit

requirement in article 8(2)(e)(viii) of the Statute, the Elements of Crimes, article 17 of Additional Protocol II, or customary international humanitarian law that, to order the

displacement of the civilian population in the context of a non-international armed

conflict, the perpetrator must be in occupation of, or exercise territorial control over,

the relevant area.

In contrast, the Appeals Chamber notes that article 8(2)(b)(viii) of the Statute, a

similar provision applicable in international armed conflicts, explicitly includes such a requirement when it criminalises ‘[t]he transfer, directly or indirectly, by the

Occupying Power of parts of its own civilian population into the territory it occupies ,

or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory’. 1073 Had the drafters intended to include a similar

1072 ICRC’s Compilation of Customary Rules, p. 457. 1073 Emphasis added. The legal elements of this crime are set out in the Elements of Crimes: (i) ‘[t]he perpetrator: (a) [t]ransferred, directly or indirectly, parts of its own population into the territory it occupies; or (b) [d]eported or transferred all or parts of the population of the occupied territory within or outside this territory’; (ii) ‘[t]he conduct took place in the context of and was associated with an international armed conflict’; and (iii) ‘[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict’ (footnote omitted). The law of international armed conflict applicable in this context is article 85(4)(a) of Additional Protocol I, the wording of which is almost identical to article 8(2)(b)(viii): ‘the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of article 49 of the Fourth Convention’. Article 49 of the Fourth Geneva Convention prohibits ‘[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory ’ (emphasis added) and deportation or transfer of parts of the civilian population of the occupying power into the occupied territory . The relevant customary rule is set out in rule 129(A) of the ICRC study, which provides: ‘[p]arties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory , in whole or in part, unless the security of the civilians involved or imperative military reasons so demand’ (emphasis added). ICRC’s Compilation of Customary Rules, p. 457.

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requirement in relation to article 8(2)(e)(viii) of the Statute, the Appeals Chamber considers that it would have been explicitly set out in the Elements of Crimes.

Mr Ntaganda presents a number of arguments in support of his view that territorial control is a condition of ordering displacement as a war crime. These are addressed below.

First, Mr Ntaganda argues that article 8(2)(e)(viii) of the Statute is rooted in article 49 of the Fourth Geneva Convention, which prohibits ‘[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, […] regardless of their motive’. 1074 In his view, article 17 of Additional Protocol II ‘was intended to fill the gap in protection in non-international armed conflicts where forced population movements also arose’. 1075

The Appeals Chamber notes that article 17 of Additional Protocol II applicable to non-international armed conflicts is indeed inspired by and builds upon the prohibition contained in article 49 of the Fourth Geneva Convention applicable to 1076 international armed conflicts. While the Appeals Chamber accepts that article 49 of the Fourth Geneva Convention may provide useful guidance in interpreting article 17 of Additional Protocol II to the extent that similar language is used, the fundamental differences between the two provisions, as set out below, mean that the requirements for one cannot simply be transposed into the other.

The Appeals Chamber notes that the wording of the two provisions is different in many respects. First, while article 17(1) provides that ‘[t]he displacement of the

Mr Ntaganda’s Appeal Brief – Part II 1074 , paras 130-131 (emphasis added). Mr Ntaganda’s Appeal Brief – Part II 1075 , para. 131. 1076 ICRC’s Commentary on Additional Protocols, paras 4848-4850: ‘[t]he problem was raised in 1949. In fact, Article 49 of the fourth Convention already laid down some norms as protection against deportations, transfers and evacuations in or from occupied territories, and it was not considered necessary to supplement these rules in Protocol I. However common Article 3 is silent on this matter. And yet the problem is particularly acute in situations of non-international armed conflict in which there have been cases, for example, of the forced movement of ethnic groups and national groups opposed to the central government. Article 17 serves to fill this gap in the protection. The ICRC introduced this provision in its draft; it was based on a proposal put forward by experts in 1972 and inspired by the wording of Article 49 of the fourth Convention. The text which was adopted, with a few additions, has the same tenor as the original draft’. (Footnote omitted).

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’, 1077 civilian population shall not be ordered article 49 of the Fourth Geneva Convention does not include any reference to an order but rather to ‘[i]ndividual or

mass forcible transfers, as well as deportations’ as such. Second, article 17(1) refers to

‘the displacement of the civilian population ’, and article 49 speaks of ‘[ i ] ndividual or

’. 1078 mass forcible transfers, as well as deportations of protected persons Third, to fall

within the prohibition under article 17, the displacement must be ordered ‘for reasons

related to the conflict ’, whereas, under article 49, deportation and forcible transfer are

prohibited ‘ ’. 1079 regardless of their motive

While for present purposes the Appeals Chamber deems it unnecessary to

engage in a comprehensive interpretation of article 17 of Additional Protocol II, it

notes that its formulation differs from that of article 49 of the Fourth Geneva

Convention. The most important distinction in this regard is that article 49 explicitly

includes a reference to forcible transfers and deportations ‘from occupied territory’,

while article 17 does not contain any analogous reference to territorial control. This

may be explained by the fact that the Fourth Geneva Convention relevant to

international armed conflicts distinguishes between prohibitions applicable to the

conduct of hostilities and those applicable to a state of occupation. This distinction

has not been replicated in Additional Protocol II for the purposes of non-international

armed conflicts, nor has the concept of ‘occupied territory’ in international armed conflicts been substituted with ‘territorial control’ for the purposes of non-

1080 international armed conflicts.

1077 Emphasis added. 1078 Emphasis added. 1079 Emphasis added. 1080 The Appeals Chamber notes that article 1 of Additional Protocol II refers to territorial control when defining the material field of application of the Protocol: ‘[t]his Protocol […] shall apply to all armed conflicts which are not covered by [Additional Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (emphasis added). However, this is not tantamount to affirming that territorial control is a legal requirement for all violations set out in Additional Protocol II. Indeed, the purpose of including territorial control in the definition of the non-international armed conflicts to which Additional Protocol II applies is properly explained by the ICRC in the following terms: ‘[t]he control must be sufficient to allow sustained and concerted military operations to be carried out and for the Protocol to be applied, i.e., for example, caring for the wounded and the sick, or detaining prisoners and treating them decently, as provided in Articles 4 ( Fundamental guarantees ) and 5 ( Persons whose liberty has been restricted )’, ICRC’s Commentary on Additional Protocols, para. 4466 (footnote omitted).

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Finally, the Appeals Chamber notes that the differences in language between article 17 of Additional Protocol II and article 49 of the Fourth Geneva Convention have been replicated in articles 8(2)(b)(viii) and 8(2)(e)(viii) of the Statute. These differences between the regime applicable in international armed conflict and noninternational armed conflicts have led one commentator to describe article 8(2)(e)(viii) of the Statute as the only provision under article 8(2)(e) without a 1081 corresponding provision under article 8(2)(b) of the Statute. In view of these differences, the Appeals Chamber cannot accept Mr Ntaganda’s argument that article 8(2)(e)(viii) of the Statute should be interpreted as requiring territorial control in accordance with the requirements of article 49 of the Fourth Geneva Convention.

Second, Mr Ntaganda argues that ‘the language used in article 8(2)(e)(viii), and its originating provisions, underlines that there must be territorial control before the crime can be committed’. 1082 He submits that an order to displace is required and this ‘can only be given if the person issuing it is in a position to give effect to the order, 1083 i.e., the civilians are within that person’s power and control’. Mr Ntaganda contends that ‘ordering acts that might result in population movement, i.e., indiscriminate shelling’ would not amount to ‘ordering the displacement of the civilian population’ under article 8(2)(e)(viii) of the Statute. 1084 In his view, the limited protective purposes that would allow a military force to displace a population also shows ‘that the relevant force must have responsibility for and control over that population’. 1085 The Appeals Chamber understands Mr Ntaganda to argue that to give effect to the order to displace, the civilians must be within the perpetrator’s power and control and that therefore territorial control is a requirement under article 8(2)(e)(viii) of the Statute.

1081 E. La Haye, in Lee , p. 215: ‘the elements for the crimes in article 8(2)(e) were, [subject to some exceptions where the formulation of the crime set out in the Statute deviated slightly from the corresponding provision in article 8(2)(b) of the Statute], simply transcribed from the elements for the crimes in article 8(2)(b)’. La Haye describes article 8(2)(e)(viii) as an exception, given that it was drawn directly from Additional Protocol II and did not have an equivalent in article 8(2)(b) of the Statute. Mr Ntaganda’s Appeal Brief – Part II 1082 , para. 132. Mr Ntaganda’s Appeal Brief – Part II 1083 , para. 132. Mr Ntaganda’s Appeal Brief – Part II 1084 , para. 132. Mr Ntaganda’s Appeal Brief – Part II 1085 , para. 132.

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Article 8(2)(e)(viii) of the Statute requires that the perpetrator ordered the displacement of the civilian population. The third element of the corresponding Elements of Crimes requires that the perpetrator must have been ‘in a position to effect such displacement by giving such order’. The Appeals Chamber considers that the civilian population does not need to be under the perpetrator’s power and control in the sense suggested by Mr Ntaganda in order for the accused to be in such a position. Indeed, whether the person is in a position to give effect to an order to displace the civilian population is a question of fact that depends primarily on the position occupied by the accused person and his or her duties and responsibilities, including his or her ability to ensure compliance with his or her orders. This view is confirmed by reference to commentaries on the drafting history of the Elements of 1086 Crimes.

In the Conviction Decision, the Trial Chamber did not expand on its 1087 understanding of this element, but it found that Mr Ntaganda, Floribert Kisembo and Salumu Mulenda were in a position to effect the displacement by giving orders to that effect based on their roles within the UPC/FPLC and their respective duties and responsibility for the planning and conduct of the First Operation and Second 1088 Operation. Its analysis of this element focused on the perpetrators’ positions of authority and power to ensure compliance with their orders. The Appeals Chamber can find no error in the approach adopted by the Trial Chamber.

Third, Mr Ntaganda relies on the ICRC’s Commentary on Additional Protocols 1089 and an academic article to support his argument. In his view, article 17 requires territorial control because the ICRC refers to ‘all the possible cases which might arise

1086 In Dörmann’s view, the third element of article 8(2)(e)(viii): ‘addresses the question as to whether the perpetrator had the authority or power to carry out the displacement. The drafters agreed– and this view was not contested by the Working Group on EOC when the text proposal was introduced with that explanation– that the formulation “[t]he perpetrator was in a position to effect such displacement by giving such order” would cover both de jure and de facto authority to carry out the order, so that the definition would cover the individual who, for example, has effective control of a situation by sheer strength of force’. (K. Dörmann, p. 473). La Haye states that, ‘[s]imilar to article 8(2)(b)(xii), the war crime of denying quarter, element 3 was added in order to signal that only a serious order, by a person in a position to effect such displacement by giving such an order, will amount to the war crime of displacing civilians’. (Lee, pp. 215-216). 1087 Conviction Decision , para. 1082. 1088 Conviction Decision , paras 1095-1097. Mr Ntaganda’s Appeal Brief – Part II 1089 , paras 130-131.

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in a situation covered by [Additional] Protocol II, [...] in particular, situations where ’. 1090 the insurgent party is in control of an extensive part of the territory

The Appeals Chamber considers that Mr Ntaganda takes the quotation from the ICRC’s commentary out of context. The sentence he quotes appears in a discussion of article 17(2) of Additional Protocol II. This provision states that: ‘[c]ivilians shall not be compelled to leave their own territory for reasons connected with the conflict’. Specifically, the issue under discussion in the relevant section of the ICRC’s commentary was whether the word ‘territory’ should be interpreted as national 1091 territory or any territory in which the civilians live. The ICRC concluded that the latter interpretation best suited all situations covered by Additional Protocol II, in particular those where a party is in control of an extensive part of the territory. The Appeals Chamber considers that this does not equate to a statement that territorial control is required under article 17 of Additional Protocol II. There is no reference to territorial control elsewhere in the commentary on article 17, which further suggests that it is not a requirement.

The academic article to which Mr Ntaganda refers appears to be based on the author’s reading of article 49 of the Fourth Geneva Convention, article 17 of Additional Protocol II as interpreted by the ICRC’s Commentary on Additional Protocols, article 85(4)(a) of Protocol I and rule 129 of the ICRC’s Compilation of Customary Rules. For the reasons set out above, the Appeals Chamber has arrived at a different interpretation of the relevant provisions. The Appeals Chamber is not persuaded that its interpretation is incorrect having considered the ICRC’s Commentary on Additional Protocols and the academic article to which Mr Ntaganda refers.

Mr Ntaganda’s Appeal Brief – Part II 1090 , para. 131 (emphasis in original), referring to ICRC’s Commentary on Additional Protocols, para. 4859. 1091 ICRC’s Commentary on Additional Protocols, paras 4858-4859: ‘[t]his paragraph prohibits compelling civilians to leave their own country for reasons connected with the conflict. First, there is a question whether, within the meaning of this provision, the term “territory” is equivalent to country. The ICRC draft referred to “national territory”. Some amendments proposed substituting the formula “across the frontiers of the country of origin”. It is clear that there was never any doubt in anyone’s mind that the phrase was intended to refer to the whole of the territory of a country. However, the text states that it is prohibited to compel civilians to leave “their own territory”. In fact, this formula appears to be better suited to all the possible cases which might arise in a situation covered by Protocol II, and to take into account, in particular, situations where the insurgent party is in control of an extensive part of the territory. In this case the insurgents, too, should respect the obligation laid down here, and not compel civilians to leave the area under their authority’. (Footnotes omitted).

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In view of the foregoing, the Appeals Chamber rejects Mr Ntaganda’s argument that territorial control is a condition of ordering displacement as a war crime under article 8(2)(e)(viii) of the Statute.

As to Mr Ntaganda’s remaining argument that the Trial Chamber erred in ‘its assessment of the evidence’ of the six orders upon which it relied to enter a conviction 1092 under article 8(2)(e)(viii) of the Statute, the Appeals Chamber recalls that it has rejected Mr Ntaganda’s arguments in this regard in its determination of the fifth and 1093 fourteenth grounds of appeal. Therefore, it will not consider Mr Ntaganda’s arguments further.

Finally, the Appeals Chamber notes that the Prosecutor argues that the Trial Chamber erred ‘technically (but harmlessly)’ in two other aspects of its interpretation of the war crime of displacement under article 8(2)(e)(viii) of the Statute, namely in finding that: (i) ‘the perpetrator must “instruct another person in any form” either to displace “a civilian population” or to carry out an act or omission leading to that result’; and (ii) ‘the term “a civilian population” […] means at least “a certain number of individuals”, assessed on a case by case basis’. 1094 Victims Group 2 submit that the Trial Chamber’s interpretation was correct and that these issues should be resolved by the Appeals Chamber in the interests of fairness, judicial economy and legal 1095 certainty.

The Appeals Chamber notes that the issues have not been raised as a subject for appeal by either the Prosecutor or Mr Ntaganda. The Prosecutor highlighted these issues in her response to Mr Ntaganda’s appeal brief only for the purpose of requesting the Appeals Chamber not to confirm the Trial Chamber’s general 1096 interpretation of the law relevant to article 8(2)(e)(viii) of the Statute. Indeed, she

Mr Ntaganda’s Appeal Brief – Part II 1092 , para. 134. 1093 See paragraphs 453-528 above and paragraphs 963-999 below. Prosecutor’s Response to Appeal – Part II 1094 , para. 116 (emphasis in original). The Prosecutor argues that a correct interpretation of article 8(2)(e)(viii) of the Statute would show that ordering a displacement can also be committed ‘by means of instructing (expressly or by implication) one or more civilians to leave the place where they were lawfully present’, and that ‘the enforced displacement of even one or more civilians, with a nexus to a non-international armed conflict, is a war crime’. 1095 Observations of Victims Group 2 on Appeal – Part II , para. 61. Prosecutor’s Response to Appeal – Part II 1096 , para. 117.

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1097 specifically requested the Appeals Chamber not to rule on the issues. In these circumstances, and in view of the fact that the alleged errors in legal interpretation would not materially affect the Conviction Decision (as the facts of this case would establish the crime irrespective of the interpretation adopted and these issues have no 1098 bearing on the legal issues raised on appeal by Mr Ntaganda), the Appeals Chamber considers it unnecessary to address the arguments raised by the Prosecutor. Therefore, the Appeals Chamber will not address the interpretation of ‘ordering’ or ‘civilian population’ under article 8(2)(e)(viii) of the Statute in the present judgment.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that Mr Ntaganda is individually criminally responsible for the war crime of ordering the displacement of the civilian population under article 1099 8(2)(e)(viii) of the Statute, the Appeals Chamber rejects this ground of appeal.

G. Seventh ground of appeal: errors of law and fact in the Trial Chamber’s assessment of the evidence

Under the seventh ground of appeal, Mr Ntaganda challenges the Trial Chamber’s assessment of his testimony, 1100 the dismissal of D-0017’s evidence (one of Mr Ntaganda’s bodyguards) in its entirety 1101 and the Trial Chamber’s reliance on ‘the untested and uncorroborated evidence’ of P-0022 and P-0027 to enter convictions 1102 against him. In essence, Mr Ntaganda seeks to impugn the Trial Chamber’s approach to fact finding with particular emphasis on the notions of witness credibility and corroboration.

1 Mr Ntaganda’s testimony

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda argues that the Trial Chamber assessed his testimony differently from that of prosecution witnesses when it included in its consideration an additional

Prosecutor’s Response to Appeal – Part II 1097 , para. 117. Prosecutor’s Response to Appeal – Part II 1098 , para. 117. 1099 Conviction Decision , para. 1199, p. 529. Mr Ntaganda’s Appeal Brief – Part II 1100 , paras 136-141. Mr Ntaganda’s Appeal Brief – Part II 1101 , paras 142-147. Mr Ntaganda’s Appeal Brief – Part II 1102 , paras 148-150.

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criterion, namely, whether he ‘might lie in order to be acquitted’. 1103 In his

submission, unless his testimony that contradicted prosecution evidence was ‘patently

implausible or untrustworthy’, it ‘should have been considered as raising reasonable

doubt, just like any other evidence’. 1104

Furthermore, Mr Ntaganda submits that, by first finding the prosecution

evidence to be credible and then dismissing his contradictory testimony ‘on that basis

alone’, the Trial Chamber shifted the burden of proof and required him to ‘present a

1105 more credible version of events in order to be acquitted’. He argues that the Trial

Chamber’s ‘either/or’ approach to fact finding or shifting of the burden of proof was

‘frequent and blatant’ and resulted in the Trial Chamber ‘systematically dismiss[ing]

1106 [his] testimony when it contradicted Prosecution evidence’. In his view, given the

importance of his testimony to his defence, the Trial Chamber’s error ‘had an

incalculable impact on the fairness of the trial’. 1107 In addition, Mr Ntaganda asserts

that the Trial Chamber erred in failing to afford appropriate consideration to the

1108 timing of his testimony which preceded other defence witnesses. In sum, he

submits that the Trial Chamber’s assessment of his testimony affected ‘its overall

assessment of the totality of the evidence adduced’ and ‘the only appropriate remedy

is an acquittal or a new trial’. 1109

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber applied the same approach to

the assessment of Mr Ntaganda’s testimony as to that of other witnesses. 1110 She

submits that it is well within a Trial Chamber’s remit to consider ‘the accused’s

interest in being acquitted’ as a factor when weighing his testimony. 1111 In addition,

the Prosecutor avers that the Trial Chamber did not engage in an ‘“either/or”’

1112 approach to fact finding or a shifting of the burden of proof. In her view,

Mr Ntaganda’s Appeal Brief – Part II 1103 , para. 137. Mr Ntaganda’s Appeal Brief – Part II 1104 , para. 137. Mr Ntaganda’s Appeal Brief – Part II 1105 , paras 138-139. Mr Ntaganda’s Appeal Brief – Part II 1106 , paras 138-139; T-271 , p. 3, line 13 to p. 6, line 13. Mr Ntaganda’s Appeal Brief – Part II 1107 , para. 139. Mr Ntaganda’s Appeal Brief – Part II 1108 , para. 140. Mr Ntaganda’s Appeal Brief – Part II 1109 , para. 141. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1110 , para. 120. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1111 , para. 122. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1112 , paras 123, 125.

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Mr Ntaganda fails to show an error in this regard and his submissions ‘merely parse

1113 out the established process of fact-finding that the Chamber followed’.

Furthermore, the Prosecutor disputes the contention that the Trial Chamber

‘“systematically dismissed” Ntaganda’s testimony when it “contradicted” the

Prosecution evidence’. 1114 The Prosecutor submits that the Trial Chamber ‘properly

reasoned its decision’ to rely on prosecution evidence despite Mr Ntaganda’s

1115 contradictory evidence in full view of ‘the totality of the evidence’. Finally, the

Prosecutor submits that trial chambers have discretion to decide on the weight to be

assigned to the timing of an accused’s testimony and that the fact that other chambers

in other contexts have assigned weight to an accused’s decision to testify before other

1116 witnesses does not establish a fixed rule in this regard.

(iii) The victims’ observations

Victims Group 1 submit that the Trial Chamber did not treat Mr Ntaganda’s

testimony differently to the testimony of prosecution witnesses and ‘properly took

into account his interest in the outcome of the case and the timing of his

testifying’. 1117 Furthermore, they aver that Mr Ntaganda’s decision to testify was ‘part

of a deliberate defence strategy’ to expedite the defence case by calling a few

witnesses, including himself, and that ‘[t]he Defence should not be permitted to use

the present appeal against [his] conviction as an attempt to remedy the shortcomings

in its trial defence strategy […]’. 1118

Victims Group 2 submit that an accused who chooses to testify is generally

treated like any other witness and that the timing of this testimony does not ‘carry any

sort of entitlement to credit’. 1119 Moreover, they submit that the Trial Chamber was

entitled to rely on parts of Mr Ntaganda’s testimony and reject other parts on the basis

that they ‘lacked credibility or were implausible’. 1120

Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1113 , para. 123. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1114 , para. 126. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1115 , para. 126. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1116 , para. 127. 1117 Observations of Victims Group 1 on Appeal – Part II , para. 5. 1118 Observations of Victims Group 1 on Appeal – Part II , para. 6. 1119 Observations of Victims Group 2 on Appeal – Part II , para. 68. 1120 Observations of Victims Group 2 on Appeal – Part II , para. 69.

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(iv) Mr Ntaganda’s reply to the Prosecutor and response to the victims Contrary to the Prosecutor’s suggestion that Mr Ntaganda’s arguments ‘“merely parse out the established process of fact finding”’, he contends that they demonstrate that the Trial Chamber ‘never engaged with the central task of assessing whether the Defence evidence cast doubt on that of the Prosecution’s’. 1121 He highlights further examples of the Trial Chamber adopting what he describes as an ‘either/or’ approach to the evidence or reversing the burden of proof, relating to its findings on the attack 1122 in Nzebi and the firing of a grenade in Sayo. Mr Ntaganda argues that the Trial Chamber’s ‘analysis was limited to ‘“retaining” one version, and “rejecting” the other’, and that this ‘approach is incompatible with the burden of proof, because it presumes that a Trial Chamber is required to accept the accused’s version of events 1123 before it entertains reasonable doubt as to his guilt’. He argues that the Trial Chamber described exactly what it was doing and it consistently said that it was doing something different to its statements on the standard and burden of proof at the 1124 beginning of the Conviction Decision.

Mr Ntaganda contends that Victims Group 2’s argument that the Trial Chamber was entitled to rely on parts of his testimony and reject other parts, does not engage 1125 with the error raised. He underscores that the error raised is that the Trial Chamber ‘pre-ordained’ certain witnesses as ‘“credible”’, without having considered contradictory defence evidence, and then used that credibility ranking to reject the 1126 very defence evidence that it failed to take into account. To illustrate his argument, Mr Ntaganda refers to the Trial Chamber’s finding that he had ordered the killing of the three nuns who were being held at the Appartements , which was based on the 1127 testimony of P-0768. He argues that the Trial Chamber ‘pre-emptively decided that P-0768 was “credible”, and that he gave “credible” testimony about the killing of the Abbé , the Trial Chamber felt entitled to reject Mr. Ntaganda’s testimony on this

Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II Prosecutor’s 1121 , para. 18, quoting Response to Mr Ntaganda’s Appeal Brief – Part II , para. 123. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1122 , paras 17-18, 21. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1123 , paras 18-19. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1124 , paras 20-21. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 1125 , para. 45. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 1126 , para. 45. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 1127 , para. 46.

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basis alone’. 1128 In his view, this approach is inconsistent with the established process

1129 of fact finding.

Regarding the timing of his testimony, Mr Ntaganda acknowledges that opting

to testify ahead of other defence witnesses is a ‘strategic choice’, but maintains his

1130 argument that this entitles him to credit in the assessment of his credibility.

(b) Relevant part of the Conviction Decision

The Trial Chamber noted that Mr Ntaganda appeared ‘as the second witness in

the Defence’s presentation of evidence [...] over the course of 30 court days’. 1131 In its

general assessment of his testimony, the Trial Chamber found him to be ‘composed

throughout his testimony and prudent in providing his evidence’. 1132 It observed that

‘he generally answered all questions put to him’, but ‘was on limited occasions more

hesitant, and avoided answering directly a few questions put to him by the

1133 Prosecution on certain contested matters’. It found that Mr Ntaganda’s testimony

was ‘detailed and comprehensive, and touched on all matters relevant for this

case’. 1134 Apart from ‘a limited number of discrepancies on discrete issues’, the Trial

Chamber found his testimony to be ‘internally consistent’ and stated that it took

Mr Ntaganda’s testimony into account where relevant and, where appropriate, relied

1135 on it for its findings of fact.

The Trial Chamber found that Mr Ntaganda was not credible when he affirmed

‘that he always fought and acted, including in 2002 and 2003, for the liberation and

freedom of the civilian population in general in Ituri and that this revolutionary

ideology was governing the functioning of the UPC/FPLC’. 1136 Furthermore, the Trial

Chamber indicated that it ‘considered, on a case-by-case basis and where appropriate,

1128 Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II , para. 47. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 1129 , para. 47. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 1130 , para. 50. 1131 Conviction Decision , para. 257. 1132 Conviction Decision , para. 257. 1133 Conviction Decision , para. 257. 1134 Conviction Decision , para. 258. 1135 Conviction Decision , paras 258, 262. 1136 Conviction Decision , para. 261.

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the possibility that Mr Ntaganda had an incentive to provide exculpatory evidence’ 1137 when his evidence contradicted other evidence.

(c) Determination by the Appeals Chamber

(i) Introduction The Appeals Chamber notes that the accused has the right to ‘make an unsworn oral or written statement in his or her defence’ under article 67(1)(h) of the Statute, a 1138 right which Mr Ntaganda exercised at the commencement of the trial. The Statute provides, under article 67(1)(g), that the accused has the right ‘[n]ot to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence’. The Trial Chamber was of the view that, ‘while the statutory scheme does not address the possibility of an accused giving a sworn statement and testifying under solemn undertaking, he has a right to do [so] deriving from Article 67 of the Statute’. 1139

The Trial Chamber took the view that Mr Ntaganda, having agreed to testify, should, ‘in principle, be subject to the same rules that are applicable to other witnesses’. 1140 It found that ‘once an accused voluntarily testifies under oath, he waives his right to remain silent and must answer all questions put to him or her’, and considered that the assurances against self-incrimination that may be provided to witnesses under rule 74 of the Rule, if sought, would not apply to Mr Ntaganda, 1141 insofar as charges in the present case are concerned. It confirmed ‘that the answers provided by Mr Ntaganda may be used against him in the present case, and if he declines to respond to a permissible question, the Chamber may draw adverse inferences, as appropriate’. 1142

Mr Ntaganda appeared as the second witness for the Defence and testified over 1143 the course of 30 court days. He testified under oath and was warned that he had waived his right to silence, that he must answer all permissible questions, that his

1137 Conviction Decision , para. 262. 1138 Conviction Decision , para. 256, fn. 647, referring to T-24 , pp. 74-76. 1139 Decision 1914 , para. 15. 1140 Decision 1914 , para. 18. 1141 Decision 1945 , para. 24. 1142 Decision 1945 , para. 24. 1143 Conviction Decision , para. 257.

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answers may be used in the case against him, that negative inferences could be drawn

from a refusal to answer, and that it is an offence within the jurisdiction of the Court

1144

to provide false testimony.

The Appeals Chamber notes that common law and civil law systems have

different approaches to the issue of whether an accused person may testify under oath

in their own defence and the scope of the related right to remain silent and privilege

against self-crimination. In the present case, Mr Ntaganda voluntarily agreed to testify

under oath and the Trial Chamber’s approach to this testimony as described above

1145

was agreed to by the parties and has not been challenged on appeal. While Judge

1146 1147

Ibáñez Carranza and Judge Eboe-Osuji consider it necessary to set out their

views on this matter, the majority of the Appeals Chamber does not take a position on

1144 T-209 , p. 30, line 7 to p. 31, line 5. 1145 Decision 1945 , paras 23-24. 1146 Judge Ibáñez Carranza is of the view that the Trial Chamber’s interpretation is at odds with fundamental fair trial rights and guarantees, due process of law, concrete human rights, as well as the principle of legality and the procedural safeguards that are enshrined in the Rome Statute, namely article 67(1)(g) of the Statute and the ICCPR. The fair trial rights and guarantees that an accused enjoys are fundamental and inalienable when facing a trial and the punitive and coercive power of the international community. It was thus legally impermissible for the Trial Chamber to ‘exclude’ the application of the fundamental guarantees of the accused person to remain silent, be presumed innocent and not be obliged to incriminate him or herself and to subject an accused person ‘to the same rules that are applicable to other witnesses’. The approach followed by the Trial Chamber is that applied in common law systems but the Rome Statute establishes a system that resembles neither the common nor the civil law systems. When an accused provides his account of the facts, he does it in exercise of his full defence rights, and it cannot and does not imply that he is waiving any of the guarantees or his rights as an accused person. In inferring that giving a sworn statement and testifying under solemn undertaking is possible, the Trial Chamber erroneously interpreted the applicable law. In light of the principle of legality applicable in the realm of criminal law, criminal (substantive and procedural) provisions must be written and strict – there is no room to interpret that what is not explicitly prohibited is permitted and it is impermissible to interpret criminal provisions by analogy. Furthermore, in criminal procedural law and in the light of international human rights law, in case of doubt the interpretation of criminal provisions, including those concerning an accused’s fair trial rights and guarantees, must be in favour of the accused. To treat an accused person as a witness thereby implying that he has waived fundamental rights and guarantees is a juridical fiction and entails an interpretation of the relevant provisions that prejudices the accused person in contravention of procedural criminal law and international human rights law. By virtue of the rights and guarantees attached to the accused, different procedural conditions apply to witnesses and accused persons. Although the Trial Chamber erred in law in its interpretation of the applicable law, this error had no material impact on the Trial Chamber’s determination. Its assessment of Mr Ntaganda’s account was reasonable and should be confirmed on appeal for reasons properly set out and explained below. 1147 Judge Eboe-Osuji is of the view that the Appeals Chamber should make a definitive pronouncement on this matter, so that future defendants and Trial Chambers know how to conduct themselves in future cases. In his view, the Trial Chamber’s approach was correct. Accused persons are free to exercise any of the following three options: (i) remain silent completely; (ii) make unsworn declarations, and not be cross-examined; or (iii) step into the witness box and give sworn testimony. Once they exercise the third option, they must be treated like any other witness. They are not unique.

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the correctness of the Trial Chamber’s approach or its compatibility with article 67(1)(g) and (h) of the Statute.

(ii) Presumption of innocence, and burden and standard of proof Mr Ntaganda argues that the Trial Chamber erred in law and in fact in the assessment of his testimony, alleging that it violated the presumption of innocence and shifted the burden of proof by assuming that he was lying and systematically 1148 rejecting his evidence when it contradicted prosecution evidence.

Article 66 of the Statute sets out the presumption of innocence, and the burden and standard of proof in the following terms:

1 Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt. Under article 67(1)(i) of the Statute, the accused also has the right ‘[n]ot to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal’.

Therefore, the Statute makes it clear that the burden of proof is on the Prosecutor and any suggestion that the accused would have to present more convincing evidence than the Prosecutor, or indeed any evidence at all, to prove their innocence would represent an impermissible reversal of that burden. Nonetheless, it is clear that, if the Prosecutor presents evidence meeting the ‘beyond reasonable doubt’ standard of proof, the accused may be convicted if he or she does not present evidence capable of raising reasonable doubt regarding the Prosecutor’s case.

If the accused person chooses to present evidence, the credibility, reliability and weight of that evidence falls to be assessed in the same manner as evidence presented by the Prosecutor. The Appeals Chamber considers that Mr Ntaganda’s argument that his evidence must be accepted as raising a reasonable doubt unless it is patently implausible or untrustworthy is misplaced and confuses the burden and standard of

Mr Ntaganda’s Appeal Brief – Part II 1148 , paras 137-139.

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1149 proof with the general principles applicable to the assessment of evidence. The question in all cases is whether the guilt of the accused has been proven beyond reasonable doubt. In reaching its determination, the trier of fact is bound to assess all relevant evidence, and it is proper that, in this context, it should evaluate the credibility and reliability of the testimony of all witnesses in light of the evidence as a whole.

Mr Ntaganda argues that the Trial Chamber added ‘an additional criterion to the assessment of his credibility’ (his incentive to exculpate himself), which implies that it started from the position that he might lie in order to be acquitted, thereby 1150 impermissibly shifting the burden of proof.

The Appeals Chamber notes that the Trial Chamber did not differentiate between its treatment of the testimony of Mr Ntaganda and that of other witnesses in 1151 discussing its general approach to the assessment of viva voce testimony. Indeed, the Trial Chamber stipulated that, in assessing the credibility of the witnesses, it took into account ‘the individual circumstances of each witness, including his or her relationship to the accused, age, any involvement in the events under consideration, any possible bias towards or against the accused, and/or any motives for telling the truth or providing false testimony’. 1152 Thus, the Appeals Chamber finds that the Trial Chamber did not add per se an additional criterion to the assessment of Mr Ntaganda’s credibility by taking into account the possibility, ‘on a case-by-case basis and where appropriate’, that he ‘had an incentive to provide exculpatory evidence’. 1153

In the view of the Appeals Chamber, the fact that the Trial Chamber took into account Mr Ntaganda’s incentive to exculpate himself does not imply that it started from the position that he was guilty and would have to lie in order to be acquitted. Rather, it legitimately took into consideration his natural interest in being acquitted as one of many factors relevant to assessing the credibility and reliability of his

Mr Ntaganda’s Appeal Brief – Part II 1149 , para. 137. Mr Ntaganda’s Appeal Brief – Part II 1150 , para. 137. 1151 Conviction Decision , para. 53. 1152 Conviction Decision , para. 77. 1153 Conviction Decision , para. 262.

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testimony in light of the evidence as a whole. Therefore, the Appeals Chamber finds no merit in Mr Ntaganda’s argument that the Trial Chamber shifted the burden of proof and violated the presumption of innocence when it took into consideration a possible incentive to provide exculpatory evidence. Accordingly, Mr Ntaganda’s argument is rejected.

Mr Ntaganda argues that the Trial Chamber improperly and systematically dismissed his testimony when it contradicted prosecution evidence, which the chamber had ‘pre-ordained’ to be credible. 1154 He refers to domestic case law and international criminal cases, which highlight that such an ‘“either/or” approach to fact-finding’ is wrong because it conveys the assumption that the accused may only be acquitted if his or her version of events is believed over that of prosecution witnesses and excludes the possibility that, without fully believing the account of events provided by an accused person, a trier of fact may still have a reasonable doubt 1155 as to his/her guilt on the whole of the evidence.

Notwithstanding the correctness of the approach outlined by Mr Ntaganda, the Appeals Chamber notes that the domestic cases he cites were cases in which the factual issues in dispute were limited and the impugned conviction hinged on an assessment of the credibility of two witnesses who contradicted each other’s accounts of events. It further notes that, even in such cases, it has been accepted that it is open to the trier of fact to accept a witness’s evidence and reject a contradictory denial 1156 from the accused without impacting on the burden of proof.

Mr Ntaganda’s Appeal Brief – Part II 1154 , paras 138-139. 1155 Mr Ntaganda’s Appeal Brief – Part II , para. 139, fns 372-373, referring, inter alia, to R. v. Dowling , para. 19: ‘It is not the case that a tribunal of fact must accept a version put forward or advanced by an accused person before they entertain a reasonable doubt about the guilt of the accused. That version put forward by an accused may nevertheless give rise to a reasonable doubt about the guilt of the accused without being positively or affirmatively accepted. Nor is it a case of determining which version is preferred. The onus and burden is on the Crown from beginning to end to prove the guilt of the accused beyond reasonable doubt’; R. v. S. (W.D) , p. 533; J.Gans, ‘The W. (D) Direction -Part One’, in Criminal Law Quarterly, Vol. 43 (2000), pp. 220-246. 1156 R. v. R. E. M ., para. 66: ‘Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it

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In the present case, the Trial Chamber established the guilt of Mr Ntaganda based on its assessment of the testimony of many different witnesses for the prosecution and defence, as well as other types of evidence. Therefore, any question of whether it reversed the burden of proof must be considered in light of the Conviction Decision as a whole.

As a starting point, the Appeals Chamber notes that the Trial Chamber correctly articulated the burden and standard of proof as described above; therefore, it must be assumed that it proceeded on the basis of a correct understanding of these 1157 concepts. Having set out these principles, the Trial Chamber described its general approach to the evaluation of different types of evidence and its assessment of individual witnesses’ credibility based on its evaluation of the evidence as a 1158 whole. It went on to provide a detailed analysis of the incriminating and 1159 exculpatory evidence relevant to its factual findings. Finally, it set out its legal 1160 findings in relation to the crimes charged. In so doing, the Trial Chamber did not, as Mr Ntaganda argues, pre-ordain or rank certain prosecution witnesses as credible and then dismiss Mr Ntaganda’s contradictory evidence on that basis alone. 1161 Rather, having considered all the evidence, it explained its conclusions regarding the credibility of witnesses, both in general and in relation to specific factual issues where the credibility of particular witnesses had been impugned, in a manner that minimised repetition of this assessment throughout the evidentiary evaluation supporting its factual findings.

In its overall assessment of Mr Ntaganda’s testimony, the Trial Chamber stated that it

conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt’. 1157 Conviction Decision , para. 44: ‘Pursuant to Article 66 of the Statute, the accused shall be presumed innocent until proven guilty and the onus is on the Prosecution to demonstrate the guilt of the accused. For a conviction, each element of the particular offence charged must be established beyond “reasonable doubt”’. 1158 Conviction Decision , section III, C, D. 1159 Conviction Decision , section IV. 1160 Conviction Decision , section V. Mr Ntaganda’s Appeal Brief – Part II 1161 , para. 138.

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does not find Mr Ntaganda credible when he affirms that he always fought and acted, including in 2002 and 2003, for the liberation and freedom of the civilian population in general in Ituri and that this revolutionary ideology was governing the functioning of the UPC/FPLC. The Chamber observes that this statement is clearly contradicted by the other available evidence on the record which shows that at least a part of the civilian population in Ituri, in particular the Lendu, was 1162 actually the target of violent acts by the UPC/FPLC in 2002 and 2003. The Appeals Chamber considers that it was appropriate and necessary for the Trial Chamber to assess the credibility of Mr Ntaganda’s testimony in light of the evidentiary record as a whole in this manner. The Appeals Chamber understands that, in so doing, the Trial Chamber did not pre-judge the evidence in order to justify a systematic dismissal of Mr Ntaganda’s testimony denying that certain crimes were committed, but rather, having heard all the evidence, it set out its overall conclusion on his testimony based on its evaluation of the contradictions between his testimony and that of different prosecution witnesses.

Mr Ntaganda points to several findings of the Trial Chamber that purport to demonstrate that it adopted an ‘either/or’ approach to its assessment of his testimony 1163 and that of prosecution witnesses. In essence, he argues that the Trial Chamber failed to ‘direct its mind to whether the accused’s evidence, in the context of the evidence as a whole, raised a reasonable doubt as to his guilt’ as the Chamber’s analysis ‘was limited to “retaining” one version, and “rejecting” the other’. 1164

Mr Ntaganda highlights the following five instances of the Trial Chamber adopting what he claims is an ‘either/or’ approach to its evaluation of the evidence: (i) ‘[i]n respect to whether the UPC/FPLC planted landmines in Mongbwalu, […] the Chamber found “no reason to doubt the truthfulness of P-0768’s account” about mines and “ therefore exclude[d] Mr Ntaganda’s denial on this specific issue as not credible”’; 1165 (ii) in finding that the UPC/FPLC killed persons during an attack on Nzebi, the Trial Chamber ‘“carefully assessed P-0768’s testimony […] against Mr Ntaganda’s account, and [decided] to rely on P-0768’s testimony in this

1162 Conviction Decision , para. 261. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response 1163 , paras 138, 153-155, 169-170, 179; to Observations of Victims on Appeal– Part II , para. 46; Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II , paras 17-18. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1164 , para. 18. Mr Ntaganda’s Appeal Brief – Part II 1165 , paras 138 (emphasis in original), quoting Conviction Decision , para. 171, fn. 413 (emphasis in original).

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respect”’; 1166 (iii) in finding that Mr Ntaganda ‘interrogated the Abbé while hitting him with a piece of wood’ and ‘ordered that the three nuns locked in a room at the Appartements be killed’, the Trial Chamber recalled ‘its finding on P-0768’s credibility’ and indicated that it considered ‘Mr Ntaganda’s version of events not credible’; 1167 (iv) in finding that ‘Mr Ntaganda’s bodyguards, upon Mr Ntaganda’s 1168 order, shot and killed two Lendu persons who had been captured […] in Nzebi’, the Trial Chamber ‘carefully assessed the testimony of P-0768 against that of Mr Ntaganda and, noting that P-0768 provided a sufficiently clear and detailed account of what he saw, and […] retained the internally consistent testimony of P- 0768 in this respect, as opposed to Mr Ntaganda’s account’; 1169 and (v) regarding P- 0017’s testimony about the firing of a grenade at civilians in Sayo, the Trial Chamber ‘carefully assessed the testimony of P-0017 against that of Mr Ntaganda and, noting that P-0017 provided a sufficiently clear and detailed account of what he saw, […] retained the internally consistent testimony of P-0017 in this respect, as opposed to Mr Ntaganda’s account’. 1170

The Appeals Chamber underlines that these statements were made in the context of the Trial Chamber evaluating contradictions between evidence given by prosecution witnesses and that of Mr Ntaganda for the purposes of determining whether it had been established that particular crimes had been committed. The Appeals Chamber recalls that the Trial Chamber is tasked with resolving inconsistencies in the evidence. In the instances highlighted by Mr Ntaganda, in carrying out this process of weighing and evaluating the evidence, the Trial Chamber found the prosecution witnesses to be credible and Mr Ntaganda’s directly contradictory testimony not to be credible.

Mr Ntaganda’s Appeal Brief – Part II 1166 , para. 153, quoting Conviction Decision , fns 1505, 1507; T- 271 , p. 9, lines 7-10. See also Mr Ntaganda’s Appeal Brief – Part II , paras 154-155. Mr Ntaganda’s Appeal Brief – Part II 1167 , paras 169-170, referring to Conviction Decision , fn. 1589; Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II , para. 46, referring to Conviction Decision , fn. 1598. 1168 Conviction Decision , para. 510. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1169 , para. 17, quoting Conviction Decision , fn. 1507. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1170 , para. 18, quoting Conviction Decision , fn. 1494.

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In the view of the Appeals Chamber, this does not demonstrate that the Trial Chamber failed to understand or properly apply the standard or burden of proof. While it accepts Mr Ntaganda’s argument that the question remains whether the prosecution’s evidence, considered in the context of the evidence as a whole, should be accepted as establishing beyond reasonable doubt the facts alleged, the Appeals Chamber notes that, in each instance highlighted by Mr Ntaganda, the Trial Chamber either went on to enter the requisite legal finding based on its assessment of the evidence as a whole or did not rely on the factual finding for the purposes of 1171 conviction. There is no basis to conclude from the examples highlighted that the Trial Chamber disregarded evidence capable of casting reasonable doubt on the prosecution case.

Mr Ntaganda also argues that the Trial Chamber decided on the credibility of P- 0017’s testimony that Mr Ntaganda ordered a grenade to be fired at a group of civilians in Sayo without considering Mr Ntaganda’s evidence on this particular 1172 matter.

The Appeals Chamber is not persuaded by this interpretation of the Conviction Decision. The Appeals Chamber notes that, in its initial overall assessment of P- 0017’s testimony, the Trial Chamber also examined his evidence on this event in light of Mr Ntaganda’s argument that the witness had not participated in the operation. Thereafter, the Trial Chamber expressly addressed Mr Ntaganda’s challenges under the ‘Factual Findings’ section of the Conviction Decision recalling its finding on P- 0017’s credibility on this particular aspect of his testimony. 1173 The Appeals Chamber considers that nothing in the Trial Chamber’s approach suggests that it decided on P- 0017’s credibility without considering Mr Ntaganda’s evidence on this particular event.

1171 Conviction Decision , paras 44, 737, 739, 873, 922, 1182. In relation to the finding that Mr Ntaganda ‘ordered that the three nuns locked in a room at the Appartements be killed’, the Trial Chamber found that the order was not executed and the nuns were subsequently released ( Conviction Decision , para. 534) and this finding was not referred to by the Trial Chamber in its legal findings section. Regarding the finding that the UPC/FPLC planted landmines in Mongbwalu, the Trial Chamber did not find that any deaths resulted from this action and did not refer to the planting of landmines in its legal findings ( Conviction Decision , para. 864). Mr Ntaganda’s Appeal Brief – Part II 1172 , paras 196-198. 1173 Conviction Decision , para. 508, fns 1488, 1493-1494.

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Having considered Mr Ntaganda’s arguments regarding the Trial Chamber’s approach to assessing the credibility of prosecution witnesses and Mr Ntaganda’s conflicting testimony as a whole, the Appeals Chamber considers that he has not demonstrated that the Trial Chamber shifted the burden of proof in law or in fact. Under his eighth ground of appeal, Mr Ntaganda has challenged the reasonableness of the Trial Chamber’s conclusions regarding the placing of mines in Mongbwalu, the attack on Nzebi, the killing of the Abbé and the firing of a grenade at civilians in Sayo. The Trial Chamber’s evaluation of the evidence in relation to these events and the question of whether its findings were reasonable will be considered in more detail 1174 in addressing these arguments. (iii) Trial Chamber’s alleged failure to properly weigh the timing of Mr Ntaganda’s testimony With respect to Mr Ntaganda’s argument that the Trial Chamber erred in failing 1175 to favourably consider the timing of his testimony when assessing his credibility, the Appeals Chamber notes that the Trial Chamber stated that Mr Ntaganda was the ‘second witness’ to appear for the Defence. 1176 The Appeals Chamber finds that an accused person’s election to testify ahead of other Defence witnesses is a factor that may be considered favourably when a trial chamber assesses his or her credibility. However, the question of how the timing of the accused’s testimony should be considered forms part of a trial chamber’s discretion in evaluating the evidence. Mr Ntaganda has not identified any particular features of the present proceedings that would justify his argument that the Trial Chamber was required to consider his testimony more favourably because he testified before other defence witnesses. Accordingly, Mr Ntaganda’s argument is rejected.

(iv) Conclusion Mr Ntaganda has not demonstrated that the Trial Chamber violated the presumption of innocence or reversed the burden of proof in assessing his testimony. His arguments regarding the manner in which the Trial Chamber evaluated his testimony are therefore rejected.

1174 See paragraphs 641-693, 730-745 below. Mr Ntaganda’s Appeal Brief – Part II 1175 , para. 140. 1176 Conviction Decision , para. 257.

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2 The dismissal of D-0017’s evidence

(a) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda disputes the Trial Chamber’s assessment of D-0017’s credibility

and argues that the Chamber’s disregard of the nuances of his testimony and other

1177 corroborative evidence represents a flawed approach to fact finding. In his view,

the Trial Chamber erroneously rejected D-0017’s evidence on the sole basis that it

1178 differed from the prosecution allegations. Mr Ntaganda contends that parts of D-

0017’s evidence, which were unrelated to the crimes or his conduct, were

corroborative of other aspects of the defence case and as such these parts of the

witness’s evidence should have been assessed. 1179 Mr Ntaganda argues that the Trial

Chamber could not have reasonably reached its findings in relation to the attack on

Songolo in August 2002, the attack on Komanda in November 2002 and his trip to

1180 Rwanda in February 2003 if it had duly considered D-0017’s evidence.

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber reasonably rejected D-0017’s

evidence given its nature and the witness’s close relationship with Mr Ntaganda

whom he considered to be his ‘“elder brother”’. 1181 In addition, the Prosecutor avers

1182 that D-0017 was ‘evasive’ and occasionally ‘uncooperative in cross-examination’.

The Prosecutor argues that Mr Ntaganda fails to acknowledge the Trial Chamber’s

detailed analysis and findings and instead ‘cherry-picks from among them, often

without context’. 1183

(iii) The victims’ observations

Victims Group 2 submit that Mr Ntaganda merely disagrees with the Trial

Chamber’s assessment of D-0017’s evidence. 1184 In their view, the instances

Mr Ntaganda’s Appeal Brief – Part II 1177 , paras 143-146. Mr Ntaganda’s Appeal Brief – Part II 1178 , para. 145. 1179 Mr Ntaganda’s Appeal Brief – Part II , para. 146. Mr Ntaganda’s Appeal Brief – Part II 1180 , para. 147. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1181 , para. 128, referring to Conviction Decision , paras 250-255, quoting T-255 , p. 39, lines 1-22. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1182 , para. 129. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1183 , para. 130. 1184 Observations of Victims Group 2 on Appeal – Part II , para. 73.

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referenced by Mr Ntaganda of the Trial Chamber expressly choosing other evidence over that of D-0017 are examples of the Trial Chamber’s proper weighing of the 1185 evidence.

(b) Relevant part of the Conviction Decision

In rejecting D-0017’s evidence, the Trial Chamber observed that the witness generally tended ‘to negate knowledge of any potentially incriminating facts’ and that his testimony reflected ‘a concern not to provide any incriminating evidence with 1186 regard to the accused’. In addition, the Trial Chamber found that ‘D-0017 generally denied the commission of crimes by the UPC/FPLC or having personal knowledge thereof’. 1187 Specifically, the Trial Chamber found the witness’s remarks concerning his training at Mandro to contrast with the consistent evidence provided 1188 by a number of credible witnesses. Having considered all of the issues affecting D- 0017’s testimony, the Trial Chamber found that it lacked credibility and decided not 1189 to rely on it.

(c) Determination by the Appeals Chamber

In addressing its approach to the assessment of a witness’s credibility, the Trial Chamber stated, in relevant part, as follows:

77 Where required, the Chamber has relied on the evidence of witnesses in relation to whose credibility the Chamber had some reservations to the extent that it was corroborated by other reliable evidence. However, the credibility of certain witnesses was so impugned that they could not be relied upon, even if parts of their testimony were corroborated by other evidence. 78. […] Finally, whenever relevant, the Chamber considered the witnesses’ conduct during their testimony, including their readiness and willingness to respond to questions put to them by the parties, the participants, and the 1190 Chamber, as well as the manner of answering.

With respect to the testimony of D-0017, the Trial Chamber arrived at the conclusion that it lacked credibility and could not be relied upon based on the following considerations: (i) on certain issues, the witness’s ‘demeanour was evasive,

1185 Observations of Victims Group 2 on Appeal – Part II , paras 72-73. 1186 Conviction Decision , para. 252. 1187 Conviction Decision , para. 254. 1188 Conviction Decision , para. 254. 1189 Conviction Decision , para. 255. 1190 Conviction Decision , paras 77-78 (footnotes omitted).

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and, in cross-examination, at times uncooperative’ and ‘[i]n relation to certain questions concerning crucial matters, the witness did not answer in a straightforward manner, or appeared inconsistent’; (ii) the witness acknowledged that he considered Mr Ntaganda to be his ‘elder brother’ and that he had ‘received financial assistance from him’, and, although he denied that this had impacted on his decision to testify, ‘his testimony reflect[ed] a concern not to provide any incriminating evidence with regard to the accused’; (iii) his ‘testimony included a number of assertions that the Chamber f[ound] implausible, both in themselves and with regard to the overall evidence presented in this case’, namely that ‘the minimum age for recruits was 18 years’, that ‘he never saw any recruits aged under 18 years in Mandro’ and that the living conditions in the camp were favourable; (iv) he ‘generally denied the commission of crimes by the UPC/FPLC or having personal knowledge thereof’, specifically in stating that recruits were told to protect the population regardless of ethnicity and fire only in the direction from which fire was coming, which contradicts the consistent evidence of ‘a number of credible witnesses’. 1191

The Appeals Chamber has previously found that ‘there may be witnesses whose credibility is impugned to such an extent that he or she cannot be relied upon even if other evidence appears to corroborate parts of his or her testimony’. 1192 The Appeals Chamber notes that Mr Ntaganda’s arguments largely ignore the Trial Chamber’s analysis and findings concerning D-0017’s conduct during his testimony as well as his actual evidence when viewed in light of the evidentiary record as a whole. Contrary to Mr Ntaganda’s argument, the Appeals Chamber finds that, by rejecting his testimony, the Trial Chamber did not disregard his evidence in full because it differed from the Prosecutor’s allegations. Rather, it weighed his evidence against the other evidence on the record and rejected it on a reasoned basis.

Mr Ntaganda argues that, in finding that D-0017’s testimony that recruits were trained to protect the civilian population was not credible, the Trial Chamber ignored corroborating evidence from ‘P-0017 who [REDACTED]’, 1193 similar evidence from

1191 Conviction Decision , paras 251-255. 1192 Ngudjolo Appeal Judgment , para. 168. Mr Ntaganda’s Appeal Brief – Part II 1193 , para. 145, referring to P-0017: T-63 , p. 47, lines 16-19.

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1194 Mr Ntaganda and P-0769 regarding the UPC/FPLC’s ideology, as well as video evidence of Chief Kahwa’s speech to troops in Mandro. 1195

Having examined the evidence to which Mr Ntaganda refers and the Trial Chamber’s evaluation of this evidence, the Appeals Chamber is not persuaded by his arguments. First, the Appeals Chamber notes that Mr Ntaganda selectively quotes P- 0017’s testimony in his Appeal Brief. In fact, the full extract of this part of the witness’s evidence contradicts the testimony of D-0017. The witness went on to clarify immediately after the lines quoted by Mr Ntaganda:

1196 [REDACTED]. Thus, P-0017’s testimony supports rather than contradicts the Trial Chamber’s finding that D-0017’s evidence contrasted with the consistent evidence provided by a number of credible witnesses regarding the commission of crimes against civilians by the 1197 UPC/FPLC.

Second, the Appeals Chamber notes that the Trial Chamber did in fact consider the remaining evidence to which Mr Ntaganda refers. Regarding P-0769’s testimony about the ideology of the UPC/FPLC, the Trial Chamber noted that, just after this statement, ‘P-0769 testified that songs calling for violence against the Lendu were sung’; therefore, it found that this testimony did not contradict the evidence provided by other witnesses that ‘recruits were taught that the Lendu and the Ngiti were the enemy’. 1198 Regarding Mr Ntaganda’s testimony about Chief Kahwa’s speech, while the Trial Chamber did not refer to the extract mentioned by Mr Ntaganda, it considered very similar testimony that he gave the following day when he revisited 1199 the same issue. Regarding both Chief Kahwa’s speech and Mr Ntaganda’s testimony about this speech, the Trial Chamber stated that it did ‘not consider the statements in this speech to reflect the reality of the disciplinary system within the

Mr Ntaganda’s Appeal Brief – Part II 1194 , para. 145, referring to D-0300: T-215 , p. 86, line 12 to p. 87, line 3; P-0769: T-120 , p. 30, line 25 to p. 31, line 12. Mr Ntaganda’s Appeal Brief – Part II video evidence of Chief Kahwa’s 1195 , para. 145, referring to speech: DRC-OTP-0082-0016, (transcript DRC-OTP-0164-0567, p. 7, line 200 to p. 8 line 258; translation DRC-OTP-0164-0710, at 0719, p. 6, line 1202 to p. 8, line 275). 1196 P-0017: T-63 , p. 47, line 19 to p. 48, line 4. 1197 Conviction Decision , para. 254. 1198 Conviction Decision , para. 373, fn. 1053, referring to P-0769: T-120 , pp. 31-32. 1199 Conviction Decision , para. 305, fn. 790, referring to D-0300: T-216 , pp. 12-13.

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UPC/FPLC as regards looting and rape of civilians associated with the enemy, during UPC/FPLC operations’. 1200 The Trial Chamber’s evaluation of this evidence was based on its findings on how the operations unfolded, ‘including the looting and rapes which occurred without punishment’. 1201

As Mr Ntaganda has failed to show any error in the Trial Chamber’s evaluation of this evidence, his argument that it should have been considered as corroborating D- 0017’s evidence regarding the training of the recruits is rejected.

Mr Ntaganda also argues that ‘significant swathes of [D-0017’s] testimony were unrelated to crimes, or Mr. Ntaganda’s conduct, and yet were corroborative of the Defence evidence’ and should have been considered. 1202 In this regard, he highlights the witness’s testimony regarding ‘the security situation in Mongbwalu prior to the UPC/FPLC operation; the movement of UPC/FPLC troops from Bunia to Mongbwalu, the composition of the group, [and] the situation on arrival in Mongbwalu’. 1203 However, he does not explain how this evidence would have impacted on the Trial Chamber’s factual findings, even if found to be credible and considered as such. As Mr Ntaganda has failed to show any error in the Trial Chamber’s findings, his argument that at least parts of D-0017’s evidence should have been considered is rejected.

In view of the foregoing, Mr Ntaganda’s argument that the Trial Chamber erred in dismissing D-0017’s evidence in its entirety is rejected.

3 The prior recorded statements of P-0022 and P-0027

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda submits that the Trial Chamber erred in ‘relying solely on the untested and uncorroborated’ prior recorded statements of P-0022 and P-0027 to

1200 Conviction Decision , para. 305, fn. 790. 1201 Conviction Decision , para. 305, fn. 790. Mr Ntaganda’s Appeal Brief – Part II 1202 , para. 146; T-271 , p. 7, line 16 to p. 8, line 12. 1203 Mr Ntaganda’s Appeal Brief – Part II , para. 146, referring to D-0017: T-252 , p. 45, line 2 to p. 47, line 6; T-253 , p. 32 line 11 to p. 40, line 10.

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‘enter convictions against [him]’. 1204 Mr Ntaganda avers that, in so doing, the Trial

Chamber violated his right to examine or have examined the witnesses against him

and that, as a result, the ‘convictions should be reversed to the extent that they rely on

these findings’. 1205

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial ‘Chamber properly relied on the rule

1206 68(2)(c) statements of P-0022 and P-0027 to enter discrete factual findings’. The

Prosecutor indicates that these statements, together with ‘ other overwhelmingly

consistent evidence, supported the Chamber’s factual findings that UPC soldiers

committed various underlying acts of murder, attempted murder, rape and

persecution’. 1207 Moreover, the Prosecutor avers that Mr Ntaganda’s claim that the

Trial Chamber relied on ‘uncorroborated’ evidence mischaracterises the notion of

1208 corroboration. The Prosecutor argues that corroboration is not required for each

underlying discrete factual finding and that, even if it were, it is sufficient for the

accounts of two or more witnesses to be compatible, even if not identical, for them to

1209 corroborate each other. In addition, the Prosecutor contends that Mr ‘Ntaganda

overlooks that the prior recorded testimony at issue does not even relate to his own

acts and conduct’, and ‘did not describe actions so “proximate” to [him]’, given that

1210 Mr Ntaganda was not even present for the events that P-0022 and P-0027 describe.

Thus, in her view, the Trial Chamber was not precluded from considering these

1211 statements.

(iii) Mr Ntaganda’s reply to the Prosecutor

Contrary to the Prosecutor’s contention, Mr Ntaganda argues that where the

evidence presented to prove a crime is ‘untested’ the Trial Chamber may only convict

1212 if there is other evidence which specifically corroborates the untested evidence. To

rely on the evidence of one murder as corroboration for another murder which is

Mr Ntaganda’s Appeal Brief – Part II 1204 , para. 148. Mr Ntaganda’s Appeal Brief – Part II 1205 , para. 150. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1206 , para. 132. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1207 , para. 132 (emphasis in original). Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1208 , para. 133. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1209 , para. 133. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1210 , para. 134. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1211 , para. 134. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1212 , para. 44.

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unrelated and for which the evidence is untested would, in his view, ‘artificially

bestow reliability on otherwise low-probative value evidence, and weaken the

evidential fabric of the factual findings’. 1213

In relation to the Prosecutor’s argument that the Trial Chamber was entitled to

rely on P-0022 and P-0027’s statements because they do not relate to his own acts and

conduct, Mr Ntaganda argues that it is ‘erroneously narrow’ because ‘“acts and

conduct”’ can relate to ‘“[…] any facts which [are] indispensable for a

conviction”’. 1214 Mr Ntaganda argues that the evidence relied upon by the Trial

Chamber from the witnesses’ statements was ‘pivotal evidence directly related to

material elements of the crimes’ which required corroboration. 1215 By raising this

argument, Mr Ntaganda contends that the Prosecutor ‘seems to conflate the distinction

between the admissibility of a statement and the weight to be afforded to it pursuant

to rule 68(2)(c) [of the Rules]’. 1216

Lastly, Mr Ntaganda disputes the Prosecutor’s argument that P-0022 and P-

0027’s evidence was consistent with other witnesses’ accounts of the UPC’s actions

during the First and Second Operations which collectively established a pattern of the

UPC’s criminal conduct. 1217 Mr Ntaganda argues that ‘no other witnesses testified

about the specific crimes described by P-0022 and P-0027’ and that, in the absence of

any indication that the Trial Chamber relied on the UPC’s pattern of criminal conduct

to corroborate the evidence of P-0022 and P-0027, the Prosecutor ‘cannot speculate to

that effect’. 1218

(b) Relevant part of the Conviction Decision

The Trial Chamber found, inter alia , that in the aftermath of the attack on Kilo

the UPC/FPLC ‘began going after the Lendu in the village, killing some of them’. 1219

It found that, in one instance, two Lendu women, including P-0022, were captured by

Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1213 , para. 44. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II Prlić et al 1214 , para. 45, quoting . Appeal Decision, para. 59. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1215 , para. 45. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1216 , para. 45. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1217 , para. 46. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 1218 , para. 46. 1219 Conviction Decision , para. 543.

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1220 a UPC/FPLC soldier. Relying on the prior recorded statement of P-0022, the Trial Chamber found: (i) that the UPC/FPLC soldiers attempted to murder P-0022 by cutting her neck and throwing her into a pit and forced another detainee to rape 1221 1222 her; (ii) that an Ngiti man and pregnant Lendu woman were killed in Kilo; and (iii) that her account exemplified the manner in which the UPC/FPLC persecuted the 1223 Lendu civilians.

The Trial Chamber found that, during the Second Operation, on or about 25 February 2003, the UPC/FPLC attacked Buli, shot and fired heavy weapons at those present in the village, ‘chased individuals into the surrounding bush’, and fired

1224 at those fleeing. Based on the prior recorded statement of P-0027, the Trial Chamber found that ‘[a]t least one person was killed by a member of the UPC/FPLC in the surrounding bush’. 1225

(c) Determination by the Appeals Chamber

The reasoning and analysis of the Appeals Chamber that follows represents the view of the majority of the Judges. Judge Eboe-Osuji is unable to concur with this 1226 part of the judgment and his views are set out in his partly concurring opinion. Pursuant to article 67(1)(e) of the Statute, the accused has the right ‘[t]o examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her’. Article 69(2) of the Statute provides:

The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.

1220 Conviction Decision , para. 545. 1221 Conviction Decision , paras 545-546, 874, 940. See also P-0022 rule 68 Decision . 1222 Conviction Decision , paras 546, 873. 1223 Conviction Decision , para. 1017. 1224 Conviction Decision , para. 604. 1225 Conviction Decision , para. 605. See also P-0027 rule 68 Decision . 1226 Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji.

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Nevertheless, rule 68 of the Rules allows for the introduction of prior recorded testimony of a person who is not present before a trial chamber in certain circumstances. In the present case, the prior recorded testimony of P-0022 and P-0027 1227 was admitted pursuant to rule 68(2)(c) of the Rules, which provides for a situation in which:

The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally. In such a case:

(i) Prior recorded testimony falling under sub-rule (c) may only be introduced if the Chamber is satisfied that the person is unavailable as set out above, that the necessity of measures under article 56 could not be anticipated, and that the prior recorded testimony has sufficient indicia of reliability.

(ii) The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.

The Appeals Chamber notes that rule 68(2)(c) of the Rules is an amendment of the original rule 68 adopted by the Assembly of States Parties in 2012 in order to introduce three additional instances in which prior recorded testimony could be 1228 introduced. The aim of this amendment was to ‘allow the judges of the Court to reduce the length of Court proceedings and streamline evidence presentation […]

1229 while paying due regard to the principles of fairness and the rights of the accused’.

The Appeals Chamber is mindful of the need to give effect to these aims in considering how evidence introduced pursuant to rule 68(2) of the Rules may subsequently be used and relied upon by a trial chamber. Indeed, it would defeat the purpose of the amendment if written statements admitted in lieu of oral testimony were automatically accorded lower evidentiary weight such that they could not be

1227 P-0022 rule 68 Decision ; P-0027 rule 68 Decision . 1228 th Assembly of States Parties, Resolution ICC-ASP/12/Res.7, adopted at the 12 plenary meeting, on 27 November 2013. See also Study Group on Governance Working Group on Lessons Learnt: Second report of the Court to the Assembly of States Parties, 31 October 2013, ICC-ASP/12/37/Add.1 , p. 18: The three instances when such evidence may be introduced were as follows: (i) when the prior recorded testimony goes to the proof of a matter other than the acts and conduct of the accused; (ii) when the prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify orally; and (iii) when the prior recorded testimony comes from a person who has been subjected to interference. 1229 Assembly of States Parties, Twelfth Session, Report of the Working Group on Amendments, 24 October 2013, ICC-ASP/12/44, para. 8.

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relied upon alone to establish particular facts as Mr Ntaganda suggests. In this regard, the Appeals Chamber notes that the criteria established in rule 68(2) of the Rules appear to make the admission of prior recorded testimony in lieu of oral testimony particularly apt for the purpose of establishing individual criminal acts in cases of mass criminality when the accused is not alleged to have carried out the acts directly 1230 and the commission of the crimes is not materially disputed.

Therefore, the Appeals Chamber considers that there is no legal impediment to prior recorded testimony admitted pursuant to rule 68(2) of the Rules being relied upon to establish individual criminal acts in circumstances in which they are not the direct acts of the accused. However, the Appeals Chamber underlines that reliance on such evidence should not be prejudicial to or inconsistent with the rights of the accused. In this regard, it notes that the Appeals Chamber of the ICTY has emphasised that ‘a conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial’. 1231 This jurisprudence follows the principle established by the ECtHR that a conviction based solely, or in a decisive manner, on witness evidence that the accused has had no opportunity to examine is 1232 incompatible with the fair trial rights enshrined in the Convention. The Appeals Chamber considers that this principle is equally applicable to proceedings before the Court as the corollary of the right of the accused person to examine or have examined the witnesses against him or her enshrined in article 67(1)(e) of the Statute.

Therefore, it finds that prior recorded testimony must not form the sole or decisive basis for the conviction for a particular crime as such. Other instances of similar criminal acts must be established on the basis of oral testimony such that the right of the accused to challenge the evidence grounding his conviction for that crime

1230 Rule 68(2)(b) of the Rules allows for the introduction of prior recorded testimony going ‘to proof of a matter other than the acts and conduct of the accused’, while rule 68(2)(b)(i) allows for the introduction of such testimony when, inter alia , it relates to issues that are not materially in dispute and ‘is of a cumulative or corroborative nature, in the sense that other witnesses will give or have given oral testimony of similar facts ’. Rule 68(2)(c) and (d) allow for the introduction of prior recorded testimony without these strict limitations in certain circumstances, although these sub-rules specify that ‘[t]he fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it’. Karadžić Popović Đorđević 1231 Appeal Judgment , para. 449; et al . Appeal Judgment , para. 96; Appeal Judgment , para. 807; Haraqija and Morina Contempt Appeal Judgment , para. 61. 1232 Bocos-Cuesta Judgment , paras 67-70; Solakov Judgment , para. 57.

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is not prejudiced. The extent to which a prior recorded statement is corroborated by other evidence is also important in determining the weight to be accorded to it and this must be carefully assessed in light of the full evidentiary record and in relation to the issue(s) to be determined.

In the present case, the Appeals Chamber notes that the prior recorded statements of P-0022 and P-0027 were not relied upon by the Trial Chamber to establish Mr Ntaganda’s own acts and conduct. Rather they were relied upon to establish the acts and conduct of unidentified UPC/FPLC soldiers who directly perpetrated crimes for which Mr Ntaganda was found guilty as an indirect coperpetrator.

The Trial Chamber relied upon P-0022’s statement to establish that the following war crimes and crimes against humanity were committed by UPC/FPLC soldiers after the takeover of Kilo: the murder of a Ngiti man and a pregnant Lendu 1233 1234 woman; the attempted murder of P-0022; and the forced rape of P-0022 by 1235 another detainee. However, Mr Ntaganda’s conviction for murder, attempted murder and rape was not solely or decisively based on P-0022’s prior recorded testimony. For its findings on murder, attempted murder and rape as a crime against humanity and as a war crime, the Trial Chamber principally relied on the oral testimony of numerous witnesses regarding similar acts to establish the material element of the ‘killing of persons’, attempted murder and rape committed by the 1236 UPC/FPLC soldiers.

1233 Conviction Decision , paras 546, 873, 1199. 1234 Conviction Decision , paras 546, 874, 1199. 1235 Conviction Decision , paras 545, 940, 1199. 1236 Conviction Decision , paras 873-874, referring to the killing of people in Mongbwalu, Sayo, and Nzebi by the UPC/FPLC during the assaults on these localities and the killing of a woman in front of the health centre in Sayo; the killing of people in Mongbwalu and Sayo during ratissage operations by members of the UPC/FPLC and – in the case of Mongbwalu – also by Hema ‘civilians’, including a Lendu woman accused of being a ‘chieftain’ of the Lendu ‘combatants’ and persons killed at the Appartements camp following interrogation; the killing of two Lendu persons in Nzebi by Mr Ntaganda’s bodyguards, pursuant to Mr Ntaganda’s order, sometime between the assault on Nzebi and Mr Ntaganda’s departure from Mongbwalu to Bunia; the killing of Lendu persons, a Ngiti man and a pregnant Lendu woman who had been detained in a pit, and of a Nyali man by UPC/FPLC soldiers in Kilo after the takeover of the village; the killing of at least two young children in Kobu by UPC/FPLC soldiers during the assault and the killing of at least two detained persons during the ratissage operation that followed; the killing of nine hospital patients in Bambu by UPC/FPLC soldiers; the killing of a woman who was raped and who tried to defend herself and of P-0018’s sister-in-law by

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The Appeals Chamber also notes that P-0022’s general account of events in Kilo was consistent with the oral testimony of other witnesses. In particular, the Trial Chamber relied upon P-0022’s statement, together with the evidence of other witnesses, to find that ‘the attack was carried out with regular assault weapons and

heavy weapons’, and that ‘members of the population fled Kilo, to the bush and to other places’, but were prompted to return by UPC/FPLC members who told them

1237 they would not be harmed. Based on P-0022’s statement and the testimony of other witnesses, it found that the ‘UPC/FPLC made the men and boys from Kilo, including Lendu, dig trenches outside the UPC/FPLC camp’, and ‘began going after the Lendu in the village, killing some of them’, whose bodies were then thrown into

1238 mass graves.

In addition to the finding of murder/attempted murder in Kilo based on P- 0022’s prior recorded testimony, the Trial Chamber also found that Lendu persons

and a Nyali man were killed by UPC/FPLC soldiers after the takeover of the village and that UPC/FPLC soldiers used their influence on girls to have sexual intercourse with them. For these findings, the Trial Chamber relied on the prior recorded testimony of P-0850, the oral testimony and prior recorded testimony of P-0877 (for 1239 murder), as well as the oral testimony of P-0017 (for rape).

Therefore, the Appeals Chamber rejects Mr Ntaganda’s argument that the Trial Chamber relied solely on the untested and uncorroborated prior recorded statement of

UPC/FPLC soldiers in Sangi; and some men who were anally penetrated by UPC/FPLC soldiers with their penises or by using ‘bits of wood’ died following their aforementioned treatment in Kobu; and the killing of at least 49 persons in a banana field near the Paradiso building in Kobu by UPC/FPLC soldiers. Regarding attempted murder, the Trial Chamber relied on its findings that UPC/FPLC soldiers shot at a patient at the hospital in Bambu during the assault on the village; the patient survived but later died of tetanus; a UPC/FPLC soldier, after having raped P-0018, shot her through her cheek and mouth, following which the witness lost consciousness; a UPC/FPLC soldier struck P-0108, one of persons detained at the Paradiso building in Kobu, on the head with a machete as P-0108 tried to flee; and UPC/FPLC soldiers shot P-0019 in her ankle as she was trying to flee a house where she had previously been raped. Conviction Decision , para. 940, referring to the following findings: during and in the immediate aftermath of the UPC/FPLC assault on Mongbwalu, UPC/FPLC soldiers forced women and girls to have sexual intercourse with them, including at the Appartements camp; in Kilo, some UPC/FPLC soldiers used their influence on girls in Kilo to have sexual intercourse with them; in Kobu, UPC/FPLC soldiers raped detained women and girls; and also anally penetrated men with their penises or by using ‘bits of wood’; in Sangi, UPC/FPLC soldiers raped women, and in Buli a UPC/FPLC soldier raped P-0113. 1237 Conviction Decision , paras 539-541. 1238 Conviction Decision , para. 543. 1239 Conviction Decision , paras 543, 547-548.

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P-0022 to enter a conviction against him for the war crimes and crimes against humanity of murder, attempted murder and rape in Kilo.

The Trial Chamber also relied on P-0022’s statement as an example of the manner in which the UPC/FPLC persecuted the Lendu in its findings on the crime 1240 against humanity of persecution. However, Mr Ntaganda’s conviction for the crime against humanity of persecution was not based on P-0022’s prior recorded testimony alone. Rather, it was based on all the ‘crimes committed during and in the aftermath of the UPC/FPLC takeover of Mongbwalu, Sayo, Nzebi, Kilo, Nyangaray, Kobu, Sangi, Bambu, Lipri, Tsili, Jitchu, Buli, and Gola, as well as following the capture of persons at the “pacification meeting” in Sangi and during related events during the “Kobu massacre”’, which were found to have ‘effectively targeted the Lendu ethnic group as such’. 1241 Therefore, the Appeals Chamber rejects Mr Ntaganda’s argument that the Trial Chamber relied solely on the untested and uncorroborated prior recorded statement of P-0022 to enter a conviction against him for the crime against humanity of persecution in Kilo.

The Trial Chamber relied on P-0027’s statement to support its finding that at 1242 least one person was killed by the UPC/FPLC in the bush surrounding Buli. In turn, this finding was relied upon to support Mr Ntaganda’s conviction for the war 1243 crime of attacking civilians during the assault on Buli. However, the Appeals Chamber notes that the Trial Chamber did not base Mr Ntaganda’s conviction for this 1244 war crime on P-0027’s statement alone. It based its findings that the ‘UPC/FPLC advanced into Buli, shooting and firing heavy weapons, including at those present in the village, and chasing individuals into the surrounding bush, firing their rifles at those fleeing’ and ‘searched the bush, including into the next day’, on the witness statements and oral testimony of P-0039, P-0105, P-0127, P-0300, P-0963, P-0792, P-

1240 Conviction Decision , paras 545-546, 1017, 1199. 1241 Conviction Decision , para. 1022. 1242 Conviction Decision , para. 605. 1243 Conviction Decision , para. 915. , para. 915: ‘On or about 25 February 2003, the UPC/FPLC advanced into 1244 Conviction Decision Buli, shooting and firing heavy weapons, including at those present in the village, and chasing individuals into the surrounding bush, firing their rifles at those fleeing. The UPC/FPLC searched the bush, including into the next day. At least one person was killed by a member of the UPC/FPLC in the surrounding bush’.

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1245 0113, and P-0907. Therefore, the Appeals Chamber rejects Mr Ntaganda’s argument that the Trial Chamber relied solely on the untested and uncorroborated prior recorded statement of P-0027 to enter a conviction against him for the war crime of attacking civilians during the assault on Buli.

Based on the foregoing, the Appeals Chamber finds that, contrary to Mr Ntaganda’s argument, the statements of P-0022 and P-0027 were not the ‘sole or decisive’ basis for the Trial Chamber to enter convictions against Mr Ntaganda. Mr Ntaganda’s right to examine, or have examined witnesses against him under article 67(1)(e) of the Statute was therefore not violated. Mr Ntaganda’s arguments are rejected.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s assessment of his evidence, rejection of D-0017’s evidence and reliance on the prior recorded statements of P-0022 and P-0027, the Appeals Chamber rejects this ground of appeal.

H. Eighth ground of appeal: Errors in finding that the UPC/FPLC and Hema civilians committed crimes during the First Operation

Under the eighth ground of appeal, Mr Ntaganda challenges the Trial Chamber’s findings in relation to six discrete events which concern crimes committed 1246 by the UPC/FPLC during the First Operation. Mr Ntaganda argues that the Trial Chamber’s assessment of the evidence with regard to these six events is tainted by its reliance on the ‘uncorroborated testimony’ of individual witnesses, namely, P-0768, 1247 P-0963 and P-0017. Mr Ntaganda characterises these witnesses as ‘accomplice witnesses’ whose testimony lacked corroboration and submits that the Trial Chamber 1248 erred in failing to apply the requisite caution to such evidence. The Appeals Chamber will consider Mr Ntaganda’s arguments concerning each witness in turn.

1245 Conviction Decision , para. 915. Mr Ntaganda’s Appeal Brief – Part II 1246 , paras 151-230. Mr Ntaganda’s Appeal Brief – Part II 1247 , para. 151. Mr Ntaganda’s Appeal Brief – Part II 1248 , paras 151, 226-228.

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1 P-0768 P-0768 was a ‘UPC/FPLC military insider who testified, inter alia , about the organisational structure of the UPC/FPLC, the recruitment, training, and alleged use of child soldiers, and his participation in military interventions in the context of the First Operation’. 1249 Mr Ntaganda seeks to impugn the Trial Chamber’s reliance on the evidence of P-0768 alone for its findings on the attack on Nzebi; the killing of Abbé Bwanalonga and the planting of anti-personnel mines at the entry and exit points 1250 of Mongbwalu.

(a) Relevant part of the Conviction Decision

During the unfolding of the First Operation and after taking over Sayo, the Trial Chamber found, inter alia , that the UPC/FPLC attacked the village of Nzebi, killing 1251 some individuals by gunshot and shelling. In addition, the Trial Chamber found that ‘[s]ometime between the assault on Nzebi and Mr Ntaganda’s departure from Mongbwalu to Bunia, Mr Ntaganda’s bodyguards, upon [his] order, shot and killed two Lendu persons who had been captured […] in Nzebi’. 1252 For these findings, the Trial Chamber relied on the testimony of P-0768, having assessed his testimony against Mr Ntaganda’s testimony on these events and finding it to be credible and 1253 reliable.

Furthermore, the Trial Chamber found that the UPC/FPLC captured Abbé Boniface Bwanalonga, a Lendu Catholic priest of advanced age, together with three 1254 Lendu nuns, in the aftermath of the takeover of Mongbwalu. According to the Trial Chamber, Abbé Bwanalonga was detained at the Appartements where he was interrogated by Mr Ntaganda who hit him with a piece of wood in the presence of 1255 Mr Ntaganda’s bodyguards. It further found that, ‘after the interrogation, Mr Ntaganda ordered his bodyguards to take the Abbé behind the Appartements , where

1249 Conviction Decision , para. 161. Mr Ntaganda’s Appeal Brief – Part II 1250 , paras 152-184. 1251 Conviction Decision , para. 509. 1252 Conviction Decision , para. 510. 1253 Conviction Decision , paras 509-510, fns 1499, 1500, 1502, 1503,1505, 1506, 1507. 1254 Conviction Decision , paras 529-530. 1255 Conviction Decision , para. 532.

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’. 1256 [he] shot the Abbé For its findings on the killing of Abbé Bwanalonga, the Trial

1257 Chamber relied on the testimony of P-0768.

In addition, the Trial Chamber found that ‘[a]fter Mongbwalu was taken over,

Mr Ntaganda ordered anti-personnel mines to be placed at the entry and exit points of

the town that were not guarded by the UPC/FPLC soldiers’. 1258 For this finding, the

1259 Trial Chamber relied on the testimony of P-0768 and other related evidence.

(b) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda disputes various aspects of P-0768’s testimony on the Nzebi

attack, including the witness’s motivation for testifying against him. 1260 He argues

that ‘by pitting Mr. Ntaganda’s testimony against that of P-0768, and then choosing a

side’, the Trial Chamber adopted an ‘“either/or” approach to fact finding’. 1261

Moreover, Mr Ntaganda avers that the lack of corroboration of P-0768’s testimony

coupled with the Trial Chamber’s failure to consider relevant evidence which

undermined this witness’s testimony and corroborated Mr Ntaganda’s account, and its

failure to provide sufficient reasons for its findings are errors that materially affected

the Trial Chamber’s findings. 1262

In relation to the killing of Abbé Bwanalonga, Mr Ntaganda argues that the

1263 same errors noted above invalidate this finding. In his view, the finding is unsafe

given the Trial Chamber’s reliance on the uncorroborated testimony of P-0768 and its

conclusions on the witness’s credibility. 1264

As to the Trial Chamber’s finding that Mr Ntaganda ordered the placing of anti-

personnel mines at entry and exit points of Mongbwalu, he reiterates his arguments in

1256 Conviction Decision , para. 533. 1257 Conviction Decision , para. 533, fn. 1590. 1258 Conviction Decision , para. 524. 1259 Conviction Decision , para. 524, fn. 1558. See also paras 171, 334, fns 408-413. Mr Ntaganda’s Appeal Brief – Part II 1260 , paras 152-166. Mr Ntaganda’s Appeal Brief – Part II 1261 , para. 154. Mr Ntaganda’s Appeal Brief – Part II 1262 , paras 156-158, 166. Mr Ntaganda’s Appeal Brief – Part II 1263 , para. 167. Mr Ntaganda’s Appeal Brief – Part II 1264 , paras 167-177.

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1265 relation to P-0768’s credibility and the witness’s status as an accomplice.

Moreover, he once again challenges the Trial Chamber’s approach to fact-finding,

arguing that before the Trial Chamber considered the defence evidence it had already

1266 decided that P-0768’s evidence was truthful.

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber correctly relied on P-0768’s

account of the First Operation and the attack on Nzebi, and sufficiently explained why

1267 it found the witness to be credible. Furthermore, the Prosecutor argues that the

Trial Chamber ‘properly considered’ Mr Ntaganda’s ‘challenges to P-0768’s

credibility - whether based on his alleged motivations to testify or on his alleged false

1268 testimony on his presence in Mongbwalu - and reasonably rejected them’. In the

Prosecutor’s view, Mr Ntaganda ‘merely repeats his arguments, without showing

error’. 1269

With respect to Mr Ntaganda’s arguments regarding the circumstances of Abbé

Bwanalonga’s death, the Prosecutor submits that the Trial Chamber ‘comprehensively

explained why it found P-0768’s account credible and reliable and Ntaganda’s denial

of this murder “implausible”, “obviously evasive” and, ultimately, not credible’. 1270

Regarding Mr Ntaganda’s arguments on the use of anti-personnel mines in

Mongbwalu, the Prosecutor argues that Mr Ntaganda ‘misconstrues the record when

he claims that the Chamber reversed the burden of proof and that P-0768’s account

was not credible and uncorroborated’. 1271 In her view, ‘[r]ather than shifting the

burden of proof’, the Trial Chamber ‘engaged in proper fact-finding’. 1272

Furthermore, she avers that Mr Ntaganda ‘disregards the totality of the evidence’ and

effectively argues that the Trial Chamber should have accepted his ‘explanation over

all else’. 1273 As to Mr Ntaganda’s arguments in relation to P-0768’s status as an

Mr Ntaganda’s Appeal Brief – Part II 1265 , paras 181-184. Mr Ntaganda’s Appeal Brief – Part II 1266 , paras 179-180. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1267 , paras 145, 150. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1268 , para. 145. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1269 , para. 145. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1270 , para. 152 (footnotes omitted). Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1271 , para. 156 (footnotes omitted). Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1272 , para. 157. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1273 , para. 157.

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‘accomplice witness’ and the lack of corroboration for his account, the Prosecutor submits that he ‘misunderstands the concepts of accomplice evidence and corroboration’. 1274

(iii) The victims’ observations and Mr Ntaganda’s response to the victims Victims Group 2 submit that the Trial Chamber ‘conducted a lengthy and detailed credibility assessment’ of P-0768, considered Mr Ntaganda’s challenges to 1275 the credibility of the witness and explained why it rejected them. They argue that the Trial Chamber took into account his role in the events, but that it was not required to consider his accomplice status explicitly because he was not ‘at the same leadership level as Mr Ntaganda’ and his interest in testifying against him would ‘not have been that of a co-accused shifting blame’ or ‘having made a plea bargain with the Prosecution’. 1276

In response, Mr Ntaganda maintains that P-0768 was an accomplice and that the Trial Chamber failed to properly consider whether he had a motive to blame 1277 Mr Ntaganda for the crimes in which he himself participated.

(c) Determination by the Appeals Chamber

The Appeals Chamber identifies two strands of argument that Mr Ntaganda raises in relation to the Trial Chamber’s credibility assessment of P-0768. First, he argues that the Trial Chamber erred in adopting a so-called ‘either/or’ approach to the assessment of the evidence that resulted in a ‘contest of credibility’ between the 1278 prosecution evidence and his testimony. The Appeals Chamber has considered and rejected these arguments together with similar arguments made by Mr Ntaganda 1279 under the seventh ground of appeal.

Second, Mr Ntaganda challenges the Trial Chamber’s assessment of P-0768’s credibility by arguing that the Trial Chamber erred in failing to: (i) apply appropriate caution to the credibility assessment of P-0768 given his status as an accomplice; and

Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1274 , para. 158 (footnote omitted). 1275 Observations of Victims Group 2 on Appeal – Part II , paras 78-79. 1276 Observations of Victims Group 2 on Appeal – Part II , para. 81. 1277 Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II , paras 52-53. Mr Ntaganda’s Appeal Brief – Part II 1278 , paras 154-155, 157-158, 167-171, 178-179. 1279 See paragraphs 591-600 above.

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(ii) take into account corroborating evidence which undermines the Trial Chamber’s

1280 findings on P-0768’s credibility. Mr Ntaganda raises several other arguments

which purport to undermine the Trial Chamber’s factual findings in relation to the

attack on Nzebi, the killing of Abbé Bwanalonga, and the placing of anti-personnel

1281 mines in Mongbwalu. These arguments will be addressed below.

(i) Credibility assessment of P-0768

Mr Ntaganda argues that the Trial Chamber failed to exercise proper caution

regarding P-0768’s testimony or to explain why it accepted this evidence given his

1282 status as an accomplice. The Appeals Chamber notes that an ‘accomplice witness’

may be understood as being a witness who was ‘involved in the criminal events’ for

which the accused person was charged regardless of whether or not he or she was

1283 prosecuted for their participation. In this regard, the Appeals Chamber recalls that

P-0768 was considered to be a ‘military insider’ who testified, inter alia , about his

‘participation in military interventions in the context of the First Operation’. 1284 The

Appeals Chamber observes that the Trial Chamber did not characterise P-0768 as an

‘accomplice witness’, nor was it required so to do. However, given the witness’s

involvement in the criminal events, it was essential for the Trial Chamber to provide

sufficient reasoning for its reliance on P-0768’s evidence, and to consider any motives

or incentives that he may have had to implicate Mr Ntaganda in light of the vigorous

challenges made at trial by Mr Ntaganda to the witness’s credibility. 1285 In this regard,

the Appeals Chamber has previously stated that:

The condition of a witness as an ‘accomplice’ is a circumstance that needs to be carefully considered when assessing the reliability of his or her evidence, but, […] does not make this evidence unreliable per se or in need of corroboration as 1286 a matter of law.

Mr Ntaganda’s Appeal Brief – Part II 1280 , paras 159-165, 172, 181. Mr Ntaganda’s Appeal Brief – Part II 1281 , paras 156-158, 172-177, 181-184. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response to Observations of 1282 , para. 159; Victims on Appeal – Part II , paras 52-53; Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II , paras 10-15. Popović et al. 1283 See Trial Judgment , para. 26. 1284 Conviction Decision , para. 161. Mr Ntaganda’s Closing Brief 1285 , paras 249-298. 1286 Bemba et al . Appeal Judgment , para. 1531. See also Ntagerura et al . Appeal Judgment , para. 203; Karemera and Ngirumpaste Appeal Judgment , para. 42.

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The Appeals Chamber notes that, at the outset, the Trial Chamber explained its approach to the assessment of a witness’s credibility, in relevant part, as follows:

77 [T]he Chamber considered the individual circumstances of each witness, including his or her relationship to the accused, age, any involvement in the events under consideration , any possible bias towards or against the accused, and/or any motives for telling the truth or providing false testimony . Where required, the Chamber has relied on the evidence of witnesses in relation to whose credibility the Chamber had some reservations to the extent that it was corroborated by other reliable evidence […].

78 In determining the reliability of the witnesses’ testimony and the weight to be accorded thereto, the Chamber considered the entirety of the witnesses’ testimony, having regard, in particular, to the capacity and quality of their recollection. In this respect, the Chamber took into account, inter alia , the consistency and precision of the accounts, whether the information provided was plausible, and, if applicable, whether the evidence conflicted with prior statements of the witness. Finally, whenever relevant, the Chamber considered the witnesses’ conduct during their testimony, including their readiness and willingness to respond to questions put to them by the parties, the participants, 1287 and the Chamber, as well as the manner of answering.

The Appeals Chamber observes that the Trial Chamber was aware of the general standards applicable to the assessment of witnesses’ credibility including those concerning ‘accomplice witnesses’ as highlighted in the above cited paragraphs of the Conviction Decision. Mr Ntaganda shows no error in this respect. The Appeals Chamber considers that the manner in which the Trial Chamber carried out its assessment of P-0768’s credibility, as discussed below, demonstrates that the Trial Chamber did not overlook P-0768’s accomplice status and provided sufficient reasons for its reliance on the witness.

In assessing P-0768’s credibility, the Trial Chamber conducted a lengthy and detailed assessment and addressed Mr Ntaganda’s numerous challenges to the witness’s credibility. 1288 It found that he ‘generally provided detailed evidence, explained the basis of his knowledge, […] acknowledged when he did not directly witness certain events, or when his testimony was based on information received from others’, and ‘indicated when he had no knowledge in relation to a specific issue, or

1287 Conviction Decision , paras 77-78 (emphasis added, footnotes omitted). 1288 Conviction Decision , paras 161-173.

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did not remember certain events’. 1289 It also noted that ‘many aspects of P-0768’s

testimony [were] corroborated by, and consistent with, other evidence on the record’. 1290

With regard to Mr Ntaganda’s allegation that the witness held a ‘malignant

grudge’ against him, the Trial Chamber found that,

these factual allegations are based on the testimony of Mr Ntaganda alone and otherwise not supported by other evidence. These claims have also been 1291 convincingly denied by the witness in court.

Mr Ntaganda takes issue with this finding, arguing that other evidence that

corroborated his testimony that P-0768 held a grudge against him should have been

1292 considered by the Trial Chamber. In his view, the Trial Chamber should have

considered: (i) a prosecution screening note that indicated that P-0768 initiated

contact with the prosecution and [REDACTED], which he suggests corroborates his

1293 testimony that P-0768 hated him; and (ii) P-0768’s testimony that he was

imprisoned, which Mr Ntaganda argues aligns with his claim that P-0768’s grudge

against him was fuelled by the fact that P-0768 spent a year in prison because Mr

1294 Ntaganda had informed the Rwandan authorities of his presence as a deserter.

The Appeals Chamber notes that the Trial Chamber considered the significance

1295 of the fact that P-0768 [REDACTED] as set out in the prosecution screening note.

Regarding his testimony to the contrary that he was contacted and asked to testify by the prosecution, the Trial Chamber considered that it was unclear ‘whether the

witness sufficiently understood the scope of the Defence’s questioning on this issue,

notably the specific suggestion regarding contacts which would have taken place prior

to the first phone call he received from the investigators’. 1296 It found that, ‘although

the fact that a witness volunteered to provide testimony may be a relevant factor when

1289 Conviction Decision , para. 162. 1290 Conviction Decision , para. 162. 1291 Conviction Decision , para. 163 (footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II 1292 , paras 160-161. Mr Ntaganda’s Appeal Brief – Part II 1293 , para. 160, referring to Conviction Decision , para. 164 and DRC-OTP-2055-0254 (the screening note), pp. 0255-0256. Mr Ntaganda’s Appeal Brief – Part II 1294 , para. 160, referring to D-0300: T-223 , p. 30, line 13 to p. 31, line 4. 1295 Conviction Decision , paras 164-167. 1296 Conviction Decision , para. 165.

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examining a witness’s motivation to testify, it does not, in itself, reveal bias or an intention to fabricate evidence’. 1297 In the circumstances pertaining to P-0768, the Trial Chamber found that ‘no particular conclusion can be drawn from the 1298 circumstances of [the witness’s] first contact with the Prosecution’. Having considered the Trial Chamber’s assessment of this issue in light of Mr Ntaganda’s arguments on appeal regarding the credibility of P-0768, the Appeals Chamber can find no error in the Trial Chamber’s treatment of Mr Ntaganda’s argument that P- 0768 [REDACTED].

Regarding Mr Ntaganda’s alleged responsibility for the imprisonment of P- 0768, the Trial Chamber noted that this allegation was based on Mr Ntaganda’s testimony alone and that this claim had been ‘convincingly denied’ by P-0768 in 1299 court. The Appeals Chamber recalls that the Trial Chamber is vested with the primary responsibility to fairly resolve any inconsistencies in the evidence received at 1300 trial. The Appeals Chamber can discern no error in the manner in which the Trial Chamber resolved the inconsistency between the testimony of Mr Ntaganda and P- 0768 in this instance.

Mr Ntaganda argues that P-0768 arrived in Mongbwalu after the attack and that 1301 his testimony regarding related events was fabricated. According to Mr Ntaganda, the Trial Chamber ignored logbook entries that show that P-0768 was not in Mongbwalu at the time of the attack and that mention [REDACTED] only in December 2002, which, in Mr Ntaganda’s submission, reinforce his testimony that P- 0768 was ‘chastened and sidelined’ by him since 21 November 2002 for arriving after 1302 the battle of Mongbwalu. Furthermore, Mr Ntaganda disputes the Trial Chamber’s approach to the sequencing of the pages in the logbook, arguing that the Trial Chamber failed to adjudicate a ‘live issue’ which impacted the credibility of P-0768’s 1303 claim that he had participated in the attack on Mongbwalu. Mr Ntaganda claims

1297 Conviction Decision , para. 166. 1298 Conviction Decision , para. 167. 1299 Conviction Decision , para. 163, referring to P-0768: T-35 , pp. 16-18. 1300 See paragraph 40 above. Mr Ntaganda’s Appeal Brief – Part II 1301 , paras 161-164. Mr Ntaganda’s Appeal Brief – Part II 1302 , para. 161. Mr Ntaganda’s Appeal Brief – Part II 1303 , para. 165, fn. 467; T-271 , p. 9, line 18 to p. 10, line 23; p. 13, lines 3-9.

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that this issue was ‘essential, in particular with respect to the pages where no dates are

mentioned’. 1304 In addition, Mr Ntaganda alleges that the Trial Chamber ignored the

following evidence which he submits corroborates his testimony that P-0768 was not

in Mongbwalu as the operation unfolded: (i) a video of Abner who drove a truck that

arrived in Mongbwalu after the liberation of Sayo and stated that he had received fuel

1305 from P-0768 prior to leaving Aru; and (ii) the evidence of P-0017 to the effect that

1306 [REDACTED] was taken.

The Trial Chamber dismissed Mr Ntaganda’s claim that P-0768 arrived in

Mongbwalu after the First Operation and found that the witness gave ‘a detailed

account’ of ‘his participation in the Mongbwalu operation and his interactions with

Mr Ntaganda in this context’. 1307 It found that he gave more details under cross-

examination and ‘was able to provide a geographic description of Mongbwalu,

including the locations relevant to his account concerning the unfolding of the attack’,

‘explained or acknowledged and corrected certain potential discrepancies or

inaccuracies identified by the Defence’, ‘recognised himself in a video filmed when

Mongbwalu was captured, and was able to identify a number of individuals and

scenes depicted therein’. 1308 Moreover, the Trial Chamber found that other evidence

on the record corroborated P-0768’s testimony that he participated in the Mongbwalu

1309 operation. The Prosecutor refers to additional excerpts of the testimony of P-0907,

1310 P-0055, P-0901 and P-0041 that support the Trial Chamber’s finding.

Although the Trial Chamber did not refer to the logbook messages in this

context, it set out its view of their evidentiary value elsewhere in the Conviction

Decision. The Trial Chamber’s finding in this regard reads as follows:

Mr Ntaganda’s Appeal Brief – Part II 1304 , para. 165 (footnote omitted). Mr Ntaganda’s Appeal Brief – Part II 1305 , para. 161, referring to DRC-OTP-2058-0251 and DRC- OTP-2102-3708, p. 3747, lines 1384-1385 (Transl. DRC-OTP-2102-3766, p. 3809, lines 1494-1495). Mr Ntaganda’s Appeal Brief – Part II 1306 , para. 164, referring to P-0017: T-59 , p. 13, lines 13-20; T- 61 , p. 97, lines 8-13. 1307 Conviction Decision , para. 168. 1308 Conviction Decision , para. 168 (footnotes omitted). 1309 Conviction Decision , paras 169 and 487, referring to P-0907: T-90 , p. 11 ; P-0041: DRC-OTP- 0147-0002, from 0015 to 0016, para. 80. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1310 , para. 147, referring to P-0907: T- 90 , p. 7 lines 3-20; p. 11, lines 13-16; p. 23, lines 2-12; T-92 , p. 48, line 20 to p. 49, line 23; P-0055: T- 70 , p. 93, line 1 to p. 94, line 21; P-901: T-28 , p. 40, line 13 to p. 41, line 4; p. 42, lines 1-22; T-32 , p. 10, line 12 to p. 11, line 14; P-0041: DRC-OTP-0147-0002, 0015-0016, para. 80.

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62 The Defence ‘concurs with the Prosecution’s submission that the two FPLC logbooks are key pieces of evidence, which contain contemporaneous information on the FPLC activities on a near daily basis’. As concerns item DRC-OTP-0017-0003, the Defence points out that the pages were ‘recorded in evidence in a non-chronological order’ and that Mr Ntaganda testified as to the correct sequence of pages. According to the Defence, document DRC-D18- 0001-5748, admitted as evidence, represents the same information in the correct chronological order.

63 The Prosecution responds, in relation to item DRC-OTP-0017-0003, that Mr Ntaganda ‘adapted his account using the Logbook and rearranged the loose Logbook pages to fit the sequence of events he wished to portray’ and that ‘[t]he Defence presented no evidence that the loose Logbook pages constitute one ensemble ’. The Defence, replies on this specific point that Mr Ntaganda rearranged the pages ‘on the basis of objective criteria’.

64 In light of all the relevant evidence on the record, the Chamber considers the logbooks to be authentic and reliable as concerns the recorded communications within the UPC/FPLC. […].

65 With regard to the sequence of pages, the Chamber notes that this issue was not put to P-0290, who would have had a good basis of knowledge to comment on the order of the pages. While P-0290 does not appear to have noticed that the order of the document he was shown was incorrect, the Chamber observes that he was also not specifically questioned on this point. However, the Chamber considers that it is not necessary for the purpose of the Judgment to resolve the question of the correct sequence of messages registered as item DRC-OTP- 0017-0003. Instead, the Chamber has considered the item carefully in relation to each question of fact for which it is relevant, and has borne in mind the submissions of the parties and Mr Ntaganda’s testimony, notably regarding the 1311 sequencing issue.

The Appeals Chamber observes that the logbook pages to which Mr Ntaganda 1312 refers bear no date. As pointed out by the Trial Chamber, P-0290 (a military man who described how and where a specific logbook was produced and recognised 1313 document DRC-OTP-0017-0003 as the relevant logbook) was never questioned 1314 about the correct order of the pages. The record shows that Mr Ntaganda raised 1315 this issue only during his testimony which followed well after P-0290’s testimony. The witness was not recalled to testify again, in part because Mr Ntaganda objected to a proposal to call him as a chamber witness pursuant to articles 64(6)(b) and (d) and

1311 Conviction Decision , paras 62-65 (footnotes omitted). 1312 Translated logbooks DRC-D18-0001-5778, at 5778, 5784, 5786. 1313 Conviction Decision , paras 60, 144. 1314 Conviction Decision , para. 65. 1315 Conviction Decision , para. 65, fn. 147. See also para. 145, fn. 340.

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1316 69(3) of the Statute. In these circumstances, the Appeals Chamber finds no error in the Trial Chamber’s approach to the logbook. As indicated, the Trial Chamber was

careful to consider it where relevant. The Appeals Chamber recalls that the Trial

Chamber found P-0768’s testimony that he was present during the attack on

1317 Mongbwalu to be reliable and [REDACTED]. In the absence of evidence

corroborating Mr Ntaganda’s testimony on the date and the sequencing of the pages

of document DRC-D18-0001-5748, the Trial Chamber was not required to consider

this item of evidence as relevant for its finding.

Regarding P-0017’s testimony, the Appeals Chamber notes that the witness was

1318 1319 not [REDACTED]. The witness stated that [REDACTED]. As this testimony

neither confirms nor contradicts Mr Ntaganda’s claim that P-0768 was not present at

the Mongbwalu battle, the Appeals Chamber considers that the Trial Chamber was

not required to consider this item of evidence as relevant for its finding.

Similarly, the Appeals Chamber considers that the video of the Abner, who

arrived in Mongbwalu after the battle and explained that he had been given a barrel of

fuel by P-0768, does not confirm or contradict Mr Ntaganda’s claim that P-0768 was

1320 not present at the Mongbwalu battle. In particular, it notes that the video provides

no indication of when or where P-0768 gave the barrel of fuel to Abner. In these

circumstances, the Appeals Chamber considers that the Trial Chamber was not

required to consider this item of evidence as relevant for its finding.

Mr Ntaganda argues that [REDACTED] and that the Trial Chamber erred in

1321 1322 finding that [REDACTED]. Mr Ntaganda alleges two errors in this respect.

First, he argues that the Trial Chamber ‘circumvented the evidence that

1323 [REDACTED] by reasoning that “even if” [REDACTED]’. In Mr Ntaganda’s

1316 Conviction Decision , para. 145, fn. 340; Article 64(6)(b) and 69(3) Decision , paras 8, 12-13. 1317 Conviction Decision , para. [REDACTED], fn. [REDACTED]. 1318 [REDACTED]. 1319 [REDACTED]. Mr Ntaganda’s Appeal Brief – Part II 1320 , para. 161, referring to DRC-OTP-2058-0251 and DRC- OTP-2102-3708, p. 3747, lines 1384-1385 (Transl. DRC-OTP-2102-3766, p. 3809, lines 1494-1495). Mr Ntaganda’s Appeal Brief – Part II 1321 , paras162-163, referring to Conviction Decision , para. [REDACTED]. Mr Ntaganda’s Appeal Brief – Part II 1322 , para. 163. 1323 Mr Ntaganda’s Appeal Brief – Part II , para. 163 (emphasis in original), referring to Conviction Decision , para. [REDACTED], fn. [REDACTED].

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1324 view, this finding ignores P-0768’s repeated insistence [REDACTED]. He contends that the Trial Chamber ‘cannot have it both ways’; ‘[e]ither [REDACTED], 1325 or he was lying about his involvement in the attack on Mongbwalu’. The Appeals Chamber notes that Mr Ntaganda’s argument misstates the Trial Chamber’s finding. In noting Mr Ntaganda’s argument that it was [REDACTED], the Trial Chamber stated:

1326 [REDACTED]. The Appeals Chamber considers that, rather than trying to have it ‘both ways’, 1327 the Trial Chamber found on the evidence that P-0768’s account [REDACTED]. The Trial Chamber also noted the evidence of other witnesses that corroborated P- 0768’s presence [REDACTED]. 1328

In this regard, the Appeals Chamber is of the view that trial chambers enjoy broad discretion in assessing inconsistencies within the evidence and in deciding whether corroboration is necessary. In this respect, as the ICTR Appeals Chamber has previously stated, different testimonies do not need to ‘be identical in all aspects or describe the same fact in the same way. Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others’. 1329 Accordingly, while testimonies need not be identical in all aspects, they must confirm, even if in different ways, the same fact. Mr Ntaganda’s argument shows no error in the Trial Chamber’s approach and is rejected.

(ii) The attack on Nzebi The Appeals Chamber notes that in relation to the manner in which the attack on Nzebi occurred, the Trial Chamber found:

After taking over Sayo, the UPC/FPLC attacked Nzebi. Nzebi was also shelled from the Appartements camp. The UPC/FPLC killed some individuals by

1324 Mr Ntaganda’s Appeal Brief – Part II , para. 163. Mr Ntaganda’s Appeal Brief – Part II 1325 , para. 163. 1326 Conviction Decision , para. [REDACTED], fn. [REDACTED]. 1327 Conviction Decision , para. [REDACTED], fn. [REDACTED]. 1328 Conviction Decision , para. [REDACTED], fn. [REDACTED]. 1329 See Nahimana et al. Appeal Judgment , para. 428.

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gunshot during the assault. Some were also killed by shelling. The Defence challenges that Nzebi was attacked in the manner described by P-0768. However, the Chamber considers P-0768’s evidence in this respect to be 1330 credible and reliable.

The Trial Chamber provided the following analysis of the relevant evidence:

The Chamber notes that the fact that Nzebi is not referred to in a segment of the video referred to by the Defence and/or in the logbooks does not demonstrate that an assault on the village did not occur . As to the Defence’s argument that P-0768 could not have gone to Nzebi, the Chamber notes that is based on the testimony of Mr Ntaganda alone. As also noted below, the Chamber has carefully assessed P-0768’s testimony in relation to the unfolding of an assault in Nzebi against Mr Ntaganda’s account, and decides to rely on P-0768’s 1331 testimony in this respect.

In this regard, Mr Ntaganda argues that

[t]here was no obligation on him to demonstrate that the assault on Nzebi did not occur. Rather, the Chamber should have considered whether the absence of any references to Nzebi in the contemporaneous material raised doubt as to P- 0768’s account, particularly given that it corroborated [his] testimony. 1332

The Appeals Chamber observes that the Trial Chamber’s choice of language in footnote 1505 of the Conviction Decision, as emphasised in italics above, could be

perceived as a shift in the burden of proof, when viewed in isolation. As Mr Ntaganda correctly points out, he was not required to ‘demonstrate that an assault on the village did not occur’. 1333 Nevertheless, the Appeals Chamber finds that the Trial Chamber’s approach to the evidence of P-0768, the contemporaneous material and Mr Ntaganda’s testimony for its finding, does not reflect a shift in the burden of proof to Mr Ntaganda. Rather, it reflects the Trial Chamber’s assessment of the limited

probative value of the evidence that he highlights. The Appeals Chamber notes that the four minute video excerpt referred to by Mr Ntaganda shows a number of different scenes and it is not clear that any of them could be described as a briefing about the 1334 liberation of Sayo. Regarding the logbook of communications over the

1330 Conviction Decision , para. 509 (footnotes omitted). 1331 Conviction Decision , para. 509, fn. 1505 (emphasis added). Mr Ntaganda’s Appeal Brief – Part II 1332 , para. 158; See also T-271 , p. 10, line 24 to p. 11, line 4. Mr Ntaganda’s Appeal Brief – Part II 1333 , para. 158. Mr Ntaganda’s Appeal Brief – Part II 1334 , para. 157, referring to DRC-OTP-2058-0251 at 45:56-49:54.

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1335 radiophonie radio network to which Mr Ntaganda refers, the Trial Chamber found

that there were limitations to the conclusions that could be drawn from these logbooks

given that the radiophonie could also be used for uncoded, informal and direct

communication and that other unlogged means of communication were also used by

1336 the UPC/FPLC. In these circumstances, the Appeals Chamber considers that the

Trial Chamber did not err in its assessment of these items of evidence, which lacked

any reference to an assault in Nzebi, in light of the evidence as a whole.

In addition, Mr Ntaganda argues that the Trial Chamber’s finding that civilians

were killed by ‘shelling’ ignored the evidence of P-0963 (whom the Chamber had

1337 found to be credible) that [REDACTED]. The Appeals Chamber finds that Mr

Ntaganda’s argument is inapposite given the Trial Chamber’s finding that

1338 [REDACTED]. Therefore, rather than ‘casting doubt’ on P-0768’s testimony, the

testimony of P-0963 is consistent with it in material respects.

(iii) The killing of Abbé Bwanalonga

Mr Ntaganda again challenges the Trial Chamber’s reliance on the evidence of

P-0768 whom he characterises as an ‘accomplice witness’ and claims that the Trial

Chamber failed to apply any caution to the witness’s evidence which was the only

Bwanalonga’s death. 1339 evidence implicating him in Abbé Moreover, he alleges that

1340 the Trial Chamber failed to provide reasons for its reliance on such evidence.

Given the overlap in the substance of Mr Ntaganda’s arguments regarding P-

0768’s status as an accomplice, the Appeals Chamber notes its abovementioned

1341 findings in this regard. The Trial Chamber found P-0768’s account of the killing of

Abbé Bwanalonga to be credible and reliable, noting that the witness ‘is the only

alleged eyewitness to the event’ and that it considered his account to be a ‘strong’,

Mr Ntaganda’s Appeal Brief – Part II 1335 , para. 157, referring to translated logbooks DRC-D18-0001- 5778, at 5782, 5778, 5780, 5784, 5796; DRC-D18-0001-5748 at 5748, 5750, 5752, 5754, 5766. 1336 Conviction Decision , para. 66. See also paras 59, 62, referring to DRC-OTP-0017-0003 (French translation DRC-OTP-2102-3828), dated 23 November 2003, and DRC-OTP-0017-0033 (DRC-OTP- 2102-3854), dated 1 December 2002, and noting that, according to the defence, DRC-D18-0001-5748 represents the same information in the correct chronological order. Mr Ntaganda’s Appeal Brief – Part II 1337 , para. 156. 1338 Conviction Decision , para. [REDACTED]. Mr Ntaganda’s Appeal Brief – Part II 1339 , para. 172. Mr Ntaganda’s Appeal Brief – Part II 1340 , para. 172. 1341 See paragraphs 655-672 above.

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‘detailed, step-by-step account of the event […] which was consistent between direct 1342 and cross-examination’. The Trial Chamber also noted that the witness ‘stated when he did not remember details about the event’ and that, ‘despite the attempts by [the] Defence to destabilise him on issues of small detail (exact times of day, distances between locations etc.), the witness maintained his version of events and provided additional details’. 1343 The Appeals Chamber considers that the Trial Chamber provided sufficient reasons for its findings on the witness’s credibility in relation to the killing of Abbé Bwanalonga.

In challenging P-0768’s evidence on the killing of Abbé Bwanalonga, Mr Ntaganda argues that, according to the witness’s testimony, his bodyguards were present when he hit Abbé Bwanalonga with a piece of wood, and they took Abbé 1344 Bwanalonga behind the Appartements when he was shot and killed. However, Mr Ntaganda contends that neither P-0010 nor P-0888, both bodyguards of Mr Ntaganda who testified at trial, mentioned that they were aware of the allegation 1345 that Mr Ntaganda himself had killed Abbé Bwanalonga. In Mr Ntaganda’s view, a ‘reasonable Trial Chamber would have considered whether the bodyguards’ complete lack of knowledge of an event they apparently participated in, raised doubt as to P- 0768’s account’. 1346

The Appeals Chamber notes that the Trial Chamber found that Mr Ntaganda 1347 had a company of bodyguards, which included P-0010 and P-0888. However, P- 0768 did not specify which of Mr Ntaganda’s bodyguards were present at that event 1348 and he was not asked to identify these bodyguards during his examination at trial. In addition, neither P-0010 nor P-0888 testified to being present at the killing of Abbé Bwanalonga. In these circumstances, the Appeals Chamber finds that it was reasonable for the Trial Chamber to not consider these witnesses’ lack of knowledge as to who killed Abbé Bwanalonga. Mr Ntaganda’s argument does not show an error in the Trial Chamber’s finding and is rejected.

1342 Conviction Decision , para. 533, fn. 1592. 1343 Conviction Decision , para. 533, fn. 1592. Mr Ntaganda’s Appeal Brief – Part II 1344 , para. 173. Mr Ntaganda’s Appeal Brief – Part II 1345 , para. 173. Mr Ntaganda’s Appeal Brief – Part II 1346 , para. 173. 1347 Conviction Decision , paras 381, 89, 189. 1348 P-0768: T-33 , p.56, lines 2-3, 23-25; T-35 , p. 60, line 24 to p. 65, line 25.

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Furthermore, in claiming that the Trial Chamber incorrectly relied on three other prosecution witnesses to ‘partly corroborate’ P-0768’s account, the Appeals Chamber finds that Mr Ntaganda misrepresents the evidence and the Trial Chamber’s 1349 finding in this regard. The Appeals Chamber notes that, in referring to this evidence, the Trial Chamber expressly stated that these witnesses’ evidence partly corroborated P-0768’s account ‘on aspects other than Mr Ntaganda’s direct 1350 involvement in the interrogation and killing’. Mr Ntaganda’s argument is therefore rejected.

Mr Ntaganda further argues that given the infamy surrounding the death of Abbé Bwanalonga in the region it was implausible that only P-0768 would link him 1351 directly to the murder. The Appeals Chamber finds that ‘[d]epending on the circumstances, a single piece of evidence […] may suffice to establish a specific fact’. 1352 As already established, it was reasonable for the Trial Chamber to rely on P- 0768’s testimony alone to find that Mr Ntaganda was responsible for the killing of Abbé Bwanalonga. Contrary to Mr Ntaganda’s argument, the Appeals Chamber finds that, for P-0768’s account to be considered reliable, it was not necessary for other witnesses to have been aware of Mr Ntaganda’s involvement in the murder. The Trial Chamber provided a comprehensive assessment of the evidence before it, which showed that people were aware that Abbé Bwanalonga had been detained and killed by members of the UPC/FPLC (who were not identified), and that his body had been 1353 thrown in the bushes below the Appartements , before being retrieved and buried. The Appeals Chamber notes that this evidence is not incompatible with facts linked to aspects of P-0768’s evidence. Indeed, as the Trial Chamber determined, this evidence partly corroborated rather than undermined P-0768’s account. In these circumstances and in the absence of information to substantiate or support this argument, it would be speculative to engage in a consideration of whether other witnesses should have been in a position to confirm P-0768’s testimony as to Mr Ntaganda’s involvement. Mr Ntaganda shows no error in the Trial Chamber’s reliance on P-0768’s evidence.

Mr Ntaganda’s Appeal Brief – Part II 1349 , para. 174. 1350 Conviction Decision , para. 533, fn. 1593, referring to the evidence of P-0963, P-0901 and P-0859. Mr Ntaganda’s Appeal Brief – Part II 1351 , paras 175-176. 1352 Lubanga Appeal Judgment , para. 218. 1353 Conviction Decision , para. 533, fn. 1593.

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Anti-personnel mines used in Mongbwalu The Trial Chamber found that ‘[a]fter Mongbwalu was taken over, Mr Ntaganda

ordered anti-personnel mines to be placed at the entry and exit points of the town that were not guarded by the UPC/FPLC soldiers’. 1354 The Trial Chamber explained its view of the evidence as follows:

The Chamber also notes that Mr Ntaganda himself confirmed that the UPC/FPLC had anti-personnel mines within their inventory […], however, he denied the use of these mines in Mongbwalu. […] With regard to the Defence argument that P-0768 provided a false narrative on the issue […], the Chamber recalls its finding in the witness’s credibility assessment, as well as its finding 1355 that Mr Ntaganda is not credible on this point in para. 75 [ sic ] above.

The Appeals Chamber observes that the Trial Chamber found P-0768 to be a credible witness concerning his testimony about Mr Ntaganda ordering the placement of anti-personnel mines in all entry and exit points not guarded by UPC/FPLC soldiers in Mongbwalu. The Trial Chamber found that the witness:

(i) reiterated his account in cross-examination, providing additional information when requested; and (ii) satisfactorily explained the absence of this allegation in his first statement. In addition, noting that anti-personnel mines were part of the UPC/FPLC inventory, and that UPC/FPLC communications establish that the use of land-mines was – at a minimum – being contemplated, the Chamber considers that there is no reason to doubt the truthfulness of P-0768’s account 1356 regarding the planting of landmines.

In a footnote to the above cited paragraph, the Trial Chamber went on to find:

The Chamber therefore excludes Mr Ntaganda’s denial on this specific issue as not credible […]. The Chamber further considers that the mere fact that this specific aspect of P-0768’s evidence is no [ sic ] corroborated by any other 1357 witness does not render his testimony unreliable.

The Appeals Chamber observes that the Trial Chamber’s assessment of P-0768 and Mr Ntaganda’s evidence on this issue was based on the totality of the evidence on record. In this respect, the Trial Chamber specifically noted Mr Ntaganda’s testimony,

‘that the UPC/FPLC had anti-tank mines, and also received a box of anti-personnel

1354 Conviction Decision , para. 524 (footnote omitted). 1355 Conviction Decision , para. 524, fn. 1558. 1356 Conviction Decision , para. 171 (footnotes omitted). 1357 Conviction Decision , para. 171, fn. 413.

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mines from Goma’. 1358 In addition, a logbook entry reflected a communication in

which Salumu Mulenda requested mines and in response, Mr Ntaganda enquired as to

1359 the type of mines he wished to receive.

The Appeals Chamber finds that the Trial Chamber’s approach to the evidence

of P-0768 in this instance together with Mr Ntaganda’s admission as to the

availability of landmines in the UPC/FPLC inventory and other contemporaneous

evidence, does not imply that it dismissed Mr Ntaganda’s testimony without

1360 considering the explanations he offered. Rather, it reflects the Trial Chamber’s

assessment of the credibility of the evidence presented by Mr Ntaganda in the context

of the evidence as a whole presented by both parties. Accordingly, the Appeals

Chamber rejects Mr Ntaganda’s argument that the Trial Chamber failed to consider

‘the totality of this evidence in assessing whether P-0768’s allegation could be

established beyond a reasonable doubt’. 1361

Mr Ntaganda also takes issue with the Trial Chamber’s finding that

1362 corroboration was not needed with regard to P-0768’s allegation against him. In

his view, the ‘lack of corroboration necessarily affects the credibility of the

allegation’ given that P-0768 had testified that [REDACTED] and that the UPC/FPLC

1363 soldiers knew that they had to avoid the area where the mines had been planted.

As noted above, ‘[d]epending on the circumstances, a single piece of evidence

[…] may suffice to establish a specific fact’. 1364 As previously found:

Pursuant to rule 63 (4) of the Rules there is no legal requirement of corroboration irrespective of the type of evidence or the fact to be established on its basis. This is not to say that corroboration will never have a role to play when assessing a witness’s credibility and the reliability of his or her testimony.

1358 Conviction Decision , para. 334, fn. 906. 1359 Conviction Decision , para. 334, fn. 906, referring to DRC-OTP-2102-3854 at 3863, 4031. 1360 See Mr Ntaganda’s Appeal Brief – Part II , para. 180. Mr Ntaganda’s Appeal Brief – Part II 1361 , para. 180. Mr Ntaganda’s Appeal Brief – Part II 1362 , paras 181-184. Mr Ntaganda’s Appeal Brief – Part II 1363 , para. 181. 1364 Lubanga Appeal Judgment , para. 218.

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[…] [H]owever, this does not mean that corroboration is required as a matter of 1365 law when evaluating the testimony of any witness. Having found P-0768’s account about the use of landmines to be truthful, the Trial Chamber was not required by law to corroborate P-0768’s evidence on this point. Moreover, as set out above, P-0768’s status as someone who was involved in the criminal events, does not per se render his evidence unreliable or in need of 1366 corroboration.

In such circumstances, the Appeals Chamber finds that the absence of testimony from UPC/FPLC soldiers and civilians attesting to the use of landmines in the area does not show that the Trial Chamber erred in relying on the evidence of P-0768 alone for its finding that Mr Ntaganda ordered the use of landmines.

In addition, Mr Ntaganda argues that the witness’s credibility is impugned because he did not mention the allegation about the use of landmines in his first 1367 statement to the prosecution. The Trial Chamber found that P-0768 had ‘satisfactorily explained the absence of this allegation’. 1368 The Appeals Chamber considers that a witness is not required to set out every detail of his or her evidence in his or her first statement to the prosecution. As to the argument that P-0768 [REDACTED] and that the Trial Chamber should have considered this when accepting P-0768’s explanation, the Appeals Chamber recalls its finding that the Trial 1369 Chamber did not err in its assessment of P-0768’s [REDACTED]. Therefore, it finds that Mr Ntaganda fails to show any error in the Trial Chamber’s assessment in this respect and his arguments are rejected.

2 P-0963 1370 P-0963 was a UPC/FPLC soldier who served in Salumu Mulenda’s brigade. He testified, inter alia , about the organisational structure of the UPC/FPLC, the

1365 Bemba et al. Appeal Judgment , para. 1084. 1366 See paragraph 655 above. Mr Ntaganda’s Appeal Brief – Part II 1367 , paras 183-184. 1368 Conviction Decision , para. 171, fn. 410, wherein the Trial Chamber noted that ‘[i]n crossexamination, the witness acknowledged not having mentioned this allegation when he first met with the OTP investigators, stating that he was not prepared to testify and that, therefore, certain events “may have escaped him”’. The Trial Chamber referred to P-0768: T-36 , pp. 4-5. 1369 See paragraph 661 above. 1370 Conviction Decision , para. 236.

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1371 training of new recruits, and his participation in the First and Second Operation. The Trial Chamber relied on his evidence to find, inter alia , that the UPC/FPLC soldiers fired at everyone in Mongbwalu, including civilians, during the assault on 1372 Mongbwalu.

(a) Relevant part of the Conviction Decision

In reaching its finding that the UPC/FPLC soldiers fired at everyone in Mongbwalu, including civilians, the Trial Chamber found that ‘[w]hile some chose to stay, many persons who were present in the town as the assault unfolded fled Mongbwalu to the bush and to other places’. 1373 The Trial Chamber explained that for this finding it relied on the evidence of ‘eyewitnesses and witnesses who fled Mongbwalu themselves together with members of their families as a consequence of the attack’. 1374

In the Trial Chamber’s assessment, its finding that ‘many persons were present in the town as the assault unfolded’ was:

unaffected by Mr Ntaganda’s testimony that when the UPC/FPLC got to Mongbwalu, the members of the population had already left, which the Chamber considers to be not credible, and the Defence argument that the civilian population fled Mongbwalu upon hearing the first gunshots, leaving before the fighting reached Mongbwalu and that therefore, there were no ‘civilians’ in Mongbwalu when the fighting reached the town. 1375

(b) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda argues that it was unreasonable for the Trial Chamber to reject the argument that the civilian population had left Mongbwalu before the fighting started on the basis that ‘the witnesses cited by the Defence did not consistently specify the “exact moment” they left, or the precise “moment in time” civilians fled’. 1376 In his view, the inability of these witnesses to specify exactly when they left Mongbwalu before the fighting began ‘does not support a finding that they remained for the

1371 Conviction Decision , para. 236. 1372 Conviction Decision , para. 494, fn. 1433. 1373 Conviction Decision , para. 497 (footnotes omitted). 1374 Conviction Decision , para. 498, fns 1447-1448. 1375 Conviction Decision , para. 498 (footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II 1376 , para. 187.

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unfolding of the assault’. 1377 In addition, with reference to the evidence of P-0039, P-

0805, P-0868, P-0887, P-0893 and P-0792, Mr Ntaganda submits that the Trial

Chamber ‘ignored relevant evidence from others who fled (or from those who

encountered them), which corroborated the evidence cited by the Defence’. 1378

Mr Ntaganda further argues that if the Trial Chamber wanted to know when the

civilians fled in relation to the advancing UPC/FPLC soldiers, it had only to look at

the evidence of the soldiers themselves, namely, himself (he testified that when the

UPC/FPLC arrived the population had already left), P-0768 (testified that ‘there were

very few people in the city’ when the UPC/FPLC arrived) and P-0010 (testified that in

Mongbwalu ‘there were no civilians […]’). 1379 Mr Ntaganda asserts that ‘it was

wrong for the Trial Chamber to discard [his] testimony as not credible, without

acknowledging that the other UPC witnesses said the same thing’. 1380

Moreover, Mr Ntaganda argues that the fact that Mongbwalu was deserted by

civilians prior to the attack was further corroborated by P-0017’s testimony, in

relation to which the Trial Chamber found ‘that “it was possible” that civilians were

1381 there and P-0017 just didn’t see them’. Mr Ntaganda submits that the question was

not whether it was ‘possible’ but whether P-0017’s evidence ‘raised doubt as to the

soundness of the Chamber’s finding that “many” remained’. 1382

In sum, Mr Ntaganda argues that relying on P-0963’s uncorroborated evidence

was an error because it went against the weight of the evidence and the legal errors

committed in reaching this finding materially affect it and ‘have occasioned a

miscarriage of justice’. 1383

(ii) The Prosecutor’s submissions

The Prosecutor argues that the Trial Chamber reasonably found that ‘UPC

soldiers fired at everyone in Mongbwalu, including civilians [and] that “many persons

Mr Ntaganda’s Appeal Brief – Part II 1377 , para. 188. Mr Ntaganda’s Appeal Brief – Part II 1378 , para. 190. Mr Ntaganda’s Appeal Brief – Part II 1379 , para. 191. Mr Ntaganda’s Appeal Brief – Part II 1380 , para. 191 (footnote omitted). Mr Ntaganda’s Appeal Brief – Part II 1381 , para. 192 (footnotes omitted), referring to Conviction Decision , para. 498, fn. 1448. Mr Ntaganda’s Appeal Brief – Part II 1382 , para. 192. Mr Ntaganda’s Appeal Brief – Part II 1383 , para. 193.

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were present in the town as the assault unfolded”, before they fled Mongbwalu’ based on the testimony of P-0963 as ‘corroborated by witnesses who saw bodies of victims in Mongbwalu, by a witness who treated victims fleeing from the town, and by Ntaganda himself’, as well as ‘persons who had themselves fled Mongbwalu’. 1384

The Prosecutor submits that Mr Ntaganda’s argument ‘that Mongbwalu’s population instantaneously vanished upon hearing the first sounds of battle’ is ‘implausible and unsupported by the evidence’. 1385 Furthermore, she avers that the witnesses, civilian (P-0039, P-0805, P-0868, P-0887, P-0863 and P-0792) and military (P-0768 and P-0010), on whose evidence Mr Ntaganda relies as corroborative of his version of events, were not in Mongbwalu during the attack and do not support 1386 his claim. The Prosecutor submits that, ‘[i]n these circumstances (particularly when the evidence is irrelevant), the Chamber is presumed to evaluate all the evidence before it and need not expressly address all evidence or arguments as long as its 1387 decision is clear’.

(iii) The victims’ observations and Mr Ntaganda’s response to the victims Victims Group 2 submit that the Trial Chamber provided a detailed assessment of P-0963’s credibility, and considered Mr Ntaganda’s challenges to the credibility of the witness including allegations that he was coached, which the Trial Chamber 1388 considered in some detail. They argue that the Trial Chamber took into account his role in events, but that it was not required to consider his accomplice status explicitly because he was not at the same leadership level as Mr Ntaganda and his interest in testifying against him would not have been that of a co-accused shifting blame or 1389 having made a plea bargain with the prosecution.

Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1384 , para. 159. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1385 , para. 160 (emphasis in original). Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1386 , para. 160. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1387 , para. 160 (footnote omitted). 1388 Observations of Victims Group 2 on Appeal – Part II , para. 80. 1389 Observations of Victims Group 2 on Appeal – Part II , para. 81.

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In response, Mr Ntaganda maintains that P-0963 was an accomplice and that the

Trial Chamber failed to properly consider whether he had a motive to blame

1390 Mr Ntaganda for the crimes in which he himself participated.

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that the Trial Chamber relied on the evidence of P-

0963 for its overall finding that the UPC/FPLC soldiers fired on the civilian

1391 population as they attacked Mongbwalu. Mr Ntaganda challenges the Trial

Chamber’s associated finding that ‘many persons were present in the town as the

assault unfolded’, 1392 in respect of which he alleges that the Trial Chamber ignored

1393 prosecution and defence evidence. He contends that P-0963 was the only witness

who testified that the UPC/FPLC fired on the civilian population during the assault on

Mongbwalu and that his uncorroborated allegation went against the weight of the

evidence, which showed that the civilian population fled the town to avoid the

1394 attack.

The Appeals Chamber notes that, in his closing brief, Mr Ntaganda relied on the

evidence of P-0859, P-0887, P-0892, P-0800, P-850 and P-0894 to argue that the

1395 civilian population had fled by the time the fighting started. In assessing the

evidence of these witnesses, the Trial Chamber noted that, with the exception of P-

0892 who indicated that she remained in Mongbwalu during the attack, they either

had not specified the exact time that they and others had left Mongbwalu or had

1396 indicated that they fled as soon as they heard the first shots being fired. The Trial

Chamber concluded in the same footnote, apparently based on the ‘evidence of

eyewitnesses who fled Mongbwalu themselves’, that, ‘while some people fled upon

hearing the first sounds of fighting, before the fighting reached Mongbwalu, others

’. 1397 fled once the UPC/FPLC entered the town

Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1390 , paras 52-53. 1391 Conviction Decision , para. 494; fn. 1433, referring to P-0963: T-78 , p. 81, lines 5-22; p. 84, lines 7-11. 1392 Conviction Decision , para. 498. Mr Ntaganda’s Appeal Brief – Part II 1393 , paras 187-192. Mr Ntaganda’s Appeal Brief – Part II 1394 , para. 193. Mr Ntaganda’s Closing Brief 1395 , para. 598. 1396 Conviction Decision , para. 498, fn. 1448. 1397 Conviction Decision , para. 498, fn. 1448 (emphasis added).

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Mr Ntaganda disputes the reasonableness of the finding that many persons were present in the town, arguing that the fact that witnesses could not specify the exact moment they fled does not mean that they remained for the unfolding of the 1398 assault. The Appeals Chamber accepts Mr Ntaganda’s argument that the Trial Chamber’s own assessment of the evidence in the relevant footnote does not appear to support the conclusion in the footnote that ‘others fled once the UPC/FPLC entered the town’ or in the main text that ‘many persons were present in the town as the assault unfolded’. 1399 The Appeals Chamber also notes that there is a discrepancy between the finding in the main text associated with this footnote, that ‘ many persons were present in the town as the assault unfolded’ and the prior finding to which it refers, which was that ‘[w]hile some chose to stay, many persons who were present in the town as the assault unfolded fled Mongbwalu to the bush and to other places’. 1400

The core of Mr Ntaganda’s argument is that the Trial Chamber erred in finding 1401 that the UPC/FPLC fired at everyone in Mongbwalu, including civilians. Although the Appeals Chamber has identified certain discrepancies in the Trial Chamber’s assessment of part of the evidence regarding when exactly civilians fled Mongbwalu and some inconsistency in its findings regarding the extent to which civilians remained, for the reasons set out below, it considers that it was reasonable for the Trial Chamber to rely on the testimony of P-0963 to find that the UPC/FPLC fired at civilians in Mongbwalu.

The Appeals Chamber notes that the relevant legal finding of the Trial Chamber is that the UPC/FPLC killed people in Mongbwalu during the assault on this 1402 location. This legal finding was based on the Trial Chamber’s factual findings that ‘[t]he UPC/FPLC killed some individuals during the assault, including children and the elderly [and] [s]ome people were killed by shelling’. 1403 The Trial Chamber also relied on the testimony of P-0963 in this context, in addition to the evidence of P-

Mr Ntaganda’s Appeal Brief – Part II 1398 , para. 188. 1399 Conviction Decision , para. 498, fn. 1448. 1400 Conviction Decision , paras 497-498 (emphasis added). Mr Ntaganda’s Appeal Brief – Part II 1401 , paras 185-186, 193. 1402 Conviction Decision , para. 873; fn. 2545, referring to para. 495. 1403 Conviction Decision , para. 495 (footnotes omitted).

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1404 0017, P-0768, P-0894, P-0055 and P-0886. These findings have not been

challenged by Mr Ntaganda. The Appeals Chamber notes that the evidence of these

witnesses corroborates P-0963’s testimony that the UPC/FPLC shot civilians, noting

in particular the statements that lots of civilians were killed during the fighting,

including new born babies, that civilians were killed in houses on the road from

Mongbwalu to Sayo, and that the witnesses were informed that children had been

killed in Mongbwalu or heard from others that people who had gathered in the

1405 parking in the centre of Mongbwalu were killed by shelling during the attack.

As to Mr Ntaganda’s argument that the Trial Chamber ignored evidence that

corroborated his evidence from additional civilian witnesses, namely, P-0039, P-0805,

1406 P-0868, P-0887, P-0863, and P-0792 and military witnesses P-0768, P-0010 and

P-0017, the Appeals Chamber finds that Mr Ntaganda fails to show an error in the Trial Chamber’s assessment of all the relevant evidence. 1407 First, the Appeals

Chamber observes that the Trial Chamber did consider the evidence of P-0887 and noted that she ‘testified that as soon as they heard gunfire coming from the direction

of the Mongbwalu airstrip, she and members of her family fled’. 1408 Second, the

Appeals Chamber notes that Mr Ntaganda himself submits that, the additional civilian

witnesses whom he relies on were either persons who fled Mongbwalu at the sound of

1409 gunfire, or persons who had encountered civilians after they had fled Mongbwalu. Therefore, none of these witnesses corroborate Mr Ntaganda’s submission that there

were no civilians in Mongbwalu when the UPC/FPLC arrived, nor do they contradict the Trial Chamber’s finding that ‘[w]hile some chose to stay, many persons who were

1404 Conviction Decision , para. 495, referring to P-0017: T-58 , pp. 67-68; T-59 , p. 3; P-0768: T-33 , pp. 58-59, referring to DRC-REG-0001-0004; P-0894: DRC-OTP-2076-0194-R02, from 0201 to 0202, para. 38; P-0963: T-78 , pp. 84-85; P-0055: T-71 , pp. 19-20; P-0886: T-40 , pp. 60-62; T-37, p. 7. 1405 P-0768: T-33 , pp. 58-59, referring to DRC-REG-0001-0004; P-0894: DRC-OTP-2076-0194-R02, from 0201 to 0202, para. 38; P-0055: T-71 , pp. 19-20; P-0886: T-40 , pp. 60 to 62; T-37 , p. 7. 1406 The Appeals Chamber notes a typographical error in the pseudonym used with respect to this witness. Given the footnote reference and subsequent quote of the witness’s evidence in para. 190 of Mr Ntaganda’s Appeal Brief – Part II, the Appeals Chamber understands Mr Ntaganda to be referring to P-0863 and not P-0893. Mr Ntaganda’s Appeal Brief – Part II 1407 , paras 190-192. 1408 Conviction Decision , para. 498, fn. 1448. Mr Ntaganda’s Appeal Brief – Part II 1409 , para. 190.

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present in the town as the assault unfolded fled Mongbwalu to the bush and to other places’. 1410

Likewise, P-0768 testified that ‘many people fled; the chef de cité, the policemen, and their entourage and even the inhabitants had fled’ and that when they ‘got to Mongbwalu there were very few people in the city’, 1411 whilst P-0010 stated ‘I don’t know whether there were any civilians as such in Mongbwalu. It was all mixed up and everybody seemed to be a Lendu. There were no civilians. You see, when 1412 there is an attack, the civilians flee. So all who were in the city were the Lendu’. Given that P-0768 testified that a few people remained in the city, the Appeals Chamber considers that this testimony is consistent with the Trial Chamber’s finding that some people remained. Given the lack of clarity in P-0010’s statement as to whether Lendu civilians were present in Mongbwalu at the time of the assault, the Appeals Chamber finds that, contrary to Mr Ntaganda’s argument, this evidence was not corroborative of his testimony that the civilian population had fled. The Trial Chamber was not required to expressly address evidence of such limited relevance to its finding. Mr Ntaganda’s arguments are rejected.

With respect to the evidence of P-0017, the Appeals Chamber notes that the witness testified that ‘[w]hen we engaged in fighting I did not in fact see any civilians at that time’. 1413 The Trial Chamber considered that, ‘as P-0017 formed part of one of the brigades involved in the takeover of Mongbwalu, it was possible for “civilians” to 1414 have still been present in the town without P-0017 having seen them’. Mr Ntaganda disputes the correctness of the Trial Chamber’s finding, arguing that the issue was not whether it was possible for P-0017 to see the civilians at the time but whether P-0017’s evidence raised any doubt as to the Trial Chamber’s finding that ‘“many” remained’. 1415

The Appeals Chamber notes that the Trial Chamber’s finding that it was possible for P-0017 not to have seen any civilians in the town at the time of the attack

1410 Conviction Decision , para. 497 (footnotes omitted). 1411 P-0768: T-34 , p. 15, lines 9-11. 1412 P-0010: T-50 , p. 62, lines 17-20. 1413 P-0017: T-61 , p. 51, line 13. 1414 Conviction Decision , para. 498, fn. 1448. Mr Ntaganda’s Appeal Brief – Part II 1415 , para. 192.

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is supported by the witness’s testimony regarding his movements during the 1416 1417 operation. P-0017 testified that, [REDACTED], [REDACTED], on the night of 1418 1419 the second day, they entered Mongbwalu centre, [REDACTED]. The Appeals Chamber finds that, given P-0017’s [REDACTED] at the start of the operation and the limited time he would have spent in Mongbwalu, it was reasonable for the Trial Chamber to have found that it was ‘possible for “civilians” to have still been present 1420 in the town without P-0017 having seen them’. In these circumstances, the Appeals Chamber also considers that it was reasonable for the Trial Chamber to conclude that its finding regarding the presence of civilians in Mongbwalu was unaffected by the testimony of P-0017.

Finally, regarding Mr Ntaganda’s argument that the Trial Chamber failed to properly consider whether P-0963 had a motive as an accomplice to blame 1421 Mr Ntaganda for the crimes in which he himself participated, the Appeals Chamber notes that the Trial Chamber did not characterise P-0963 as an ‘accomplice witness’, nor was it required so to do. However, as previously stated, it was essential for the Trial Chamber to provide sufficient reasoning for its reliance on P-0963’s evidence given the witness’s involvement in the criminal events, and to consider any motives or incentives that he may have had to implicate Mr Ntaganda in light of the challenges to the witness’s credibility raised at trial. 1422

The Trial Chamber noted that P-0963 was ‘a UPC/FPLC soldier who served in Salumu Mulenda’s brigade’ and that generally his evidence ‘was rich in detail, particularly in relation to subjects where the witness possessed personal knowledge’, that he ‘openly admitted when he did not know certain things, and clarified when he was relying on information provided by others, or could not remember certain facts, emphasising the time passed since the events’. 1423 It considered and rejected

1416 P-0017: T-58 , p. 59, lines 15-18; p. 63, lines 1-6, 10-14. 1417 P-0017: T-58 , p. 63, lines 15-25, p. 65, lines 2-7. 1418 P-0017: T-58 , p. 66, lines 2-6. 1419 P-0017: T-58 , p. 66, lines 21-25; p. 67, line 20 to p. 68, line 5. 1420 Conviction Decision , para. 498, fn. 1448. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response to Observations of 1421 , para. 151; Victims on Appeal – Part II , paras 52-53; Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II , paras 10-15. Mr Ntaganda’s Closing Brief 1422 , paras 330-355. 1423 Conviction Decision , paras 236-237.

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1424 Mr Ntaganda’s arguments that the witness had fabricated evidence, and observed that he provided detailed testimony regarding his participation in the First Operation and Second Operation, and that ‘certain details concerning the Mongbwalu and Sayo assaults provided by P-0963 are consistent with the details provided by other witnesses who testified to having participated in these operations or to having been present in Mongbwalu following the attack’. 1425 Based on this assessment, the Appeals Chamber considers that the Trial Chamber did not overlook P-0963’s involvement in the crimes and provided sufficient reasons for its reliance on the witness.

Accordingly, the Appeals Chamber finds that Mr Ntaganda does not show any error in the Trial Chamber’s finding that the UPC/FPLC soldiers fired at everyone in Mongbwalu, including civilians and rejects his argument.

3 P-0017 1426 P-0017 was a UPC/FPLC soldier who served in Salumu Mulenda’s brigade. He testified about his service and participation in both the First and Second 1427 Operations. Mr Ntaganda seeks to impugn the Trial Chamber’s reliance on the evidence of P-0017 for its findings on the firing of a grenade at people in civilian 1428 clothing in Sayo and the killing of prisoners at the Appartement s.

(a) Relevant part of the Conviction Decision

The Trial Chamber found that, on or about 24 November 2002, the UPC/FPLC attacked Sayo and that Mr Ntaganda oversaw the assault from the Appartements 1429 Camp. It found that, as the operation was nearing its end, ‘Mr Ntaganda, followed by a group of Hema Gegere persons, joined the UPC/FPLC troops already present in Sayo’. 1430

With respect to the order to fire a grenade launcher, the Trial Chamber, relying on the evidence of P-0017 alone, found as follows:

1424 Conviction Decision , paras 238-248. 1425 Conviction Decision , paras 246-248 (footnote omitted). 1426 Conviction Decision , para. 106. 1427 Conviction Decision , para. 106. Mr Ntaganda’s Appeal Brief – Part II 1428 , paras 194-208, 209-225. 1429 Conviction Decision , para. 500. 1430 Conviction Decision , para. 507 (footnotes omitted).

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Mr Ntaganda issued an order to Salumu Mulenda’s brigade to fire with a grenade launcher at the slope of the mountain where a number of men and women wearing civilian clothing were walking in a single file. Mr Ntaganda’s order was executed. It was a hot and clear day and the visibility was good. After the firing, the people spread in all directions, but none of them appeared to have 1431 been injured.

Despite challenges to P-0017’s credibility and the reliability of his evidence, the Trial Chamber found ‘P-0017’s evidence in relation to Mr Ntaganda’s order to fire on

1432 people walking on the slope of the mountain to be credible and reliable’.

In relation to the detention of persons at the Appartements and the killing of two

persons detained there, the Trial Chamber stated as follows:

UPC/FPLC troops detained several persons, including Lendu, at the Appartements during the First Operation. This finding is unaffected by Mr Ntaganda’s contradictory testimony on this subject, which the Chamber finds not credible. Lendu who could provide valuable information, such as community and military leaders were captured and brought to the Appartements for interrogation. Those questioned were not only Lendu, but most Lendu were killed afterwards, while members of other ethnic groups were released. Mr Ntaganda himself would sometimes come to the Appartements and take persons held there away. On one occasion, Mr Ntaganda ordered UPC/FPLC soldiers to tie up and kill two persons detained there, who were accused of being members of the APC. Those two persons were beaten and killed subsequent to the 1433 order.

(b) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda takes issue with the Trial Chamber’s reliance on the evidence of

P-0017 to find that he had ordered the firing of a grenade launcher at the slope of a mountain where a number of men and women wearing civilian clothing were walking 1434 in a single file. Mr Ntaganda submits that, in accepting P-0017’s testimony over his, the Trial Chamber adopted an ‘either/or’ approach to fact-finding by first finding

the witness to be credible without considering his contradictory evidence and then 1435 using its finding as a justification for disregarding his testimony. Furthermore, Mr Ntaganda argues that the Trial Chamber’s theory as to how a grenade could be

1431 Conviction Decision , para. 508 (footnotes omitted). 1432 Conviction Decision , para. 508. 1433 Conviction Decision , para. 528 (footnotes omitted, emphasis in the original). Mr Ntaganda’s Appeal Brief – Part II 1434 , para. 194. Mr Ntaganda’s Appeal Brief – Part II 1435 , paras 196-198.

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launched, given the 200 meter distance between [REDACTED] and the column of

1436 people, with no resultant injuries has no basis in the evidence and is speculative.

Mr Ntaganda further argues that the Trial Chamber erred in failing to exercise caution

in assessing P-0017’s testimony and failing to provide reasons for accepting the

witness’s evidence given his status as an ‘accomplice’ witness and inconsistencies in

1437 the statements that he made. Finally, Mr Ntaganda argues that P-0017’s account is

incompatible with the evidence regarding [REDACTED] and that the Trial Chamber

offered no explanation for its finding that Mr Ntaganda circumvented the military

1438 hierarchy and gave an order directly to [REDACTED] to fire the grenade launcher.

Mr Ntaganda challenges the following findings of the Trial Chamber with

respect to events that took place at the Appartements in the aftermath of the attack on

Mongbwalu: (i) the finding that Mr Ntaganda ordered the killing of two persons

(accused of being members of the APC) who were then subsequently beaten and

killed by UPC/FPLC soldiers; and (ii) the finding that people were imprisoned at the

1439 Appartements by the UPC/FPLC.

Mr Ntaganda alleges several errors in the Trial Chamber’s reliance on the

evidence of P-0017 who was the only witness that implicated Mr Ntaganda in the

1440 killing of the two prisoners. In his view, while a Trial Chamber can rely on the

uncorroborated evidence of an accomplice even when the evidence directly implicates

the accused, it may only do so with the exercise of due caution and a discussion of the

witness’s status of ‘accomplice’ or reasoning as to why the testimony was reliable. 1441

Mr Ntaganda contends that the Trial Chamber’s lack of reasoning especially in

circumstances where the witness’s credibility was ‘vigorously impugned’ most

notably on the basis that there was reasonable doubt as to him even being present at

1442 the material time amounts to a legal error that warrants a reversal of this finding.

Mr Ntaganda’s Appeal Brief – Part II 1436 , paras 199-201; T-271 , p. 13, line 20 to p. 14, line 1. Mr Ntaganda’s Appeal Brief – Part II 1437 , paras 202-205. Mr Ntaganda’s Appeal Brief – Part II 1438 , paras 206-207. Mr Ntaganda’s Appeal Brief – Part II 1439 , paras 218, 223, referring to Conviction Decision , para. 528, fn. 1577. Mr Ntaganda’s Appeal Brief – Part II 1440 , paras 209-217. Mr Ntaganda’s Appeal Brief – Part II 1441 , para. 210. Mr Ntaganda’s Appeal Brief – Part II 1442 , para. 210.

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With respect to the finding that people were imprisoned at the Appartements , Mr Ntaganda contends that the Trial Chamber ‘misrepresented’ and ‘invented contradictions’ with respect to his testimony and/or the record and that it erroneously 1443 accepted competing evidence from Prosecution witnesses as consistent. Mr Ntaganda submits that these errors materially affected the Trial Chamber’s findings which should be reversed.

(ii) The Prosecutor’s submissions The Prosecutor argues that Mr Ntaganda ‘merely speculates that the Chamber shifted the burden of proof or engaged in an “either/or” approach to credibility.’ 1444 Regarding Mr Ntaganda’s argument that the Trial Chamber speculated as to how a grenade could be launched at persons close by without causing carnage, the Prosecutor submits that this argument is irrelevant and does not directly relate to the finding of the Trial Chamber that he is supposedly challenging, namely, that he 1445 ordered that attack. Furthermore, the Prosecutor argues that, regardless of whether P-0017 may be characterised as an ‘accomplice’, the Trial Chamber correctly 1446 exercised all caution when assessing his credibility. As to Mr Ntaganda’s argument that he would not likely have circumvented the chain of command to give [REDACTED] a direct order, the Prosecutor observes that this contradicts the record of the case given the evidence that he was ‘present on the ground and personally commanded the Sayo attack’. 1447

The Prosecutor argues that Mr Ntaganda fails to show any error in the Trial Chamber’s findings. Instead she contends that Mr Ntaganda’s arguments ‘disregard 1448 the record and cherry-pick findings out of context’. With regard to Mr Ntaganda’s arguments on the lack of corroboration of P-0017’s evidence, the Prosecutor argues that the evidence shows that other witnesses testified about the murder of prisoners at

Mr Ntaganda’s Appeal Brief – Part II 1443 , paras 218-223. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1444 , para. 164 (footnote omitted). Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1445 , para. 165. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1446 , para. 162. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1447 , para. 166, referring to D-300: T- 235 , p. 58, lines 3-7. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1448 , para. 167.

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the Appartements and that Mr Ntaganda ‘fails to explain how their evidence is 1449 inconsistent, let alone that the Chamber erred’.

(iii) The victims’ observations and Mr Ntaganda’s response to the victims Victims Group 2 submit that the Trial Chamber provided a detailed assessment 1450 of P-0017’s evidence and explained why it found him to be credible. They argue that the Trial Chamber took into account his role in events, but that it was not required to consider his accomplice status explicitly because he was not at the same leadership level as Mr Ntaganda and his interest in testifying against him would not have been that of a co-accused shifting blame or having made a plea bargain with the 1451 prosecution.

In response, Mr Ntaganda maintains that P-0017 was an accomplice and that the Trial Chamber failed to properly consider whether he had a motive to blame 1452 Mr Ntaganda for the crimes in which he himself participated.

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that Mr Ntaganda confronts the Trial Chamber’s credibility assessment of P-0017 on the basis of similar arguments raised in relation to P-0768. First, he argues that the Trial Chamber erred in adopting a so-called ‘either/or’ approach to the assessment of the evidence whereby the Chamber pitted his 1453 testimony against that of P-0017 resulting in a shift in the burden of proof. The Appeals Chamber has considered and rejected these arguments together with similar 1454 arguments made by Mr Ntaganda under the seventh ground of appeal.

Second, Mr Ntaganda raises several other challenges that purport to undermine the Trial Chamber’s credibility assessment of P-0017 and the reasonableness of its

Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1449 , para. 168, referring to the testimony of P-0907, P-0963, P-0887, and P-0898. 1450 Observations of Victims Group 2 on Appeal – Part II , para. 77. 1451 Observations of Victims Group 2 on Appeal – Part II , para. 81. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1452 , paras 52-53. Mr Ntaganda’s Appeal Brief – Part II 1453 , paras 196-198. 1454 See paragraphs 591-602 above.

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findings on the firing of a grenade launcher at people in civilian clothing in Sayo and

1455 the killing of prisoners at the Appartement s. These arguments are addressed below.

(i) P-0017’s ‘accomplice status’

Mr Ntaganda argues that, for the Trial Chamber’s findings on the firing of a

grenade launcher and the killing of prisoners at the Appartements , P-0017’s testimony

was not approached with the caution that was appropriate given his status as an

‘accomplice’, nor did the Trial Chamber provide reasons for accepting P-0017’s

1456 evidence despite his status. He suggests that P-0017 was a soldier ‘on the ground

purporting to mitigate or excuse their own criminal conduct on the basis of the

1457 accused’s conduct’.

Mr Ntaganda argues that the need for caution was ‘heightened’ by an apparent

inconsistency in P-0017’s oral testimony and a statement that he had given to the

1458 Prosecutor in 2006. In his 2006 statement, the witness alleged that, when they

1459 reached the church in Sayo, [REDACTED]. The Trial Chamber held that, when

this information was put to him in cross-examination, P-0017:

appeared to no longer stand by the information provided in 2016, and could not provide a satisfactory explanation for this change. In light of this significant discrepancy, the Chamber finds that it cannot rely on this specific aspect of P- 0017’s evidence. 1460

Mr Ntaganda contends that ‘not relying on this “specific aspect” of his testimony was

not enough’. 1461 In his view, the Trial Chamber was required to explain why the

witness’s ‘retraction of such a grave allegation had no impact on his’ overall

1462 credibility. Furthermore, Mr Ntaganda argues, in relation to P-0017’s account of

prisoners being killed at the Appartements , that ‘his inability to recognise the

Appartements or central characters in his story raise reasonable doubt as to him even

Mr Ntaganda’s Appeal Brief – Part II 1455 , paras 199-225. Mr Ntaganda’s Appeal Brief – Part II 1456 , paras 202, 209-210. 1457 T-271 , p. 6, lines 14-18. Mr Ntaganda’s Appeal Brief – Part II 1458 , para. 203, referring to P-0017: T-61 , p. 108, line 24 to p. 109, line 11. 1459 P-0017: T-61 , p. 108, line 24 to p.109, line 11. 1460 Conviction Decision , para. 115 (footnote omitted). Mr Ntaganda’s Appeal Brief – Part II 1461 , para. 204. Mr Ntaganda’s Appeal Brief – Part II 1462 , para. 204.

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being present’. 1463 In these circumstances, Mr Ntaganda submits that the Trial Chamber was required to explain why it relied on the ‘uncorroborated evidence of an 1464 accomplice, in the absence of any caution’.

As discussed elsewhere under this ground of appeal, the Appeals Chamber considers that ‘the condition of a witness as an “accomplice” is a circumstance that needs to be carefully considered when assessing the reliability of his or her evidence, but, […] does not make this evidence unreliable per se or in need of corroboration as a matter of law’. 1465

The Appeals Chamber notes that in setting out its approach to the assessment of a witness’s credibility the Trial Chamber stated that it considered, inter alia , whether the witness in question had ‘any involvement in the events under consideration’. 1466 The Appeals Chamber considers that the Trial Chamber was therefore aware that some of the witnesses were so-called ‘insiders’ or ‘accomplices’. In relation to the evidence of P-0017, the Appeals Chamber finds that the Trial Chamber carried out a comprehensive assessment of the witness’s credibility and carefully considered Mr Ntaganda’s challenges in this regard. 1467 The Trial Chamber observed, inter alia , that P-0017’s evidence was ‘rich in detail’, that the witness explained the basis of his knowledge, ‘readily conceded when he was not able to answer a question, and the inferences he made appeared reasonable’. 1468 However, the Trial Chamber also rejected an aspect of P-0017’s evidence in light of a ‘significant discrepancy’ between 1469 his oral testimony and a statement that he had provided in 2016.

As to Mr Ntaganda’s further argument that the Trial Chamber failed to explain why its rejection of this aspect of P-0017’s evidence had no impact on the witness’s overall credibility, the Appeals Chamber notes that a Trial Chamber may rely on certain aspects of a witness’s evidence and consider other aspects unreliable provided

Mr Ntaganda’s Appeal Brief – Part II 1463 , para. 210. Mr Ntaganda’s Appeal Brief – Part II 1464 , para. 210. 1465 See paragraph 655 above; Bemba et al . Appeal Judgment , para. 1531. See also Ntagerura et al . Appeal Judgment , para. 203, Karemera and Ngirumpaste Appeal Judgment , para. 42. 1466 Conviction Decision , para. 77. 1467 Conviction Decision , paras 106-117. 1468 Conviction Decision , para. 107. 1469 Conviction Decision , para. 115.

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1470 that it explains why it considers the remainder of the testimony to be reliable. As set out above, the Trial Chamber adequately explained the basis for its finding that the 1471 testimony of P-0017 was generally credible. Having adjudicated all of Mr Ntaganda’s challenges against P-0017’s credibility, the Trial Chamber concluded that the witness was credible as ‘none of the aforementioned Defence challenges affect the general credibility of the witness’. 1472 Mr Ntaganda shows no error in the Trial Chamber’s approach and his argument is rejected.

Likewise, in addressing Mr Ntaganda’s challenge that P-0017 was not present at

the Appartements on the basis that he was unable to recognise the Appartements or central characters in his story from a video recording, the Trial Chamber explained

that the witness:

(i) maintained that he was present at the Appartements ; (ii) explained that he did not go to the specific houses that appear on the recording because they were occupied by the officers; (iii) testified that he knew that Mr Ntaganda lived in those houses, but did not know the specific house inhabited by Mr Ntaganda; (iv) recognised the Appartements camp area on two satellite images in crossexamination; and (v) explained his failure to recognise Thomas Kasangaki and 1473 Salumu Mulenda by the quality of the images and the time passed.

Consequently, the Trial Chamber found that Mr Ntaganda’s challenge ‘does not,

without more, cast doubt on the witness’s alleged presence in the area at the relevant time’. 1474 Contrary to Mr Ntaganda’s argument, the Trial Chamber applied the appropriate caution to P-0017’s evidence on this point and sufficiently explained why it rejected Mr Ntaganda’s challenge. The Appeals Chamber finds that Mr Ntaganda repeats his arguments at trial on this issue which amount to mere disagreement with the Trial Chamber’s finding. 1475

(ii) Other arguments that purport to undermine P-0017’s credibility regarding the firing of the grenade launcher Regarding the Trial Chamber’s finding that Mr Ntaganda ordered that a grenade

launcher be fired at a slope where people were walking, the Appeals Chamber notes

1470 Ngudjolo Appeal Judgment , para. 168. 1471 Conviction Decision , paras 107-117. 1472 Conviction Decision , para. 117. 1473 Conviction Decision , para. 109 (footnotes omitted). 1474 Conviction Decision , para. 109. Mr Ntaganda’s Closing Brief 1475 , para. 302.

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that, in response to Mr Ntaganda’s argument that a grenade fired at people less than 200 meters away would have caused ‘carnage’, the Trial Chamber found:

In this respect, the Chamber considers that it is plausible for the shooter to have missed the target, even under the aforementioned circumstances, or not to have shot at the people themselves, but only in their direction, thereby still leaving 1476 them unharmed. Mr Ntaganda argues that this finding is in error as ‘[t]he question is not whether P-0017’s story was plausible, but whether it could be relied upon to support a finding beyond a reasonable doubt that this incident happened, particularly in light of the evidence from the Accused that it did not’. 1477

As already noted, the Trial Chamber’s approach to the evidence on this point shows that it found beyond reasonable doubt that Mr Ntaganda had ordered the firing of a grenade launcher at civilians, on the basis of P-0017’s evidence and having considered Mr Ntaganda’s testimony to the contrary. 1478 It then rejected the defence argument that many people would have been killed had the grenade launcher been fired as described by P-0017, finding that it was plausible that the shooter had missed 1479 the target, or did not shoot at the people themselves but only in their direction. The Appeals Chamber finds that the Trial Chamber reasonably assessed the evidence before it in finding that Mr Ntaganda’s denial that the event took place did not raise any doubt with respect P-0017’s account which the Trial Chamber found to be credible.

Furthermore, Mr Ntaganda’s argument that the Trial Chamber’s finding ‘is based on speculation, very similar to that which led to the quashing of convictions in ’, is misplaced. 1480 Gotovina In that case, the ICTY Appeals Chamber found that the Trial Chamber having heard evidence on a highly technical subject, namely, the margin of error of artillery weapons in particular conditions, relied on a single margin of error, the so-called ‘200 Meter Standard’, that was not linked to any evidence it had

1476 Conviction Decision , para. 508, fn. 1498. Mr Ntaganda’s Appeal Brief – Part II 1477 , para. 200 (emphasis in original). 1478 See paragraphs 600-602 above. 1479 Conviction Decision , para. 508, fn. 1498. Mr Ntaganda’s Appeal Brief – Part II 1480 , para. 201.

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1481 received and failed to explain the basis for the adoption of this standard. In the

present case, the Trial Chamber relied on the evidence of a witness it found to be

credible and reliable as to the firing of a grenade at a group of people. Mr Ntaganda

does not refer to any evidence to support his assertion that firing a grenade at this

1482 distance would have resulted in carnage. The comparison with the Gotovina case

is thus inapplicable.

Mr Ntaganda further argues that the Trial Chamber’s finding that he gave the

order to ‘point and shoot’ the grenade launcher is ‘incompatible with all other

evidence heard about the use of heavy weapons in the case’. 1483 He suggests that if he

wanted a heavy weapon to be fired he would have followed the ‘chain of command’

and given the order to Kasangaki and not directly to the heavy weapons

1484 [REDACTED].

The Appeals Chamber is not convinced by Mr Ntaganda’s argument concerning

1485 [REDACTED]. Mr Ntaganda argues that [REDACTED]. On this basis, he argues

that the idea that [REDACTED] fired a grenade launcher at the column of people is

incompatible with the evidence. However, as highlighted by the Prosecutor, the record

shows that Mr Ntaganda’s argument was contradicted by: (i) P-0963, who testified

1486 that [REDACTED]; and (ii) P-0017, who stated that [REDACTED]. Mr Ntaganda

shows no error in the Trial Chamber’s finding and his argument is rejected.

Furthermore, the Appeals Chamber finds no merit in the argument that Mr

Ntaganda would not circumvent the military hierarchy to give an order directly to a

heavy weapons [REDACTED]. The Trial Chamber found, on the basis of Mr

Ntaganda’s own admission, that he commanded the attack on Sayo. 1487 In addition,

the Trial Chamber found, on the basis of P-0963’s testimony and other evidence, that

1481 Gotovina and Markač Appeal Judgment , paras 51-61. Mr Ntaganda’s Appeal Brief – Part II 1482 , para. 199. Mr Ntaganda’s Appeal Brief – Part II 1483 , para. 207. Mr Ntaganda’s Appeal Brief – Part II 1484 , para. 207. Mr Ntaganda’s Appeal Brief – Part II 1485 , para. 206. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1486 , para. 166, referring to P-0963: T- 81 , p. 71, line 20 to p. 72, line 3; P-0017: T-61 , p. 52, lines 12-23; p. 67, line 1 to p. 68, line 13; p. 69, line 12 to p. 70, line 11. 1487 Conviction Decision , para. 500; fn. 1453, referring, inter alia, to D-0300: T-235 , p.58.

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Mr Ntaganda’s orders were obeyed. 1488 Consequently, the Appeals Chamber finds that it was reasonable for the Trial Chamber to find that Mr Ntaganda gave a direct order to [REDACTED].

(iii) Other arguments that purport to undermine P-0017’s credibility regarding treatment of prisoners at the Appartements Mr Ntaganda raises further challenges to the Trial Chamber’s finding that the

UPC/FPLC detained several persons at the Appartements camp in Mongbwalu during the First Operation and that he ordered the UPC/FPLC soldiers to beat and kill two of 1489 those detained persons.

First, Mr Ntaganda argues that this finding is undermined by errors in the Trial Chamber’s underlying findings concerning the date of P-0017’s arrival at the

Appartements , the date on which Mr Ntaganda left Mongbwalu, and their 1490 simultaneous presence at the Appartements . The Appeals Chamber notes, by way of context, that the Trial Chamber found that the UPC/FPLC attacked Mongbwalu ‘on

or about 20 November 2002’ and that it lasted ‘approximately three to four days’ 1491 before the UPC/FPLC took control of the town. On this basis, Mr Ntaganda contends that ‘Mongbwalu fell to the UPC/FPLC on or about 23 or 24 November 2002’. 1492 1493 Mr Ntaganda testified that he left Mongbwalu on 28 November 2002. However, the Trial Chamber found that his testimony was not credible and that it was satisfied that he ‘remained in the area until at least one week after the UPC/FPLC had taken over Mongbwalu’, although the exact date of Mr Ntaganda’s departure could

1494 not be established. The Trial Chamber reasoned its finding as follows:

The Chamber notes that it also received evidence on Mr Ntaganda’s stay in Mongbwalu and his departure from a number of witnesses, including Mr Ntaganda himself. […] In this regard, the Chamber has not retained as credible Mr Ntaganda’s statement that he left by plane on 28 November 2002, noting that it is contradicted by the evidence of P-0002, who states that he returned to Bunia by plane with, inter alia , Mike Arereng, but also specifying

1488 Conviction Decision , para. 322, fn. 852. Mr Ntaganda’s Appeal Brief – Part II 1489 , paras 209-225, referring to Conviction Decision , para. 528. Mr Ntaganda’s Appeal Brief – Part II 1490 , paras 211-217. 1491 Conviction Decision , paras 486, 492. Mr Ntaganda’s Appeal Brief – Part II 1492 , para. 211. Mr Ntaganda’s Appeal Brief – Part II 1493 , para. 212, D-0300: T-218 , p. 4, line 19 to p. 5, line 10. 1494 Conviction Decision , para. 489.

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that Floribert Kisembo, and not Mr Ntaganda, travelled with them to Bunia. While the exact day of Mr Ntaganda’s departure cannot be established, the Chamber, in light of the informed evidence of the abovementioned witnesses who were in Mongbwalu at the time, and having had further regard to the other findings related to Mr Ntaganda’s whereabouts and conduct during the First Operation (see paras 510 (killings in Nzebi) and 535 (women being brought to Appartements ), is satisfied that he remained in the town for at a minimum one 1495 week after the UPC/FPLC took over Mongbwalu.

In this regard, Mr Ntaganda contends that the evidence relied upon by the Trial

Chamber to reject his testimony that he departed on 28 November 2002 was not

1496 incompatible with it. In fact, he asserts that the testimony of P-0002, P-0768, P-

1497 0901 and P-0963 ‘reinforce’ his more precise account. The Appeals Chamber notes that the Trial Chamber rejected Mr Ntaganda’s date of departure on the basis of

1498 P-0002’s specific contradiction. On the question of how long he stayed in

Mongbwalu, the Appeals Chamber notes that P-0768 and P-0901 testified that

Mr Ntaganda had stayed for almost a week if not longer while P-0963’s account

1499 appears inconclusive on this point. Based on this evidence, it was reasonable for the Trial Chamber to find that Mr Ntaganda’s testimony that he left Mongbwalu on

28 November 2002 was not credible, and there is no error in the finding that

Mr Ntaganda ‘remained in the area until at least one week after the UPC/FPLC had

taken over Mongbwalu’. 1500

As to the date of P-0017’s arrival in Mongbwalu and Mr Ntaganda’s

simultaneous presence at the Appartements , the Appeals Chamber notes that the

1501 witness testified that he arrived [REDACTED]. Mr Ntaganda argues in this regard

that, on the basis of P-0017’s estimation, he [REDACTED] and therefore could not

1502 [REDACTED]. The Appeals Chamber considers that, as there was no error in the Trial Chamber’s finding that Mr Ntaganda ‘remained in the area until at least one

week after the UPC/FPLC had taken over Mongbwalu’, it was reasonable for the Trial

1495 Conviction Decision , para. 489, fn. 1412. 1496 Mr Ntaganda’s Appeal Brief – Part II , para. 212. Mr Ntaganda’s Appeal Brief – Part II 1497 , para. 212. 1498 Conviction Decision , para. 489, fn. 1412. 1499 P-0768: T-34 , p. 7, lines 9-12; P-0901: T-28 , p. 57, lines 19-22; P-0963: T-82 , p. 40, lines 9-16. 1500 Conviction Decision , para. 489. 1501 P-0017: T-62 , p. 56, lines 10-15. Mr Ntaganda’s Appeal Brief – Part II 1502 , para. 215.

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Chamber to conclude that both Mr Ntaganda and the witness were [REDACTED] long enough for the witness to [REDACTED].

Second, Mr Ntaganda takes issue with the Trial Chamber’s finding that 1503 prisoners were detained at the Appartements during the First Operation. The Trial Chamber rejected Mr Ntaganda’s account as contradictory on this subject and reasoned as follows:

Mr Ntaganda, contrary to the evidence of P-0907, P-0963, P-0017, P-0898 and P-0887, testified that only one person was taken ‘prisoner’ during the First Operation, in Sayo, and that this person was released. […] The Chamber considers that Mr Ntaganda’s evidence on this issue is not credible, noting first, that it is contradicted by his admission that Abbé Boniface Bwanalonga was captured and interrogated at the Appartements […], and by what [ sic ] Mr Ntaganda’s statement shortly after the takeover of Mongbwalu that many people were captured and that a significant number of them were killed. […] Mr Ntaganda’s explanation for the latter contradiction – which was that his statement was intended as a military tactic to intimidate the ‘enemy’ […] – is unconvincing, in the Chamber’s view, when viewed in light of the other unexplained contradiction, and the competing, consistent evidence from P-0907, 1504 P-0963, P-0017, P-0898 and P-0887.

Mr Ntaganda argues that the Trial Chamber misrepresents his testimony when it claims that there was a contradiction between his testimony that only one person was taken prisoner during the First Operation in Sayo and the detention of Abbé 1505 Bwanalonga at the Appartements . In this regard, Mr Ntaganda refers to the following extract of his testimony:

Q: Now in relation to prisoners, you’ve indicated that there was one prisoner in Sayo and you let him go. Correct?

A: Yes, I let him go.

Q: But in fact your troops in Mongbwalu took many prisoners during the operation, didn’t they? 1506

In Mr Ntaganda’s view, the above extract of his testimony was limited to the taking of prisoners in Sayo and not Mongbwalu. However, the Appeals Chamber notes that his testimony immediately continued with an emphatic denial that any

Mr Ntaganda’s Appeal Brief – Part II 1503 , para. 218, referring to Conviction Decision , para. 528. 1504 Conviction Decision , para. 528, fn. 1574. Mr Ntaganda’s Appeal Brief – Part II 1505 , paras 218-219. 1506 D-0300: T-235 , p. 84, lines 17-21.

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prisoners had been taken in direct response to the second question posed which referenced Mongbwalu:

A: No. My soldiers did not take a lot of prisoners. But once on the radio when I was giving an interview, I took the opportunity to spread the news to intimidate APC soldiers, saying that we arrested a lot of their troops. Other than that, to say that we had a lot of prisoners, that was not the reality of the situation. There weren’t, there weren’t any. 1507

The Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that this testimony was contradicted by his account of the detention of Abbé Bwanalonga at the Appartements .

Furthermore, Mr Ntaganda contends that the Trial Chamber again misrepresents the record by finding that his account is further contradicted by his statement given during an interview shortly after the takeover of Mongbwalu where he said that ‘many people were captured and that a significant number of them were killed’. 1508 After being shown the relevant excerpt of the video interview, Mr Ntaganda responded as follows:

Q: Now, sir, my question again was: What you have said to Mike Arereng in the Mongbwalu video is very different than what you are saying today, because you told him that you captured a lot of people in their ranks and a lot of them were killed.

A: That’s not exactly right. I said when I was interviewed in the evening, the news was going to be given in Swahili, it was going to be broadcast in Swahili at that time. When you capture somebody who you free, that person will tell the others, he’s going to give a message to the others, and when I announced that we captured a lot of people and that a lot of others had died, this was another 1509 tactic, another military tactic. But in reality it was to intimidate the enemy.

Mr Ntaganda argues that the Trial Chamber misrepresents his testimony when it found that the two groups of people he referred to – those who were captured and 1510 those who were killed – were the same people. The Appeals Chamber finds this argument to be irrelevant. Regardless of whether the two groups of people were the

1507 D-0300: T-235 , p. 84, line 22 to p. 85, line 1. Mr Ntaganda’s Appeal Brief – Part II 1508 , para. 220 (emphasis in original), referring to Conviction Decision , para. 528, fn. 1574, referring to DRC-OTP-2058-0251, at 00:12:04-00:12:40 (Translation DRC-OTP-2102-3766, at 3774, lines 201-202). 1509 D-0300: T-235 , p. 86, lines 2-11. Mr Ntaganda’s Appeal Brief – Part II 1510 , para. 220.

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same, the Trial Chamber found Mr Ntaganda’s statement in the interview that ‘many

people were captured and that a significant number of them were killed’ contradicted his testimony that one person was taken ‘prisoner’ during the First Operation, in Sayo,

1511

and that this person was released.

In addition, Mr Ntaganda disputes the Trial Chamber’s finding that his

explanation for his statement to the journalist - that it was a ‘military tactic to intimidate the “enemy”’ - was unconvincing when viewed against ‘the competing,

1512

consistent evidence from P-0907, P-0963, P-0017, P-0898 and P-0887’.

Mr Ntaganda contends that the witnesses were not consistent in their evidence and differed on ‘key details’, including the location of the prison,

1513

the identity of the

1514

prisoners, whether prisoners would be questioned and by whom, and whether they

1515

would be tried.

1516

The Appeals Chamber considers that, as highlighted by the Prosecutor, there

was broad consistency in the testimony of these witnesses on certain details regarding

the Appartements prison. Although they may have differed on the level of detail

1517

provided regarding the specific location of the prison, the identity of the

1518 1519

prisoners, whether they were interrogated or not, as well as the use of other

1511 Conviction Decision , para. 528, fn. 1574. Mr Ntaganda’s Appeal Brief – Part II 1512 , paras 221-222, referring to Conviction Decision , para. 528, fn. 1574. Mr Ntaganda’s Appeal Brief – Part II 1513 , para. 222, arguing that the witnesses testified that the prison was ‘[REDACTED]; was “underground”; was “in a small room” called Mabushu; or the prisoners were spread between the Appartements , Salumu’s camp, camp Galanga, or camp Goli’. Mr Ntaganda’s Appeal Brief – Part II 1514 , para. 222, arguing that the witnesses testified that the detainees were ‘those [REDACTED]; or were “prisoners of war” who might have been combatants; or were “Lendus”; or Lendu, Nyali and also “Lulu”’. Mr Ntaganda’s Appeal Brief – Part II 1515 , para. 222, arguing that ‘P-0017 and P-0898 made no mention of prisoners being questioned, whereas P-0887 said they were brought to the camp to be questioned (although it is unclear by whom); P-0963 said the questioning was done by Pigwa (with no knowledge of Mr. Ntaganda interrogating anyone); whereas P-0907 was alone in testifying that some of them would be tried’. Prosecutor’s Response to Mr Ntaganda’s Appeal Brief – Part II 1516 , para. 168. 1517 P-0887: T-93 , p. 33, lines 11-16; P-0963: T-79 , p. 24, lines 15-19; P-0898: T-154 , p. 20, lines 4-7; P-0017: T-59 , p. 21, lines 18-21. While P-0887 and P-0963 testified that it was underground, P-0898 referred to a small room called Mabushu and P-0017 indicated that it was [REDACTED]. 1518 P-0017: T-59 , p. 24, lines 9-11; P-0887, T-93 , p. 33, lines 1-3; p. 34, lines 5-11; P-0963: T-79 , p. 21, line 19 to p. 22, line 15; P-0898: T-154 , p. 19, lines 1-4. While P-0017 [REDACTED], P-0887 referred to prisoners of war, P-0963 and P-0898 referred to Lendu prisoners. 1519 P-0898: T-154 , p. 18, lines 18-21; P-0887: T-93 , p. 33, lines 8-10; P-0963: T-79 , p. 15, line 22 to p. 16, line 2; p. 22, line 20 to p. 23, line 13, p. 23, line 23 to p. 24, line 4; p. 25, lines 14-15; P-0907: T-90 , p. 34, lines 20-25. While P-0898, P-0887 and P-0963 indicated that prisoners would be interrogated, P- 0907 did not refer to interrogations.

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1520 prisons in Mongbwalu, the Appeals Chamber considers that there was no material contradiction in their testimony on these points. As explained above, the Appeals Chamber recalls that ‘while testimonies need not be identical in all aspects, they must confirm, even if in different ways, the same fact’. 1521

Therefore, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that prisoners were detained at the Appartements during the First Operation, based on the evidence of P-0017, P-0907, P-0963, P-0898 and P-0887, despite Mr Ntaganda’s testimony that ‘only one person was taken “prisoner” during 1522 the First Operation, in Sayo, and that this person was released’.

Lastly, Mr Ntaganda argues that the Trial Chamber erred in finding that P- 0017’s testimony ‘that Mr. Ntaganda would “sometimes come to the Appartements and take persons held there away”, or that he ordered soldiers to “tie up and kill two persons detained there”’ was consistent with the evidence of P-0963, P-0887 and P- 1523 0898. He contends that none of these witnesses testified as to his role in the taking 1524 of prisoners away or ordering that they be killed. The Appeals Chamber notes that the Trial Chamber’s finding that Mr Ntaganda detained prisoners and was responsible for ordering the killing of two prisoners at the Appartements was based solely on the testimony of P-0017. While Mr Ntaganda correctly points out that P-0963, P-0887 and P-0898 did not implicate him in these crimes, they did testify about other 1525 prisoners who were interrogated or killed at the Appartements . It was reasonable for the Trial Chamber to have found P-0017’s ‘account of having been a guard at the “prison” at Appartements to be credible and reliable, noting that it is detailed and 1526 consistent with evidence of P-0963, P-0887, and P-0898’. Mr Ntaganda shows no error in the Trial Chamber’s assessment of this evidence and his argument is rejected.

1520 P-0907: T-90 , p. 34, lines 12-19; P-0017: T-59 , p. 35, line 15 to p. 36, line 22; P-0898: T-154 , p. 18, lines 13-17. While P-0907 and P-0017 referred to other prisons, P-0898 did not. 1521 See paragraph 672 above. 1522 Conviction Decision , para. 528, fn. 1574. Mr Ntaganda’s Appeal Brief – Part II 1523 , paras 223-224, referring to Conviction Decision , para. 528, fn. 1577. Mr Ntaganda’s Appeal Brief – Part II 1524 , para. 224. 1525 P-0963: T-79 , p. 21, line 19 to p. 22, line 19; P-0898: T-154 , p. 18, line 18 to p. 19, line 19; p. 20, lines 14-19; P-0887: T-93 , p. 33, lines 1-16. 1526 Conviction Decision , para. 528, fn. 1577.

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4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that the UPC/FPLC and Hema committed crimes during the First Operation, the Appeals Chamber rejects this ground of appeal.

I. Ninth ground of appeal: Use of individuals under 15 years of age as escorts for Mr Ntaganda

Under the ninth ground of appeal, Mr Ntaganda submits that the Trial Chamber erred in finding, on the basis of video images, that three of his escorts were aged 1527 under 15 years.

1 Relevant part of the Conviction Decision The Trial Chamber found that ‘Mr Ntaganda’s personal escort included children under 15 years of age’, namely, an individual called Lamama, an unidentified 1528 individual and another one called Tipe. In reaching this conclusion, the Trial Chamber relied on ‘video images of three such children who it found to be “manifestly” under 15 years of age’. 1529 These video images were discussed in the 1530 context of the testimony of P-0010 and P-0898.

2 Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda argues that the Trial Chamber failed to exercise the caution required for age determination based on extracts of visual images and to explain its 1531 approach for such determination. He challenges the Trial Chamber’s reliance on: (i) the evidence of P-0010 for the age of Lamama and the unidentified individual, 1532 noting that the Trial Chamber found that P-0010 lied about her own age; and 1533 (ii) the evidence of P-0898 with regard to the individual identified as ‘Tipe’.

Mr Ntaganda’s Appeal Brief – Part II 1527 , paras 231-232, 249. 1528 Conviction Decision , paras 387-388, 1190. 1529 Conviction Decision , para. 1190 (footnotes omitted). 1530 Conviction Decision , paras 387-388. Mr Ntaganda’s Appeal Brief – Part II 1531 , paras 237-238. 1532 Mr Ntaganda’s Appeal Brief – Part II , paras 242-243. Mr Ntaganda’s Appeal Brief – Part II 1533 , paras 246-247.

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(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda ‘mischaracterises the evidence and

1534 misapprehends’ the Conviction Decision. She argues that Mr Ntaganda repeats

his unsuccessful trial arguments and merely disagrees with the Trial Chamber’s

1535 reasonable assessment of evidence, without showing an error. The Prosecutor

further avers that Mr Ntaganda does not demonstrate any error in the Trial Chamber’s

assessment of the witnesses’ credibility and reliability. 1536

The Prosecutor argues that the Trial Chamber ‘was competent to assess the age

of individuals appearing in the video images’ and that this is part of its ‘routine

function of assessing and evaluating the credibility and reliability of evidence’. 1537

The Prosecutor submits that by applying a ‘large and wide margin of error’ and

making findings only in relation to individuals that ‘were “manifestly” under the age

of 15 years’, the Trial Chamber ‘exercised due caution’ and was cognisant of ‘the

limitations in determining age based on physical appearance’. 1538

(c) The victims’ observations

Victims Group 1 argue that it was reasonable and correct for the Trial Chamber

to find that ‘children under the age of 15’ were included in Mr Ntaganda’s escort. 1539

Victims Group 1 recall that the ‘jurisprudence of both international and domestic

tribunals confirms that a trier of fact is competent to assess the age of individuals

based on their appearance, without requiring expert evidence’. 1540 They aver that the

Trial Chamber properly relied on video-imagery evidence and on P-0010’s and P-

0898’s evidence to assess the age of Lamama, the unnamed individual and Tipe. 1541

(d) Mr Ntaganda’s response to the victims

Mr Ntaganda responds that Victims Group 1 ‘misconstrue[] the domestic

jurisprudence’ he relied on. 1542 He reiterates that in accordance with the Lubanga

Prosecutor’s Response to Appeal – Part II 1534 , para. 175. See also para. 188. Prosecutor’s Response to Appeal – Part II 1535 , paras 182-183, 189. Prosecutor’s Response to Appeal – Part II 1536 , paras 183-188. Prosecutor’s Response to Appeal – Part II 1537 , para. 179. Prosecutor’s Response to Appeal – Part II 1538 , para. 180. 1539 Observations of Victims Group 1 on Appeal – Part II , para. 8. 1540 Observations of Victims Group 1 on Appeal – Part II , para. 13. 1541 Observations of Victims Group 1 on Appeal – Part II , paras 11-29. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1542 , para. 54.

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Appeal Judgment, the age assessment by a chamber must be performed ‘with the outmost caution and it must be “clear” that a child is under the age of 15’. 1543 He adds that Victims Group I misconstrue his argument regarding corroboration, as in the present case corroboration was needed to assess the credibility and reliability of P- 0898’s account on Tipe. 1544

3 Determination by the Appeals Chamber The Appeals Chamber notes Mr Ntaganda’s contention that the Trial Chamber failed to set out reasons explaining its approach and that no reasonable judge, ‘applying the proper degree of caution’, could have concluded beyond reasonable 1545 doubt that Lamama and the unidentified individual were under the age of 15. He avers that the Trial Chamber ‘merely incanted the formula of words from Lubanga – “large margin of error” and “manifestly”’, with no mention to the inter-cultural 1546 context. He adds that the Trial Chamber erred in according ‘weight to estimates of age by witnesses in the absence of any basis on which the Chamber could assess the accuracy of those estimates’. 1547

The Appeals Chamber recalls its holding in the Lubanga Appeal Judgment that ‘the question of whether video evidence can be relied upon to establish the element of age is a question of fact’. 1548 The Appeals Chamber notes that a determination of the age of individuals appearing in video extracts is part of the Trial Chamber’s assessment and appreciation of the credibility and reliability of evidence before it. However, ‘one factor relevant to reviewing whether a Trial Chamber’s factual finding was reasonable is whether it appropriately exercised caution when assessing the age 1549 of an individual on the basis of video images’.

In the present case, the Trial Chamber made a detailed assessment of the video images, referring to the size, physical and facial features of individuals identified on

Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1543 , para. 54. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1544 , paras 60-63. Mr Ntaganda’s Appeal Brief – Part II 1545 , paras 237-238 (emphasis in original). See also para. 240. Mr Ntaganda’s Appeal Brief – Part II 1546 , para. 237, referring to Conviction Decision , para. 387. Mr Ntaganda’s Appeal Brief – Part II 1547 , para. 248. 1548 Lubanga Appeal Judgment , para. 221. 1549 Lubanga Appeal Judgment , para. 221.

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1550 those images. The Appeals Chamber notes that the Trial Chamber indicated that it allowed for a ‘large’ or ‘wide margin of error’ in its assessment and only found that individuals were under 15 when they were ‘manifestly’ under that age, such as in the 1551 cases of Lamama, an unnamed individual and Tipe. This demonstrates that the Trial Chamber was mindful of the need to exercise caution.

The Appeals Chamber notes that Mr Ntaganda appended pictures of asylumseekers in his Appeal Brief to support his contention that the Trial Chamber did not apply proper caution when determining Lamama’s age. 1552 However, apart from arguing that none of these individuals ‘have been found to be over 18 years of age’, he does not explain how these photographs show that the Trial Chamber erred in 1553 finding that Lamama was under the age of 15. Furthermore, to the extent these photographs purport to demonstrate that it is only possible ‘to distinguish beyond reasonable doubt between a “pre-pubescent” and an adult’, 1554 the above-mentioned findings of the Trial Chamber show that it was aware of this difficulty and only found the age of a person to be under 15 years when that was ‘manifest’. Mr Ntaganda does not challenge this approach of the Trial Chamber or its application.

In addition, when finding that Mr Ntaganda’s escort included individuals under the age of 15 years, the Trial Chamber relied on video extracts presented to P-0010 and P-0898 during their testimony and formed its own views on the basis of that 1555 1556 evidence. It also relied on corroborating evidence of these witnesses. With respect to Mr Ntaganda’s challenge to the accuracy of age estimates provided by the witnesses, as it will be discussed below, a review of the Trial Chamber’s detailed assessment of the testimony of these witnesses and the video extracts indicates that it was aware of this difficulty and took it into consideration. The Appeals Chamber notes that the witnesses were examined on these specific issues and the Trial Chamber

1550 Conviction Decision , paras 387-388, fns 1099-1100. 1551 Conviction Decision , paras 387-388, 1190, 1192, fns 1099-1100, 3221. Mr Ntaganda’s Appeal Brief – Part II 1552 , para. 238. Mr Ntaganda’s Appeal Brief – Part II 1553 , para. 238. Mr Ntaganda’s Appeal Brief – Part II 1554 , para. 238. 1555 Conviction Decision , paras 387-388. 1556 See Conviction Decision , paras 389-390.

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considered contextual information provided by P-0010 and P-0898 to conclude on the 1557 credibility of their respective age assessments.

In that regard, Mr Ntaganda argues that no reasonable trier of fact could afford ‘any corroborative weight’ to P-0010’s testimony because she lied about her own age 1558 and may also have lied about other persons’ age. He adds that the Trial Chamber failed to explain why it found P-0010’s statements on Lamama’s age ‘“credible and reliable”’. 1559

The Trial Chamber found P-0010’s account of her experience as an escort of Mr Ntaganda credible and held that it would ‘determine on a case-by-case basis which other aspects of her testimony can be relied upon with or without corroboration’. 1560 Contrary to Mr Ntaganda’s claim that the Trial Chamber failed to explain why it found this witness’s testimony about Lamama’s age credible, the Trial Chamber 1561 provided a detailed assessment of that testimony. In particular, it noted the witness’s ‘demeanour and level of detail provided during her testimony’, which ‘appeared to vary to some extent depending on the nature of the issues discussed’. 1562

Moreover, the Trial Chamber did not find that P-0010 lied about her age. Rather it found ‘discrepancies and uncertainties’ in the witness’s testimony about her age and abduction by and training with the UPC/FPLC and addressed them when assessing the witness’s reliability. 1563 In that regard, the Trial Chamber followed its general approach to the assessment of witnesses’ credibility, according to which ‘[i]t is possible for a witness to be accurate and truthful, or provide reliable evidence, on some issues, and inaccurate and/or untruthful, or provide unreliable evidence, on others’. 1564 The Trial Chamber was of the view that such ‘[i]nconsistencies, contradictions, and inaccuracies do not automatically render a witness’s account unreliable in its entirety, as witnesses, depending on their personal circumstances,

1557 See Conviction Decision , paras 91, 98-101, 104, 201, 203-204, 207, 387-388. Mr Ntaganda’s Appeal Brief – Part II 1558 , para. 243. Mr Ntaganda’s Appeal Brief – Part II 1559 , para. 243, referring to Conviction Decision , fn. 1099. 1560 Conviction Decision , para. 105 . See also paras 101, 387. 1561 Conviction Decision , paras 89-105. 1562 Conviction Decision , para. 91. 1563 Conviction Decision , paras 94, 98. 1564 Conviction Decision , para. 80.

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may experience, and therefore remember, past events in different ways’. 1565 The Trial

Chamber stated that, in certain instances, it had decided to rely ‘only on part of a

witness’s account’ and when it rejected part of a witness’s testimony, ‘it invariably

considered the impact of that rejection on the reliability of the remainder of the

testimony’. 1566 The Appeals Chamber finds no error in this approach.

Bearing in mind this approach, the Trial Chamber found that it could not

‘establish beyond reasonable doubt’ that P-0010’s age was under 15 years at the time

1567 when she served as an escort for Mr Ntaganda. In particular, it held that the

witness’s testimony about certain escorts being ‘younger than her cannot, alone,

1568 support a finding that Mr Ntaganda’s escort included individuals under 15’.

However, the Trial Chamber found aspects of P-0010’s testimony to be credible. It

held that the witness ‘provided detailed and coherent information about her

experiences in Mr Ntaganda’s escort’ such as ‘names of other bodyguards and their

respective age range’, the chief escort’s name, and the ‘location of Mr Ntaganda’s

residence’. 1569 The Trial Chamber was satisfied that her account was ‘generally in line

1570 with, or corroborated by, other evidence in the case record’.

The Trial Chamber also found the witness’s account of a visit to the Rwampara

1571 training camp to be credible. The Trial Chamber observed that when she was

presented video scenes depicting that training camp, ‘she was able to identify a

number of individuals, certain locations’ and their functions, ‘recognised songs being

sung and certain events depicted in the video’. 1572 The Trial Chamber further noted

that she could identify herself in a video scene and could ‘remember and

spontaneously provide details concerning certain accessories she could be seen

wearing in the scene’. 1573 It is in light of this detailed assessment that the Trial

Chamber considered the witness’s evidence on Lamama’s and the unnamed

1565 Conviction Decision , para. 80. 1566 Conviction Decision , para. 80. 1567 Conviction Decision , paras 94, 386. 1568 Conviction Decision , para. 386 (footnote omitted). 1569 Conviction Decision , para. 99 (footnote omitted). See also P-0010: T-47 , p. 5, line 22 to p. 6 line 13, p. 33, lines 1-13. 1570 Conviction Decision , para. 99. 1571 Conviction Decision , paras 104-105. 1572 Conviction Decision , para. 104 (footnotes omitted). 1573 Conviction Decision , para. 104.

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individual’s identification and age estimate. 1574 The Appeals Chamber finds no error

in the Trial Chamber’s reliance on P-0010’s evidence with respect to the age of these

two individuals, despite its reservations in relation to other aspects of her evidence.

Mr Ntaganda further argues that P-0010 ‘merely’ stated that the unnamed

individual was a kadogo and that this term, according to the Trial Chamber, refers to

‘individuals up to 18 years of age’ and the age estimates of witnesses on kadogos

‘often straddl[ed] the 15-year threshold’. 1575 The Appeals Chamber observes that,

contrary to Mr Ntaganda’s contention, the Trial Chamber did not only rely on P-

0010’s reference to the individual as kadogo , but also on her evidence that this

1576 individual was younger than her.

1577 As to the meaning of the term kadogo , the Trial Chamber was satisfied that

this term referred to the ‘youngest soldiers, by their appearance, including individuals

under 15’ 1578 1579 and that Mr Ntaganda’s escort comprised of kadogos . In reaching

this finding, the Trial Chamber relied on the evidence of several witnesses who

testified that this term referred to ‘young soldiers who were young in age’, 1580

‘anybody who is aged 18 or under is a child’, 1581 1582 ‘under the age of 18’, ‘someone

who is not yet an adult’, 1583 1584 ‘young soldiers, the underage soldiers’, ‘child

1585 1586 soldier[s], namely, someone who is less than 15 years old’, ‘the smallest ones’,

‘young people who were […] 14 to 15 years old’, 1587 1588 ‘childhood’, or ‘[l]ess than

1574 Conviction Decision , paras 104, 387. Mr Ntaganda’s Appeal Brief – Part II 1575 , paras 245, 248, fn. 671. 1576 Conviction Decision , fn. 1100. See also P-0010: T-48 , p. 15, lines 1-11; T-50 , p. 3, lines 9-20. 1577 The Trial Chamber noted that ‘sometimes, commanders chose kadogos as their bodyguards’, and that a number of witnesses, including Mr Ntaganda, referred to ‘escorts’ and ‘bodyguards’ without distinction between both terms. The Trial Chamber therefore decided to use these terms interchangeably in the Conviction Decision. See Conviction Decision , para. 380. 1578 Conviction Decision , para. 359. 1579 Conviction Decision , paras 380, 387, 389, 398, 403-405, 414, 416, 815, 832, fns 995, 999, 1079, 1098, 1100, 1102, 1110-1111, 1114, 1133, 1147, 1183, 1508. 1580 Conviction Decision , fn. 995. See also P-0014: T-136 , p. 38, lines 1-3, 5-14. 1581 Conviction Decision , fn. 995. See also P-0014: T-136 , p. 38, line 14. 1582 Conviction Decision , fn. 995. See also P-0769: T-120 , p. 24, lines 23-25; P-0055: T-71 , p. 68, lines 14-22; P-0976: DRC-OTP-2054-2599, p. 2674, lines 1-8. 1583 Conviction Decision , fn. 995. See also P-0055: T-71 , p. 68, lines 21-22. 1584 Conviction Decision , fn. 995. See also P-0017: T-59 , p. 43, lines 12-21. 1585 Conviction Decision , fn. 995. See also P-0030: T-146 , p. 62, lines 12-19. 1586 Conviction Decision , fn. 995. See also P-0768: T-34 , p. 49, lines 12-15; P-0010: T-46 , p. 40, lines 24-25. 1587 Conviction Decision , fn. 995. See also P-0886: T-40 , p. 44, lines 17-22. 1588 Conviction Decision , fn. 995. See also P-0901: T-29 , p. 52, lines 15-16.

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15 years of age’. 1589 While some witnesses referred to kadogos as being individuals under 18 years old, other witnesses clearly stated that there were individuals under the age of 15 years among the kadogos . In light of the totality of the relevant evidence, the Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude 1590 that the kadogos included individuals under the age of 15. Therefore, the Trial Chamber did not err in relying on P-0010’s testimony that the unnamed individual was a kadogo to find that he was under the age of 15.

Regarding the size of this unnamed individual identified by P-0010, Mr Ntaganda argues that the Trial Chamber did not ‘accurately describe the subject’s size’ as depicted on the video images, in which ‘he can clearly be seen looking into 1591 the bed of a pick-up truck with jacked-up suspension’. The Trial Chamber noted that the said individual shown in the video images ‘was significantly smaller than the soldiers around him and barely taller than the wheel of the vehicle on which he can be seen loading his weapon’. 1592

A review of the relevant video images reveals that when approaching the vehicle, a white pick-up, the unnamed individual appears to be as tall as the wheel of 1593 the vehicle. However, when he gets closer to the bed of the pick-up truck a few second later, the top of his head reaches slightly over the side of the bed of the 1594 vehicle. The Appeals Chamber notes that the Trial Chamber’s description of the individual’s size as being ‘barely taller than the wheel of the vehicle on which he can be seen loading his weapon’ appears inaccurate in this respect. However, the Trial Chamber’s description that the individual was significantly smaller in height and size 1595 than the other individuals that are standing next to him is correct. The comparison of the size of the unnamed individual to other individuals – in this case soldiers – is more significant in this context. Therefore, the Appeals Chamber finds that the inaccuracy in the assessment of the individual’s size in relation to the wheel of the

1589 Conviction Decision , fn. 995. See also P-0963: T-80 , p. 10, lines 7-8. 1590 See Conviction Decision , para. 359. Mr Ntaganda’s Appeal Brief – Part II 1591 , para. 244. 1592 Conviction Decision , fn. 1100. 1593 DRC-OTP-0120-0293, at 00:37:34 to 00:37:35. 1594 DRC-OTP-0120-0293, at 00:37:37. 1595 DRC-OTP-0120-0293, at 00:37:40.

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vehicle does not undermine the Trial Chamber’s finding on the age of this individual

based on the testimony of P-0010.

With respect to the individual called Tipe, Mr Ntaganda argues that the video

images do not ‘manifestly show’ that this person was under 15. 1596 He avers that,

although the person looks young, ‘no reasonable trier of fact could have concluded

that there is no reasonable possibility’ that this person was 15 and the Trial Chamber

was required to explain ‘how doubt could be excluded’. 1597 He adds that the Trial

Chamber’s finding is ‘inadequately reasoned’ and that P-0898’s testimony supporting

that finding is uncorroborated, which weighs against accepting it, ‘especially given its

highly incriminating content’. 1598

The Appeals Chamber finds that Mr Ntaganda merely disagrees with the Trial

Chamber’s finding without showing an error. The Appeals Chamber recalls that, in

light of rule 63(4) of the Rules, ‘there is no strict legal requirement that [] video

excerpts [have] to be corroborated by other evidence in order for the Trial Chamber to

1599 be able to rely on them’. The Appeals Chamber further held that ‘[d]epending on

the circumstances, a single piece of evidence, such as a video image of a person, may

1600 suffice to establish a specific fact’. In the present case, the Trial Chamber

examined and described the video images presented to P-0898, noting ‘in particular,

the facial features’ of Tipe. 1601 The Trial Chamber held that ‘while allowing for a

wide margin of error’, it found ‘beyond reasonable doubt that this individual was

manifestly under 15 years of age around May 2003’. 1602 Mr Ntaganda does not show

an error in the Trial Chamber’s finding.

1603 Regarding the requirement to exclude doubt, the Appeals Chamber notes the

Trial Chamber’s detailed explanation of why it was satisfied that Tipe was under the

1604 age of 15 and why it made this finding beyond reasonable doubt. Mr Ntaganda has

Mr Ntaganda’s Appeal Brief – Part II 1596 , para. 246. Mr Ntaganda’s Appeal Brief – Part II 1597 , para. 246 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 1598 , para. 247. 1599 Lubanga Appeal Judgment , para. 218. 1600 Lubanga Appeal Judgment , para. 218. 1601 Conviction Decision , para. 388. 1602 Conviction Decision , para. 388. Mr Ntaganda’s Appeal Brief – Part II 1603 , para. 246. 1604 Conviction Decision , para. 388.

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therefore not demonstrated that the Trial Chamber erred in failing ‘to explain how doubt could be excluded’. 1605

Moreover, the Trial Chamber properly reasoned why it found P-0898’s account about his own age at the time of the events to be credible and why it relied on his age as a comparative point to assess the age of other individuals enlisted by the 1606 UPC/FPLC. In light of the witness’s consistent testimony that he was between 13 and a half and 14 years of age and the corresponding information contained in documentary evidence, and ‘absent any specific challenge concerning the witness’s date of birth’, 1607 the Trial Chamber found that the witness was under 15 years at the 1608 time of the relevant events.

The Trial Chamber also found P-0898’s age assessments of other individuals he observed or was in contact with in the context of his involvement with the UPC/FPLC, who were in the same age range as him to be ‘generally reliable’ and ‘credible’. 1609 In reaching this finding, the Trial Chamber noted that ‘the witness acknowledged on several occasions that he was not in a position to provide the precise age of a person he was not related to, which, according to the witness, only parents can do, and based his assessments on the size and other physical features of [other] relevant individuals’. 1610 It also noted the witness’s testimony that amongst Mr Ntaganda’s bodyguards he identified a kadogo named ‘Tipe’, whom the witness estimated to be ‘around his age’, ‘because of [his] size’. 1611

The Trial Chamber relied also on the evidence of other witnesses ‘who were in regular contact with, or had sufficient opportunities to observe, individuals serving within Mr Ntaganda’s escort’ to support its finding that such escort ‘comprised kadogos, including individuals under 15 years of age’. 1612 The Trial Chamber noted P- 0014’s testimony about seeing ‘three bodyguards of Mr Ntaganda whom he assessed to be aged between 13 and 15’; P-0017’s testimony on seeing in Mandro training

Mr Ntaganda’s Appeal Brief – Part II 1605 , para. 246. 1606 See Conviction Decision , para. 202, fn. 1114. 1607 Conviction Decision , para. 202. 1608 Conviction Decision , paras 202, 388, fn. 966. 1609 Conviction Decision , para. 203. 1610 Conviction Decision , para. 203 (footnote omitted). 1611 Conviction Decision , para. 388, fn. 1102. See also P-0898: T-154 , p. 23, lines 20-23. 1612 Conviction Decision , para. 389-390.

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camp ‘two male bodyguards of Mr Ntaganda whom he estimated to be under 15’; P- 0030’s testimony that he saw ‘Mr Ntaganda and Floribert Kisembo coming with their bodyguards when they visited Thomas Lubanga at his residence’, and that these bodyguards’ age varied from 12 to 15 years; and P-0290’s testimony that individuals, of whom the ‘youngest “may have been 13 years old”’ were among the individuals guarding Mr Ntaganda’s compound. 1613 The Trial Chamber added that the evidence of P-0768, P-0055, P-0901 and P-0041 supported its finding that individuals under 15 1614 years were acting as escort to Mr Ntaganda. The Appeals Chamber notes that Mr Ntaganda does not show that the Trial Chamber’s reliance on that evidence was unreasonable.

Mr Ntaganda further argues that the Trial Chamber erred in finding P-0017’s age estimate in relation to an individual depicted in a video extract to be irrelevant and contends that what is ‘required is a reasonable possibility’ that that individual is the same person as the person identified as Lamama and that there is ‘the possibility that the person is 15 years of age or older’. 1615 The Appeals Chamber is not convinced by this argument. The Trial Chamber noted the witness’s assessment of the individual appearing in a video extract and observed that ‘there is no evidence to the effect that 1616 this person is the same person as the person identified by P-0010 as Lamama’.

The Appeals Chamber observes that P-0017 was presented with extracts of a video recording of events in Mongbwalu and was asked to identify certain individuals 1617 and to estimate the age of one of them. The Trial Chamber correctly noted that P- 0017 provided contradictory statements about the age of that individual: he first testified that the individual was 15 years or above and later stated that, ‘based on the person’s size, his height and the facial looks, the person could be 14, 15 or more’. 1618 The Appeals Chamber considers that it was reasonable for the Trial Chamber not to

1613 Conviction Decision , para. 390, referring to P-0014: T-136 , pp. 34-36, 38-39; P-0017: T-58 , pp. 24-26, 32-34; P-0030: T-144 , pp. 28, 34-36, DRC-OTP-2054-2951, at 2974; P-0290: T-67 , pp. 3-4, 7, 9-10, 12. 1614 Conviction Decision , para. 390, referring to P-0768: T-34 , pp. 47-49, 54; P-0055: T-71 , pp. 68, 70, 84; P-0901: T-29 , pp. 55-56; P-0041: DRC-OTP-0147-0002, at 0029, para. 173, DRC-OTP-2054-5199, pp. 5261-5162. Mr Ntaganda’s Appeal Brief – Part II 1615 , para. 241 (emphasis in original omitted). 1616 Conviction Decision , fn. 1099, referring to DRC-OTP-2058-0251. 1617 P-0017: T-62 , p. 48, lines 9-13. 1618 Conviction Decision , fn. 1099, referring to P-0017: T-62 , pp. 52-53; DRC-OTP-2058-0251, at 00:48:22. See also P-0017: T-62 , p. 48, lines 7-10, p. 52, line 11 to p. 53, line 6.

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consider P-0017’s inconclusive evidence about the age of that individual in the context of P-0010’s evidence, which it found credible regarding the identification and 1619 age of Lamama.

Finally, the Appeals Chamber finds no merit in Mr Ntaganda’s argument that the Trial Chamber failed to address ‘any of the evidential shortcomings’ raised in his 1620 Closing Brief. In that regard, the Appeals Chamber notes that, apart from listing the numbers of paragraphs of his closing brief, Mr Ntaganda does not develop the specific challenges he made. Furthermore, contrary to his contention, the Trial Chamber did address his evidentiary challenges, in relation to the evidence of P-0963, 1621 P-0017, P-0030, P-0768, P-0055 and P-0016.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that there were individuals under the age of 15 within Mr Ntaganda’s escort, the Appeals Chamber rejects this ground of appeal.

J. Tenth ground of appeal: Enlistment of individuals under the age of 15 years

Under the tenth ground of appeal, Mr Ntaganda submits that the Trial Chamber erred in finding that individuals under the age of 15 years, in particular P-0883 and P- 1622 0898, were enlisted in the UPC/FPLC and actively participated in the hostilities.

1 Relevant part of the Conviction Decision The Trial Chamber found that ‘individuals under the age of 15, including P- 0883 and P-0898, were trained along with other UPC/FPLC recruits at the various UPC/FPLC training camps’. 1623 The Trial Chamber was satisfied that the recruitment

1619 Conviction Decision , fn. 1099. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Closing Brief 1620 , para. 248, referring to , paras 1389-1398, 1439-1491. Mr Ntaganda’s Closing Brief 1621 See Conviction Decision , fns. 995 ( referring to , para. 1449 in relation to P-0963), 1106 ( referring to Mr Ntaganda’s Closing Brief , para. 301 in relation to P-0017), 1107 ( referring to Mr Ntaganda’s Closing Brief , paras 1473-1474 in relation to P-0030), 1109 ( referring to Mr Ntaganda’s Closing Brief , paras 295, 1452 in relation to P-0768), 1111 ( referring to Mr Ntaganda’s Closing Brief , paras 1453, 1475, 1528 in relation to P-0055 and P-0901), 1112 ( referring to Mr Ntaganda’s Closing Brief , paras 1484-1485 in relation to P-0041), 1113 ( referring to Mr Ntaganda’s Closing Brief , para. 1478 in relation to P-0016). Mr Ntaganda’s Appeal Brief – Part II 1622 , paras 250, 253, 257. 1623 Conviction Decision , para. 1120, referring to para. 362. See also fn. 966.

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of individuals under the age of 15 into the UPC/FPLC constituted enlistment into an armed group for the purpose of article 8(2)(e)(vii) of the Statute and that, ‘by virtue of being trained at UPC/FPLC camps, individuals under the age of 15 were enlisted or conscripted into the UPC/FPLC ranks’. 1624

The Trial Chamber further found that individuals under the age of 15 participated in the First Operation and in the assault on Bunia in May 2003 and that constituted active participation in hostilities for the purpose of article 8(2)(e)(vii) of 1625 the Statute.

2 Summary of submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda argues that the Trial Chamber erred in finding P-0883’s testimony 1626 on her date of birth to be credible, despite her lying about her abduction. Furthermore, Mr Ntaganda argues that the Trial Chamber erred in finding P-0898’s testimony to be reliable, in particular on the point that ‘he was under 15 when he was enlisted and participated in hostilities’, despite evidence contradicting his 1627 statements.

(b) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber’s finding that P-0883 and P- 1628 0898 were under the age of 15 years at the time of the events was reasonable. She avers that the Trial Chamber addressed the inconsistencies with respect to P-0883’s testimony about her abductors and found that these inconsistencies ‘were insufficient to cast doubt’ on the witness’s ‘overall credibility’. 1629 With respect to P-0898, the Prosecutor submits that the Trial Chamber’s reasonable finding about the witness’s age was based on ‘several pieces of corroborating evidence: school records, an electoral card, a citizenship certificate and a birth certificate’. 1630

1624 Conviction Decision , paras 1123-1124. 1625 Conviction Decision , paras 1125, 1128, 1133, referring to paras 511, 655. Mr Ntaganda’s Appeal Brief – Part II 1626 , paras 251-252, 260, 267-268. Mr Ntaganda’s Appeal Brief – Part II 1627 , paras 253-256. Prosecutor’s Response to Appeal – Part II 1628 , para. 191. Prosecutor’s Response to Appeal – Part II 1629 , para. 192. Prosecutor’s Response to Appeal – Part II 1630 , para. 195.

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(c) The victims’ observations

Victims Group 1 submit that this ground of appeal ‘differs significantly from the corresponding ground outlined in the Notice of Appeal’. 1631 They argue that, in the notice of appeal, Mr Ntaganda ‘described this ground of appeal as a challenge against the Chamber’s findings that “children under the age of fifteen years were used to participate actively in hostilities, or that Mr. Ntaganda possessed the necessary mens rea ”’, without mentioning P-0883, P-0898 or the ‘charges of enlistment and conscription in Counts 14 and 15’. 1632 If this ground of appeal exceeds the scope of the ground pleaded in the notice of appeal, Victims Group 1 invite the Appeals Chamber ‘to consider whether the requirements for a variation of grounds of appeal set out in regulation 61 of the Regulations of the Court and in the jurisprudence of the Court are met’. 1633

Victims Group I submit that, if the Appeals Chamber decides to consider the merits of this ground of appeal, the Trial Chamber’s reliance on P-0883’s and P- 0898’s evidence and other evidence was reasonable to find that they were under the 1634 age of 15 at the time of the events.

(d) Mr Ntaganda’s response to the victims

Mr Ntaganda responds that the ‘text underlying Ground 10 in the Notice of Appeal was sufficiently explicit to give ample prior notice of the content to be expected in this section’. 1635 He avers that, even if Victims Group 1’s claim is correct, (i) this ground of appeal is ‘well-substantiated’ and disregarding it ‘would not be in the interests of justice’; and (ii) Victims Group 1 managed to respond to it in detail, which shows that they were not prejudiced by ‘any defective notice’. 1636

3 Determination by the Appeals Chamber As a preliminary issue, the Appeals Chamber notes Victims Group 1’s contention that Mr Ntaganda’s arguments developed in his appeal brief for this ground of appeal exceed the scope of the issues set out in the notice of appeal and that

1631 Observations of Victims Group 1 on Appeal – Part II , para. 32. 1632 Observations of Victims Group 1 on Appeal – Part II , para. 32 (emphasis in original omitted). 1633 Observations of Victims Group 1 on Appeal – Part II , para. 32. 1634 Observations of Victims Group 1 on Appeal – Part II , para. 32. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1635 , para. 65. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1636 , para. 65.

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Mr Ntaganda did not request a variation of this ground of appeal under regulation 61 1637 of the Regulations of the Court. The Appeals Chamber notes that Mr Ntaganda does not mention P-0883 or P-0898 in the notice of appeal. He also does not refer to the issue of enlistment but only to the participation of individuals under the age of 15 1638 in hostilities.

The Appeals Chamber does not consider that by mentioning the two witnesses and the issue of enlistment in the appeal brief Mr Ntaganda de facto varied a ground of appeal within the meaning of regulation 61 and that his present arguments expand the scope of this ground of appeal. This is because the main issue raised in this ground of appeal in both the notice of appeal and the appeal brief relates to the age of the concerned individuals involved in the relevant events. In that regard, the issue of the participation of these individuals in hostilities and the Trial Chamber’s ‘misapplication of the standard of proof’ described in the appeal brief is also 1639 mentioned in the notice of appeal and the issue of enlistment directly relates to this matter. Therefore, the Appeals Chamber rejects Victims Group 1’s contention that the submissions for this ground advanced in the appeal brief exceed the scope of this ground as set out in the notice of appeal.

Turning to the merits of Mr Ntaganda’s challenge under this ground of appeal, the Appeals Chamber notes his argument that the Trial Chamber erred in not finding that P-0883 lied under oath about her abduction, in not discussing this lie when assessing the witness’s testimony on her age and in finding her account reliable. 1640

The Appeals Chamber notes at the outset that the Trial Chamber addressed specific issues of witness credibility, in particular the issue of birth dates provided in 1641 official documents. It held that, given the ‘reported conditions of production of most of these documents’, it ‘attached a very low probative value’ to such 1642 documents. It added that, when such documents were ‘produced on the basis of the witness’s account alone, or that of their parents, and […] no further verification as to

1637 Observations of Victims Group 1 on Appeal – Part II , para. 32. 1638 Mr Ntaganda’s Notice of Appeal , p. 14. Mr Ntaganda’s Appeal Brief – Part II 1639 Mr Ntaganda’s Notice of Appeal , p. 14; , paras 250, 257. Mr Ntaganda’s Appeal Brief – Part II 1640 , paras 250-252, 257. 1641 Conviction Decision , para. 86. 1642 Conviction Decision , para. 86.

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the accuracy of the provided information was effectuated’, the Trial Chamber would

afford ‘limited or no corroboratory value’. 1643 The Appeals Chamber notes that the

Trial Chamber followed these principles when assessing the documentary evidence

relevant to both witnesses about their date of birth.

Regarding P-0883, the Trial Chamber first discussed the general credibility of

her evidence. It found that her account was clear and rich in detail, and that her

narrative ‘was also consistent throughout examination-in-chief and cross-

examination’ and mainly focused on her personal experience. 1644 The Trial Chamber

noted that the witness ‘refrained from general comments or approximations’ and that

‘aspects of her testimony [were] consistent with the experience of UPC/FPLC recruits

in other camps’. 1645

The Trial Chamber further assessed her account regarding her date of birth,

which it found to be credible, and concluded that the witness was ‘under the age of 15

at the time of her alleged abduction, in October 2002’. 1646 It then turned to the

witness’s account of her abduction. 1647 The Trial Chamber thoroughly assessed the

witness’s evidence on her age at the time of the relevant events, her abduction and her

1648 training experience in camp Bule. The Trial Chamber noted discrepancies between

the witness’s testimony and her two victim application forms on the issue of her

1649 1650 abduction and the witness’s explanations for these discrepancies, and

concluded that it could not ‘rely on the witness’s accounts concerning her abduction

and the period immediately following the abduction’. 1651

Despite its rejection of these aspects of P-0883’s evidence, the Trial Chamber

found her testimony on the existence of a UPC/FPLC training camp in Bule to be

1643 Conviction Decision , para. 86. 1644 Conviction Decision , para. 175. 1645 Conviction Decision , para. 175. As for the experience of UPC/FPLC recruits in other camps, the Trial Chamber referred to the testimony of P-0758, P-0769, P-0888, P-0898, P-0901, P-0907, and P- 0963. See Conviction Decision , fn. 420. 1646 Conviction Decision , para. 179. See also fn. 966. 1647 Conviction Decision , paras 180-185. 1648 Conviction Decision , paras 108-181, 183. 1649 Conviction Decision , para. 180. 1650 Conviction Decision , paras 181-182. 1651 Conviction Decision , para. 185.

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1652 credible. In reaching this finding, the Trial Chamber found that the ‘witness’s

position as a recruit at the time of these events, the time passed since then, as well as

the fact that the details she provided are broadly consistent with the testimony of other

1653 former recruits’.

The Appeals Chamber finds no error in the Trial Chamber’s approach to the

assessment of the witness’s credibility on the different issues discussed during her

testimony. The Appeals Chamber recalls that trial chambers have ‘the main

responsibility to resolve any inconsistencies that may arise within and/or amongst

witnesses’ testimonies’. 1654 It is ‘within the discretion of the Trial Chamber to

evaluate any inconsistencies, to consider whether the evidence taken as a whole is

reliable and credible and to accept or reject the “fundamental features” of the

evidence’. 1655 Mr Ntaganda does not explain why the Trial Chamber should have qualified inconsistencies in the witness’s evidence as lies or ‘perjury’ 1656 and how this alleged failure affects the reasonableness of the Trial Chamber’s detailed analysis of

the witness’s credibility.

Mr Ntaganda claims that the Trial Chamber misappreciated P-0883’s evidence

in finding that there was no indication of the witness’s involvement in producing a

1657 tampered version of an original school record. He refers to ‘circumstantial indications’ of the ‘direct or indirect’ involvement of the witness in tampering with

this school record in order to match the date of birth with the one given to the Trial

1658 Chamber during her testimony. According to Mr Ntaganda, this shows that the Trial Chamber misappreciated the evidence or applied ‘an erroneous standard of

proof’. 1659

The Appeals Chamber finds that Mr Ntaganda misreads the Conviction

Decision and that his reference to ‘circumstantial indications’ of a ‘direct or indirect’

1652 Conviction Decision , para. 186. 1653 Conviction Decision , para. 186 (footnote omitted). 1654 Bemba et al. Appeal Judgment , para. 95, referring to Lubanga Appeal Judgment , para. 23, quoting Kupreškić et al. Appeal Judgment , para. 31. 1655 Bemba et al. Appeal Judgment , para. 95, referring to Lubanga Appeal Judgment , para. 23, quoting Kupreškić et al. Appeal Judgment , para. 31. Mr Ntaganda’s Appeal Brief – Part II 1656 , para. 251. Mr Ntaganda’s Appeal Brief – Part II 1657 , para. 252. Mr Ntaganda’s Appeal Brief – Part II 1658 , para. 252. Mr Ntaganda’s Appeal Brief – Part II 1659 , para. 252.

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involvement of the witness in tampering with the school record is speculative. The

Trial Chamber found that ‘P-0883 consistently provided the same date of birth during

her testimony’, 1660 making her ‘under the age of 15 at the time of her alleged

abduction, in October 2002’. 1661

The Appeals Chamber notes that the Trial Chamber assessed in great detail the

1662 witness’s testimony, including on her electoral card and different birth certificates,

1663 and the two school records. It observed that ‘the witness’s accounts concerning the

steps undertaken to obtain the various documentary evidence are very detailed,

1664 consistent throughout her testimony’ and it considered them plausible. It also

found that she was credible when answering the ‘Defence questions about her names

and her parents’ names’. 1665 The Trial Chamber further noted one exception during

her testimony ‘where, when confronted with the information in her preparation

session note providing that the witness had indicated a different day of birth, and

asked what her real date of birth was, the witness responded by saying “I don’t

know”’. 1666 Taking into consideration the witness’s personal situation, and the

clarifications she provided for her confusion, the Trial Chamber was of the view that

this exception did not affect the witness’s credibility regarding her date of birth. 1667

With respect to the witness’s testimony on the issuance of the two birth

certificates, the Trial Chamber noted different ways of issuing such documents: ‘on

the basis of the witness’s accounts alone for the electoral card and on the basis of the

hospital’s certificate for the document from the État civil ’, and considered that these

documents could not ‘serve as independent corroboration’. 1668 The Trial Chamber

observed that birth certificates issued by the État civil ‘appear[ed] to be issued

without further verifications regarding dates of birth’. 1669 Moreover, the Trial

Chamber noted Mr Ntaganda’s challenges with respect to the hospital certificate and

1660 Conviction Decision , para. 176. 1661 Conviction Decision , para. 179. 1662 Conviction Decision , para. 177. 1663 Conviction Decision , para. 178. 1664 Conviction Decision , fn. 434. Mr Ntaganda’s 1665 Conviction Decision , fn. 434, referring to P-0883: T-169 , pp. 30-31, 38-40, 58-60; Closing Brief , paras 1198-1199. 1666 Conviction Decision , fn. 421, referring to P-0883: T-169 , p. 70. 1667 Conviction Decision , fn. 421, referring to P-0883: T-170 , pp. 17-18. 1668 Conviction Decision , para. 177. 1669 See Conviction Decision , fn. 428.

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therefore attached ‘only limited weight to this document for the purpose of corroboration of the witness’s evidence concerning her date of birth’. 1670

Regarding the school records, the Trial Chamber noted that the first school record of 1997 from the school attended by the witness, listed ‘various students’ names, together with their respective dates of birth and the names of their fathers’, and that the witness’s name appeared ‘as having a different month and year of birth than that provided by the witness’. 1671 The Trial Chamber observed that on a second school record, that was ‘otherwise identical’ to the 1997 record, the date of birth had been changed ‘to a date that correspond[ed] to the date of birth provided by the witness’. 1672

The Appeals Chamber notes that the Trial Chamber found the existence of two different versions of the same school record and ‘potential modifications made to items of evidence’ to be ‘concerning’. 1673 However, the Trial Chamber was of the view that ‘absent any indication as to the circumstances surrounding these alterations’ and as there was ‘no indication’ of the witness’s involvement ‘in any way’, it could 1674 not draw any conclusion from these documents. The Trial Chamber also observed that ‘the year of birth originally appearing on the document would make the witness one year younger than she reports, and, as such, has no impact on the question whether the witness was under 15 at the time of the events described during her testimony’. 1675

The Appeals Chamber sees no error in the Trial Chamber’s approach and finds that it was reasonable for the Trial Chamber to consider that no conclusions could be drawn from those documents and to find the witness’s evidence regarding her age 1676 reliable despite the alteration of the school record. The Appeals Chamber also finds that the Trial Chamber’s observation about the lack of impact of the change of date on the question whether the witness was under 15 is undoubtedly relevant in the

1670 Conviction Decision , para. 177. 1671 See Conviction Decision , para. 178, referring to DRC-OTP-2082-0368, line 7952. 1672 Conviction Decision , para. 178, referring to DRC-OTP-2097-0540, p. 0541; Mr Ntaganda Closing Brief , para. 1201. 1673 Conviction Decision , para. 178. 1674 Conviction Decision , para. 178. 1675 Conviction Decision , para. 178. 1676 See Conviction Decision , paras 178-179.

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present context, and that Mr Ntaganda fails to explain why this observation ‘does nothing to reduce’ the indications of the witness’s involvement in producing the 1677 allegedly tampered version.

Turning to Mr Ntaganda’s challenge regarding P-0898, the Appeals Chamber notes his argument that the witness’s testimony on the ‘existence of school report cards in his name’ during the relevant period and the authorities using ‘the marks from the second semester to fabricate marks for the first semester’ is contradicted by 1678 D-0201, who denied that this happened in respect of P-0898. Mr Ntaganda avers that, given this contradictory evidence, the Trial Chamber ‘was required to reject’ the testimony of D-0201 and its explanation in footnote 498 of the Conviction Decision 1679 failed to address this issue.

The Appeals Chamber notes that the Trial Chamber found P-0898’s testimony 1680 to be credible. With respect to the question whether the witness’s school records and marks, which covered the full school year suggesting that the witness attended school during that period, contradicted his account of ‘having been with the UPC for 1681 most of the 2002-2003 school year’, the Trial Chamber found that (i) the witness plausibly explained why the records included marks for each term; and (ii) the testimony of P-0551, D-0201 or P-0918 did not call into question P-0898’s 1682 account. The Trial Chamber further noted that P-0898’s account was consistent when discussing the dates regarding ‘his departures from and returns to school’. 1683

The Appeals Chamber finds no merit in Mr Ntaganda’s contention about the Trial Chamber reaching these conclusions, despite failing to reject the allegedly contradictory testimony of D-0201. The Trial Chamber considered that D-0201’s account ‘on the consequences of a student’s absence for a school record was very general’ and it did not ‘exclude modifications on an individual basis’. 1684 The Appeals

1677 Mr Ntaganda’s Appeal Brief – Part II , para. 252. Mr Ntaganda’s Appeal Brief – Part II 1678 , para. 254. Mr Ntaganda’s Appeal Brief – Part II 1679 , paras 254-255. 1680 Conviction Decision , paras 208, 234. 1681 Conviction Decision , para. 206. 1682 Conviction Decision , para. 206, fn. 498, referring , inter alia , to Mr Ntaganda Closing Brief , paras 1237-1244. 1683 Conviction Decision , para. 206 . 1684 Conviction Decision , fn. 498.

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Chamber notes that the witness confirmed P-0898’s account that during the period of 1685 2002 to 2003 the schools in Bunia were not functioning properly. More importantly, the Trial Chamber noted that D-0201 ‘was not able to confirm that P- 1686 0898 attended school during the relevant time-frame’ and the witness’s explanation that ‘absences from school could not be justified for reasons related to military service’ seemed ‘implausible considering the circumstances at the relevant time’. 1687 It is apparent from the Trial Chamber’s analysis of D-0201’s testimony on the issue of school attendance that it did consider parts of it to contradict the evidence of P-0898 and found other parts to be implausible. The Appeals Chamber thus finds that, contrary to Mr Ntaganda’s contention, the Trial Chamber did address potential inconsistencies between the evidence of P-0898 and D-0201, and it sees no error in this approach.

Mr Ntaganda further submits that the Trial Chamber’s ‘lack of awareness of its own contradictory findings’ regarding the authenticity of the registration lists reveals its ‘disregard of relevant evidence that had to be taken into account’. 1688 In Mr Ntaganda’s view, while the Trial Chamber questioned the authenticity of registration lists, which ‘may have been forged’ by P-0911, it found P-0898’s recognition of such a document prepared upon his arrival at the training camp to be 1689 reliable.

The Trial Chamber considered that P-0898’s account of the registration process was ‘consistent’. 1690 The Trial Chamber noted the witness’s recollection that, at the training camp ‘in Mandro, recruits were required to provide information, including their names, names of parents, where they came from, level of education, and date of birth for the registration list that was held by the admin’ and that the ‘register was 1691 drawn up upon completion of the training’.

1685 See D-0201: T-246 , p. 51, lines 9-12, p. 78, lines 19-21. See also Observations of Victims Group 1 on Appeal – Part II , para. 45. 1686 Conviction Decision , fn. 498. See also D-0201: T-246 , p. 86, line 24 to p. 87, line 19. 1687 Conviction Decision , fn. 498. See also D-0201: T-246 , p. 73, line 17, to p. 74, line 1. Mr Ntaganda’s Appeal Brief – Part II 1688 , para. 256. Mr Ntaganda’s Appeal Brief – Part II 1689 , para. 256. 1690 Conviction Decision , para. 205. 1691 Conviction Decision , fn. 493. See also P-0898: T-153 , p. 59, lines 1-5; T-155 , p. 10, lines 17-23, p. 18, lines 9-18.

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The Appeals Chamber finds that Mr Ntaganda misreads the Conviction Decision. Contrary to Mr Ntaganda’s contention, the Trial Chamber did not make contradictory findings regarding the registration lists. During his testimony, P-0898 1692 was asked about the registration process when joining the UPC. The witness was 1693 shown two registration lists and was asked whether he recognised some names 1694 listed on these documents. The witness was not examined on the origin or the authenticity of these registration lists. When Mr Ntaganda’s Lead Counsel objected to the witness being only asked about names appearing on the second document shown to him but not about its origins, Counsel for the Prosecutor responded that he would 1695 not explore the origins or authenticity of the lists with this witness. As the issue of authenticity was not explored in relation to this witness, the Trial Chamber did not make any finding on this issue or on the content of the registration lists in finding P- 0898’s testimony credible.

This is the context in which the Trial Chamber considered that P-0898’s testimony was not ‘affected’ by its conclusion regarding the authenticity of these registration lists, which were discussed in relation to the testimony of P-0911, who 1696 was questioned about the creation and content of these lists. With respect to these lists, the Trial Chamber found that the witness’s account about the ‘alleged duplicates of the lists’, ‘where he stored the list referring to P-0898’ and the circumstances in which he retrieved the lists and gave them to the Office of the Prosecutor was ‘unclear’ and ‘unpersuasive’. 1697 The Trial Chamber seriously doubted ‘the authenticity of the lists provided’ by the witness and decided that it would not rely on 1698 them when assessing the evidence. The Trial Chamber found P-0911 not to be credible and decided not to rely on ‘his testimony and the documentary evidence introduced through [him]’. 1699 In these circumstances, it is apparent that the issue of

1692 P-0898: T-153 , p. 59, lines 1-5. 1693 P-0898: T-153 , p. 62, line 6, p. 65, line 14. 1694 P-0898: T-153 , p. 62, line 6 to p. 63, line 7, p. 65, line 7 to p. 66, line 4. 1695 P-0898: T-153 , p. 66, line 11 to p. 68, line 17. 1696 See Conviction Decision , para. 230. See also P-0911: T-157 , p. 24, line 11 to p. 38, line 6; T-159 , p. 61, line 15 to p. 62, line 10. 1697 Conviction Decision , para. 230. 1698 Conviction Decision , para. 235. 1699 Conviction Decision , para. 235.

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the authenticity of the registration lists had no bearing on the credibility of P-0898’s testimony.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that individuals under the age of 15 years were enlisted in the UPC/FPLC and actively participated in the hostilities, the Appeals Chamber rejects this ground of appeal.

K. Eleventh ground of appeal: Rape and sexual enslavement of individuals under the age of 15

Under the eleventh ground of appeal, Mr Ntaganda submits that it was unreasonable for the Trial Chamber to find that the rape and sexual enslavement of three individual occurred or that Mr Ntaganda knew about these incidents. The relevant incidents related to: (i) a person named Nadège, based on P-0758’s testimony; (ii) P-0883; and (iii) a person named Mave, based on the testimony of P- 1700 0901, P-0907 and P-0887.

1 Relevant part of the Conviction Decision The Trial Chamber found that a girl named Nadège, aged around nine years, 1701 who had been taken to the Lingo training camp, was raped. The Trial Chamber relied on the testimony of P-0758, which it considered reliable given the details the witness provided in her testimony concerning sexual violence she witnessed at Lingo 1702 training camp.

With respect to P-0883, the Trial Chamber found that it could not rely on her 1703 account regarding her alleged abduction and the period thereafter. However, it found her testimony that there was a UPC/FPLC training camp in Bule, that she had been under 15 years old at the relevant time and had been raped by ‘many soldiers’ at 1704 the camp in Bule to be credible.

Mr Ntaganda’s Appeal Brief – Part II 1700 , paras 258-259, 269, 271. 1701 Conviction Decision , para. 410. 1702 Conviction Decision , para. 410, fn. 1170. 1703 Conviction Decision , para. 185, fn. 1166. 1704 Conviction Decision , paras 179, 186-187, 409.

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In addition, the Trial Chamber found that a girl named Mave, who was under 15 years of age and an escort to Floribert Kisembo, ‘was raped by many different 1705 soldiers on a regular basis, including at the Appartements camp in Mongbwalu’. The Trial Chamber relied on the testimony of P-0887 and P-0907 in reaching this 1706 finding.

Finally, the Trial Chamber concluded that Mr Ntaganda ‘was aware’ that individuals under the age of 15 years would be ‘enlisted, conscripted and used to participate actively in hostilities within the UPC/FPLC ranks’ and that ‘they would be raped and subjected to sexual slavery’. 1707

2 Summary of submissions

(a) Mr Ntaganda’s submission

Mr Ntaganda argues that, despite having found that P-0758 lied about her own age and her conscription into the FPLC, the Trial Chamber failed to address these lies 1708 when assessing her credibility. Mr Ntaganda further argues that the Trial Chamber erred in accepting P-0883’s testimony about her rapists being members of the UPC/FPLC, without discussing the impact of her lie about her abduction on the rest of 1709 her testimony. Moreover, Mr Ntaganda submits that the Trial Chamber’s conclusion that a person named Mave was under 15 years old is ‘manifestly unreasonable’. 1710

Mr Ntaganda further challenges the Trial Chamber’s failure to make a finding on his knowledge of the conduct of Kisembo’s forces or Kisembo himself and notes the absence of evidence of such knowledge in relation to rape and sexual slavery 1711 committed by the UPC/FPLC in early March 2003.

(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda repeats his arguments made at trial without showing that the Trial Chamber erred in relying on P-0758’s testimony to

1705 Conviction Decision , para. 411. 1706 Conviction Decision , para. 411, fn. 1172. 1707 Conviction Decision , para. 1198. Mr Ntaganda’s Appeal Brief – Part II 1708 , paras 259, 262. Mr Ntaganda’s Appeal Brief – Part II 1709 , paras 260, 267-268, 271. Mr Ntaganda’s Appeal Brief – Part II 1710 , paras 261, 269, 271. Mr Ntaganda’s Appeal Brief – Part II 1711 , para. 270.

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find that Nadège, a girl of nine years old at the time of the events, was raped at Lingo

1712 training camp. The Prosecutor further argues that the Trial Chamber’s assessment

1713 of P-0883’s credibility and the reliability of her testimony was reasonable. The

Prosecutor further avers that the Trial Chamber did not err in its approach to the

determination of the age of Mave, as such determination is ‘fact-sensitive and does

not require particular expertise’. 1714 The Prosecutor argues that the Trial Chamber

‘relied on direct and reliable testimonial evidence’ and addressed ‘“conflicting

evidence” about her age’. 1715

The Prosecutor further argues that Mr Ntaganda’s contention regarding the Trial

Chamber’s findings about his mens rea ‘misapprehends the evidence and

misunderstands the law’. 1716

(c) The victims’ observations

Victims Group 1 submit that the Trial Chamber did not err in finding that three

child soldiers, namely, P-0883, Mave and Nadège had been victims of rape and sexual

1717 slavery.

(d) Mr Ntaganda’s response to the victims

Mr Ntaganda argues that Victims Group 1 misunderstand his argument about

1718 corroboration. In the present case, he argues that: (i) ‘the lack of corroboration as

“a recurring theme” is raised’ ‘in the context of the Trial Chamber’s repeated failure

to properly and reasonably assess the evidence’; (ii) the Trial Chamber failed to

address ‘serious credibility and reliability challenges’ to the evidence; and (iii) it

failed to ‘explai[n] […] why corroboration played no role’. 1719 Mr Ntaganda reiterates

that the Trial Chamber erred in relying on P-0883’s testimony as the witness’s

statements are ‘strongly suggestive of not just mistake, but deception’ and the Trial

Prosecutor’s Response to Appeal – Part II 1712 , para. 201. Prosecutor’s Response to Appeal – Part II 1713 , para. 204. Prosecutor’s Response to Appeal – Part II 1714 , para. 209. Prosecutor’s Response to Appeal – Part II 1715 , para. 209. Prosecutor’s Response to Appeal – Part II 1716 , para. 210. 1717 Observations of Victims Group 1 on Appeal – Part II , paras 48-64. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1718 , para. 66. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1719 , paras 67-69.

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Chamber only announced its conclusion about the general credibility of the witness

1720 without more detail.

Mr Ntaganda further submits that the Trial Chamber erred in its finding about

Mave’s age, as only P-0907 provided an age estimate and this is ‘another example of

the Prosecution having the opportunity to corroborate a material fact and yet

refraining […] from doing so’ by not asking P-0901 about Mave’s age. 1721

3 Determination by the Appeals Chamber

Mr Ntaganda argues that it was unreasonable for the Trial Chamber to find that

Nadège was raped, based on P-0758’s testimony, and that it did not assess that

witness’s credibility in a holistic fashion. 1722 Mr Ntaganda argues that, when assessing

P-0758’s credibility in relation to the rape of Nadège at an FPLC camp, the Trial

Chamber: (i) failed to address her lies about her own age and conscription into the

FPLC; and (ii) did not mention that it ‘declined to place any reliance’ on P-0758’s

1723 testimony about being raped [REDACTED]. Mr Ntaganda alleges that P-0758’s

first victim application in the Lubanga case was rejected in that case because she was

1724 not under the age of 15 years. He argues that P-0761, [REDACTED], ‘lied under

oath’ in denying being present and assisting P-0758 in filling out a second victim

application form, which provided a different date of birth, and that he could not

1725 1726 clearly indicate [REDACTED]. He adds that P-0758 also lied [REDACTED].

Mr Ntaganda submits that no other witness mentions the existence of a person named

1727 Nadège or her rape.

The Appeals Chamber finds that, contrary to Mr Ntaganda’s contention, 1728 the

Trial Chamber assessed P-0758’s evidence in a ‘holistic’ manner. The Trial Chamber

explained in detail why it found aspects of her evidence on her date of birth and the

Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1720 , paras 70-71. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1721 , para. 75. Mr Ntaganda’s Appeal Brief – Part II 1722 , paras 266, 271. Mr Ntaganda’s Appeal Brief – Part II 1723 , paras 259, 262, 265. Mr Ntaganda’s Appeal Brief – Part II 1724 , para. 263. Mr Ntaganda’s Appeal Brief – Part II 1725 , para. 263. Mr Ntaganda’s Appeal Brief – Part II 1726 , para. 264. Mr Ntaganda’s Appeal Brief – Part II 1727 , para. 265. Mr Ntaganda’s Appeal Brief – Part II 1728 , paras 266, 271.

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1729 timing of her abduction unreliable, while it found her testimony about her experience within the UPC/FPLC and sexual violence she witnessed at the Lingo 1730 training camp to be reliable. It also addressed inconsistencies in her testimony and ‘documentary evidence and other information related to her’. 1731

The Appeals Chamber is also unconvinced by Mr Ntaganda’s contention that the Trial Chamber failed to reconcile its rejection of P-0758’s testimony about her rape and to discuss her ‘lies’ when assessing the credibility of her account of the rape 1732 of Nadège at an FPLC camp. The Trial Chamber was aware of the impact of the unreliable aspects of her evidence, which is demonstrated by its decision to ‘determine on a case-by-case basis which remaining aspects of P-0758’s testimony can be relied upon’. 1733

In that regard, the Trial Chamber first assessed the general credibility of P-0758. It noted that, throughout her testimony, the witness provided ‘short answers, and frequently asked for questions to be repeated or clarified’, ‘indicated when she was not able to answer a question and mainly testified about’ her personal experience and avoided making ‘general or personal comments or approximations’. 1734

The Trial Chamber addressed inconsistencies in the witness’s testimony with regard to ‘documentary evidence and other information related to her’, as well as victim application forms ‘completed on her behalf’: two in the Lubanga proceedings 1735 and one in the reparation proceedings in the present case. The Trial Chamber duly noted that: (i) P-0758 had applied in 2006 to participate as a victim in the Lubanga case; (ii) her application was rejected; and (iii) after presenting a second application in 2007, the witness was authorised to participate in the Lubanga proceedings as a 1736 victim. More importantly, the Trial Chamber noted that her 2007 victim application and two birth certificates from October 2006 and January 2008 ‘appear to

1729 Conviction Decision , paras 151-158. 1730 Conviction Decision , paras 159-160, fn. 1170. 1731 Conviction Decision , para. 150. Mr Ntaganda’s Appeal Brief – Part II 1732 , paras 259, 262, 265. 1733 Conviction Decision , para. 160. 1734 Conviction Decision , para. 149. 1735 Conviction Decision , para. 150. 1736 Conviction Decision , para. 150.

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1737 be exclusively based on the information provided by P-0758 or P-0761’. It

considered that such evidence was ‘of limited value to assist in establishing’ the

witness’s date of birth. 1738 The Trial Chamber did not rely on this evidence and

1739 concluded that the witness’s evidence about her date of birth was unreliable.

1740 Hence, contrary to Mr Ntaganda’s contention, the Trial Chamber was aware of the

inconsistencies in the application forms and duly considered them when assessing the

witness’s credibility.

The Trial Chamber also found her evidence about the timing of her abduction to

1741 be unreliable, as it was inconsistent with documentary evidence. Regarding P-

0758’s efforts to be recognised as a victim, the Trial Chamber was fully aware of P-

0761’s role in assisting P-0758 in that process. It noted with concern that P-0761 ‘first

denied his involvement’ in assisting P-0758 in completing her victim applications. 1742

It also noted that the information provided in her 2006 application about her date of

birth and the timing of her abduction ‘changed in the subsequent victim application

forms’. 1743 With respect to the abduction of P-0758, the Trial Chamber found that the

accounts of the witness and of P-0806, P-0761 and P-0773 regarding the

circumstances of her abduction and ‘her school situation at the relevant time, are not

fully compatible’. 1744 The Trial Chamber also noted that some events described by P-

0758 such as the arrest of police officers, the battle in Bunia under Floribert

Kisembo’s command and her departure from the UPC/FPLC may have taken place in

1745 2003 rather than in 2002.

Given these inconsistencies in the timing and circumstances of her abduction

and being mindful of the witness’s ‘particular difficulties in remembering specific

dates and timeframes, including in light of her increased vulnerability’, the Trial

Chamber concluded that it would not rely on the witness’s ‘status as a child soldier’

because it could not establish beyond reasonable doubt that she ‘was under 15 years

1737 Conviction Decision , para. 153. 1738 Conviction Decision , para. 153. 1739 Conviction Decision , paras 152-153, 158, 160. Mr Ntaganda’s Appeal Brief – Part II 1740 , para. 263. 1741 Conviction Decision , para. 154. 1742 Conviction Decision , para. 155. 1743 Conviction Decision , para. 155. 1744 Conviction Decision , para. 157 (footnote omitted), fn. 375. 1745 Conviction Decision , para. 156.

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old when she joined the UPC/FPLC’. 1746 Consequently, the Trial Chamber did not

rely on her ‘conscription, and the reported acts of sexual violence she personally

suffered’ at the relevant time. 1747 In this context, as counts 6 and 9, to which her

1748 evidence was relevant, concern only victims under 15 years, it was not necessary

for the Trial Chamber to discuss the sexual violence she personally suffered.

Moreover, the Appeals Chamber finds that the fact that no other witness

1749 testified about the existence of a person named Nadège or her rape, does not, in

and of itself, undermine the Trial Chamber’s decision to rely on P-0758’s evidence.

The Trial Chamber found that the witness’s account about ‘the time she allegedly

spent within the UPC/FPLC was generally coherent, spontaneous, detailed on certain

issues, and largely consistent with the testimony of other witnesses who had

comparable experiences’. 1750 In reaching this finding, the Trial Chamber noted, inter

alia , that the witness provided ‘names and ages of specific victims of sexual violence,

including details of injuries sustained by one of these girls’, details about Mr

Ntaganda’s visit to Lingo camp, ‘training’, ‘living conditions’, ‘discipline at the

camps’, and ‘sexual violence allegedly committed by UPC/FPLC soldiers’. 1751

Therefore, the Appeals Chamber finds no error in the Trial Chamber’s reliance on P-

0758’s testimony concerning the sexual violence she witnessed at Lingo training

1752 camp to conclude that a girl named Nadège, ‘who was around nine years old at the

time’, had been taken to the Lingo camp for training and was raped. 1753 Accordingly,

the Appeals Chamber rejects Mr Ntaganda’s arguments regarding P-0758’s evidence

on the rape of Nadège.

Regarding P-0883, Mr Ntaganda argues that the Trial Chamber erred in

accepting the witness’s uncorroborated testimony about her rapists being members of

1746 Conviction Decision , paras 158, 160. 1747 Conviction Decision , paras 160, 970. Prosecutor’s Response to Appeal – Part II 1748 Conviction Decision , para. 970. See also , para. 203. Mr Ntaganda’s Appeal Brief – Part II 1749 , para. 265. 1750 Conviction Decision , para. 159 (footnote omitted). 1751 Conviction Decision , fn. 379, referring to P-0758: T-160 , p. 89; T-161 , pp. 10-12, 15, 18-23, 30- 44; T-162 , pp. 36-38, 40. 1752 Conviction Decision , para. 410, fn. 1170. 1753 Conviction Decision , para. 410.

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the UPC/FPLC, as the Trial Chamber failed to discuss the impact of her lie about her 1754 abduction on the rest of her testimony.

The Appeals Chamber recalls that under Mr Ntaganda’s tenth ground of appeal it found no error in the Trial Chamber’s reliance on P-0883’s evidence regarding her date of birth and being under 15 years old at the relevant time, despite finding that her 1755 account on her abduction by the UPC and the period thereafter was unreliable. Mr Ntaganda appears to be equating the witness’s alleged lies about her abduction to ‘an article 70 offence’ and argues that the Trial Chamber failed to address this in its assessment of the witness’s testimony on her age. 1756 The Appeals Chamber has already addressed the matter of the Trial Chamber’s assessment of the alleged inconsistencies in the witness evidence and rejected Mr Ntaganda’s challenge in that 1757 regard.

Moreover, the Trial Chamber provided a thorough analysis of the witness’s evidence on her rape. Relying on the ‘witness’s description of the relevant event’ and of the ‘consequences thereof’, in particular, on ‘her health and that of her child born in 2004’, 1758 it noted the witness’s account about ‘having been raped by many soldiers’ during her time at Bule camp and that ‘anyone who wanted to do so could rape you’ was ‘nuanced and not necessarily incriminating on all aspects’. 1759 The Appeals Chamber does not find that Mr Ntaganda has demonstrated any error in the Trial Chamber’s reliance on P-0883’s account about her rape during her stay at Bule camp and about her being under 15 at the relevant time.

Mr Ntaganda further submits that the Trial Chamber’s conclusion that the age of a person named Mave as being under the age of 15 years is ‘manifestly unreasonable’, lacks reasoning and ‘displays an egregious disregard of the caution necessary in making age determinations’. 1760 Mr Ntaganda argues that the Trial Chamber’s

Mr Ntaganda’s Appeal Brief – Part II 1754 , paras 260, 267-268, 271. 1755 See paragraphs 813, 821 above. Mr Ntaganda’s Appeal Brief – Part II 1756 , para. 268. 1757 See paragraphs 803-813 above. 1758 Conviction Decision , para. 187. 1759 Conviction Decision , paras 187, 409. Mr Ntaganda’s Appeal Brief – Part II 1760 , paras 261, 269, 271.

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reliance on the testimony of P-0887, P-0901, and P-0907 is unreasonable as they

1761 provided inconsistent estimates of age and conflicting testimony.

The Trial Chamber found that a girl named Mave and aged under 15 years was

an escort to Floribert Kisembo and ‘was raped by many different soldiers on a regular

1762 basis, including at the Appartements camp in Mongbwalu’. In reaching this

finding, the Trial Chamber relied primarily on the testimony of P-0887 and P-

1763 0907. It also took into account the testimony of P-0901 only for the identification

of Mave as one of Floribert Kisembo’s bodyguards but not for her age at the time of

1764 the events. Indeed, the witness identified two Maves: one was part of

1765 Mr Ntaganda’s escort and the other was one of Floribert Kisembo’s bodyguards

1766 but he did not provide any age for this Mave. The Trial Chamber considered P-

1767 0901 to be credible and noted that ‘[h]is evidence was generally precise and, for

issues of which he had personal knowledge, the witness provided details and

explained the basis of knowledge for his statements’. 1768

P-0907 testified to having followed training in Mandro camp and having

‘worked as a bodyguard for UPC/FPLC commanders’. 1769 The Trial Chamber found

1770 the witness to be credible and noted that aspects of his evidence were consistent

1771 with the testimony of other witnesses on similar issues. In assessing Mave’s age,

P-0907 indicated that she was very young based on the way she played with other

1772 children, and the look of her face. The witness further stated that ‘it was “common

knowledge” that Mave had been raped several times by soldiers and she began to

suffer from fistula’. 1773 The witness also testified that he was present when Floribert

Kisembo gave a speech to a gathering of soldiers in March 2003, in Mamedi, where

he told the soldiers that Mave had a fistula and prohibited the further rape of Mave,

Mr Ntaganda’s Appeal Brief – Part II 1761 , paras 261, 269. 1762 Conviction Decision , para. 411. 1763 Conviction Decision , para. 411, fn. 1172. 1764 Conviction Decision , fn. 1135. 1765 P-0901: T-29 , p. 57, lines 1-9. 1766 Conviction Decision , fn. 1135. See also P-0901: T-29 , p. 58, lines 11-13, p. 59, lines 10-17. 1767 Conviction Decision , para. 215. 1768 Conviction Decision , para. 210. 1769 Conviction Decision , para. 216. 1770 Conviction Decision , para. 224. 1771 Conviction Decision , para. 217. 1772 Conviction Decision , fn. 1135. See also P-0907: T-89 , p. 57, lines 3-9. 1773 Conviction Decision , fn. 1172. See also P-0907: T-89 , p. 55, lines 20-21.

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referring to Mave as a ‘child’, ‘no more than 12 years old’, and ‘not even a teenage girl’. 1774

The Trial Chamber further noted that P-0887 described Mave as ‘very young’ and that her ‘breasts hadn’t even started to develop’. 1775 The witness stated that ‘many soldiers “slept with” Mave, “treated her as a […] soldier’s woman”, had sexual relations with her’ and she knew this because she also spoke to her. 1776

The Appeals Chamber notes that the Trial Chamber was of the view that P-0887 and P-0907 ‘had a good opportunity to observe Mave, and therefore also to assess her age’ and considered that the evidence ‘as a whole, establishes that the escort called Mave was under 15 years of age’. 1777

The Trial Chamber further noted that P-0887’s and P-0907’s evidence on the ‘actual acts of rape [of Mave] [was] not based on direct observations’. 1778 Nonetheless, the Trial Chamber observed that P-0907 learned about rapes of Mave from a speech given by Floribert Kisembo, which the witness personally witnessed and which supports his statement that Mave’s rapes ‘were “common knowledge”’ and ‘P-0887’s testimony about the statements made by UPC/FPLC soldiers’. 1779

The Appeals Chamber finds that the Trial Chamber conducted a detailed and cautious assessment of the witnesses’ evidence on Mave’s age and the sexual violence she suffered. Therefore, the Appeals Chamber considers the Trial Chamber’s findings that Mave was an escort assigned to Floribert Kisembo, that she was under the age of 15 and that she was raped and sexually enslaved to be reasonable.

Finally, Mr Ntaganda argues that the ‘alleged rape of Mave occurred after the defeat and dispersal of FPLC forces by the Ugandan army in early March 2003’, when ‘Kisembo led his group to Mamedi, and Mr. Ntaganda and others were in

1774 Conviction Decision , fns 1135, 1172. See also P-0907: T-89 , p. 55, lines 21-25, p. 56, lines 15-18, p. 57, lines 5-7. 1775 Conviction Decision , fn. 1135. See also P-0887: T-93 , p. 40, lines 2-5. 1776 Conviction Decision , fn. 1172. See also P-0887: T-93 , p. 40, lines 6-12, p. 41, lines 4-6. 1777 Conviction Decision , fn. 1135. 1778 Conviction Decision , fn. 1172. 1779 Conviction Decision , fn. 1172.

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Goma’. 1780 He avers that the Trial Chamber failed to make a finding on his knowledge

of the conduct of Kisembo’s forces or Kisembo himself and there was no evidence for

1781 such knowledge. He adds that there is no evidence supporting a finding that he

knew about rape and sexual slavery committed by the UPC/FPLC in this period of

time or that ‘he would have foreseen that the rape of “Mave” would occur “in the

ordinary course of events”’. 1782

The Appeals Chamber recalls that the Trial Chamber found that Mave was

raped ‘by many different soldiers on a regular basis, including at the Appartements

camp in Mongbwalu’, which was ‘Mr Ntaganda’s base’ at that location. 1783

Furthermore, it is clear from the Trial Chamber’s findings that the speech of March

2003, in which Floribert Kisembo instructed the soldiers not to touch Mave

1784 anymore, was given after a presumably long period of time when she had been

‘raped by many different soldiers on a regular basis’, which led to her health

1785 problems. The actual rapes were at least committed before March 2003, when the

1786 camp in which they occurred was Mr Ntaganda’s base.

The Trial Chamber found also that ‘female members of the UPC/FPLC were

regularly raped and subjected to sexual violence during their service’ by ‘male

UPC/FPLC soldiers and commanders’, and that this was a ‘common practice’. 1787 The

Trial Chamber was satisfied on the basis of testimonial evidence that ‘Mr Ntaganda

was among the commanders who inflicted rape on his female bodyguards’ and that

sexual crimes within his escort were ‘left largely unpunished’. 1788 On the basis of

‘received reliable evidence of sexual violence committed against child soldiers under

1789 the age of 15’, the Trial Chamber found that ‘the only reasonable conclusion is

that Mr Ntaganda knew that rapes and sexual violence were occurring within the

UPC/FPLC ranks, and that female recruits and soldiers under the age of 15 were not

Mr Ntaganda’s Appeal Brief – Part II 1780 , para. 270. Mr Ntaganda’s Appeal Brief – Part II 1781 , para. 270. Mr Ntaganda’s Appeal Brief – Part II 1782 , para. 270. 1783 Conviction Decision , paras 411, 527. 1784 Conviction Decision , para. 411. 1785 Conviction Decision , para. 411. 1786 Conviction Decision , para. 527. 1787 Conviction Decision , paras 407, 1196. 1788 Conviction Decision , paras 407, 412, 1196. 1789 Conviction Decision , para. 1196, referring to paras 408-411.

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1790 excluded from this practice’. The Trial Chamber concluded that Mr Ntaganda ‘was aware that, in the ordinary course of events, and during the relevant period […], children under the age of 15 years would […] be raped and subjected to sexual slavery […], and was aware of the relevant circumstances’. 1791

The Appeals Chamber considers that these findings and the underlying evidence show Mr Ntaganda’s personal involvement in the rapes, that rapes were ‘common knowledge’ and that Mr Ntaganda knew of the sexual violence inflicted on 1792 individuals under the age of 15 that were part of the UPC/FPLC.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s findings that the rape and sexual enslavement of a person named Nadège, P-0883 and a person named Mave occurred and that Mr Ntaganda knew about these incidents, the Appeals Chamber rejects this ground of appeal.

L. Twelfth ground of appeal: Mr Ntaganda’s knowledge that individuals under 15 years old were enlisted, conscripted or used to participate in hostilities

Under the twelfth ground of appeal, Mr Ntaganda submits that the Trial Chamber erred in inferring ‘to the exclusion of all other reasonable inferences’ that he intended and knew that ‘individuals under the age of 15 would be, or were being, recruited or conscripted into the FPLC and, thereafter, used to participate […] actively in hostilities’. 1793

1 Relevant part of the Conviction Decision The Trial Chamber found that Mr Ntaganda ‘was aware that, in the ordinary course of events, and during the relevant period […], children under the age of 15 years would be enlisted, conscripted and used to participate actively in hostilities within the UPC/FPLC ranks’. 1794

1790 Conviction Decision , para. 1197. 1791 Conviction Decision , para. 1198. 1792 See paragraphs 1063-1065 below. Mr Ntaganda’s Appeal Brief – Part II 1793 , para. 277. See also para. 272. 1794 Conviction Decision , para. 1198.

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The Trial Chamber found that some of the ‘children’ within Mr Ntaganda’s personal escort were ‘“manifestly” under 15 years of age’ and referred to the ‘frequency and proximity of their contacts’ ‘on a daily basis’ with Mr Ntaganda. 1795 It was satisfied that ‘the only reasonable conclusion [was] that Mr Ntaganda knew that some of his escorts were below the age of 15 years and that, during this period, they were active members of the UPC/FPLC, ensuring his protection and participating in various military activities’. 1796

The Trial Chamber further found that Mr Ntaganda was involved in ‘large scale recruitment drives conducted by the UPC/FPLC’ and that ‘on at least three occasions, Mr Ntaganda made calls for young people to join the UPC/FPLC ranks and follow military training’. 1797 The Trial Chamber noted that in his address to the population Mr Ntaganda called ‘ everybody to enrol, explicitly inviting individuals from all gender, age, or size to join’. 1798 The Trial Chamber concluded that Mr Ntaganda ‘necessarily knew that the UPC/FPLC would recruit, train, and deploy children under 15 years of age in the context of its military campaign against the RCD-K/ML and the Lendu community’. 1799

2 Summary of the submissions

(a) Mr Ntaganda’s submissions

Mr Ntaganda submits that none of the statements attributed to him by the Trial Chamber made during recruitment meetings show ‘any intention’ to recruit persons 1800 under the age of 15. Mr Ntaganda further alleges that this ‘reasonable possibility’ is reinforced by evidence that the UPC/FPLC’s age assessment of recruits was done on the basis of a ‘physical maturity test’ but the Trial Chamber ignored the evidence 1801 provided by D-0210.

1795 Conviction Decision , paras 1191-1192. 1796 Conviction Decision , para. 1192. 1797 Conviction Decision , para. 1193. 1798 Conviction Decision , para. 1193 (emphasis in original). 1799 Conviction Decision , para. 1194. Mr Ntaganda’s Appeal Brief – Part II 1800 , para. 275. Mr Ntaganda’s Appeal Brief – Part II 1801 , para. 276, fn. 728. See also para. 277.

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(b) The Prosecutor’s submissions

The Prosecutor submits that Mr Ntaganda ‘disregards the evidence and misconstrues’ the Conviction Decision. 1802 The Prosecutor argues that the Trial Chamber’s finding on Mr Ntaganda’s knowledge, as an indirect co-perpetrator, ‘about the crimes committed against child soldiers was based on a substantial body of evidence’ such as: (i) Mr Ntaganda’s ‘proximity and daily contact with his own escorts’; (ii) Mr Ntaganda’s ‘participation in recruitment initiatives, calling to enrol persons of all ages, gender and size and asking parents to give their children’; (iii) ‘the consistent inhuman treatment of all UPC soldiers (including child soldiers under the age of 15)’; (iv) ‘the sexual violence and regular rape of female members of the UPC (including child soldiers under the age of 15) by male UPC soldiers and commanders, including by Ntaganda, and his own chief escort’; and (v) the lack of punishment by Mr Ntaganda and Kisembo for these crimes and Mr Ntaganda taking ‘advantage of the vulnerability of these children and the coercive environment in which the UPC operated’. 1803 The Prosecutor further avers that Mr Ntaganda ‘underplays his crucial role in recruitment rallies’ and ‘ignores his primary responsibility in training UPC recruits, his regular visits to training centres, his own personal training of recruits and his role in deciding on the deployment of soldiers’. 1804

(c) The victims’ observations

Victims Group 1 argue that the Trial Chamber did not err in defining and applying the ‘ 1805 mens rea requirements for indirect co-perpetration’. They further aver that Mr Ntaganda fails to substantiate his arguments and merely disagrees with the Trial Chamber’s detailed consideration of the evidence without showing an 1806 error.

3 Determination by the Appeals Chamber The Appeals Chamber recalls that under Mr Ntaganda’s ninth ground of appeal, it found no error in the Trial Chamber’s finding that Mr Ntaganda’s escort within the

Prosecutor’s Response to Appeal – Part II 1802 , para. 212. Prosecutor’s Response to Appeal – Part II 1803 , para. 213 (footnote omitted). Prosecutor’s Response to Appeal – Part II 1804 , para. 214 (footnotes omitted). 1805 Observations of Victims Group 1 on Appeal – Part II , paras 67-68. 1806 Observations of Victims Group 1 on Appeal – Part II , paras 69-74; T-271 , p. 66, line 6 to p. 69, line 8.

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1807 UPC/FPLC included individuals who were under 15 years of age. It also recalls

that under the tenth ground of appeal, it found the Trial Chamber’s finding that

individuals under the age of 15 years were enlisted in the UPC/FPLC and actively

1808 participated in the hostilities to be reasonable.

With respect to recruitment, the Trial Chamber found that the ‘UPC/FPLC

extensively recruited individuals of all ages, in particular “young people”, including

individuals under the age of 15’. 1809 It was satisfied that, although Mr Ntaganda

‘denied having attended recruitment drives or campaigns’, the evidence showed his

involvement ‘in the recruitment process’. 1810 Relying on the evidence of P-0918, P-

1811 1812 0769, P-0010, the Trial Chamber found that, on at least three occasions,

Mr Ntaganda ‘made […] calls for young people and children to join UPC/FPLC

ranks’ and ‘follow military training’ including 1813 kadogos .

The Trial Chamber noted that the first occasion was in August 2002 at a rally in

Mudzipela, where Mr Ntaganda told those present that ‘“young people” needed to

follow military training and that parents should send their children to the UPC/FPLC

in order to be able to defend themselves against the Lendu’. 1814 The Trial Chamber

found P-0918’s evidence on that issue credible because she was present at the rally

where ‘she personally saw Mr Ntaganda giving his speech, described the context of

her presence at the rally, […] the vehicle in which Mr Ntaganda arrived, […] the

content of this speech, and […] distinguished between information she had on the day

1815 of the rally and information she only learnt later’.

In addition, the Trial Chamber relied on P-0769’s testimony about another

speech also in Mudzipela, where Mr Ntaganda addressed students telling them that

the ‘UPC/FPLC needed “intellectual cadre to support the movement”, and that the

1807 See paragraph 790 above. 1808 See paragraph 821 above. 1809 Conviction Decision , para. 347. 1810 Conviction Decision , para. 355. See also para. 1193. 1811 Conviction Decision , paras 357-359, fns 989-993. 1812 Conviction Decision , paras 356, 830, 1193. See also paras 357-359. 1813 Conviction Decision , paras 356, 830, 1193. 1814 Conviction Decision , para. 357. 1815 Conviction Decision , fn. 989.

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‘UPC/FPLC would send recruits to study for this purpose’. 1816 It also noted that

1817 Mr Ntaganda called upon ‘all families’ to ‘give young people to bolster the UPC’.

With respect to the evidence of P-0010, the Trial Chamber noted that the

witness testified that on another occasion, in Mabanga, ‘Mr Ntaganda called upon

people to enrol in the UPC/FPLC and undergo training to fight for their country,

including “children” and “kadogos”’. 1818

The Appeals Chamber notes that, apart from arguing that these alleged

statements do not show ‘any direct intention to recruit individuals under the age of

15’, 1819 Mr Ntaganda does not specifically challenge the evidence of P-0918, P-0769,

or P-0010 with regard to this issue. Instead, he challenges the meaning of the terms

‘young people’ and ‘ kadogos ’, which the Appeals Chamber already addressed and

rejected in his ninth ground of appeal with respect to the Trial Chamber’s finding that

1820 his personal escorts included individuals under the age of 15.

With respect to the screening process, Mr Ntaganda argues that the Trial

Chamber’s ‘ignored’ or ‘misappreciated’ the evidence that the ‘UPC/FPLC applied a

physical maturity test’ to exclude individuals under 15. 1821 The Prosecutor submits

that the Trial Chamber rejected Mr Ntaganda’s contentions regarding his alleged

‘non-participation in recruitment rallies’, the term kadogos being ‘related to the size

of the person’ and the ‘so-called “physical maturity test” that UPC recruits allegedly

underwent’. 1822

The Trial Chamber found that, upon their arrival at a ‘training location, recruits

were screened based on their physical ability, and age as such was not a bar for them

to receive training’. 1823 In reaching this finding, the Trial Chamber considered Mr

Ntaganda’s evidence and relied on the evidence of D-0080 and P-0768. 1824 The Trial

Chamber observed that P-0768 stated that ‘to his knowledge “there was no age limit.

1816 Conviction Decision , para. 358. 1817 Conviction Decision , para. 358. 1818 Conviction Decision , para. 359. Mr Ntaganda’s Appeal Brief – Part II 1819 See , para. 277. 1820 See paragraph 790 above. Mr Ntaganda’s Appeal Brief – Part II 1821 , para. 276. Prosecutor’s Response to Appeal – Part II 1822 , para. 214. 1823 Conviction Decision , para. 361. 1824 Conviction Decision , fn. 998.

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There was no particular criterion for the recruitment of children. There were young

people, old people. Anyone who came to the training camp was welcome in our

different units”’. 1825 The witness testified on the recruitment and training of

individuals under the age of 15 at the UPC training camps and stated that Mr

1826 Ntaganda was responsible for the training.

The Trial Chamber also noted D-0080’s prior recorded testimony, which

‘confirmed’ the ‘screening procedure based on physical abilities’. 1827 The witness

1828 1829 stated that [REDACTED]. According to the witness, [REDACTED].

The Trial Chamber considered also Mr Ntaganda’s evidence on the screening

1830 process but found inconsistencies within his testimony. It noted that he first

testified that the ‘new recruits were not asked about their age, as they had no identity

1831 documents and could lie about their age’. However, the Trial Chamber noted that

during his cross-examination Mr Ntaganda stated that ‘new recruits were asked about

their age, and that those under 18 were sent away’ but he added that questioning the

recruits about their age ‘was not reliable and that an assessment of the recruit’s

physical ability was relied upon’. 1832 The Trial Chamber further noted his testimony

during direct examination where he explained the ‘link between “being above 18 and

the criteria of the ability to carry ammunitions or any other objects”’ as follows: ‘“a

person who would be able to carry a weapon and a box of ammunition or one of their

comrades who is injured at the battlefront would be somebody who cannot be less

than 18”’. 1833 The Trial Chamber rejected Mr Ntaganda’s submissions to that effect

and found that ‘the screening process was exclusively based on physical abilities, as

1825 Conviction Decision , fn. 998. 1826 See P-0768: T-34 , p. 48, lines 22-24, p. 49, lines 16-21, p. 50, line 19 to p. 51, line 6, p. 52, lines 11-14. 1827 See Conviction Decision , fn. 998, referring to DRC-D18-0001-6163, p. 6169. In relation to prior recorded testimony under rule 68 of the Rules, the Trial Chamber held that when assessing this type of evidence, it would, inter alia , consider ‘whether the evidence contained therein is corroborated by any other evidence admitted into the record’. See Conviction Decision , para. 58, fn. 135. 1828 DRC-D18-0001-6163, p. 6169, para. 49. 1829 DRC-D18-0001-6163,p. 6169, para. 50. 1830 Conviction Decision , fn. 998. 1831 Conviction Decision , fn. 998. 1832 Conviction Decision , fn. 998 (emphasis in original). 1833 Conviction Decision , fn. 998.

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opposed to age’. 1834 In reaching this finding, the Trial Chamber noted the evidence of

1835 D-0080 and P-0768.

The Appeals Chamber notes that Mr Ntaganda is not challenging the evidence

of D-0080 and P-0768 on that issue. Rather, Mr Ntaganda repeats arguments he

presented at trial about the UPC/FPLC’s approach being reasonable given the lack of

‘identification documents’ and ‘potential recruits’ lying about their age because they

were ‘eager to be trained’. 1836 In this regard, he refers to the evidence of P-0046, P-

0016, P-0116, P-0769, P-0911, and D-0057 that mainly concern the broad context in

which individuals under the age of 15 would be associated with armed groups,

1837 including the UPC at the time of the events. The Appeals Chamber finds that a

review of this evidence does not undermine the reasonableness of the Trial Chamber’s

finding that Mr Ntaganda referred to people of all ages, including individuals under

1838 15, in his speeches.

Turning to Mr Ntaganda’s reference to the evidence of D-0210, which was

1839 dismissed by the Trial Chamber, the Appeals Chamber notes that the Trial

Chamber explicitly addressed Mr Ntaganda’s contention about the screening process

1840 and explained why it did not rely on the evidence of D-0210. The Trial Chamber

noted that the witness stated that ‘he and two other individuals of the same age tried to

join the UPC/FPLC at the training camp in Mandro’ but they were turned away by

‘Mugisa’ because they were told there was no training for ‘“little children”’. 1841 The

Trial Chamber noted that the witness estimated that his attempt to join the UPC took

1842 place in 2000 or 2001, at the start of the summer school holidays in July. The Trial

1834 Conviction Decision , fn. 998. 1835 Conviction Decision , fn. 998. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Closing Brief 1836 See , para. 276. See also , para. 1513. Mr Ntaganda’s Appeal Brief – Part II 1837 , para. 276, referring to evidence DRC-OTP-0152-0274, at 0274; P-0046: T-102 , p. 65, lines 3-9; P-0911: T-157 , p. 40 line 1; P-0769: T-120 , p. 48, lines 5-7; P- 0016: DRC-OTP-2054-1625, at 1688; P-0116: DRC-OTP-2054-4494, at 4594; T-196 , p. 20, line 23 to p. 23, line 5; D-0057: T-246 , p. 13, lines 8-10. 1838 With regard to P-0911, the Trial Chamber found this witness not credible and held that it would not ‘rely on his testimony and the documentary evidence introduced through this witness. See Conviction Decision , para. 235. Mr Ntaganda’s Appeal Brief – Part II 1839 , para. 276, fn. 728. 1840 See Conviction Decision , fns 966, 998. 1841 Conviction Decision , fn. 966. 1842 Conviction Decision , fn. 966.

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Chamber, noting its finding that the ‘UPC/FPLC only operated a training centre at Mandro during the course of 2002’, considered that the events described by the witness occurred in 2002, ‘when the witness was, according to his testimony 14 years old’. 1843

Nonetheless, the Trial Chamber considered that D-0210’s evidence did ‘not affect its finding, considering that the witness did not state that he was asked about his age, but instead only referred to size as a reason for being rejected’ which was ‘consistent’ with its finding on the screening process of new recruits. 1844 The Trial Chamber after ‘having assessed that his evidence does not indicate that age was in fact the reason he was turned away’, decided not to rely on the witness’s testimony that ‘he and others were turned away at Mandro when attempting to enrol in training at aged 14’. 1845 The Appeals Chamber finds that Mr Ntaganda does not show that the Trial Chamber disregarded the evidence of D-0210 and that this evidence undermines its conclusion. Accordingly, the Appeals Chamber finds that the Trial Chamber’s finding on the screening process was reasonable.

4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s assessment of the evidence underlying its inferences on his intent and knowledge of individual under the age of 15 were enlisted, conscripted or used to participate in hostilities, the Appeals Chamber rejects this ground of appeal.

M. Thirteenth ground of appeal: Whether the Trial Chamber erred in convicting Mr Ntaganda as a member of a common plan

Under the thirteenth ground of appeal Mr Ntaganda raises a number of arguments aimed at demonstrating that the Trial Chamber erred in its approach to the 1846 common plan and the crimes committed in implementation of this plan.

1843 Conviction Decision , fn. 966. 1844 Conviction Decision , fn. 966, referring to para. 361. 1845 Conviction Decision , fn. 998. Mr Ntaganda’s Appeal Brief – Part II 1846 , paras 283-309.

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M Ntaganda also argues that the Trial Chamber erred in convicting him for the 1847 actions of Hema civilians in Mongbwalu.

This ground of appeal and the two grounds of appeal that follow concern the theory of indirect co-perpetration. Judge Morrison and Judge Eboe-Osuji entertain considerable reservations concerning the application and scope of the Trial Chamber’s judgment in respect of Mr Ntaganda’s criminal responsibility in utilizing this theory 1848 and the concept of ‘control of the crime’. They are set out in separate opinions. In their view, the issues and scope of application of ‘indirect co-perpetration’ and ‘control of the crime’ theories are not settled in international criminal law. Judge Morrison’s reservations do not lead him to a conclusion that the Conviction Decision needs to be set aside because of the limits of appellate review and because the Trial Chamber was expressly following the earlier jurisprudence of the court which was fully apparent at the time of the case the appellant had to meet, not least in the determination of the Appeals Chamber in the Lubanga Appeal Judgment. On the other hand, Judge Eboe-Osuji considers that Mr Ntaganda’s conviction should be set aside insofar as it is based on the theory of indirect co-perpetration. He would, however, confirm the conviction for those crimes that he considers Mr Ntaganda to have directly committed.

Judge Ibáñez Carranza also writes separately in support of the theory of ‘indirect co-perpetration’ and ‘control of the crime’. 1849 In her view, indirect coperpetration is a mode of liability enshrined in article 25(3)(a) of the Rome Statute that constitutes one of the most appropriate tools to deal with the type of mass criminality associated with international crimes under the jurisdiction of this Court.

1 Whether Mr Ntaganda received notice of a common plan to destroy the Lendu

(a) Summary of submissions

Mr Ntaganda submits that in convicting him, the ‘[Trial] Chamber held that the common plan “to drive out all the Lendu from the localities targeted during their

1847 Mr Ntaganda’s Appeal Brief – Part II , paras 310-316. , Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal; 1848 Annex 2 Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji. , Separate opinion of Judge Luz del Carmen Ibáñez Carranza on Mr Ntaganda’s appeal. 1849 Annex 3

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military campaigns” actually meant “the destruction and disintegration of the Lendu

community”’, 1850 and that he had had no notice during the trial that he was being tried

1851 on this basis. He argues that his ability to prepare his defence was materially

1852 impaired. Mr Ntaganda submits that ‘[i]n convicting an Accused, a Trial Chamber

1853 cannot exceed the scope of a common plan as pleaded in an indictment’. He

contends that this is a legal error that invalidates his convictions as an indirect co-

1854 perpetrator.

The Prosecutor argues that Mr Ntaganda misunderstands the Trial Chamber’s

findings and that the description of the common plan in the Conviction Decision is

1855 consistent with the manner with which the common plan was charged. The

Prosecutor contends that the references to the co-perpetrators’ intent to destroy and

disintegrate the Lendu community only serve to show that the common plan included

1856 an element of criminality, as charged.

(b) Relevant parts of the charging documents and the Conviction Decision

The Prosecutor alleged in the UDCC that

From on or about 6 August 2002 to 31 December 2003, Bosco NTAGANDA contributed to a plan to assume the military and political control of Ituri, occupy the non-Hema dominated areas in Ituri and expel the non-Hema civilian population, particularly the Lendu, Ngiti and non-originaires (the “non-Hema civilian population”) by means which included the commission of the following crimes: murder or attempted murder, attacks against a civilian population, rape, sexual slavery, persecution, pillaging, forcible transfer of the population, enlistment and conscription of children under the age of 15 and their use to participate actively in hostilities, attacks against protected objects and, destruction of property (the “Common Plan”). 1857

The Pre-Trial Chamber made the following findings in the Confirmation

Decision:

1850 Mr Ntaganda’s Appeal Brief – Part II , para. 278, referring to Conviction Decision , paras 805-806, 809-810; T-270 , p. 90, lines 10-15. Mr Ntaganda’s Appeal Brief – Part II 1851 , paras 278-279. Mr Ntaganda’s Appeal Brief – Part II 1852 , paras 281-282. Mr Ntaganda’s Appeal Brief – Part II 1853 , para. 280. Mr Ntaganda’s Appeal Brief – Part II 1854 , para. 282. Prosecutor’s Response to Appeal – Part II 1855 , paras 216-217; T-271 , p. 51, lines 7-10; p. 52, lines 4-7. Prosecutor’s Response to Appeal – Part II 1856 , para. 218; T-271 , p. 52, lines 7-10. 1857 UDCC , para. 1 (footnotes omitted).

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From 6 August 2002 onwards and throughout the period relevant to the charges, Mr. Ntaganda was part of a common plan amongst members of the UPC/FPLC to assume military and political control over Ituri. As part of the common plan, Mr. Ntaganda and others sought to take over non-Hema dominated areas and expel the non-Hema civilian population, particularly the Lendu, from Ituri. Further, the Chamber is satisfied that the common plan contained an element of criminality, as evidenced by the crimes described previously in Sections C and 1858 D [of the Confirmation Decision].

When describing Mr Ntaganda’s alleged essential contribution to the common

plan, the Pre-Trial Chamber found that Mr Ntaganda, inter alia :

(i) repeatedly told his subordinates to eliminate all Lendu, without distinguishing between those who were taking a direct part in hostilities and those who were not; (ii) armed young Hema civilians and instructed them to kill and chase away the Lendu […]. 1859

In the Conviction Decision, the Trial Chamber found that ‘Mr Ntaganda and

other military leaders of the UPC/FPLC, including Thomas Lubanga and Floribert

Kisembo, worked together and agreed in the common plan to drive out all the Lendu

from the localities targeted during the course of their military campaign against the 1860 RCD-K/ML’.

1861

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that, according to the Trial Chamber, the common

plan to which Mr Ntaganda and other military leaders of the UPC/FPLC agreed was ‘to drive out all the Lendu from the localities targeted during the course of their

1862 military campaign against the RCD-K/ML’. Formulated in this manner, the

common plan established by the Trial Chamber falls within the scope of the common plan charged by the Prosecutor (to ‘expel the non-Hema civilian population,

’ 1863 particularly the Lendu, Ngiti and non-originaires ) and confirmed by the Pre-Trial

1858 Confirmation Decision , para. 105 (footnote omitted). 1859 Confirmation Decision , para. 112 (footnotes omitted). 1860 Conviction Decision , para. 808 (footnote omitted). 1861 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 1862 Conviction Decision , para. 808 (footnote omitted). 1863 UDCC , para. 1 (footnotes omitted).

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Chamber (‘expel the non-Hema civilian population, particularly the Lendu, from Ituri’ 1864 ). It is true that the Trial Chamber also found that ‘the co-perpetrators meant the 1865 destruction and disintegration of the Lendu community’. However, the Appeals Chamber is not persuaded that this is an expansion of the common plan charged by the Prosecutor. Rather, the purpose of this finding is to demonstrate the link between the common plan and the crimes committed by UPC/FPLC. The Trial Chamber found that ‘[b]y way of this agreement’ the co-perpetrators meant the destruction of the Lendu community, which involved the targeting of civilians through killing, rape and 1866 other crimes. It found that ‘these acts were performed targeting the Lendu communities specifically in order [to] prevent their return to the assaulted localities’. 1867 These findings do not ascribe the objective of destroying the Lendu community to the common plan.

The Appeals Chamber also notes that the concluding paragraphs of the section in the Conviction Decision regarding the common plan use the words ‘this agreement’ or the ‘plan’ ‘to drive out all the Lendu from the localities’ targeted during the 1868 military campaign. It is thus clear that the Trial Chamber found the common plan to comprise the objective of driving out the Lendu from the targeted localities and not the objective of the destruction of the Lendu community.

Additionally, the Appeals Chamber observes that, although not in the context of the common plan, the UDCC and the Confirmation Decision contain allegations of Mr Ntaganda pursuing the objective of the destruction of the Lendu community. In particular, it is alleged in the UDCC that ‘Bosco NTAGANDA instructed UPC/FPLC 1869 forces to eliminate the Lendu, civilians and fighting forces alike’. Similarly, the Pre-Trial Chamber found that Mr Ntaganda: ‘(i) repeatedly told his subordinates to eliminate all Lendu, without distinguishing between those who were taking a direct part in hostilities and those who were not; (ii) armed young Hema civilians and

1864 Confirmation Decision , para. 105. 1865 Conviction Decision , para. 809. See also paras 810-811. 1866 Conviction Decision , para. 809. 1867 Conviction Decision , para. 809. 1868 Conviction Decision , paras 810-811. 1869 UDCC , para. 68.

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instructed them to kill and chase away the Lendu […]’. 1870 Therefore, even if these allegations are not directly related to the common plan, Mr Ntaganda was charged with, and put on notice of, the allegation that he pursued the objective of eliminating the Lendu.

The Appeals Chamber therefore rejects Mr Ntaganda’s arguments that the Trial Chamber convicted him for participation in a common plan that was not charged and that this impaired his ability to prepare his defence.

2 Whether the Trial Chamber erred in its approach to the common plan and the crimes committed in implementation of this plan

(a) Reliance on the evidence of P-0014 and P-0041 in relation to the meeting in Kampala in June 2002

(i) Relevant part of the Conviction Decision In the legal findings section on the ‘Common plan’ in the Conviction Decision,

the Trial Chamber examined ‘whether [Mr Ntaganda] entered in a common plan with 1871 the other alleged co-perpetrators’. In this context, the Trial Chamber referred, inter alia , to its findings regarding a meeting in Kampala:

In June 2002, during a meeting held amongst political leaders of the emerging UPC/FPLC in Kampala, including Thomas Lubanga, it was stated that one of the objectives of the UPC/FPLC was to drive out the non-natives, identifying the first target as the Nande, and then, the Lendu. In the context of side discussions, reference was also made to using the rape of enemy women as a 1872 means of waging war.

The findings concerning this meeting were based, inter alia , on the evidence of 1873 two witnesses: P-0014 and P-0041.

(ii) Summary of submissions Mr Ntaganda argues that the evidence of the meeting in Kampala from P-0014 1874 and P-0041 is contradictory and ‘insufficient to sustain a finding’. He argues that

1870 Confirmation Decision , para. 112 (footnote omitted). 1871 Conviction Decision , para. 781. 1872 Conviction Decision , para. 799 (footnote omitted), referring to paras 290, 293. 1873 Conviction Decision , paras 290-293. Mr Ntaganda’s Appeal Brief – Part II 1874 , para. 285.

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P-0014’s testimony regarding a ‘side discussion’ at this meeting is uncorroborated

1875 hearsay.

The Prosecutor argues that Mr Ntaganda ‘misunderstands evidentiary principles

regarding corroboration’. 1876 She submits that it was not required that P-0014 and P-

0041 give identical evidence on the meeting in Kampala and that they were consistent

on ‘fundamental details regarding the meetings’. 1877

1878 (iii) Determination by the Appeals Chamber

The Appeals Chamber notes that Mr Ntaganda made a number of specific

arguments on the alleged inconsistencies in P-0014 and P-0041’s testimony on the

1879 meeting in a footnote. This is inconsistent with regulation 36(3) of the Regulations

of the Court, which provides that ‘[n]o substantial submissions may be placed in the

footnotes of a document’. The Appeals Chamber disapproves of such practice and

notes that it may dismiss in limine submissions made in this manner. However, it will

exceptionally consider the arguments put in the footnote in this instance.

The two witnesses upon whose evidence the Trial Chamber relied to make

findings in respect of the meeting in Kampala were P-0014 and P-0041. The Trial

Chamber ‘consider[ed] these two witnesses to have a strong basis of knowledge for

the events of the meeting, noting also that their testimony on this issue was rich in

details’. 1880 It also found that, in view of P-0014’s ‘explanations concerning his basis

of knowledge’, he was ‘a primary source of information to establish the emerging

UPC/FPLC’s objectives as stated at that time’. 1881

Mr Ntaganda lists a number of topics of the discussions during the meeting,

which, in his view, were referred to in the evidence of one of these witnesses and not

Mr Ntaganda’s Appeal Brief – Part II 1875 , para. 285. Prosecutor’s Response to Appeal – Part II 1876 , para. 230. Prosecutor’s Response to Appeal – Part II 1877 , paras 231-232. 1878 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 1879 , para. 285, fn. 753. 1880 Conviction Decision , para. 290, fn. 741. 1881 Conviction Decision , para. 293, fn. 753.

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1882 in the evidence of the other. Mr Ntaganda argues on this basis that the accounts of

the two witnesses ‘differ to such an extent that it appears they are describing different

meetings’. 1883

As pointed out by Mr Ntaganda, each of the two witnesses included in their

account some detail not included in the account of the other. This is reflected in the

Trial Chamber’s findings related to the meeting in Kampala. Many of these findings

are based on the testimony of P-0014, either alone or together with documentary

1884 evidence, presumably due to the absence of reference to such facts in the evidence

of P-0041.

The Appeals Chamber, however, notes that the two witnesses gave consistent

accounts of important aspects of the meeting in question. In particular, they both

1885 stated that: in June 2002, a meeting was held in Kampala; Thomas Lubanga, John

1886 Tinanzabo, Richard Lonema, Paul Avochi and others attended; Thomas Lubanga

1887 headed the group; the meeting ‘aimed at discussing the reorganisation of Ituri,

notably how the emerging UPC/FPLC would take control of the district’. 1888 Given

the consistency of the two witnesses’ evidence on these aspects of the meeting in

Kampala, the Appeals Chamber is satisfied that it was reasonable for the Trial

Chamber to rely on this evidence. The Appeals Chamber is not persuaded by

Mr Ntaganda’s argument that these witnesses describe different meetings. Notably, he

does not point to any other meeting being held at the same time in Kampala, attended

by the same persons, which either of the two witnesses described.

Mr Ntaganda also argues that [REDACTED]; he submits that he raised this

1889 issue in his closing brief and that it was not addressed in the Conviction Decision.

Mr Ntaganda’s Appeal Brief – Part II 1882 , para. 285, fn. 753. Mr Ntaganda’s Appeal Brief – Part II 1883 , para. 285, fn. 753. 1884 Conviction Decision , para. 290, fn. 742; para. 293, fn. 750-757. 1885 Conviction Decision , para. 290; P-0014: T-137 , p. 17; DRC-OTP-0066-0002, para. 55; DRC-OTP- 2054-0429, at 0470-0471; P-0041: DRC-OTP-0147-0002, para. 50. 1886 Conviction Decision , para. 290, fn. 741; P-0014: DRC-OTP-0066-0002, para. 56; DRC-OTP-2054- 0429, at 0470-0472; P-0041: DRC-OTP-0147-0002, para. 51. 1887 Conviction Decision , para. 290; P-0014: DRC-OTP-0066-0002, para. 58; DRC-OTP-2054-0429, at 0470-0471; P-0041: DRC-OTP-0147-0002, para. 51. 1888 Conviction Decision , para. 293; P-0041: DRC-OTP-0147-0002, paras 54-55; DRC-OTP-2054- 5199, at 5204; P-0014: DRC-OTP-0066-0002, para. 57; DRC-OTP-2054-0429, at 0473. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Closing Brief 1889 , para. 285, fn. 753, referring to , para. 57.

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To the extent Mr Ntaganda’s arguments are developed in his closing brief, rather than within his appeal brief, the Appeals Chamber will not consider them as to do so would allow the page limit for the appeal to be circumvented. In addition, he does not explain how the issue he raises affects the Trial Chamber’s findings on the meeting in Kampala in June 2002 or the reliability of the evidence on which the Trial Chamber based these findings. He thus does not identify any specific error.

In view of the foregoing, the Appeals Chamber is not persuaded that the evidence of the meeting in Kampala in June 2002 is contradictory and ‘insufficient to sustain a finding’, as argued by Mr Ntaganda. 1890

(b) Whether the evidence of the meeting in Kampala and the meeting of mid-February 2003 is evidence of a common plan

(i) Summary of submissions Mr Ntaganda argues that the evidence of the meeting in Kampala ‘is not

evidence of a common plan involving Mr. Ntaganda, Mr. Kisembo, and the military leaders of the UPC/FPLC to destroy the Lendu population’. 1891 Referring to a number

of documents, Mr Ntaganda submits that a contemporaneous record does not refer to a plan to destroy the Lendu but rather refers to ‘all Iturians’. 1892 Mr Ntaganda submits that there is no evidence that, during ‘[t]he only other meeting between the coperpetrators identified in the Judgment’, in mid-February 2003, the co-perpetrators

1893 discussed driving out the Lendu.

The Prosecutor submits that this evidence was relied upon ‘to find that there

was an ethnic motivation underlying the formation of the UPC – a factor relevant to [the Trial Chamber’s] overall finding regarding the common plan’. 1894 She submits

Mr Ntaganda’s Appeal Brief – Part II 1890 , para. 285. 1891 Mr Ntaganda’s Appeal Brief – Part II , para. 285 (emphasis in original omitted), referring to Conviction Decision , paras 290-293. Mr Ntaganda’s Appeal Brief – Part II 1892 , para. 285, referring to DRC-OTP-0066-0031; DRC-OTP- 0066-0039; DRC-OTP-0066-0047; DRC-OTP-0066-0048. Mr Ntaganda’s Appeal Brief – Part II 1893 , para. 286. Prosecutor’s Response to Appeal – Part II 1894 , para. 230.

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that the relevant documents indicate that the RCD-K/ML was to be chased out of Ituri 1895 by force.

1896 (ii) Determination by the Appeals Chamber The Appeals Chamber reiterates that the Trial Chamber did not find that the objective of destroying the Lendu population was part of the common plan established 1897 in the Conviction Decision. The Appeals Chamber will therefore address the present argument of Mr Ntaganda in so far as it may relate to the alleged plan to drive out the Lendu.

The Trial Chamber relied on documentary evidence related to the meeting in Kampala, including the documents referred to by Mr Ntaganda, to find, inter alia , that the RCD-K/ML and the APC were accused of ‘siding with the Lendu combatants, notably by providing them weapons and support, “hunting” the Hema on their behalf, and favouring the Nande to the detriment of Iturians’. 1898 The Trial Chamber also noted that these documents ‘contrast the Iturians, or “native soldiers”, to the “negative forces”’ and indicate that the RCD-K/ML should be chased out of Ituri by force. 1899 Having considered the documents in question, the Appeals Chamber agrees that they do not specifically refer to a plan to drive out the Lendu. However, they refer to a criticism about the RCD-K/ML’s support for the Lendu combatants and the objective of driving out the RCD-K/ML.

The Appeals Chamber notes that the Trial Chamber’s finding that, at the meeting in Kampala, ‘it was stated that one of the objectives of the UPC/FPLC was to drive out the non-natives, identifying the first target as the Nande, and then, the Lendu’ was based on the evidence of P-0014. 1900 Consistent with that evidence, the Trial Chamber found that the objective of driving out the non-natives or jajambus was

Prosecutor’s Response to Appeal – Part II 1895 , para. 233. 1896 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 1897 See paragraphs 888-889 above. 1898 Conviction Decision , para. 291, referring to DRC-OTP-0066-0031, at 0033; DRC-OTP-0066- 0047; DRC-OTP-0066-0048. 1899 Conviction Decision , paras 291-292, referring to DRC-OTP-0066-0031, at 0037; DRC-OTP-0066- 0039, at 0046; DRC-OTP-0066-0048. 1900 Conviction Decision , paras 799, 290, 293, referring to P-0014: DRC-OTP-2054-0612, at 0648.

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identified at the meeting in Kampala, and that the targets were defined as first the 1901 Nande and then the Lendu. The Trial Chamber noted P-0014’s testimony that the UPC’s political agenda was to dislodge all non-natives of Ituri, ‘whereas the reality was that they simply sought to eliminate or subjugate their enemies, and among others, the Lendus’. 1902 The Appeals Chamber considers that the above-mentioned documents referring to the RCD-K/ML’s support for the Lendu combatants and to the objective of chasing the RCD-K/ML out of Ituri are not inconsistent with this testimony.

While agreeing with Mr Ntaganda that the documentary evidence related to the meeting in Kampala, that was available to the Trial Chamber, does not refer to the objective of driving the Lendu out of the targeted localities, the Appeals Chamber, for the reasons set out above, finds that it was reasonable for the Trial Chamber, based on the evidence of P-0014, to find that this objective was discussed at the meeting.

Turning to Mr Ntaganda’s general argument that the evidence of the meeting in Kampala is not evidence of a common plan involving him, Mr Kisembo, and the 1903 military leaders of the UPC/FPLC, the Appeals Chamber notes that there is no suggestion in the Conviction Decision that this meeting was one in which the coperpetrators agreed to a common plan. In the finding of the Trial Chamber, the common plan involved ‘Mr Ntaganda and other military leaders of the UPC/FPLC, 1904 including Thomas Lubanga and Floribert Kisembo’, of whom only Thomas 1905 Lubanga is identified as a participant in the meeting in Kampala. The Trial 1906 Chamber found that meeting relevant to the issue of a common plan. Given the participation of Thomas Lubanga and the consistency of the objectives set out at the meeting with the ensuing events, described by the Trial Chamber in its analysis, the Appeals Chamber finds that it was reasonable for the Trial Chamber to rely on the evidence of the meeting for its finding on the common plan.

1901 Conviction Decision , paras 799, 290, 293. 1902 Conviction Decision , fn. 753, referring to P-0014: T-137 , p. 37. Mr Ntaganda’s Appeal Brief – Part II 1903 , para. 285. 1904 Conviction Decision , para. 808. 1905 Conviction Decision , para. 799. 1906 Conviction Decision , para. 808.

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Mr Ntaganda raises another issue regarding the meeting in Kampala. He submits that ‘uncorroborated hearsay evidence of a “side discussion”, which allegedly took place “in the corridors” with “limited” anonymous participants, [cannot] demonstrate a common plan among co-perpetrators to use rape as a weapon of war’. 1907 Mr Ntaganda contends that there is no evidence that the co-perpetrators were 1908 aware that this discussion had taken place.

Based on the testimony of P-0014, the Trial Chamber found that ‘[i]n the context of side discussions, reference was also made to using the rape of enemy women as a means of waging war’. 1909 The Appeals Chamber notes that, other than arguing that this is uncorroborated hearsay, Mr Ntaganda does not explain why it was an error for the Trial Chamber to rely on the evidence of P-0014 regarding what was said at a meeting [REDACTED]. Regarding the argument that this evidence does not demonstrate a common plan, the Appeals Chamber reiterates that the Trial Chamber does not appear to have considered the meeting in Kampala to be a meeting of the coperpetrators agreeing to a common plan. It did, however, rely on the evidence of what was discussed at this meeting in reaching its determination as to the existence of a 1910 common plan. The Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to do so. For the same reason, the argument of Mr Ntaganda regarding the co-perpetrators’ awareness of that meeting also fails.

In view of the foregoing, the Appeals Chamber finds that Mr Ntaganda has not demonstrated an error in the Trial Chamber’s reliance on the evidence of the meeting in Kampala in June 2002 to establish that the co-perpetrators agreed on a common plan ‘to drive out all the Lendu from the localities targeted during the course of their 1911 military campaign against the RCD-K/ML’.

Regarding Mr Ntaganda’s argument with respect to the meeting held in mid- 1912 February 2003, the Appeals Chamber notes that the Trial Chamber referred to this meeting when analysing the UPC/FPLC’s leaders’ planning of a military campaign

Mr Ntaganda’s Appeal Brief – Part II 1907 , para. 285. Mr Ntaganda’s Appeal Brief – Part II 1908 , para. 285. 1909 Conviction Decision , paras 799, 293, referring to P-0014: T-136 , pp. 57, 59. 1910 Conviction Decision , para. 799. 1911 Conviction Decision , para. 808. Mr Ntaganda’s Appeal Brief – Part II 1912 , para. 286.

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involving the commission of crimes against the Lendu community, which it relied on 1913 to support its finding on the common plan. It found that ‘Lubanga gave the instruction to open the Main Road between Mongbwalu and Bunia, which meant to take control of localities […] where the Lendu population who had fled from the area of Mongbwalu [were] concentrated’. 1914 There is no suggestion that this was a meeting at which the common plan was agreed upon. Mr Ntaganda fails to identify an error in the Trial Chamber’s reliance on this meeting.

In so far as Mr Ntaganda argues, in relation to this meeting and the abovementioned meeting in Kampala in June 2002, that the evidence of these meetings is not direct evidence of the existence of a common plan, the Appeals Chamber notes that it is not argued on appeal that direct evidence is required to establish a common plan. By merely arguing that the evidence of those two meetings is not direct evidence of a common plan, Mr Ntaganda does not identify any error in the Trial Chamber’s findings.

(c) Whether a common plan may be inferred from the subsequent concerted action of the co-perpetrators

(i) Summary of submissions Mr Ntaganda submits that ‘the Prosecution did not produce evidence from witnesses present at meetings at which the common plan was agreed; minutes of such meetings, or a manifesto detailing the plan, or evidence of speeches, written orders, or correspondence showing what was agreed, when, and by whom’. 1915 He contends that in the absence of direct evidence, the Trial Chamber was required to consider whether the existence of the common plan to destroy the Lendu population could be inferred from ‘the subsequent concerted action of the co-perpetrators’. 1916 Mr Ntaganda argues that instead the Trial Chamber inferred the existence of the common plan from ‘any evidence of criminal behaviour […] by any member of the UPC/FPLC including the

1913 Conviction Decision , para. 796, referring to paras 549, 551-553. 1914 Conviction Decision , para. 796, referring to para. 549. Mr Ntaganda’s Appeal Brief – Part II 1915 , para. 284 (footnotes omitted); T-270 , p. 91, lines 3-7. Mr Ntaganda’s Appeal Brief – Part II 1916 , paras 287-291; T-270 , p. 91, lines 7-20; T-271 , p. 74, line 12 to p. 75, line 9.

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1917 rank and file’, which, he submits, is precluded by ‘[p]rinciples of individual

criminal culpability’. 1918

The Prosecutor argues that the Trial Chamber’s approach was correct and that

the existence of a common plan may be inferred from the facts, including from events

1919 on the ground. She contends that Mr Ntaganda has failed to identify any error in

the Trial Chamber’s findings. 1920 The Prosecutor submits that the Trial Chamber

relied on direct evidence of orders implementing the common plan, as well as

‘evidence of the founding motives of the UPC, of how UPC soldiers were trained and

how they conducted themselves during the First and Second Operations, and how the

UPC leadership reacted to this conduct’. 1921

Victims Group 2 argue that ‘the Trial Chamber was not obliged to take into

1922 account subsequent concerted action by the co-perpetrators’. In response,

Mr Ntaganda contends that this submission is wrong as, in the absence of direct

evidence of the common plan, ‘it is the concerted action of the co-perpetrators that

can give rise to an inference that these individuals were acting pursuant to a plan to

which they had all agreed’. 1923

1924 (ii) Determination by the Appeals Chamber

The Appeals Chamber notes that, contrary to Mr Ntaganda’s submissions, there

is no requirement for the trial chamber to establish the existence of a common plan on

the basis of ‘the subsequent concerted action of the co-perpetrators’. 1925 The Appeals

Chamber agrees that such subsequent concerted action may be a relevant

consideration in determining whether the co-perpetrators acted with a common

Mr Ntaganda’s Appeal Brief – Part II 1917 , para. 288 (emphasis in original omitted); T-270 , p. 91, line 24 to p. 92, line 8. Mr Ntaganda’s Appeal Brief – Part II 1918 , para. 291. Prosecutor’s Response to Appeal – Part II 1919 , paras 221-223. Prosecutor’s Response to Appeal – Part II 1920 , para. 224. Prosecutor’s Response to Appeal – Part II 1921 , paras 225-226; T-271 , p. 52, lines 12-14; p. 53, lines 6- 15. 1922 Observations of Victims Group 2 on Appeal – Part II , para. 89; T-271 , p. 71, lines 17-19. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1923 , paras 84-85. 1924 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 1925 , paras 287-291; T-270 , p. 91, lines 7-20; T-271 , p. 74, line 12 to p. 75, line 9.

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1926

purpose. Indeed, the fact that co-perpetrators act in unison will often be a strong

indicator that, by so acting, they may be implementing a common plan to which they

agreed. However, even in the absence of direct evidence of the agreement between the

co-perpetrators, subsequent concerted action is not the only basis on which the trial

chamber may infer the existence of a common plan. Therefore, there is no legal

impediment to inferring the common plan from the wider circumstances, including the

1927

events on the ground.

Furthermore, the Appeals Chamber notes that when determining whether there

was a common plan to drive out the Lendu from the targeted localities, the Trial Chamber did not only rely on ‘evidence of criminal behaviour […] by any member of

the UPC/FPLC’,

1928

but, as will be discussed later in this judgment, it relied on

1929

evidence of meetings, specific orders and instructions to the troops, that are

indicative of the subsequent action of the co-perpetrators.

Regarding Mr Ntaganda’s argument that the Trial Chamber erroneously relied on ‘any evidence of criminal behaviour’, also by individual soldiers,

1930

the Appeals

Chamber recalls that the form of criminal responsibility considered by the Trial

Chamber with respect to most of the crimes in the present case involved a common plan ‘executed through other persons, who function as a tool of all of the co-

1926 See Lubanga Confirmation Decision , para. 345. See also , in a different legal framework and under the doctrine of joint criminal enterprise, which the Appeals Chamber considers, in the present context, to be sufficiently similar to serve as guidance, Tadić Appeal Judgment , para. 227 (‘The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise.’); Vasiljević Appeal Judgment , para. 109; Krajišnik Appeal Judgment , para. 163, fn. 418. Đorđević , para. 138 (‘the Appeals Chamber emphasises that in order to 1927 See Appeal Judgment conclude on the existence of a common purpose, it is not required to establish that a plurality of persons acted in unison. What is required to be established is “that a plurality of persons shared the common criminal purpose”. The existence of such a common criminal purpose, particularly one that has not been previously arranged or formulated but materialised extemporaneously, may be inferred “from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise”. In other words, it is not necessary to establish that joint criminal enterprise members acted in unison in order to reach a conclusion on the existence of the common purpose’, footnotes omitted, emphasis in original); Šainović et al Appeal Judgment , para. 611 (‘Such a common plan, design, or purpose may “be inferred from the facts”, including events on the ground’; footnote omitted); Blagojević and Jokić Trial Judgment , para. 699 (‘The existence of an agreement or understanding for the common plan, design or purpose need not be express, but may be inferred from all the circumstances ’; emphasis added). Mr Ntaganda’s Appeal Brief – Part II 1928 , para. 288 (emphasis in original omitted). 1929 See paragraphs 930, 934-939 below. Mr Ntaganda’s Appeal Brief – Part II 1930 , paras 288, 291.

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perpetrators’. 1931 In such circumstances, the conduct of those other persons may be a relevant consideration in determining whether the alleged common plan existed. It is not an error for a trial chamber to rely on evidence of such conduct to infer the existence of a common plan. Regarding the Trial Chamber’s reliance on the evidence of direct perpetration of crimes, Mr Ntaganda argues that ‘[w]hether crimes were committed, or whether orders to illegally target were given by individual commanders, is not necessarily probative of the existence of a common plan’. 1932 However, the ICTY ruling, referred to by Mr Ntaganda in support of his argument, concerns a case where the trial chamber found that ‘another reasonable inference’ was available on the evidence, 1933 namely that certain crimes were not an intended part of the common plan. The ICTY trial chamber did not exclude evidence of the commission of crimes as irrelevant. Rather, it considered that evidence to be insufficient in the light of an alternative reasonable inference available on the evidence in that case.

In view of the foregoing, the Appeals Chamber finds that the Trial Chamber was not required to infer the existence of a common plan from the evidence of a subsequent concerted action of the co-perpetrators. Nor was it an error for it to rely on the evidence of commission of crimes by individual soldiers.

(d) Whether Salumu Mulenda was one of the co-perpetrators

(i) Summary of submissions Mr Ntaganda argues that the Trial Chamber failed to specify whether or not it considered Salumu Mulenda to be a co-perpetrator and, as a result, the relevance of the findings concerning Salumu Mulenda is ‘unclear and insufficiently reasoned’. 1934

The Prosecutor responds that the Trial Chamber did not err, as Salumu Mulenda was a commander in the UPC’s hierarchy, who acted pursuant to orders of members

1931 Conviction Decision , para. 772, referring to Ongwen Confirmation Decision , para. 38. Karadžić 1932 Mr Ntaganda’s Appeal Brief – Part II , para. 289, referring to Trial Judgment , para. 3466. Karadžić 1933 Trial Judgment , para. 3466. Mr Ntaganda’s Appeal Brief – Part II 1934 , para. 292.

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of the common plan, and that ‘[h]is conduct was thus attributable to the co-

perpetrators’. 1935

1936 (ii) Determination by the Appeals Chamber

The Appeals Chamber notes that the Trial Chamber took note of Salumu

Mulenda’s conduct in its legal findings on the common plan. In particular, the Trial

Chamber considered Salumu Mulenda’s orders to UPC/FPLC troops and briefings

1937 that he gave to the troops. The Trial Chamber did not specifically indicate that

Salumu Mulenda was among the ‘other military leaders of the UPC/FPLC’ who

1938 agreed in the common plan. The Appeals Chamber, however, reiterates that the

form of criminal responsibility considered by the Trial Chamber involved a common

plan ‘executed through other persons, who function as a tool of all of the co-

perpetrators’. 1939 Therefore and given the Trial Chamber’s extensive analysis of the

ways in which Salumu Mulenda contributed to the charged criminal activities of the

1940 UPC/FPLC, it is clear that the Trial Chamber considered his conduct to be part of

the execution of the common plan.

(e) Relevance of the UPC’s goal to establish peace and protect civilians

(i) Summary of submissions

Mr Ntaganda submits that the Trial Chamber failed to ‘consider whether

conclusions other than a plan for the destruction of the Lendu community were

reasonably available’. 1941 He also argues that the evidence cited in support of the

1942 common plan in the Conviction Decision was insufficient. Mr Ntaganda submits

1943 that the Trial Chamber accepted, and partially ignored, evidence of pacification

Prosecutor’s Response to Appeal – Part II 1935 , para. 228. 1936 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 1937 Conviction Decision , paras 802-803. 1938 Conviction Decision , para. 808. 1939 Conviction Decision , para. 772, referring to Ongwen Confirmation Decision , para. 38. 1940 Conviction Decision , paras 802-803. See also , for example, paras 475, 483, 487-488, 493, 500, 558. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response to 1941 , paras 288, 295. See also Observations of Victims on Appeal – Part II , para. 86. Mr Ntaganda’s Appeal Brief – Part II 1942 , paras 290-291. Mr Ntaganda’s Appeal Brief – Part II 1943 , para. 300.

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efforts, speeches and other acts, which in his view showed that the UPC’s goal was to establish peace and protect civilians, and that it failed to explain why, in light of this contrary evidence, the existence of a common plan for the destruction of the Lendu 1944 was the only reasonable inference available.

The Prosecutor submits that the Trial Chamber correctly found that the UPC’s desire for peace and protection of civilians ‘was in parallel to its goal to actively chase away the RCD-K/ML and those perceived as non-Iturians’, and that Mr Ntaganda’s alternative explanations ‘were implausible on the evidence’. 1945 The Prosecutor argues that the Trial Chamber’s conclusion on the existence of the common plan ‘is further supported by its findings concerning the context and manner in which the UPC operated, and in which violent acts were perpetrated against the Lendu’. 1946

(ii) Relevant part of the Conviction Decision When discussing whether the contextual elements of crimes against humanity were established, the Trial Chamber considered documents produced by the UPC/FPLC, which promoted peace or denounced the crimes committed against the local population of Ituri, as well as evidence of the stated ambition of the UPC/FPLC to ‘defend the population’ as a whole. 1947 Despite this evidence, the Trial Chamber was satisfied that the relevant contextual element of crimes against humanity was established, that is ‘the course of conduct took place pursuant to a policy of the UPC/FPLC to attack and chase away the Lendu civilians as well as those who were 1948 perceived as non-Iturians’. In its discussion of the common plan, relevant to the present ground of appeal, the Trial Chamber referred to its conclusions on the UPC/FPLC’s policy. 1949

Mr Ntaganda’s Appeal Brief – Part II 1944 , paras 295-300; T-270 , p. 93, lines 8-12; T-272 , p. 77, lines 2-19. Prosecutor’s Response to Appeal – Part II 1945 , para. 234. Prosecutor’s Response to Appeal – Part II 1946 , para. 235. 1947 Conviction Decision , paras 686-687. 1948 Conviction Decision , para. 689. 1949 Conviction Decision , para. 801, referring to section V.A.1.a)(3) of Conviction Decision .

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1950 (iii) Determination by the Appeals Chamber

The Appeals Chamber recalls its findings under the fourth ground of Mr

Ntaganda’s appeal regarding a challenge, similar to the present one, to the Trial

Chamber’s alleged failure to consider the evidence referred to by Mr Ntaganda in the

1951 above-mentioned discussion of the UPC/FPLC’s policy. Consistent with its

findings under the fourth ground of appeal and given that the evidence invoked under

the present ground of appeal is the same or similar, the Appeals Chamber is not

persuaded that the Trial Chamber failed to properly consider the evidence in question.

The Appeals Chamber further notes that the Trial Chamber’s finding on the

common plan is based on a number of considerations: the gathering on an ethnic basis

1952 of future members of UPC/FPLC in 2000; the setting up of ‘a well-functioning

armed force’ with a disciplinary system ensuring the execution of orders within its

1953 ranks; the commission of crimes ‘in a systematic way’ against the civilian

1954 population, predominantly Lendu; the fact that ‘[t]he killing of a Lendu, and the

looting of Lendu property, were not considered punishable offences by UPC/FPLC

soldiers, and rapes went unpunished’; 1955 the meeting of June 2002 in Kampala, at

1956 which the objective to drive out the Lendu was stated; teaching recruits that the

1957 Lendu and the Ngiti were the enemy; the objective of the UPC/FPLC to chase

away the RCD-K/ML, but also the Lendu civilians and those perceived to be non-

1958 1959 Iturians; and orders to kill the Lendu. In view of these considerations, the

Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude that

1950 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 1951 Regarding the creation of the CTPR ( , para. 296), the Arua peace negotiations ( Mr Ntaganda’s Appeal Brief – Part II , para. 297), Thomas Lubanga explaining in Bunia the goal of restoring peace, the plan to give weapons to Lendu combatants ( Mr Ntaganda’s Appeal Brief – Part II , para. 298), efforts to comprise FPLC units of soldiers from different ethnic backgrounds, the ideology to protect the civilian population, the speech by Chief Kahwa at Mandro Camp, the speeches at Rwampara ( Mr Ntaganda’s Appeal Brief – Part II , para. 299), see paragraphs 363, 388-394 above. 1952 Conviction Decision , para. 782, referring to para. 310. 1953 Conviction Decision , para. 785, referring to paras 705-709, 332. 1954 Conviction Decision , para. 797. 1955 Conviction Decision , para. 800, referring to para. 332. 1956 Conviction Decision , para. 799, referring to paras 290, 293. 1957 Conviction Decision , para. 800, referring to para. 373. 1958 Conviction Decision , para. 801, referring to section V.A.1.a)(3). 1959 Conviction Decision , para. 790, referring to para. 416; para. 803, referring to paras 558, 560.

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the UPC/FPLC military leaders acted with a common plan to drive out the Lendu from the targeted localities. It was also reasonable for the Trial Chamber not to specifically discuss and discount another inference, alternative to the common plan, despite the evidence to which Mr Ntaganda refers under this ground of appeal.

(f) Whether the co-perpetrators agreed to the commission of specific crimes

(i) Summary of submissions Mr Ntaganda argues that the Trial Chamber ‘felt entitled to hang any crime’ under ‘the broadest of umbrellas’ which it created. 1960 He submits that ‘there is no

direct evidence that the co-perpetrators came together to agree’ that all those crimes 1961 should be committed. Mr Ntaganda contends that the Trial Chamber’s findings are based on inference with no explanation ‘why the co-perpetrators’ intent for each of these crimes was the only reasonable conclusion available’ and that the Trial Chamber’s reasoning ‘falls far below that required by article 74(5)’ of the Statute. 1962

The Prosecutor submits that Mr Ntaganda’s argument fails to appreciate that the Trial Chamber’s findings were based on a detailed analysis of the co-perpetrators’

plan for a military campaign and an assessment that the co-perpetrators agreed that the common plan should include each of the types of crimes charged in counts 1-5, 7- 1963 8, 10-13 and 17-18.

(ii) Relevant part of the Conviction Decision The Trial Chamber found that

the co-perpetrators, by virtue of this agreement [the common plan] to drive out all the Lendu from the localities that they attacked, meant beyond reasonable doubt: (i) for civilians to be attacked and killed (Counts 1, 2 and 3); (ii) for their property to be appropriated and destroyed (Counts 11 and 18); (iii) for civilians to be raped and subjected to sexual slavery (Counts 4, 5, 7 and 8); (iv) for civilians to be forcibly displaced (Counts 12 and 13); and (v) for protected objects to be attacked (Count 17). Moreover, the Chamber finds beyond

Mr Ntaganda’s Appeal Brief – Part II 1960 , paras 302-303. Mr Ntaganda’s Appeal Brief – Part II 1961 , para. 304. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Response to 1962 , paras 304-305. See also Observations of Victims on Appeal – Part II , para. 88. Prosecutor’s Response to Appeal – Part II 1963 , para. 236.

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reasonable doubt that the co-perpetrators meant for the abovementioned conduct 1964 to be targeted towards the Lendu civilian population as such (Count 10).

1965 (iii) Determination by the Appeals Chamber

In its review of findings relevant to the common plan, the Trial Chamber

specifically referred to various considerations relevant to the crimes charged in the

present case. Regarding the inclusion in the common plan of the crimes of murder and

attacks against civilians, the Trial Chamber referred to its findings that: the recruits

1966 were given orders to kill the Lendu; ‘soldiers who participated in the Second

Operation, notably the killings in Kobu, were not punished for their conduct’; 1967 the

1968 killing of a Lendu was not considered punishable conduct; ‘[d]uring both the First

and Second Operation, UPC/FPLC troops adapted their behaviour depending on the

ethnicity of the individuals they were interacting with; Lendu were to be killed, while

members of other ethnic groups could be released and stay alive’; 1969 ‘UPC/FPLC

military leadership ordered troops to attack using the expression “ kupiga na kuchaji ”,

which was understood to mean attacking the Lendu civilians […]’. 1970

With respect to the inclusion in the common plan of the objective of

appropriation and destruction of property, the Trial Chamber referred to the findings

that: the looting of Lendu property was not considered a punishable offence by

’ was understood to also 1971 UPC/FPLC soldiers; the expression ‘ kupiga na kuchaji

1972 mean looting the property of the Lendu civilians; and ‘looted items which were

considered of high quality or value were usually given to the commanders under

threat of punishment’. 1973

1964 Conviction Decision , para. 810. 1965 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 1966 Conviction Decision , para. 790, referring to para. 416. 1967 Conviction Decision , para. 797, referring to para. 639. See also para. 800, referring to para. 332. 1968 Conviction Decision , para. 800, referring to para. 332. 1969 Conviction Decision , para. 804, referring to paras 528, 546, 625. See also para. 805. 1970 Conviction Decision , para. 801, referring to para. 415. See also para. 802, referring to para. 493; para. 803, referring to para. 561; para. 807. 1971 Conviction Decision , para. 800, referring to para. 332. 1972 Conviction Decision , para. 801, referring to para. 415. See also para. 807. 1973 Conviction Decision , para. 801, referring to para. 515.

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The Trial Chamber relied on the following findings showing the inclusion in the

common plan of the objective of raping civilians and/or subjecting them to sexual

1974 slavery: that rapes went unpunished; that acts of sexual violence were a tool to

achieve the UPC/FPLC’s objectives; 1975 that in the context of side discussions in June

2002 in Kampala, ‘reference was also made to using the rape of enemy women as a

1976 means of waging war’; that a particularly violent method was used for rapes and

1977 that UPC/FPLC soldiers forced detained victims to sexually assault each other.

Regarding the objective of forcibly displacing civilians, the Trial Chamber

referred to its findings that during the meeting in Kampala in 2002 ‘it was stated that

one of the objectives of the UPC/FPLC was to drive out the non-natives, identifying

the first target as the Nande, and then, the Lendu’; 1978 that the UPC/FPLC aimed to

1979 chase away Lendu civilians as well as those who were perceived as non-Iturians;

that, ‘[t]o achieve this, UPC/FPLC military leadership ordered troops to attack’ Lendu

1980 civilians and loot their property; that instructions were given to the troops to drive

out all the Lendu and to prevent the return of the Lendu inhabitants of Buli by

1981 torching the village.

Finally, the findings listed above are relevant to the Trial Chamber’s finding

that, by virtue of their agreement, ‘the co-perpetrators meant for the abovementioned

conduct to be targeted towards the Lendu population as such’. 1982

The Appeals Chamber considers these findings to be sufficiently detailed and

specific to the crimes in question. It notes that, contrary to Mr Ntaganda’s argument,

the findings relate to ‘more than just the commission of crimes’ 1983 and include

meetings, specific orders and instructions to the troops. The Appeals Chamber

therefore considers that it was reasonable for the Trial Chamber to infer from the

findings listed above that the co-perpetrators meant for these crimes to be committed

1974 Conviction Decision , para. 800, referring to para. 332. 1975 Conviction Decision , para. 805. 1976 Conviction Decision , para. 799, referring to para. 293. See also para. 805. 1977 Conviction Decision , para. 806, referring to paras 545, 623, 943, 944. 1978 Conviction Decision , para. 799, referring to paras 290, 293. 1979 Conviction Decision , para. 801, referring to section V.A.1.a)(3). 1980 Conviction Decision , para. 801, referring to para. 415. 1981 Conviction Decision , para. 803, referring to paras 560, 609. 1982 Conviction Decision , para. 810. Mr Ntaganda’s Appeal Brief – Part II 1983 , para. 305.

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by virtue of the common plan. It was not an error for the Trial Chamber to base this conclusion on inference. In view of the foregoing considerations, the Appeals Chamber finds that Mr Ntaganda has not demonstrated that the Trial Chamber’s reasoning fell ‘far below that required by article 74(5)’ of the Statute. 1984 Notably, Mr Ntaganda does not set out any alternative conclusion that, in his view, the Trial Chamber should have considered, such that its failure to consider that conclusion would amount to an error.

(g) Foreseeability of commission of crimes against children

(i) Summary of submissions Mr Ntaganda submits that the Trial Chamber’s reasoning in support of its finding that the co-perpetrators foresaw that crimes against children under the age of 15 were a virtual certain consequence of effecting the common plan is manifestly 1985 insufficient. He argues that ‘[t]he sole reason for extending liability to these additional crimes was “the circumstances prevailing at the time”’. 1986

The Prosecutor argues that the Trial Chamber’s conclusion that the coperpetrators foresaw with virtual certainty that the crimes in question would occur was used ‘as shorthand for its specific findings throughout the Judgment’. 1987 The Prosecutor also argues that the Trial Chamber’s findings relevant to Mr Ntaganda’s mens rea for crimes against children under the age of 15 are based on ‘the same factors that Ntaganda identifies from ICTY and ICTR case law as relevant to a finding that co-perpetrators could foresee crimes occurring as a virtually certain consequence of implementing a common plan’. 1988 She submits that Mr Ntaganda ‘erroneously claims the Chamber did not consider’ these factors. 1989

Victims Group 1 submit that the Trial Chamber duly considered the factors referred to by Mr Ntaganda, for instance the relationship and communications among

Mr Ntaganda’s Appeal Brief – Part II 1984 , para. 305. Mr Ntaganda’s Appeal Brief – Part II 1985 , paras 306-309. Mr Ntaganda’s Appeal Brief – Part II 1986 , para. 306. Prosecutor’s Response to Appeal – Part II 1987 , para. 237, referring to Conviction Decision , paras 787- 792, 811. Prosecutor’s Response to Appeal – Part II 1988 , para. 238. Prosecutor’s Response to Appeal – Part II 1989 , para. 238, referring to Conviction Decision , paras 1190- 1198.

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the co-perpetrators, their level of knowledge of and involvement in the crimes, the accused person’s movements, his knowledge of past actions of the perpetrators, as

1990 well as the scale, gravity and frequency of the crimes. In response, Mr Ntaganda argues that ‘[a] properly reasoned Judgment does not consist of a series of factual

1991 findings, and then a series of legal conclusions, with no link between the two’. He

suggests that Victims Group 1 engaged in retroactive speculation as to which findings

the Trial Chamber had in mind, in the absence of reasoning and analysis to transform 1992 its factual findings into legal conclusions.

(ii) Relevant part of the Conviction Decision The Trial Chamber found that

as of at least the beginning of August 2002, the co-perpetrators were virtually certain that the implementation of their plan to drive out all the Lendu from the localities targeted during the course of their military campaign against the RCD- K/ML would lead to: (i) the recruitment and active use in hostilities of children under the age of 15 within the UPC/FPLC (Counts 14, 15 and 16); and (ii) the rape and sexual slavery of these children (Counts 6 and 9). Indeed, the Chamber finds that, in the circumstances prevailing in Ituri at the time, the occurrence of these crimes was not simply a risk that they accepted, but crimes they foresaw 1993 with virtual certainty.

1994 (iii) Determination by the Appeals Chamber The Appeals Chamber notes that, in its analysis of findings relevant to the

existence of a common plan, the Trial Chamber noted that: at a meeting in June 2002

in Kampala, political leaders of the emerging UPC/FPLC decided that they should 1995 mobilise children to join the UPC and ‘large scale recruitment efforts followed’;

political and military leaders of the UPC/FPLC, including Mr Ntaganda, had children 1996 under the age of 15 as part of their personal escorts; the military leaders employed

methods to ensure that their commands would be obeyed by the recruits, including the

1990 Observations of Victims Group 1 on Appeal – Part II , paras 85-86. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1991 , para. 91. Mr Ntaganda’s Response to Observations of Victims on Appeal – Part II 1992 , para. 91. 1993 Conviction Decision , para. 811. 1994 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 1995 Conviction Decision , para. 787, referring to para. 347 and section IV.A.3.a). 1996 Conviction Decision , para. 788, referring to sections IV.A.3.c)(1)(b) and IV.A.3.c)(2).

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1997 youngest ones; female members of the UPC/FPLC, including those under 15 years of age, were regularly raped or subjected to sexual violence, which was left largely 1998 unpunished; and the military leaders ‘did not create the necessary conditions to ensure a safe environment for the female members of the UPC/FPLC, in which they would not be sexually abused’. 1999

The Appeals Chamber considers that, although the Trial Chamber did not expressly set out its understanding of ‘virtual certainty’ in the present context, it is clear that its conclusion is informed by the above-listed findings, which appear in the 2000 preceding section of the Conviction Decision. These findings show, inter alia , the co-perpetrators’ knowledge of and participation in the crimes, the frequency of the crimes in issue and the co-perpetrators’ failure to prevent and punish those crimes. Mr Ntaganda himself lists these factors as relevant to the determination of whether the 2001 occurrence of crimes was foreseeable. Therefore, contrary to Mr Ntaganda’s averment, the Trial Chamber’s reasoning is not limited to ‘the circumstances prevailing in Ituri at the time’, but is also based on other relevant factors. Mr Ntaganda has failed to demonstrate that the Trial Chamber erred by failing to 2002 provide adequate reasons.

(h) Other arguments regarding the existence of a common plan

Mr Ntaganda refers to his arguments regarding the use of the term ‘ kupiga na kuchaji ’ and submits that the Trial Chamber’s ‘misrepresentation of the evidence of the meaning of this phrase […] undermines its inference of a common plan on the basis of its use by Mr. Ntaganda and Kisembo’. 2003 The Appeals Chamber recalls its finding under the fifth ground of appeal that the Trial Chamber’s conclusion that the phrase kupiga na kuchaji ‘was an expression commonly used in UPC/FPLC commanders’ orders to soldiers, and that it was understood by the soldiers to mean

1997 Conviction Decision , para. 790, referring to paras 322, 374-377, 409. 1998 Conviction Decision , para. 792, referring to paras 332, 407, 411-412. 1999 Conviction Decision , para. 792. 2000 Conviction Decision , para. 811. Mr Ntaganda’s Appeal Brief – Part II 2001 , para. 308. Mr Ntaganda’s Appeal Brief – Part II 2002 , para. 306. Mr Ntaganda’s Appeal Brief – Part II 2003 , para. 293, referring to paras 76-90.

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attacking all the Lendu, including civilians, and to loot their property’ was 2004 reasonable.

Referring to the Trial Chamber’s and Prosecution witnesses’ use of the term ‘Lendu’ rather than ‘Lendu combatants’, Mr Ntaganda argues that it is ‘unrealistic’ ‘[t]o hang criminal liability on the non-addition of the word “combatants” in a battlefield context’. 2005

The Appeals Chamber notes that Mr Ntaganda only lists instances of various witnesses’ and the Trial Chamber’s allegedly incorrect use of the term ‘Lendu’ in contexts in which they could only have meant Lendu combatants and appears to argue that the Trial Chamber should not have hung criminal liability on that. However, he does not identify any of the Trial Chamber’s conclusions regarding the common plan or, more generally, his criminal responsibility, which are based on these instances of the allegedly incorrect use of the term ‘Lendu’. Nor does he explain how the findings on his criminal responsibility are affected by this allegedly erroneous use of the term. The Appeals Chamber dismisses the present argument for Mr Ntaganda’s failure to 2006 identify an error.

3 Responsibility for crimes perpetrated by Hema civilians

(a) Summary of submissions

Mr Ntaganda argues that the Trial Chamber erred in convicting him for the actions of Hema civilians in Mongbwalu, as the evidence was insufficient to demonstrate their almost automatic compliance with orders from the co-perpetrators 2007 or an inability to exercise free will. He submits that the Trial Chamber failed to engage in an analysis of whether near automatic compliance arose through the training of the Hema civilians, payment for committing crimes or punishments for the 2008 non-execution of crimes. Mr Ntaganda contends that there is no evidence of the

2004 See paragraph 472 above. 2005 Mr Ntaganda’s Appeal Brief – Part II , para. 294. 2006 See also paragraph 998 below. Mr Ntaganda’s Appeal Brief – Part II 2007 , paras 310-313; T-270 , p. 94, lines 5-7. Mr Ntaganda’s Appeal Brief – Part II 2008 , para. 314.

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co-perpetrators ‘using the apparatus of power to steer Hema civilians to the point that

2009 they had no choice but to commit crimes’.

The Prosecutor submits that the ‘[Trial] Chamber clearly distinguished between

the co-perpetrators’ control of the Hema civilians and their control over the UPC

soldiers’. 2010 She argues that the Trial Chamber carried out a normative assessment of

2011 the relationship between the Hema civilians and the UPC/FPLC leadership. The

Prosecutor submits that the Trial Chamber’s conclusions that there were generally

coercive circumstances at the time, which impacted the Hema civilians, and that those

2012 civilians followed orders from the UPC leadership, were based on the evidence.

(b) Relevant part of the Conviction Decision

In the relevant part of the Conviction Decision, the Trial Chamber found that

with regard to [some of the] killings and looting in Mongbwalu, the Hema civilians functioned as a tool in the hands of the co-perpetrators, controlled through soldiers of the UPC/FPLC, an organisation which was itself a tool in the hands of the co-perpetrators, as established above. In this specific instance, the co-perpetrators were able to realise the material elements of certain crimes, in pursuance of the common plan, through these Hema civilians, whose will had become irrelevant. In these circumstances, the Chamber concludes that the conduct of the Hema civilians in the execution of the crimes must be attributed 2013 to the co-perpetrators as if it were their own.

2014

(c) Determination by the Appeals Chamber

Mr Ntaganda submits that the Hema civilians did not form part of the

UPC/FPLC and that this was thus not a situation where ‘the existence of an

organisation [was] used to subjugate the will of the direct perpetrators’. 2015 Without

challenging the criteria applied by the Trial Chamber, he argues that the finding ‘that

the co-perpetrators controlled the actions of these civilians to such a degree that their

Mr Ntaganda’s Appeal Brief – Part II 2009 , para. 316. Prosecutor’s Response to Appeal – Part II 2010 , para. 240. Prosecutor’s Response to Appeal – Part II 2011 , para. 241. Prosecutor’s Response to Appeal – Part II 2012 , para. 242; T-271 , p. 53, lines 16-22. 2013 Conviction Decision , para. 824. 2014 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 2015 , para. 316 (emphasis in original omitted), referring to Conviction Decision , para. 778; see also Mr Ntaganda’s Appeal Brief – Part II , para. 314.

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will became “irrelevant”’ 2016 is weak due to insufficiency of evidence and lack of

2017 reasoning. In particular, Mr Ntaganda submits that one of the witnesses on whose

evidence the Trial Chamber relied, P-0963, in fact stated that the Hema civilians who

committed pillage in Mongbwalu ‘took advantage of the situation’; and that another

witness, P-0898, testified that despite the UPC/FPLC’s instruction to stop, the

2018 civilians continued looting and killing.

The principal findings in issue are that ‘the Hema civilians functioned as a tool

2019 in the hands of the co-perpetrators’ and that their ‘will had become irrelevant’.

These conclusions are based on the Trial Chamber’s finding that ‘the Hema civilians

engaged in the relevant acts in the context of the general coercive circumstances

resulting from the presence of armed UPC/FPLC soldiers, who were themselves

committing crimes in Mongbwalu at the same time’, as well as on the finding that ‘the

2020 conduct of these civilians followed orders of the UPC/FPLC leadership’.

The evidence upon which the Trial Chamber relied shows that the Hema

civilians committing criminal acts in Mongbwalu followed orders of the UPC/FPLC

2021 leadership. P-0768 testified that the civilians received orders from

2022 Mr Ntaganda. P-0898 and P-0017 stated that the civilians followed orders of Roy

2023 Gangi, who, according to P-0898, reported to Mr Ntaganda. As Mr Ntaganda

2024 rightly points out, these witnesses did not specifically discuss in their evidence

whether the will of the Hema civilians became irrelevant. However, this consistent

evidence of orders issued to the civilians by either Mr Ntaganda or his subordinates

supports the Trial Chamber’s conclusion that those civilians ‘functioned as a tool in

2025 the hands of the co-perpetrators’ and that their ‘will had become irrelevant’.

Mr Ntaganda’s Appeal Brief – Part II 2016 , para. 311. Mr Ntaganda’s Appeal Brief – Part II 2017 , paras 312-313. Mr Ntaganda’s Appeal Brief – Part II 2018 , para. 312. 2019 Conviction Decision , para. 824. 2020 Conviction Decision , para. 822. 2021 Conviction Decision , para. 822. 2022 Conviction Decision , para. 512, fn. 1513; P-0768: T-33 , p. 42. 2023 Conviction Decision , para. 512, fn. 1513; P-0898: T-154 , pp. 13-14, 34-35; P-0017: T-59 , pp. 11- 12. Mr Ntaganda’s Appeal Brief – Part II 2024 , para. 312. 2025 Conviction Decision , para. 824.

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Mr Ntaganda cites the evidence of P-0963, which, in his view, contradicts the

Trial Chamber’s findings. 2026 In the quoted passage of the testimony in question, P-

0963 stated that the Hema civilians ‘took advantage of the situation’. 2027 However, in

another part of the same passage, the witness clarified that ‘[s]ometimes [the Hema

2028 civilians] did more looting than the soldiers did’. By this clarification the witness

appears to have explained what ‘taking advantage of the situation’ meant. Therefore,

contrary to Mr Ntaganda’s apparent suggestion, by referring to taking advantage of

the situation, the witness did not necessarily mean that the Hema civilians acted on

their own volition. This is further confirmed by the witness’s testimony that the

civilians acted upon orders from ‘company commanders, battalion commanders’. 2029

The Appeals Chamber therefore finds that the evidence of this witness does not

contradict the Trial Chamber’s finding that the Hema civilians followed orders of the

UPC/FPLC leadership.

2030 Regarding the evidence of P-0898, to which Mr Ntaganda refers, the

Appeals Chamber notes that, contrary to Mr Ntaganda’s averment, P-0898 did not

2031 state that the Hema civilians continued looting and killing despite an order to stop.

The witness in fact stated that he did not know whether the civilians stopped killing

2032 and looting after they had received the order to stop. Therefore, the Appeals

Chamber does not consider this evidence to contradict the Trial Chamber’s conclusion

that the Hema civilians functioned as a tool in the hands of the co-perpetrators and

2033 that their will became irrelevant.

Mr Ntaganda also challenges the Trial Chamber’s finding that ‘the Hema

civilians engaged in the relevant acts in the context of the general coercive

circumstances resulting from the presence of armed UPC/FPLC soldiers, who were

2034 themselves committing crimes in Mongbwalu at the same time’. As correctly

Mr Ntaganda’s Appeal Brief – Part II 2026 , para. 312. 2027 P-0963: T-78 , p. 86, line 11. 2028 P-0963: T-78 , p. 86, lines 11-12. 2029 P-0963: T-78 , p. 86, lines 7-9. Mr Ntaganda’s Appeal Brief – Part II 2030 , para. 312. 2031 P-0898: T-154 , p. 14, lines 3-16. 2032 P-0898: T-154 , p. 14, lines 12-16. 2033 Conviction Decision , para. 824. 2034 Conviction Decision , para. 822.

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2035 observed by Mr Ntaganda, the finding of ‘coercive circumstances’ does not refer to any evidence. It does, however, refer to the presence of UPC/FPLC soldiers committing crimes. In the section of the Conviction Decision where the relevant conduct of the Hema civilians is described, the Trial Chamber found that they conducted a ratissage operation together with members of the UPC/FPLC and that during that operation both soldiers and Hema civilians ‘searched from house to house 2036 for items to loot, abducting, intimidating, and killing people who resisted’. As discussed above, the Trial Chamber found that the civilians followed the orders of the 2037 UPC/FPLC leadership. The Appeals Chamber considers that, although not specifically referenced, these findings and the evidence relied upon support the Trial Chamber’s conclusion that the Hema civilians operated ‘in the context of the general coercive circumstances resulting from the presence of armed UPC/FPLC soldiers’. 2038 It also finds that it was reasonable for the Trial Chamber to conclude on the basis of this joint operation of the UPC/FPLC soldiers and the Hema civilians, in which the civilians followed orders, that the latter operated under coercive circumstances.

The Appeals Chamber further notes that in the section ‘Hema civilian supporters’, the Trial Chamber found that ‘Hema civilians participated in [military] operations under the direction of the FPLC military commanders’ 2039 and that ‘[t]hey 2040 were mobilised specifically for the purpose of assisting during FPLC operations’.

In view of the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to conclude on the basis of the evidence of orders to the Hema civilians and their joint operation with the UPC/FPLC soldiers that the Hema civilians ‘functioned as a tool in the hands of the co-perpetrators’ and that their ‘will had become irrelevant’. 2041

Mr Ntaganda’s Appeal Brief – Part II 2035 , para. 313. 2036 Conviction Decision , para. 512. 2037 Conviction Decision , para. 512. 2038 Conviction Decision , para. 822. 2039 Conviction Decision , para. 333, referring to P-0768: T-33 , p. 42; P-0898: T-154 , pp. 13-14; P- 0963; T-78 , p. 86. 2040 Conviction Decision , para. 333, referring to P-0017: T-59 , p. 8; P-0055: T-71 , p. 47. 2041 Conviction Decision , para. 824.

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4 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments under this ground of appeal, the Appeals Chamber, by majority, Judge Eboe-Osuji dissenting, rejects this ground of appeal.

N. Fourteenth ground of appeal: Whether Mr Ntaganda possessed the mens rea for the crimes committed during the First Operation

Under the fourteenth ground of appeal, Mr Ntaganda argues that the Trial Chamber erred when it found that he possessed the requisite mens rea as an indirect co-perpetrator for the crimes of UPC/FPLC soldiers committed during the First 2042 Operation.

The Appeals Chamber notes that in finding that Mr Ntaganda possessed the requisite mens rea for the First and Second Operations, the Trial Chamber relied upon several factors including: (i) Mr Ntaganda’s role in the agreement and implementation 2043 of the common plan; (ii) his senior status in the UPC/FPLC and his commanding 2044 role during the Mongbwalu assault; and (iii) his ‘presence, actions and directives’ 2045 during the First Operation. In this regard, Mr Ntaganda alleges several legal and factual errors in the Trial Chamber’s analysis and conclusions, which, he argues, 2046 materially affect the Trial Chamber’s finding of intent.

First, as to the findings concerning his ‘presence, actions and directives’, Mr Ntaganda claims that the Trial Chamber erred in relying on two directives to support its finding: (i) that the night before leaving Bunia for Mongbwalu, he had ordered UPC/FPLC troops to attack the Lendu ‘using the term ’; 2047 kupiga na kuchaji and (ii) that, once on the ground, during the attack on Mongbwalu, he had ordered the UPC/FPLC troops to attack ‘the Lendu’ without distinguishing between Lendu 2048 civilians and militia. Mr Ntaganda contends that he ‘never gave these two directives’ and ‘[g]iven their place at the centre of the finding that [he] possessed the

Mr Ntaganda’s Appeal Brief – Part II 2042 , para. 322. 2043 Conviction Decision , para. 1177. 2044 Conviction Decision , para. 1179. 2045 Conviction Decision , para. 1180. Mr Ntaganda’s Appeal Brief – Part II 2046 , paras 317-359. Mr Ntaganda’s Appeal Brief – Part II 2047 , paras 321, 323-339. Mr Ntaganda’s Appeal Brief – Part II 2048 , paras 321, 340-347.

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2049 mens rea for the 13 counts for which he was convicted, this should be reversed’.

Second, Mr Ntaganda claims that none of the other factors relied upon by the Trial

Chamber to infer his intent for the crimes charged either collectively or individually,

2050 support its finding of mens rea. Third, Mr Ntaganda argues that in inferring the

existence of a fact upon which a conviction relies, the Trial Chamber failed ‘to

consider the reasonable possibility of other available conclusions, and associated

relevant evidence’. 2051 The Appeals Chamber will address each of the alleged errors

in turn.

1 Alleged error in finding that Mr Ntaganda ordered UPC/FPLC troops to attack the Lendu using the term kupiga na kuchaji

(a) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda challenges the Trial Chamber’s finding that the night before

leaving Bunia for Mongbwalu he ordered the troops to attack, ‘using the term kupiga

’. He submits that ‘P-0010 is the sole source’ for the Trial Chamber’s 2052 na kuchaji

2053 finding. Mr Ntaganda argues that this witness lied about her age, date and place of

birth, her abduction by and training with the UPC, as well as her alleged

2054 [REDACTED]. He submits that it was a legal error to rely on ‘any of her

testimony, particularly when uncorroborated’ and ‘without any apparent caution’. 2055

Mr Ntaganda contends that, although a trial chamber is entitled to believe a witness in

part, this ‘does not entitle it to turn a blind eye to the impact of false testimony on the

reliability of the witness as a whole’. 2056 In his view, the Trial Chamber was required

to explain why the witness could still be believed, ‘particularly when the lies and

apparently truthful excerpts form part of the same narrative and are so closely

intertwined’. 2057

Mr Ntaganda’s Appeal Brief – Part II 2049 , para. 347. Mr Ntaganda’s Appeal Brief – Part II 2050 , paras 348-352. Mr Ntaganda’s Appeal Brief – Part II 2051 , para. 353-358. Mr Ntaganda’s Appeal Brief – Part II 2052 , paras 323-324. Mr Ntaganda’s Appeal Brief – Part II 2053 , para. 324. Mr Ntaganda’s Appeal Brief – Part II 2054 , paras 324-326, 329-331. Mr Ntaganda’s Appeal Brief – Part II 2055 , paras 324, 327. Mr Ntaganda’s Appeal Brief – Part II 2056 , para. 328. Mr Ntaganda’s Appeal Brief – Part II 2057 , para. 328.

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Mr Ntaganda argues, in relation to the kupiga na kuchaji allegation, that the

testimony of P-0888, namely ‘that he did not remember any particular instructions or

orders given to escorts’, ‘casts doubt on the veracity of P-0010’s account’ and should

2058 have been addressed by the Trial Chamber. He notes that, at trial, he raised several

other inconsistencies between P-0010’s testimony and the Trial Chamber’s own

findings regarding the First Operation. He argues that the Trial Chamber failed to take

these into account when assessing her uncorroborated evidence of the speech that

2059 Mr Ntaganda allegedly gave before the First Operation began. Moreover,

Mr Ntaganda maintains that, contrary to the Trial Chamber’s determination, P-0010’s

2060 testimony on the speech by Mr Ntaganda was not given spontaneously. He also

argues that the Trial Chamber erred in accepting P-0010’s testimony that

[REDACTED] pointing to inconsistencies in her testimony and the Trial Chamber’s

2061 mischaracterisation and/or misapprehension of her testimony.

In Mr Ntaganda’s view, the acceptance of P-0010’s testimony of an alleged

speech in Bunia ‘was a miscarriage of justice’ in light of the errors identified. 2062

(ii) The Prosecutor’s submissions

The Prosecutor responds that Mr Ntaganda misrepresents the Conviction

Decision when stating that the Trial Chamber found that P-0010 ‘“repeatedly lied on

central and incriminating issues”, “lied under oath” and “misrepresented the

truth”’. affirmatively find that she lied’ 2063 In her view, the Trial Chamber ‘did not

rather it merely ‘acknowledged […] the possibility that she may have lied on those

issues’. 2064 She further contends that, even if the Trial Chamber had found P-0010 to

be untruthful on some aspects of her testimony, it did not err in relying on other

2065 aspects. The Prosecutor submits that the Trial Chamber’s finding on P-0010’s

Mr Ntaganda’s Appeal Brief – Part II 2058 , para. 332. Mr Ntaganda’s Appeal Brief – Part II 2059 , para. 333; see also T-271 , p. 7, lines 3-15. Mr Ntaganda’s Appeal Brief – Part II 2060 , para. 334. Mr Ntaganda’s Appeal Brief – Part II 2061 , paras 335-338. Mr Ntaganda’s Appeal Brief – Part II 2062 , para. 339. Prosecutor’s Response to Appeal – Part II Mr Ntaganda’s Appeal Brief – 2063 , para. 248, referring to Part II , paras 3, 328-329. 2064 Prosecutor’s Response to Appeal – Part II , para. 248 (emphasis in original). Prosecutor’s Response to Appeal – Part II 2065 , para. 249.

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evidence regarding Mr Ntaganda’s use of the words kupiga na kuchaji was

2066 2067 sufficiently reasoned. She contends that this evidence was given spontaneously.

The Prosecutor submits that Mr Ntaganda’s arguments regarding P-0010’s

credibility and reliability on certain aspects of her testimony were comprehensively

addressed by the Trial Chamber and they fail to identify any errors in the Trial

Chamber’s assessment of the witness or in its reliance on her evidence. 2068 She

submits that P-0888’s failure to recall the orders does not diminish the ‘reliability and

probative value’ of P-0010’s testimony on the giving of the order by Mr Ntaganda. 2069

In any event, the Prosecutor contends that other evidence of Mr Ntaganda, and other

commanders, giving orders to attack the Lendu or using the phrase ‘ kupiga na

’ corroborate P-0010’s evidence. 2070 kuchaji Finally, the Prosecutor notes that the

2071 credibility assessment of P-0010 should be accorded appropriate deference.

(iii) The victims’ observations

Victims Group 2 note their agreement with the submissions of the Prosecutor

in relation to Mr Ntaganda’s challenges to the testimony of P-0010 and the Trial

Chamber’s reliance thereon. 2072

(b) Relevant part of the Conviction Decision

In the section setting out the factual findings related to the planning of the

First Operation, the Trial Chamber found that ‘the night before leaving Bunia for the

First Operation, Mr Ntaganda spoke to some of the UPC/FPLC troops, telling them

that they were going to Mongbwalu to fight against the Lendu and ordering them to

attack using the term “ ”’. 2073 kupiga na kuchaji The Trial Chamber relied upon this

finding in its assessment of Mr Ntaganda’s intent and knowledge for each of the

2074 crimes charged.

Prosecutor’s Response to Appeal – Part II 2066 , para. 250. Prosecutor’s Response to Appeal – Part II 2067 , para. 250. Prosecutor’s Response to Appeal – Part II 2068 , para. 251. Prosecutor’s Response to Appeal – Part II 2069 , para. 252. Prosecutor’s Response to Appeal – Part II 2070 , para. 252. Prosecutor’s Response to Appeal – Part II 2071 , para. 253. 2072 Observations of Victims Group 2 on Appeal – Part II , para. 95. 2073 Conviction Decision , para. 484. 2074 Conviction Decision , paras 484, 1181.

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2075

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that in support of its finding that Mr Ntaganda

possessed the requisite mens rea for the First Operation crimes, the Trial Chamber

relied, inter alia , on Mr Ntaganda’s directive to his troops to attack the Lendu using

2076 the term kupiga na kuchaji on the night before leaving for Mongbwalu.

Mr Ntaganda challenges this finding by first referring to arguments he made under the

fifth ground of his appeal concerning alleged errors in the Trial Chamber’s analysis of

2077 the meaning of the phrase kupiga na kuchaji. As the Appeals Chamber has already

2078 addressed and rejected these arguments, the focus of its enquiry under this section

is limited to Mr Ntaganda’s second strand of argumentation, namely, that the Trial

Chamber erred in relying exclusively on the evidence of P-0010 for its impugned

2079 finding despite the numerous inconsistencies in her testimony.

The Appeals Chamber notes that in seeking to impugn P-0010’s credibility

and the reliability of her evidence, Mr Ntaganda largely repeats arguments made

before the Trial Chamber claiming that P-0010 lied under oath about her age, date and

place of birth, being abducted when she was 13 years old, having trained with the

UPC in the Rwampara and Mandro training camps, the military operations that she

2080 was involved in during the First Operation and her alleged rape.

With respect to the alleged inconsistencies regarding P-0010’s testimony

about her age and date of birth, Mr Ntaganda argues that the witness ‘gave at least six

different dates of birth’. 2081 As to the inconsistencies regarding her abduction and

training, Mr Ntaganda argues that the witness falsely claimed to have been abducted

2075 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 2076 Conviction Decision , para. 1181. Mr Ntaganda’s Appeal Brief – Part II 2077 , para. 320. 2078 See paragraphs 459-472 above. Mr Ntaganda’s Appeal Brief – Part II 2079 , paras 324-339. Mr Ntaganda’s Appeal Brief – Part II 2080 , paras 324-326, 330-331, 333, 335-338; Mr Ntaganda’s Closing Brief , paras 1261-1282. Mr Ntaganda’s Appeal Brief – Part II 2081 , para. 325.

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by the UPC at 13 years old and ‘gave two detailed, equally false, yet different stories […]’ in this regard. 2082

Furthermore, Mr Ntaganda argues that P-0010 made several ‘false claims’ regarding the military operations that she was involved in during the First Operation, which in his view, indicates ‘either that P-0010 was not present during it, or gave unreliable evidence about it’. 2083 In particular, Mr Ntaganda points to various inconsistencies between P-0010’s testimony and the Trial Chamber’s own findings on the First Operation, namely, that the UPC did not manage to capture Mongbwalu; that they took the Kobu Road to reach Mongbwalu; that the witness did not state that Mr Ntaganda went to Sayo, when in fact he did; and that Kisembo was present during 2084 the attack when actually he had arrived later.

Further still, regarding P-0010’s evidence concerning her rape, Mr Ntaganda points to the apparent inconsistency between P-0010’s testimony and her prior statement about a particular instance of rape perpetrated by [REDACTED]. In particular, Mr Ntaganda highlights an apparent discrepancy about whether the 2085 incident happened before or after the assault on Mongbwalu. In his view, this inconsistency was significant given that the Trial Chamber had heard ‘corroborated, unchallenged evidence’ that he had ‘returned from Mongbwalu to Bunia by plane’ 2086 and that [REDACTED] after the First Operation’. In addition, Mr Ntaganda argues that P-0010’s failure to report that she had been raped [REDACTED] in her prior statements or to a ‘close friend [D-0211] with whom she lived after the events’ is 2087 further evidence of inconsistent statements rather than delayed reporting.

The Appeals Chamber observes that central to Mr Ntaganda’s arguments is the allegation that the Trial Chamber turned ‘a blind eye to the impact of false testimony 2088 on the reliability of the witness as a whole’. Mr Ntaganda concedes that a trial chamber ‘has discretion to accept some parts of a witness’ testimony and not

Mr Ntaganda’s Appeal Brief – Part II 2082 , paras 326, 330-331. Mr Ntaganda’s Appeal Brief – Part II 2083 , para. 333. Mr Ntaganda’s Appeal Brief – Part II 2084 , para. 333. Mr Ntaganda’s Appeal Brief – Part II 2085 , paras 335-336. Mr Ntaganda’s Appeal Brief – Part II 2086 , paras 335-336. Mr Ntaganda’s Appeal Brief – Part II 2087 , paras 337-338. Mr Ntaganda’s Appeal Brief – Part II 2088 , paras 327-328.

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others’. 2089 However, he contends that in light of the witness’s ‘“misrepresentations of

the truth”’ and ‘rampant inconsistencies throughout her statements and testimony’, P-

0010’s credibility was undermined to the extent that her evidence should not have

2090 been relied upon.

The Appeals Chamber recalls that as discussed under the ninth ground of

appeal it found no error in the Trial Chamber’s approach to inconsistencies,

contradictions and inaccuracies in a witness’s evidence. 2091 Specifically, the Appeals

Chamber has found that the Trial Chamber correctly declined to enter positive

findings on P-0010’s age, date of birth, abduction and training with the

2092 UPC/FPLC. The Trial Chamber considered P-0010’s testimony together with

relevant documentary evidence which referred to five different dates of birth and two

different places of birth, including one that differed from the witness’s testimony, the

witness’s explanations for some of the discrepancies which it found to be satisfactory

and ‘other discrepancies’ which it found to be unanswered. 2093 On this basis, coupled

with its findings relating to the circumstances of her abduction, the Trial Chamber

found that it could not ‘be established beyond reasonable doubt that she was under 15

at the time of the events referred to during her testimony’. 2094

More specifically in relation to P-0010’s alleged abduction, the Trial Chamber

considered her testimony and an interview she gave to MONUC in 2003 and noted a

number of ‘discrepancies and uncertainties’. 2095 This led the Trial Chamber to

conclude that it ‘cannot exclude the possibility that P-0010 misrepresented the truth

when stating that she was abducted by the UPC when she was 13 years old, and then

followed training with the UPC in the Rwampara and Mandro training camps’. 2096 On

Mr Ntaganda’s Appeal Brief – Part II 2089 , para. 328. See also Ngudjolo A Judgment , para. 168 (‘a Trial Chamber may indeed rely on certain aspects of a witness’s evidence and consider other aspects unreliable’). Mr Ntaganda’s Appeal Brief – Part II 2090 , para. 328. 2091 See paragraph 774 above. 2092 See paragraphs 774 above. See also Conviction Decision , paras 89-105. 2093 Conviction Decision , para. 93. 2094 Conviction Decision , para. 94. 2095 Conviction Decision , paras 95-98. 2096 Conviction Decision , para. 98.

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this basis, it found ‘that the witness’s testimony on her abduction by and training with 2097 the UPC/FPLC, or her related experiences in this regard, cannot be relied upon’.

Mr Ntaganda characterises the Trial Chamber’s decision not to rely on these aspects of P-0010’s testimony as confirmation that P-0010 ‘lied under oath’ and that the witness was ‘someone who lies with absolute ease’. 2098 The Appeals Chamber finds that, contrary to Mr Ntaganda’s argument, the Trial Chamber did not affirmatively find that P-0010 had lied regarding her age, date of birth, abduction and training with the UPC/FPLC. Rather, the Trial Chamber held that it could not establish her age beyond a reasonable doubt and that it could not exclude the possibility that she may have lied about her abduction and training. In particular, where the witness was forthright about providing ‘wrong information to the authorities’ about her birth date and her reasons for doing so, the Trial Chamber did not find that she lied but rather accepted her explanation as ‘satisfactory’. 2099 Accordingly, the Appeals Chamber finds no merit in Mr Ntaganda’s argument.

In relation to the alleged inconsistencies in P-0010’s evidence about her participation in the First Operation, the Trial Chamber noted that ‘P-0010 provided detailed and coherent information about her experiences in Mr Ntaganda’s escort’ which it considered was ‘generally in line with, or corroborated by, other evidence in the case record’. 2100 It observed that

P-0010 provided detailed information concerning her participation in the First Operation, was able to remember the names of other UPC/FPLC commanders who were present, the weapons used, communications of Mr Ntaganda, the residence of Mr Ntaganda and the soldiers in Mongbwalu, and what was referred to as the Appartements area. She […] insisted that she was present at both the first and second assault on Mongbwalu, which she was able to clearly 2101 distinguish from one another. She also remembered the items she looted. The Appeals Chamber notes Mr Ntaganda’s argument that the witness cannot be believed given her ‘bizarre’ testimony that the UPC/FPLC ‘didn’t manage to take Mongbwalu’ and other discrepancies between her testimony and the Trial Chamber’s

2097 Conviction Decision , para. 98. Mr Ntaganda’s Appeal Brief – Part II 2098 , para. 329. 2099 Conviction Decision , paras 93-94. 2100 Conviction Decision , para. 99. 2101 Conviction Decision , para. 100 (footnotes omitted).

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2102 own findings. The Appeals Chamber considers, as pointed out by the Prosecutor, that it was not unreasonable for the witness’s testimony to have contained inconsistencies given the events that she was testifying to took place some 13 years 2103 earlier. Moreover, as the Trial Chamber correctly stated, inconsistencies in a witness’s testimony ‘do not automatically render a witness’s account unreliable in its entirety’. 2104 Notably, the Appeals Chamber observes that Mr Ntaganda fails to demonstrate how these specific inconsistencies in P-0010’s testimony affect the Trial Chamber’s overall finding that the witness ‘provided detailed and coherent information about her experiences in Mr Ntaganda’s escort’ which it considered was ‘generally in line with, or corroborated by, other evidence in the case record’. 2105 The Appeals Chamber finds that the Trial Chamber’s assessment of the witness’s testimony was reasonable and is unaffected by the discrepancies highlighted by Mr Ntaganda. Mr Ntaganda’s arguments are therefore rejected.

As to the alleged inconsistencies in P-0010’s evidence concerning her rape, the Trial Chamber considered that ‘the witness’s hesitations as regards timing […] do not indicate that P-0010 fabricated this aspect of her testimony and as such do not meaningfully affect the credibility of her account’. 2106 It further considered that the witness’s ‘inability to recall whether a certain event happened in Mabanga “before” or “after” the First Operation [did not] unduly undermin[e] […] her credibility’. 2107 Furthermore, in finding that ‘[f]emale members of the UPC/FPLC were regularly raped and subjected to sexual violence […] by male UPC/FPLC soldiers and commanders, including […] by Mr Ntaganda himself’, 2108 the Trial Chamber noted that P-0010’s ‘account on sexual violence by Mr Ntaganda is consistent between her 2015 statement, and direct and cross-examination, with the exception of the detail of the precise timing of the incident in Mabanga’, which the Trial Chamber did not ‘consider to meaningfully affect the credibility of her account’. 2109 The Appeals Chamber finds no error in the Trial Chamber’s assessment of this particular

Mr Ntaganda’s Appeal Brief – Part II 2102 , para. 333. Prosecutor’s Response to Appeal – Part II 2103 , para. 251. 2104 Conviction Decision , para. 80. 2105 Conviction Decision , para. 99. 2106 Conviction Decision , para. 102. 2107 Conviction Decision , fn. 242. 2108 Conviction Decision , para. 407 (footnotes omitted). 2109 Conviction Decision , fn. 1158.

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discrepancy in P-0010’s testimony, given its finding on her overall credibility in

2110 relation to the rape allegations. Moreover, the Appeals Chamber notes that, as

2111 pointed out by the Prosecutor, the witness referred to several occasions of rape

[REDACTED] and not just the one in relation to which Mr Ntaganda raises

2112 doubts. Consequently, the Appeals Chamber finds that it was reasonable for the

Trial Chamber to find that P-0010’s inability to recall the precise timing of the rape

did not ‘unduly undermine […] her credibility’. 2113

The Appeals Chamber notes Mr Ntaganda’s further argument that P-0010’s

failure to report that she had been raped [REDACTED] in her prior statements or to a

‘close friend’, D-0211, is further evidence of inconsistencies in her testimony. 2114 In

this regard, the Trial Chamber ‘[did] not take issue with the fact that the relevant acts

were not reported on the first occasion’ and considered ‘delayed reporting’ of

instances of rape ‘to be an understandable consequence of the victims’ alleged

experience’ which had no effect on a witness’s general credibility. 2115 Accordingly,

the Trial Chamber noted that ‘it [was] understandable that P-0010 may not have

informed D-0211 of the details of the sexual violence suffered, and related

consequences’. 2116 The Appeals Chamber finds that it was reasonable for the Trial

Chamber to reach these conclusions especially since other witnesses corroborated the

fact that UPC/FPLC commanders raped the escorts. Moreover, the Appeals Chamber

finds no merit in Mr Ntaganda’s argument that P-0010’s previous naming of a

[REDACTED] as her rapist and denial that [REDACTED] had acted improperly in

her 2005 statement are indicative of prior inconsistent statements rather than delayed

2110 The Appeals Chamber notes the additional argument put forward by Lead Counsel for Mr Ntaganda, at the hearing, concerning D-0251’s testimony contesting any claims that she had been raped by Mr Ntaganda or had any knowledge that Mr Ntaganda had had sexual intercourse with female members of his own bodyguard. In particular, the Defence argued that by rejecting D-0251’s testimony and finding, instead, that she was raped by Mr Ntaganda, the Trial Chamber was ‘completely incorrect’. The Appeals Chamber considers this argument to be misleading and misrepresentative of the Trial Chamber’s actual finding. The Appeals Chamber recalls that, at paragraph 103 of the Conviction Decision, the Trial Chamber found D-0251’s ‘categorical statements on this issue’ to be not credible, ‘notably in light of the other evidence on the record’. Thus contrary, to Mr Ntaganda’s argument the Trial Chamber did not find that she was raped by Mr Ntaganda, rather, it simply did not find the witness to be credible. See T-271 , p. 76, lines 1-18. Prosecutor’s Response to Appeal – Part II 2111 rd , para. 251 (3 bullet point). 2112 P-0010: T-47 , p. 32, lines 19-24. 2113 Conviction Decision , fn. 242. 2114 Mr Ntaganda’s Appeal Brief – Part II , para. 337-338. 2115 Conviction Decision , paras 88, 102-103. 2116 Conviction Decision , para. 103.

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2117 reporting. In the Appeals Chamber’s view, the Trial Chamber correctly reasoned

that ‘various reasons, including shame or fear of reprisals, stigmatization or

ostracization, may explain why she may have chosen not to volunteer the identities of

certain alleged perpetrators, particularly if these were well-known, powerful, and/or

respected figures at the time’. 2118 Mr Ntaganda’s arguments are therefore rejected.

Lastly, Mr Ntaganda takes issue with the Trial Chamber’s finding that P-

0010’s account of the speech in which he had given the order to attack the Lendu

using the term kupiga na kuchaji was reliable. The Trial Chamber found that ‘P-0010

provided the information on this specific briefing spontaneously, in the context of

being questioned on a broader topic not exclusively related to the operation in

Mongbwalu’. 2119

Mr Ntaganda submits that no other witness corroborated P-0010’s account and

that P-0888’s testimony that he did not recall any particular orders or instructions

2120 given to escorts is further proof of the implausibility of P-0010’s account. The

Appeals Chamber notes that P-0888’s inability to remember particular instructions or

orders given to escorts does not per se contradict the evidence of P-0010 which, as

noted by the Prosecutor, is generally corroborated by other evidence on the record that

attest to Mr Ntaganda and other commanders giving orders to UPC/FPLC troops to

‘attack the Lendu’ or using the phrase 2121 kupiga na kuchaji .

Mr Ntaganda further argues that, contrary to the Trial Chamber’s finding, P-

0010’s evidence on the alleged order was not offered spontaneously. 2122 The Appeals

Chamber notes that in the relevant part of her testimony, the witness mentioned the

speech in the context of being asked about the meaning of the phrase kupiga na

kuchaji , whether commanders used this phrase and which specific commanders

2123 did. It was after responding that she could not remember which commanders

Mr Ntaganda’s Appeal Brief – Part II 2117 , para. 338. 2118 Conviction Decision , para. 102. 2119 Conviction Decision , fn. 1387. Mr Ntaganda’s Appeal Brief – Part II 2120 , para. 332. Prosecutor’s Response to Appeal – Part II 2121 , para. 252, referring to Conviction Decision , para. 415, fn. 1188: P-0907: T-90, p. 8; P-0963: T-78, pp. 72-73; P-0768: T-33 , pp. 64-65, 801. See paragraphs 464-472 above. Mr Ntaganda’s Appeal Brief – Part II 2122 , para. 334. 2123 P-0010: T-47 , p. 14, line 16 to p. 15, line 16.

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would use this phrase that the witness was asked if Mr Ntaganda ever used it to which she responded:

Q. For instance, did you ever hear Mr Bosco use that term or not? A. Before we went to Mongbwalu, we had a meeting where we were told we were going to go to Mongbwalu to fight against the Lendu. And as soon as we got to Mongbwalu, we were told not to spare the Lendu, to -- to strike them and to loot. And that meeting was at night. And it was that very same night that we left Bunia to go to Mongbwalu. Q. And who gave you these instructions at that meeting? Who was speaking to you at that meeting? A. First of all, it was the leader of the bodyguards, Claude, and then afterwards 2124 Mr Bosco. Considering that the witness gave information on the speech given by Mr Ntaganda in the context of being questioned on the broader meaning of the phrase kupiga na kuchaji and which commanders would use the term, the Appeals Chamber finds that it was reasonable for the Trial Chamber to observe that P-0010’s evidence of the speech was offered spontaneously. Indeed, the witness was not specifically questioned about the particular meeting but rather brought it up herself in the context of discussing a more general topic.

(d) Conclusion

In sum, the Appeals Chamber finds no merit in Mr Ntaganda’s arguments that P-0010’s credibility was undermined by the alleged inconsistencies relied upon by him. The Appeals Chamber finds no error with the Trial Chamber’s decision to reject parts of P-0010’s evidence as unreliable while accepting other parts as credible. In doing so, the Appeals Chamber finds that the Trial Chamber carefully reasoned its decision and ensured that the impact of its decision to reject parts of the witness’s testimony was assessed in relation to the remainder of her evidence. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s consideration of Mr Ntaganda’s directive to UPC/FPLC troops to attack the Lendu using the term kupiga na kuchaji in its assessment of his intent and knowledge for each of the crimes charged.

2124 P-0010: T-47 , p. 15, lines 7-16.

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2 Alleged error in finding that Mr Ntaganda ordered an attack on the Lendu without distinguishing between Lendu civilians and militia

(a) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda challenges the Trial Chamber’s finding that he ordered

UPC/FPLC soldiers on the evening of the first day of the Mongbwalu assault to attack

2125 the Lendu without distinguishing between Lendu civilians and the militia. He

2126 submits that this finding is only supported by the evidence of P-0768.

Mr Ntaganda argues that the testimony ‘of P-0768 reflects the reality that

Lendu combatants were not routinely distinguished from civilians with uniforms, and

were also comprised of women, children, and the elderly’. 2127 Second, he contends

that, for reasons advanced under the eighth ground of appeal, ‘P-0768 was not in

Mongbwalu on the evening of the first day of the assault’. 2128 With reference to the

Trial Chamber’s findings, Mr Ntaganda submits that he was also not in Mongbwalu

2129 on the evening of the first day of the assault. Relying on arguments advanced

under the eighth ground of appeal, Mr Ntaganda further contends that the Trial

Chamber erred in relying on the uncorroborated evidence of an accomplice witness

‘in the absence of any caution’. 2130 Finally, Mr Ntaganda submits that his

responsibility ‘cannot hang on a failure to add the word “combatants” to “Lendu” in a

wartime context’. 2131

(ii) The Prosecutor’s submissions

The Prosecutor responds that the Trial Chamber ‘did not err in relying on the

2132 evidence of a single witness for this particular order’. She maintains that other

evidence that Mr Ntaganda and other commanders issued orders to attack the Lendu

2133 and/or used the phrase kupiga na kuchaji corroborates the testimony of P-0768.

Mr Ntaganda’s Appeal Brief – Part II 2125 , paras 340-341. Mr Ntaganda’s Appeal Brief – Part II 2126 , para. 340 . Mr Ntaganda’s Appeal Brief – Part II 2127 , para. 342 (footnotes omitted); see also T-271 , p. 19, lines 11-22. Mr Ntaganda’s Appeal Brief – Part II 2128 , para. 343. Mr Ntaganda’s Appeal Brief – Part II 2129 , para. 343; see also T-271 , p. 19, lines 2-10. Mr Ntaganda’s Appeal Brief – Part II 2130 , para. 344. Mr Ntaganda’s Appeal Brief – Part II 2131 , para. 345. Prosecutor’s Response to Appeal – Part II 2132 , para. 254. Prosecutor’s Response to Appeal – Part II 2133 , para. 254.

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She further submits that the testimony of P-0768 does not support Mr Ntaganda’s claim that it was generally difficult to distinguish Lendu combatants from 2134 civilians. Finally, the Prosecutor argues that Mr Ntaganda’s claim that it was unnecessary to specify ‘Lendu combatants’ when issuing orders to UPC/FPLC soldiers is undermined by the evidence of numerous crimes committed against Lendu civilians and that the meaning of the words must be interpreted in the context of the evidence in the case ‘where ethnicity was found to be a relevant dimension to the conflict’. 2135

(b) Relevant part of the Conviction Decision

In the section describing the assault on Mongbwalu, the Trial Chamber found that ‘[o]nce the Kilo-Moto offices and the Mongbwalu airstrip had been taken over by the UPC/FPLC, Mr Ntaganda met the commanders involved in the assault […]. He was given a report of the situation and discussed the division of tasks for the next day. Mr Ntaganda gave orders to take over the whole of Mongbwalu’ and ‘also ordered to attack “the Lendu” who were in Mongbwalu, without making a difference between “Lendu civilians” and the militia’. 2136 The Trial Chamber relied upon this finding in its assessment of Mr Ntaganda’s intent and knowledge for the crimes charged. 2137

2138

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that for its finding on the issuance of the alleged order by Mr Ntaganda, the Trial Chamber relied exclusively on the evidence of P- 2139 0768. In particular, P-0768 testified that on the ‘evening of the first day’ of the assault on Mongbwalu, Mr Ntaganda gave an order

Q: Did Mr Ntaganda at the eve of the first day, the evening of the first day, did he give you any instructions in relation to the specific object of the attack in terms of who you were attacking?

Prosecutor’s Response to Appeal – Part II 2134 , para. 256. Prosecutor’s Response to Appeal – Part II 2135 , para. 257. 2136 Conviction Decision , para. 493 (footnotes omitted). 2137 Conviction Decision , para. 1181. 2138 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. 2139 Conviction Decision , fns 1428-1429.

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A: Yes, the order was to attack all the RCD-K/ML soldiers who were in Mongbwalu and the Lendu militia. They told us -- they spoke about the Lendu. They didn’t speak about the militia, they just said Lendu.

Q: Do you know if there were any Lendu civilians in Mongbwalu at that time?

A: Yes. As I mentioned, there were Lendu civilians. Lendu are also part of the population of Ituri.

Q: And when you say that Mr Ntaganda gave instructions about who to attack in terms of the Lendu, do you recall if he distinguished between attacking Lendu military or combatants and attacking Lendu civilians?

A: He didn’t make a difference between civilians -- Lendu civilians and the militia. He spoke about Lendus, only Lendus, and everybody had to assess that 2140 in their own way.

Mr Ntaganda argues that ‘this equivocation on the part of P-0768 reflects the

reality that Lendu combatants were not routinely distinguished from civilians with uniforms, and were also comprised of women, children, and the elderly’. 2141 In this context Mr Ntaganda argues that ‘UPC/FPLC troops could not have reasonably understood Mr Ntaganda’s directive as being one to wipe out the Lendu community’. 2142 The Appeals Chamber notes that the Trial Chamber acknowledged the fact that because the Lendu fighters did not have a common military uniform it ‘made some of [them] difficult to identify’. 2143 However, P-0768 stated that although Lendu militia did not ‘really have specific dress’, it was possible to identify them because ‘they bore weapons, firearms, some had machetes, others had spears and

2144 arrows’. The Appeals Chamber finds that, regardless of whether it was generally difficult to distinguish Lendu fighters from Lendu civilians not taking active part in hostilities, it was nevertheless reasonable for the Trial Chamber to find that Mr Ntaganda in his instructions to the UPC/FPLC troops, ordered them to attack the Lendu without distinction. Mr Ntaganda’s argument in this regard is therefore without

merit.

2140 P-0768: T-33 , p. 37, lines 2-16. Mr Ntaganda’s Appeal Brief – Part II 2141 , para. 342. Mr Ntaganda’s Appeal Brief – Part II 2142 , para. 342. 2143 Conviction Decision , para. 472. 2144 P-0768: T-33 , p. 36, line 21 to p. 37, line 1.

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As to Mr Ntaganda’s submission that he was not present in Mongbwalu on the

2145 evening of the first day of the assault, the Appeals Chamber notes that the Trial

Chamber found that ‘the UPC/FPLC attacked Mongbwalu on or about 20 November

2002’ and that ‘[t]he attack lasted approximately three to four days’. 2146 The Appeals

Chamber further notes that P-0768, who testified that the Mongbwalu operation took

2147 2148 place between September and November 2002, [REDACTED].

Contrary to Mr Ntaganda’s argument, the Trial Chamber did not find that he

left Bunia for Mongbwalu on 21 November 2002. In this regard, the Trial Chamber

noted that ‘it had received some evidence on the timing of Mr Ntaganda’s arrival to

2149 ( sic ) Mongbwalu from a number of witnesses, including Mr Ntaganda himself’.

While the Trial Chamber could not ‘establish the exact day of Mr Ntaganda’s arrival

in the town, it [was] satisfied that Mr Ntaganda arrived in Mongbwalu once the attack

on the town had already commenced and before the UPC/FPLC assault on Sayo

began’, 2150 which according to the Trial Chamber took place on or around

2151 24 November 2002. In light of the foregoing considerations, the Appeals Chamber

finds no conflict in the findings of the Trial Chamber as to the timing of

Mr Ntaganda’s presence in Mongbwalu that needed to be reconciled as argued by

Mr Ntaganda. Furthermore, to the extent that Mr Ntaganda challenges the presence of

2152 P-0768 in Mongbwalu at the relevant time, the Appeals Chamber notes that these

arguments are addressed and rejected in the determination of the eighth ground of

2153 appeal.

Similarly, Mr Ntaganda’s arguments regarding the Trial Chamber’s erroneous

reliance on P-0768’s uncorroborated, accomplice witness evidence are addressed in

2154 the determination of the eighth ground of appeal. At this juncture, the Appeals

Chamber points out that Mr Ntaganda’s assertion that the Trial Chamber relied on the

Mr Ntaganda’s Appeal Brief – Part II 2145 , para. 343. 2146 Conviction Decision , para. 486. 2147 P-0768: T-35 , p. 6, line 25 to p. 7, line 6. 2148 P-0768: T-33 , p. 34, lines 1-3. 2149 Conviction Decision , fn. 1411. 2150 Conviction Decision , fn. 1411. 2151 Conviction Decision , para. 500. Mr Ntaganda’s Appeal Brief – Part II 2152 , para. 343, fn. 909. 2153 See paragraphs 665-672 above. 2154 See paragraph 655 above.

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2155 evidence of this witness without any reasoning or caution, is undermined by the

detailed reasoning provided by the Trial Chamber, particularly at paragraphs 168-169

of the Conviction Decision. In those paragraphs, the Trial Chamber explained why it

considered the account of P-0768 concerning his arrival and participation in the

Mongbwalu assault to be credible. The Trial Chamber noted in this regard

168 […] that P-0768 provided a detailed account concerning his participation in the Mongbwalu operation and his interactions with Mr Ntaganda in this context, which he upheld in cross-examination, adding further details. He was able to provide a geographic description of Mongbwalu, including the locations relevant to his account concerning the unfolding of the attack. He explained or acknowledged and corrected certain potential discrepancies or inaccuracies identified by the Defence, including, in particular, the route taken to Mongbwalu. […] The witness also recognised himself in a video filmed when Mongbwalu was captured, and was able to identify a number of individuals and scenes depicted therein.

169 The Chamber finally notes that P-0768’s participation in the Mongbwalu operation is largely corroborated by other evidence in this case and, in light of 2156 the foregoing, finds the relevant part of his testimony to be credible.

Finally, the Appeals Chamber finds no merit in Mr Ntaganda’s submission

that his responsibility ‘cannot hang on a failure to add the word “combatants” to

“Lendu” in a wartime context’. 2157 2158 As correctly noted by the Prosecutor, the words conveyed in Mr Ntaganda’s order ‘“to attack the Lendu” who were in Mongbwalu’

must be interpreted on the basis of the entirety of the factual findings and evidence on 2159 the record. In this case, the Appeals Chamber notes the Trial Chamber’s related

findings that: the UPC leadership designated the Lendu ethnic group, including 2160 civilians, as the enemy, songs were taught to recruits as part of their training,

inciting soldiers to attack or kill the Lendu and that recruits would get everything, 2161 including women, and the UPC/FPLC soldiers committed crimes against Lendu 2162 civilians.

Mr Ntaganda’s Appeal Brief – Part II 2155 , para. 344. 2156 Conviction Decision , paras 168-169 (footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II 2157 , para. 345. Prosecutor’s Response to Appeal – Part II 2158 , para. 257. 2159 Conviction Decision , para. 493. 2160 Conviction Decision , para. 800. 2161 Conviction Decision , para. 373. 2162 Conviction Decision , section V.C.4.

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(d) Conclusion

In light of the foregoing, the Appeals Chamber considers that it was

reasonable for the Trial Chamber to find that ‘[o]nce the Kilo-Moto offices and the

Mongbwalu airstrip had been taken over by the UPC/FPLC, Mr Ntaganda met the

commanders involved in the assault […] [and] also ordered to attack “the Lendu” who

were in Mongbwalu, without making a difference between “Lendu civilians” and the

militia’. 2163

3 Alleged error in the Trial Chamber’s reliance on other factors to infer Mr Ntaganda’s intent for the counts stemming from the First

Operation

(a) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda argues that the other factors relied upon by the Trial Chamber to

infer his intent for the counts stemming from the First Operation do not support

‘collectively or individually’ the Trial Chamber’s finding. 2164 He challenges in this

regard the Trial Chamber’s consideration of: (i) the murders ‘of alleged prisoners and

’ 2165 the Abbé that occurred at the Appartements camp; (ii) the rapes that occurred in

2166 the Appartements camp; (iii) the allegation of an order given by Mr Ntaganda to

2167 shoot at a column of people in Sayo; and (iv) the allegation that some looted goods

were brought to Mr Ntaganda’s residence in Bunia. 2168

(ii) The Prosecutor’s submissions

The Prosecutor submits that the ‘Trial Chamber’s mens rea finding was

reasonable and correct’. 2169 She maintains that Mr Ntaganda fails to identify errors in

the Trial Chamber’s consideration of: (i) the murder of the 2170 Abbé ; (ii) the rapes that

2171 occurred in the Appartements camp; (iii) the allegation of an order given by

2163 Conviction Decision , para. 493 (footnotes omitted). Mr Ntaganda’s Appeal Brief – Part II 2164 , para. 348. Mr Ntaganda’s Appeal Brief – Part II 2165 , para. 349. Mr Ntaganda’s Appeal Brief – Part II 2166 , para. 350. Mr Ntaganda’s Appeal Brief – Part II 2167 , para. 351. Mr Ntaganda’s Appeal Brief – Part II 2168 , para. 352. Prosecutor’s Response to Appeal – Part II 2169 , para. 259. Prosecutor’s Response to Appeal – Part II 2170 , para. 260. Prosecutor’s Response to Appeal – Part II 2171 , para. 261.

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2172 Mr Ntaganda ‘to fire a grenade launcher at a column of fleeing civilians in Sayo’;

and (iv) the allegation that some looted goods were brought to Mr Ntaganda’s

2173 residence in Bunia.

(b) Relevant part of the Conviction Decision

In determining that Mr Ntaganda meant for the troops deployed during the

First and Second Operations to engage in the conduct and cause the consequences

required for the commission of the crimes, the Trial Chamber considered, among

other factors: (i) the murders committed during the First Operation in Mongbwalu that

occurred at the Appartements camps, including one specific instance when ‘two

persons who had been detained at this location were beaten and killed upon specific

order of Mr Ntaganda’ and the killing by Mr Ntaganda of Abbé Bwanalonga, a

2174 civilian of advanced age; (ii) Mr Ntaganda’s presence and awareness ‘that civilian

women were brought to the Appartements camp by UPC/FPLC soldiers and

commanders in Mongbwalu; these women were raped in the camp, and then thrown

out, to be replaced by other women’; 2175 (iii) the orders issued by Mr Ntaganda,

‘either in person or over the radio, to fire the heavy weapons’ and deciding ‘which

objects were to be targeted’, 2176 the order given during the assault on Sayo ‘to fire

with a grenade launcher at the slope of the mountain’ aimed at individuals who ‘were

clearly not taking any part in hostilities when they were attacked’; 2177 and (iv) the fact

that ‘some goods looted from Mongbwalu were actually brought to Mr Ntaganda’s

residence in Bunia’. 2178

2179

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that in support of his argument that the Trial

Chamber erred in its consideration of the murders committed at the Appartements

camp in Mongbwalu, Mr Ntaganda relies on his submissions made under the eighth

Prosecutor’s Response to Appeal – Part II 2172 , para. 262. Prosecutor’s Response to Appeal – Part II 2173 , para. 263. 2174 Conviction Decision, para. 1184 (footnotes omitted). 2175 Conviction Decision, para. 1184 (footnotes omitted). 2176 Conviction Decision, para. 1182 (footnote omitted). 2177 Conviction Decision, para. 1182 (footnote omitted). 2178 Conviction Decision, para. 1183 (footnote omitted). 2179 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber.

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ground of appeal in relation to the Trial Chamber’s assessment of the testimony of P-

2180 0768 and P-0017. As Mr Ntaganda’s challenges in this regard have been addressed

2181 and rejected in the determination of the eighth ground of appeal, the Appeals

Chamber will not consider them any further.

Mr Ntaganda submits that paragraph 535 of the Conviction Decision does not

support the Trial Chamber’s conclusion that women were raped at the Appartements

2182 camp and that he was present and aware of this. The Trial Chamber found that

‘murders and rapes committed in Mongbwalu occurred at the Appartements camp,

2183 Mr Ntaganda’s base’. In support of this finding, the Trial Chamber referred to its

2184 findings on rape as a crime against humanity and as a war crime. The Trial

Chamber also found that ‘Mr Ntaganda was present and aware that civilian women

were brought to the Appartements camp by UPC/FPLC soldiers and commanders in

Mongbwalu; these women were raped in the camp, and then thrown out, to be

replaced by other women’. 2185 In this regard, the Trial Chamber referenced paragraph

2186 535 of the Conviction Decision, wherein it found that:

UPC/FPLC soldiers and commanders, including Mr Ntaganda, who were openly carrying their weapons, brought women that witnesses referred to as ‘civilians’ back to the Appartements camp. The soldiers and commanders had sexual intercourse with most of them on these occasions. After a few hours or a few days, these women were thrown out by the soldiers, who would later go get other women. Some of these women appeared ‘intimidated’: they were in the presence of many soldiers, remained completely silent during their entire stay, 2187 or were seen crying when they left.

At footnote 1600 of the Conviction Decision, the Trial Chamber refers to evidence

supporting the finding that Mr Ntaganda was among the UPC/FPLC commanders

2188 who brought civilian women to the Appartement s camp.

Mr Ntaganda’s Appeal Brief – Part II 2180 , para. 349; fn. 921. 2181 See paras 678-681, 746-757 above. Mr Ntaganda’s Appeal Brief – Part II 2182 , para. 350. 2183 Conviction Decision , para. 1184. 2184 Conviction Decision , fns 3214-3215. 2185 Conviction Decision , para. 1184. 2186 Conviction Decision , fn. 3218. 2187 Conviction Decision , para. 535 (footnotes omitted). 2188 Conviction Decision , fn. 166, referring, inter alia , to P-0907: T-90 , pp. 40, 42, P-0017: T-59 , pp. 21-22, 27-28.

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When read in context, it is clear that, contrary to Mr Ntaganda’s submissions, paragraph 535 of the Conviction Decision does support the Trial Chamber’s finding that rapes were committed at the Appartements camp and that Mr Ntaganda was present and aware that civilian women were brought to the Appartements camp by UPC/FPLC soldiers and commanders in Mongbwalu. Mr Ntaganda’s arguments fail to identify an error in this regard.

In its conclusion on the intent and knowledge for the crime of rape, the Trial Chamber found that ‘Mr Ntaganda […] meant for UPC/FPLC soldiers to rape local inhabitants; and was aware that the relevant coercive circumstances for the crimes of rape […] were being taken advantage of’. 2189 The Trial Chamber concluded beyond reasonable doubt that ‘Mr Ntaganda meant for the troops deployed during the First and Second Operation to engage in the conducts and cause the consequences required for the commission of crimes of […] rape as a crime against humanity and as a war crime’. 2190

It is worth recalling that in the determination of the thirteenth ground of appeal the Appeals Chamber rejected Mr Ntaganda’s argument that it was unreasonable for the Trial Chamber to infer on the basis of its findings that the co-perpetrators meant 2191 for the crime of rape to be committed by virtue of the common plan. These 2192 findings included: (i) that rapes went unpunished; (ii) that acts of sexual violence were a tool to achieve the UPC/FPLC’s objectives; 2193 (iii) that in the context of side discussions in June 2002 in Kampala, ‘reference was also made to using the rape of 2194 enemy women as a means of waging war’; (iv) that a particularly violent method was used for rapes, and UPC/FPLC soldiers forced detained victims to sexually 2195 assault each other.

In these circumstances, and in the absence of any more specific submissions by Mr Ntaganda, the Appeals Chamber finds that it was reasonable for the Trial

2189 th Conviction Decision , para. 1188 (4 bullet point). 2190 Conviction Decision , para. 1189. 2191 See paragraphs 936-939 above. 2192 Conviction Decision , para. 800, referring to para. 332. 2193 Conviction Decision , para. 805. 2194 Conviction Decision , para. 799, referring to para. 293. See also para. 805. 2195 Conviction Decision , para. 806, referring to paras 545, 623, 943, 944.

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Chamber to conclude that ‘Mr Ntaganda […] meant for UPC/FPLC soldiers to rape

local inhabitants; and was aware that the relevant coercive circumstances for the

crimes of rape […] were being taken advantage of’. 2196

Mr Ntaganda further submits that ‘the fact that [he] gave orders “to fire the

heavy weapons, and decided which objects to be shot at” is not indicative of criminal

intent for any of the charged crimes’. 2197 He submits that ‘the only example cited of

an illegal order is [REDACTED] [that he ordered the] shooting at a column [of

people] in Sayo’. 2198 Mr Ntaganda’s arguments in relation to this factual finding are

addressed and rejected in the determination of the eighth ground of appeal and will

2199 not be considered any further.

Mr Ntaganda also argues that ‘even if this manifestly unreasonable finding

stands, the number of findings of lawful orders by UPC/FPLC commanders reveals

this attack on the column as an anomaly’. 2200 The Appeals Chamber recalls that the

evidence and related findings of the Trial Chamber do not support Mr Ntaganda’s

contention. In particular, the Appeals Chamber notes the Trial Chamber’s findings

concerning the use of the phrase kupiga na kuchaji and the issuance of specific orders

2201 to attack civilians, as confirmed in the fifth ground of appeal. His argument is

therefore rejected.

In addition, Mr Ntaganda takes issue with the Trial Chamber’s reliance on its

finding that ‘“some of the goods looted from Mongbwalu were actually brought to

[his] residence in Bunia”’. 2202 He submits that the finding is based on an erroneous

assessment of the evidence because the Trial Chamber found the Prosecution

witnesses who made this allegation to be credible, without considering his evidence

2203 and submissions.

2196 th Conviction Decision, para. 1188 (4 bullet point). Mr Ntaganda’s Appeal Brief – Part II 2197 , para. 351. Mr Ntaganda’s Appeal Brief – Part II 2198 , para. 351. 2199 See paragraph 745 above. Mr Ntaganda’s Appeal Brief – Part II 2200 , para. 351. 2201 See paragraph 453 et seq. above . Mr Ntaganda’s Appeal Brief – Part II 2202 , para. 352, referring to Conviction Decision, para. 1183. Mr Ntaganda’s Appeal Brief – Part II 2203 , para. 352.

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In support of its finding that ‘some goods looted from Mongbwalu were

actually brought to Mr Ntaganda’s residence in Bunia’, 2204 the Trial Chamber cited

2205 paragraph 516 of the Conviction Decision. In said paragraph, which appears in the

section containing the factual findings related to the ratissage operation carried out in

the aftermath of the attack in Mongbwalu, the Trial Chamber found that ‘some looted

goods were brought to Mr Ntaganda’s residence in Bunia’. 2206 For this finding, the

2207 2208 2209 Trial Chamber relied on the evidence of P-0888, P-0768, P-0901 and P-

2210 0963. In light of their evidence and its finding that P-0901 and P-0963 were

credible witnesses whose testimony could be relied upon, and that P-0888’s evidence

2211 on his participation in certain operations could generally be relied upon, the Trial

Chamber considered ‘that this finding [was] not affected by the Defence

challenge’. 2212

The Appeals Chamber notes that the Trial Chamber referred to the paragraph

in Mr Ntaganda’s Closing Brief where he challenged this specific allegation advanced

2213 by the Prosecutor. In that paragraph, Mr Ntaganda argued, with reference to his

own testimony, that he ‘did not have others commit pillage on his behalf; and did not

2214 organise the transport of looted goods from Mongbwalu to Bunia’. The Appeals

Chamber notes that ‘in instances where the evidence provided by Mr Ntaganda [was]

contradicted by other evidence, the [Trial Chamber] considered […] the possibility

2215 that Mr Ntaganda had an incentive to provide exculpatory evidence’. The Trial

Chamber referred in this regard to findings concerning, inter alia , ‘[t]he operations

involving the UPC/FPLC, notably in relation to the conduct of the various operations

2216 and the commission of crimes by UPC/FPLC soldiers in that context’. The

Appeals Chamber recalls that Mr Ntaganda’s general challenge to the Trial

2204 Conviction Decision , para. 1183. 2205 Conviction Decision , fn. 3213. 2206 Conviction Decision , para. 516, fn. 1530 2207 P-0888: T-105 , p. 84, lines 12-19. 2208 P-0768: T-33 , p. 61, lines 16-19. 2209 P-0901: T-28 , p. 58, lines 8-23. 2210 P-0963: T-79 , p. 20, line 10 to p. 21, line 10. 2211 Conviction Decision , fn. 1530. 2212 Conviction Decision , fn. 1530. Mr Ntaganda’s Closing Brief 2213 Conviction Decision , fn. 1530 , referring to , para. 765. Mr Ntaganda’s Closing Brief 2214 , para. 765, fns 2184-2185. 2215 Conviction Decision , para. 262. 2216 Conviction Decision , fn. 656.

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Chamber’s credibility assessment of his evidence has been addressed and rejected in 2217 the determination of the seventh ground of appeal. The Appeals Chamber notes that in paragraph 765 of Mr Ntaganda’s Closing Brief, referred to by the Trial Chamber in its determination of the factual issue, Mr Ntaganda asserted that no probative value could be attributed to the evidence of P-0768, P-0963, P-0907, P- 0901 and P-0888. In this regard, Mr Ntaganda fails to elaborate why that should be the case in relation to the specific finding now challenged on appeal. Accordingly, the Appeals Chamber finds no merit in Mr Ntaganda’s argument. The Trial Chamber considered the relevant evidence and reached a reasonable conclusion on the basis of it. Mr Ntaganda has failed to show an error in this regard. The Appeals Chamber therefore finds that the Trial Chamber did not err in considering the fact that some of the looted goods were brought to Mr Ntaganda’s residence in Bunia when determining his intent and knowledge of the crimes charged.

(d) Conclusion

In light of the foregoing, the Appeals Chamber finds no error in the Trial Chamber’s reliance on its findings concerning: (i) the murders committed during the First Operation in Mongbwalu that occurred at the Appartements camps, (ii) Mr Ntaganda’s presence and awareness that civilian women were brought to the Appartements camp by UPC/FPLC soldiers and commanders in Mongbwalu and were raped in the camp, (iii) the order issued by Mr Ntaganda to fire heavy weapons, and (iv) the fact that some goods looted from Mongbwalu were actually brought to Mr Ntaganda’s residence in Bunia, to infer his intent and knowledge for each of the crimes charged.

4 Alleged failure to consider the reasonable possibility of other available conclusions, and associated relevant evidence

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda submits that ‘[i]n order for a Chamber to infer the existence of a fact upon which a conviction relies, the inference drawn must be the only reasonable

2217 See paragraphs 588-605 above.

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one available’. 2218 In his view, a chamber is thus required to ‘eliminate any other

reasonable possibility, having considered all the relevant evidence’. 2219 Mr Ntaganda

argues that the evidence the Trial Chamber failed to consider is the ‘testimony and

contemporaneous records’ that show that the UPC/FPLC and Mr Ntaganda strived ‘to

direct a disciplined force that protected all civilians without distinction, in furtherance

of the ultimate goal of peace in Ituri’. 2220 In his view, this was a reasonable possibility

2221 which is supported by available and reliable evidence.

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber did not ignore the evidence

2222 which Mr Ntaganda claims was overlooked. She maintains that Mr Ntaganda’s

contention that the Trial Chamber ignored evidence of his attempt to promote the goal

of an inclusive peace in Ituri is unsupported by the reasoning of the Trial

2223 Chamber.

(iii) The victims’ observations

Victims Group 2 submit that Mr Ntaganda fails to show an error or

unreasonableness on the part of the Trial Chamber and merely disagrees with its

2224 appreciation of the evidence.

(b) Relevant part of the Conviction Decision

The Trial Chamber found that Mr Ntaganda meant for the troops deployed

during the First Operation to engage in the conduct and cause the consequences

2225 required for the commission of the crimes charged, based on several factors.

Mr Ntaganda’s Appeal Brief – Part II 2218 , para. 353. Mr Ntaganda’s Appeal Brief – Part II 2219 , para. 353. Mr Ntaganda’s Appeal Brief – Part II 2220 , para. 354. Mr Ntaganda’s Appeal Brief – Part II 2221 , paras 353-354. Prosecutor’s Response to Appeal – Part II 2222 , para. 264. Prosecutor’s Response to Appeal – Part II 2223 , para. 264. 2224 Observations of Victims Group 2 on Appeal – Part II , para. 97. 2225 (i) Conviction Decision , para. 1177 (‘Mr Ntaganda agreed and worked with others to achieve their plan to drive out all the Lendu from the localities targeted during the course of the First […] Operation’ and the execution of the agreement ‘inherently involved the conduct that constitutes the crimes under consideration’); (ii) Conviction Decision , para. 1178 (the repetition over time of crimes that followed a certain modus operandi ); (iii) Conviction Decision , para. 1179 (Mr Ntaganda’s high ranking position and his position as the overall commander for the Mongbwalu assault which enabled him to be ‘fully informed of the training and composition of the troops to be deployed’); (iv) Conviction Decision , para. 1180 (Mr Ntaganda’s presence in Mongbwalu ‘once the assault had already commenced, but before the

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2226

(c) Determination by the Appeals Chamber

Mr Ntaganda argues that the Trial Chamber failed to consider evidence of the UPC/FPLC, and Mr Ntaganda in particular, ‘striving to direct a disciplined force that

protected all civilians without distinction, in furtherance of the ultimate goal of peace in Ituri’.

2227

In this regard, the Appeals Chamber recalls that under the fourth and

thirteenth grounds of appeal, Mr Ntaganda raises a similar argument in which he

claims that the Trial Chamber failed to properly consider evidence of pacification efforts, speeches and other acts, which in his view showed that the UPC’s goal was to

establish peace and protect civilians, and that it failed to explain why, in light of this

contrary evidence, the existence of an organizational policy of the UPC/FPLC and a

common plan amongst its military leaders for the destruction of the Lendu was the

2228

only reasonable inference available.

Under the present ground of appeal, Mr Ntaganda refers to evidence of particular messages recorded in the logbooks in which he ‘refers explicitly to

sanctions being meted out in cases of any indiscipline within the UPC/FPLC, and exhibits concern that any troops engaging in misconduct be reprimanded’.

2229

He submits that ‘[t]hese messages raise doubt as to his apparent intent that the troops

“attack and kill Lendu civilians, to engage in sexual violence against this population,

UPC/FPLC assault on Sayo began, and that he remained in the area, when the ratissage operation was ongoing, until at least one week after the UPC/FPLC had taken over Mongbwalu’); (v) Conviction Decision , para. 1181 (the issuance of two orders by Mr Ntaganda to UPC/FPLC troops to attack the Lendu, including Lendu civilians); (vi) Conviction Decision , para. 1182 (the issuance of orders by Mr Ntaganda, ‘either in person or over the radio, to fire the heavy weapons’ deciding ‘which objects were to be targeted’, including Mr Ntaganda’s order during the Sayo assault ‘to fire with a grenade launcher at the slope of the mountain’ to individuals that ‘were clearly not taking any part in hostilities’); (v) Conviction Decision , para. 1183 (‘some goods looted from Mongbwalu were actually brought to Mr Ntaganda’s residence in Bunia’); (vi) Conviction Decision , para. 1184 (‘murders and rapes committed in Mongbwalu occurred at the Appartements camp, Mr Ntaganda’s base’ (footnotes omitted), including one specific instance when ‘two persons who had been detained at this location were beaten and killed upon specific order of Mr Ntaganda’, the shooting and killing of Abbé Bwanalonga, a civilian of advanced age, by Mr Ntaganda); and (vii) Conviction Decision , para. 1184 (Mr Ntaganda’s presence and awareness ‘that civilian women were brought to the Appartements camp by UPC/FPLC soldiers and commanders in Mongbwalu; these women were raped in the camp, and then thrown out, to be replaced by other women’). 2226 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 2227 , para. 354. Mr Ntaganda’s Appeal Brief – Part II 2228 , paras 109, 119, 123-126, 296-300. Mr Ntaganda’s Appeal Brief – Part II 2229 , para. 354, referring to Conviction Decision , para. 1187.

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and to loot and destroy their belongings”’. 2230 The Appeals Chamber notes that, as

2231 correctly pointed out by the Prosecutor, the Trial Chamber found that ‘there are

limitations to conclusions that can be drawn from the logbooks’. 2232 Moreover, the

messages cited by Mr Ntaganda as referring to sanctions mostly do not mention the

2233 2234 reasons for the sanctions – other than instances of theft and insubordination –

nor do they refer to sanctions for rape, murder, pillage or destruction of property

against Lendu civilians.

Furthermore, the Appeals Chamber recalls that under the fourth ground of

appeal, after considering the Trial Chamber’s overall assessment of the relevant

evidence, including that presented by Mr Ntaganda, it found that the Trial Chamber

reasonably concluded that the killing, the looting, the rape or sexual violence

committed against the Lendu were not considered punishable within the

2235 UPC/FPLC. In these circumstances, the Appeals Chamber finds no error in the

Trial Chamber’s non-consideration of the messages referred to by Mr Ntaganda in its

determination of his intent and knowledge of the crimes charged.

Mr Ntaganda also cites to the video recording of Chief Kahwa’s speech at

Mandro and argues that, during that speech, it was impressed upon the troops that ‘the

aim of the organization is to protect all civilians without discrimination, and the

prohibition on looting and rape was forcibly underscored’. 2236 He contends that the

Trial Chamber’s dismissal of such exculpatory evidence was an error. 2237 Consistent

with its findings under the fourth ground of appeal in relation to this evidence, the

Appeals Chamber considers that it was reasonable for the Trial Chamber to find that

Chief Kahwa’s speech did not reflect the reality of the disciplinary system within the

UPC/FPLC as regards looting and rape of civilians associated with the enemy, during

2238 UPC/FPLC operations. The Appeals Chamber noted that the events subsequent to

these speeches and the testimony of various witnesses show that the UPC/FPLC

Mr Ntaganda’s Appeal Brief – Part II 2230 , para. 355. Prosecutor’s Response to Appeal – Part II 2231 , para. 265. 2232 Conviction Decision , paras 59-66. 2233 DRC-OTP-2102-3854, at 4000. 2234 DRC-OTP-2102-3854, at 4027. 2235 See paragraphs 371-372 above. 2236 Mr Ntaganda’s Appeal Brief – Part II , para. 355. Mr Ntaganda’s Appeal Brief – Part II 2237 , para. 355. 2238 See paragraph 390 above.

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soldiers understood that the policy vis-à-vis the civilian population was not that 2239 ostensibly conveyed in these speeches. The evidence considered by the Trial Chamber shows that the policy to attack the civilian population was communicated directly, through orders to attack the Lendu, combatants and civilians, and that, contrary to Mr Ntaganda’s argument, crimes committed against civilians in the course 2240 of the military operations were not punished. In these circumstances, the Appeals Chamber finds no error in the Trial Chamber’s non-consideration of Chief Kahwa’s speech in its determination of Mr Ntaganda’s intent and knowledge of the crimes charged.

Mr Ntaganda further submits that the Trial Chamber ignored evidence of him giving ‘shelter, assistance, and protection to Lendu civilians who had fled Mandro Camp after attacks on their homes’ and delivering ‘weapons to the Lendu combatants in Libi, in order to form a military alliance with them to force the UPDF out of Ituri’. 2241 The Appeals Chamber notes that Mr Ntaganda relies primarily on his own 2242 testimony in support of this argument. The Appeals Chamber recalls that the Trial Chamber did not find Mr Ntaganda to be ‘credible when he affirms that he always fought and acted, including in 2002 and 2003, for the liberation and freedom of the civilian population in general in Ituri’, observing that ‘this statement is clearly contradicted by the other available evidence on the record which shows that at least a part of the civilian population in Ituri, in particular the Lendu, was actually the target of violent acts by the UPC/FPLC in 2002 and 2003’. 2243 The Appeals Chamber has addressed and rejected Mr Ntaganda’s general challenge to the Trial Chamber’s credibility assessment of his evidence in the determination of the seventh ground of 2244 appeal. Accordingly, the Appeals Chamber finds that it was reasonable for the Trial Chamber not to accord weight to Mr Ntaganda’s testimony on this point.

Furthermore, the Appeals Chamber notes Mr Ntaganda’s reference to the testimony of D-0054 and to a video taken in Mongbwalu after the First Operation

2239 See paragraph 392 above. 2240 See paragraph 392 above. Mr Ntaganda’s Appeal Brief – Part II 2241 , para. 356. Mr Ntaganda’s Appeal Brief – Part II 2242 , fns 942-943. 2243 Conviction Decision , para. 261. 2244 See paragraphs 588-605 above.

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depicting Mr Ntaganda with a ‘Maman Lendu’ affirming that his intention was not to 2245 kill inhabitants but rather protect them and their goods. In Mr Ntaganda’s view, this evidence supports his submission that the UPC’s goal was to establish peace and 2246 protect civilians without distinction. The Appeals Chamber recalls its finding under the fourth ground of appeal, that it was reasonable for the Trial Chamber to conclude based on its numerous factual findings that within the UPC/FPLC a policy 2247 to attack civilians existed. Moreover, the Appeals Chamber notes the Trial Chamber’s finding that the ‘stated aim [of the UPC/FPLC to defend the population as a whole] was directly contradicted by the planning and unfolding of the group’s military operations’. 2248 In light of the foregoing, the Appeals Chamber considers that when viewed in the context of the entire evidentiary record and other relevant findings of the Trial Chamber that have been confirmed on appeal, it was not unreasonable for the Trial Chamber to have disregarded D-0054’s testimony or the video evidence in its evaluation of Mr Ntaganda’s intent and knowledge of the crimes charged.

(d) Conclusion

In sum, the Appeals Chamber determines that, consistent with its findings under the fourth ground of appeal in relation to evidence which is the same or similar to that being relied upon under the present ground of appeal, the Trial Chamber did not fail to properly consider the evidence in question. Moreover, the Appeals Chamber considers that it was reasonable for the Trial Chamber to discount alternate conclusions, based on the evidence that Mr Ntaganda suggests, points to ‘the UPC/FPLC generally, and Mr Ntaganda in particular, striving to direct a disciplined force that protected all civilians without distinction, in furtherance of the ultimate goal of peace in Ituri’. 2249 Accordingly, the Appeals Chamber rejects Mr Ntaganda’s arguments.

Mr Ntaganda’s Appeal Brief – Part II 2245 , paras 357, 358. 2246 D-0054: T-244 , p. 18, lines 14-25 [REDACTED]. 2247 See paragraph 394 above. 2248 Conviction Decision , para. 687. Mr Ntaganda’s Appeal Brief – Part II 2249 , para. 354.

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5 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that Mr Ntaganda meant for the troops deployed during the First Operation to engage in the conduct and cause the consequences required for the commission of crimes of murder as a crime against humanity and as a war crime (counts 1 and 2), intentionally attacking civilians as a war crime (count 3), rape as a crime against humanity and as a war crime (counts 4 and 5), sexual slavery as a crime against humanity and as a war crime (counts 7 and 8), persecution as a crime against humanity (count 10), pillage as a war crime (count 11), forcible transfer of population as a crime against humanity (count 12), ordering the displacement of the civilian population as a war crime (count 13), attacking protected objects as a war crime (count 17), and destroying the adversary’s property as a war crime (count 18), and that Mr Ntaganda was aware of the relevant circumstances, the Appeals Chamber, by majority, Judge Eboe-Osuji dissenting, rejects this ground of appeal.

O. Fifteenth ground of appeal: Whether Mr Ntaganda possessed the mens rea for the crimes committed during the Second Operation

Under the fifteenth ground of appeal, Mr Ntaganda contends that the Trial Chamber erred in finding that he had control over the crimes committed during the Second Operation and that he was aware of the factual circumstances that allowed 2250 him to exert control over those crimes. Consequently, the Appeals Chamber observes that, despite the title of this ground of appeal, Mr Ntaganda not only challenges the Trial Chamber’s findings on his mens rea but also his contribution to the implementation of the common plan, being an objective element of his criminal liability as an indirect co-perpetrator.

In support of his argument, Mr Ntaganda alleges: (i) legal errors in the Trial Chamber’s application of the law on indirect co-perpetration; 2251 (ii) errors in the assessment of his contribution to, and mens rea for, the crimes committed during the 2252 Second Operation; (iii) errors in the Trial Chamber’s factual findings on his ‘direct

Mr Ntaganda’s Appeal Brief – Part II 2250 , paras 361, 373-388, 396-398. Mr Ntaganda’s Appeal Brief – Part II Mr Ntaganda’s Reply to Prosecutor’s Response to 2251 , para. 369; Appeal – Part II , paras 47-55. Mr Ntaganda’s Appeal Brief – Part II 2252 , paras 362-363.

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contributions to the Second Operation’, arguing that ‘[t]hese de minimis contributions to the Second Operation reveal no awareness that he was exercising control over, or making an essential contribution to, the crimes of the Second Operation’; 2253 and (iv) errors in the Trial Chamber’s reliance on the testimony of P-0055 that Mr Ntaganda was ‘contemporaneously informed of the Kobu massacre and expressed approval of that event’. 2254 The Appeals Chamber will address these arguments in turn.

1 Alleged errors in the Trial Chamber’s application of the law on indirect co-perpetration

(a) Summary of submissions

(i) Mr Ntaganda’s submissions With reference to the relevant jurisprudence of the Court, Mr Ntaganda submits that at a minimum co-perpetration requires that the accused make ‘“an essential 2255 contribution with the resulting power to frustrate the commission of the crime”’. He argues that ‘[t]here is ambiguity as to whether this “essential contribution” must be to the common plan pursuant to which the crime is committed, or to the crime itself’. 2256 Notwithstanding, he argues that ‘[t]he contribution must demonstrate that the “person nevertheless had 2257 control over the crime”’ and that the mens rea for co-perpetration requires, inter alia , that ‘the accused at least be aware, if not intend, that his or her contributions amount to exercising control over the crime to such an extent that he or she would frustrate its commission by not making the contribution’. 2258

(ii) The Prosecutor’s submissions The Prosecutor argues that there is no ambiguity regarding the ‘essential contribution’ requirement. She asserts that according to the Appeals Chamber, an

Mr Ntaganda’s Appeal Brief – Part II 2253 , paras 373-388 (emphasis in original). Mr Ntaganda’s Appeal Brief – Part II 2254 , paras 399-411. Mr Ntaganda’s Appeal Brief – Part II 2255 , para. 369, referring to Lubanga Appeal Judgment , para. 469. 2256 Mr Ntaganda’s Appeal Brief – Part II , para. 369. Mr Ntaganda’s Appeal Brief – Part II 2257 , para. 369 (emphasis in original), referring to Lubanga Appeal Judgment , para. 469. Mr Ntaganda’s Appeal Brief – Part II 2258 , para. 366.

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‘accused must make an essential contribution to the implementation of the common plan or “within the framework of the common plan”’. 2259

The Prosecutor submits that in accordance with the Court’s jurisprudence on indirect co-perpetration, she is required to establish, inter alia , ‘that the accused was aware of the factual circumstances that enabled him or her, together with other co- 2260 perpetrators, to jointly exercise functional control over the crimes’. She submits that in cases, such as the present one, where it is alleged that the co-perpetrators for the most part committed the crimes via a hierarchy of power, the accused’s awareness is established ‘by showing that the accused was aware of his or her critical role in the implementation of the common plan and his or her ability to control, jointly with others, the organised structure of power’. 2261

The Prosecutor submits that even though the Trial Chamber ‘did not expressly articulate its conclusion that Ntaganda was aware of the factual circumstances that enabled him, together with the other co-perpetrators, to exercise functional control over the crime’ it nevertheless held that Mr Ntaganda had ‘met all the mens rea requirements for indirect co-perpetration and was thus responsible for the crimes pursuant to article 25(3)(a), based on its prior factual findings’. 2262

(iii) Mr Ntaganda’s reply to the Prosecutor Mr Ntaganda submits that, as acknowledged by the Prosecutor, the Trial Chamber failed to make a finding that he was aware of the factual circumstances 2263 which allowed him to exert control over the crime. In order to have made such a determination, he argues that the Trial Chamber was required to first determine whether he actually exerted control over the crime by assessing whether he had made an essential contribution, within the framework of a common plan, with the resulting 2264 power to frustrate the commission of the crime. This assessment, in turn, required an analysis of his actions as a co-perpetrator in relation to the crimes committed by

Prosecutor’s Response to Appeal – Part II 2259 , para. 276, referring to Bemba et al. Appeal Judgment , paras 818-820; Lubanga Appeal Judgment , paras 445, 469. Prosecutor’s Response to Appeal – Part II 2260 , para. 270 (emphasis in original). Prosecutor’s Response to Appeal – Part II 2261 , para. 270. Prosecutor’s Response to Appeal – Part II 2262 , para. 273. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2263 , para. 49. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2264 , para. 50.

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the members of the ‘organisation’. 2265 Mr Ntaganda submits that the ‘actions of the co-perpetrator’, in this regard, ‘depend on the nature of the common plan and the element of criminality found therein’. 2266

Mr Ntaganda submits that it was not possible for the Trial Chamber to find that he was aware of the factual circumstances that allowed him to exert control over the crimes ‘without assessing the evidence of his actions, within the framework of the common plan, related to the specific crimes charged’. 2267 Thus in his view, the Trial Chamber erred when it relied on his acts and conduct ‘almost exclusively in relation to the First Operation and the crimes committed therein’. 2268

(b) Relevant part of the Conviction Decision

In interpreting the relevant applicable law concerning indirect co-perpetration, the Trial Chamber, with reference to the previous jurisprudence of the Appeals Chamber and other jurisprudence of the Court, considered that

individual criminal responsibility for commission of a crime jointly with another person and through another person requires the following objective legal elements: (i) the existence of an agreement or common plan, between the accused and one of [ sic ] more other persons, to commit the crimes or to engage in a conduct which, in the ordinary course of events, would result in the commission of the crimes; and (ii) the control of the members of the common plan over a person or persons who execute the material elements of the crimes by subjugating the will of the direct perpetrators. The accused, though not required to carry out the criminal conduct directly and personally, must have a [ sic ] control over the crime, by virtue of his or her essential contribution to it 2269 and the resulting power to frustrate its commission.

The Trial Chamber stated that in order to establish that an accused committed a crime jointly with another person it must be established that an agreement existed, either express or implied, between these perpetrators ‘which led to the commission of one or more crimes under the jurisdiction of the Court’. 2270 Concerning the requirement of control over the crime, the Trial Chamber found that it facilitates

Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2265 , para. 50. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2266 , para. 51. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2267 , para. 53. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2268 , para. 54. 2269 Conviction Decision , para. 774. 2270 Conviction Decision , para. 775.

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a normative assessment of the role of the accused in the specific circumstances of the case. Indeed, the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if his essential contribution was not made at the execution 2271 stage of the crime.

In relation to the subjective element, the Trial Chamber noted that ‘individual

criminal responsibility requires that the subjective elements are fulfilled as required ’. 2272 by Article 30 and any lex specialis

2273

(c) Determination by the Appeals Chamber

The Appeals Chamber notes that Mr Ntaganda’s argument concerns alleged errors by the Trial Chamber in the application of the law on co-perpetration. In particular, he notes an ambiguity in the law concerning the notion of ‘essential

contribution’ and alleges an error in the Trial Chamber’s mens rea findings, namely,

his awareness of the factual circumstances, which allowed him to exert control over the crime.

In the Lubanga Appeal Judgment, the Appeals Chamber stated with respect to

individual criminal responsibility as a co-perpetrator that

in circumstances where a plurality of persons was involved in the commission of crimes under the Statute, the question of whether an accused ‘committed’ a crime – and therefore not only contributed to the crime committed by someone else – cannot only be answered by reference to how close the accused was to the actual crime and whether he or she directly carried out the incriminated conduct. Rather, what is required is a normative assessment of the role of the accused person in the specific circumstances of the case. The Appeals Chamber considers that the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its

2271 Conviction Decision , para. 779 (footnotes omitted). 2272 Conviction Decision , para. 774 (footnote omitted). 2273 As set out in paragraph 879 above, Judge Morrison and Judge Eboe-Osuji entertain considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber. Judge Morrison is unable to agree with the legal reasoning of the majority of the Appeals Chamber pertaining to indirect co-perpetration set out in this section ( see Annex 2 , Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal). Judge Eboe-Osuji is unable to concur with the determinations in this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber.

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commission, even if that essential contribution was not made at the execution 2274 stage of the crime. It follows that, at a minimum, for a person to be held liable as a co-perpetrator ‘it has to be established, inter alia , that he or she exercised control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission’. 2275 In this regard, the Appeals Chamber notes Mr Ntaganda’s argument as to whether the ‘essential contribution’ must be to the common plan pursuant to 2276 which the crime is committed or to the crime itself. As rehearsed above, the Appeals Chamber considers that, consistent with the principle of causation, which requires a causal link between the conduct of an accused and the crime, an accused’s essential contribution must be to the crime for which he or she is responsible. However, the contribution of a co-perpetrator which, on its face, is not directly to a specific crime, but to the implementation of the common plan more generally may still suffice. As previously found by the Appeals Chamber, ultimately, ‘[t]he decisive consideration […] is whether the individual contribution of the accused within the framework of the agreement was such that without it, the crime could not have been committed or would have been committed in a significantly different way’. 2277 In the case at hand, the Trial Chamber correctly articulated the law in finding that 2278 Mr Ntaganda’s contribution to the crimes was essential.

Furthermore, the Appeals Chamber notes Mr Ntaganda’s argument that, in assessing his mens rea for the crimes committed during the Second Operation, the Trial Chamber failed to find that he was aware of the factual circumstances that 2279 allowed him to exert control over the crime. The Appeals Chamber observes, in this regard, that there appears to be varying jurisprudence as to whether the accused’s awareness of the factual circumstances that allow him or her to exert control over the crime is an additional subjective element or whether such is encompassed in the 2280 mental elements prescribed in article 30 of the Statute. The pre-trial chamber in the

2274 Lubanga Appeal Judgment , para. 473. 2275 Bemba et al . Appeal Judgment , para. 810. Mr Ntaganda’s Appeal Brief – Part II 2276 , para. 369. 2277 Bemba et al . Appeal Judgment , paras 820, 825. 2278 Conviction Decision , para. 856. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2279 , para. 49. , para. 1414 (‘In addition to satisfying the mental elements set forth in 2280 Katanga Conviction Decision article 30 and the intent specific to certain crimes − ingredients whose contours are delineated above −

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Lubanga Confirmation Decision observed that the person’s awareness of the factual

circumstances enabling him or her to control the crime ‘requires the suspect to be

aware (i) that his or her role is essential to the implementation of the common plan,

and hence in the commission of the crime; and (ii) that he or she can - by reason of

the essential nature of his or her task - frustrate the implementation of the common

plan, and hence the commission of the crime, by refusing to perform the task assigned to him or her’.

2281

In the case at hand, the Appeals Chamber notes that, while the Pre-Trial

Chamber, in the Confirmation Decision, specifically entered a finding on

Mr Ntaganda’s awareness of the circumstances allowing him to exert control over the

2282

crime, the Trial Chamber did not expressly refer to this element. For the reasons

that follow, the Appeals Chamber considers that the Trial Chamber did not err in this

respect.

Article 30 of the Statute provides that ‘a person shall be criminally responsible

and liable for punishment for a crime […] if the material elements are committed with

intent and knowledge’. ‘Knowledge’, is defined by the Statute as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’.

2283

the Chamber further considered that indirect commission requires the perpetrator’s awareness of the factual circumstances which allow him or her to exert control over the crime’); Lubanga Confirmation Decision , paras 349-367 (apart from the subjective elements mentioned in article 30 of the Statute, the pre-trial chamber stated that ‘[t]he theory of co-perpetration based on joint control over the crime requires two additional subjective elements. The suspect and the other co-perpetrators (a) must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and (b) must all mutually accept such a result by reconciling themselves with it or consenting to it’. In addition, the pre-trial chamber stated that ‘the third and last subjective element of co-perpetration based on joint control of the crime is the awareness by the suspect of the factual circumstances enabling him or her to jointly control the crime’); Lubanga Conviction Decision , para. 1013 (‘The Chamber is of the view that the prosecution must establish, as regards the mental element, that: (i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence “will occur in the ordinary course of events”; and (ii) the accused was aware that he provided an essential contribution to the implementation of the common plan’. In this decision, the Trial Chamber does not appear to have viewed the latter element as additional to the mental elements prescribed in article 30 of the Statute). 2281 Lubanga Confirmation Decision , para. 367. 2282 Confirmation Decision , para. 135 (‘Moreover, based on Mr Ntaganda’s high-ranking position in the UPC/FPLC and his dominant role as set out previously [referring to Mr Ntaganda’s specific actions in relation to each of the operations], he was also aware of the factual circumstances enabling him to exercise joint control over the commission of the crimes through other persons’ (footnotes omitted)). 2283 Article 30(3) of the Statute.

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The Appeals Chamber considers that, for indirect co-perpetration, the ‘knowledge’ component of mens rea includes an awareness on the part of the co-

perpetrator of the factual circumstances that enabled him or her, together with other

co-perpetrators, to jointly exercise control over the crime.

In the case at hand, the Appeals Chamber notes that, in addressing the subjective elements, the Trial Chamber found, with respect to Mr Ntaganda’s personal

conduct, that it was uncontested ‘that Mr Ntaganda deliberately participated in

UPC/FPLC activities throughout and beyond the period of the charges, or that he had

high-level status within its military branch at the time’, and that he testified at length about his ‘responsibilities and related actions, notably in relation to the UPC/FPLC

training efforts, the setting up of a company of bodyguards for himself, and the First Operation’.

2284

The Trial Chamber found ‘that the only reasonable conclusion, based on the nature of these activities, is that his related conduct was deliberate’.

2285

Furthermore, on the basis of several considerations, the Trial Chamber concluded

beyond reasonable doubt, in relation to the crimes committed in the First and Second Operations, ‘that Mr Ntaganda meant for the troops deployed during the First and

Second Operation to engage in the conducts and cause the consequences required for

2286

the commission of crimes’, and was aware of the relevant circumstances.

2284 Conviction Decision , para. 1175. 2285 Conviction Decision , para. 1175. 2286 Conviction Decision , para. 1189 (the Trial Chamber based this conclusion on the following considerations: (i) ‘Mr Ntaganda agreed and worked with others to achieve their plan to drive out all the Lendu from the localities targeted during the course of the First and Second Operation’ and the execution of the agreement ‘inherently involved the conduct that constitutes the crimes under consideration’ ( Conviction Decision , para. 1177); (ii) the repetition over time of crimes that followed a certain modus operandi ( Conviction Decision , para. 1178); (iii) Mr Ntaganda’s position as ‘the highest ranked leader of the FPLC’ ( Conviction Decision , para. 1179); (iv) Mr Ntaganda’s non-hesitation ‘to remind [UPC/FPLC troops] that they were expected to execute orders, as he did on 18 February 2003 in the context of the Second Operation’ ( Conviction Decision, para. 1179); (v) Mr Ntaganda being ‘informed of the training and composition of the troops to be deployed’ ( Conviction Decision , para. 1179); (vi) Mr Ntaganda’s announcement prior to the launching of the Second Operation of an important reorganisation concerning the assignment of commanders ( Conviction Decision , para. 1179); (vii) Mr Ntaganda’s presence, actions, and directives in the context of the First Operation ( Conviction Decision , paras 1180-1184); and (viii) the fact that at the conclusion of the Second Operation ‘Mr Ntaganda had a conversation with the G2 about the fact that UPC/FPLC soldiers killed civilians in Kobu under the command of Salumu Mulenda’ during which Mr Ntaganda ‘said that he was glad how things had turned out and also said that Salumu Mulenda was a “gentleman”, “a brave, a fine person”, or a “real man”’, thereby approving the behaviour of Salumu Mulenda’s troops during the Kobu massacre ( Conviction Decision , para. 1185)).

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The Appeals Chamber finds that, in determining Mr Ntaganda’s mens rea in relation to his personal conduct and the crimes committed during the First and Second Operations, the Trial Chamber also established Mr Ntaganda’s awareness of the factual circumstances that enabled him to exercise control over the crimes. Moreover, in the specific circumstances of this case, the Appeals Chamber notes that, although the Pre-Trial Chamber assessed Mr Ntaganda’s awareness of the circumstances enabling him to exercise control over the crimes as a separate element, the circumstances it considered to enter its finding thereon are almost identical to those relied upon by the Trial Chamber to determine Mr Ntaganda’s intent and knowledge – Mr Ntaganda’s high-ranking position 2287 and his specific role in the execution of 2288 crimes – during the First and Second Operations.

In sum, the Appeals Chamber finds that Mr Ntaganda shows no error in the Trial Chamber’s application of the law on indirect co-perpetration and his arguments are rejected.

2 Alleged errors in the Trial Chamber’s assessment of Mr Ntaganda’s contributions and mens rea

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda contends that the Trial Chamber’s characterisation of the relationship between the two operations as being ‘a logical succession of events’ and as part of the ‘same course of conduct’ inevitably ‘short-circuited the appropriate analysis of mens rea ; over-stated [his] degree of contribution and control; and was an error of law’. 2289 He argues that in finding that the ‘two operations were one and the same’ the Trial Chamber failed to ‘analyse first the extent to which the contributions to the First Operation were contributions to the crimes of the Second Operation, and ’. 2290 whether those contributions were made with the requisite mens rea Mr Ntaganda

2287 Confirmation Decision , para. 135; Conviction Decision , paras 1175, 1179. 2288 Confirmation Decision , paras 110-117, 135; Conviction Decision , paras 1179-1185. Mr Ntaganda’s Appeal Brief – Part II 2289 , paras 362-363. Mr Ntaganda’s Appeal Brief – Part II 2290 , para. 391 (emphasis in original).

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submits that the Trial Chamber’s approach ‘does little more than transfer its findings

2291 of mens rea from the First Operation to the Second Operation’.

Moreover, he argues that, in the Confirmation Decision, the Pre-Trial Chamber

analysed his conduct in relation to the two operations separately and in so doing

recognised that ‘it would be improper to indiscriminately treat contributions to the

First Operation as contributions to the Second for the purpose of evaluating whether

there was the requisite degree of control for co-perpetration of the crimes of the

Second Operation’. 2292 He submits that the crimes of the Second Operation were

‘clearly distinct from those of the First in terms of timing, circumstances, scale,

geographic location, identity of perpetrators and degree of involvement of the

accused’. 2293 Consequently, Mr Ntaganda avers that his actions in relation to the First

Operation ‘cannot be said to have been committed with the required knowledge of

control over the crimes of the Second Operation’. 2294

(ii) The Prosecutor’s submissions

The Prosecutor submits that the Trial Chamber ‘did not err in finding that the

two operations were part of the same’ course of conduct and it was therefore

unnecessary ‘to conduct a separate analysis of Ntaganda’s contribution to the First

and Second Operations to determine whether his individual criminal responsibility

2295 was established in respect of each’. She argues that the ‘operations were separate

only in terms of place and time’ 2296 and that the Trial Chamber’s finding that Mr

Ntaganda’s ‘own presence, actions and directives [were] more prominent in the First

Operation than the Second, does not automatically diminish his contributions to the

crimes as a whole’. 2297 The Prosecutor argues that Mr Ntaganda ‘fails to identify an

error in the Chamber’s approach to assessing his contributions to, and mens rea for,

2298 the crimes of the First and Second Operations’.

Mr Ntaganda’s Appeal Brief – Part II 2291 , para. 392. Mr Ntaganda’s Appeal Brief – Part II 2292 , para. 393. Mr Ntaganda’s Appeal Brief – Part II 2293 , para. 395. Mr Ntaganda’s Appeal Brief – Part II 2294 , para. 395. Prosecutor’s Response to Appeal – Part II 2295 , para. 286. Prosecutor’s Response to Appeal – Part II 2296 , para. 279. Prosecutor’s Response to Appeal – Part II 2297 , para. 286 (footnotes omitted). Prosecutor’s Response to Appeal – Part II 2298 , para. 279.

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Lastly, the Prosecutor avers that Mr Ntaganda’s reference to the assessment of an accused’s essential contribution with the requisite mens rea in other cases before the Court is ‘inapposite’ given the ‘fact-specific’ nature of such an assessment based 2299 on the evidence in each case. In her view, the Pre-Trial Chamber’s approach of separating its analysis of Mr Ntaganda’s contributions to the First and Second Operations in the Confirmation Decision, ‘did not prevent the Trial Chamber from finding that the evidence supported a unitary approach’. 2300

(iii) The victims’ observations Victims Group 2 submit that ‘Mr Ntaganda was convicted on the basis of a common plan and his prominent position and contribution to the plan’. 2301 In their view, ‘the Trial Chamber did not have to find mens rea for each specific crime committed as a result of the intended implementation of the common plan’. 2302 They argue that since the Trial Chamber ‘found that the First and Second Operations were part of the same plan, it was entitled to assess Mr Ntaganda’s role therein comprehensively’ 2303 .

(iv) Mr Ntaganda’s reply to the Prosecutor Mr Ntaganda argues that the evidence concerning the First and Second Operations reveals that his role within the framework of the common plan; his interactions with the co-perpetrators; the planning of the operations and his actions in relation to the ‘organisation’ through which the crimes were committed, were 2304 different. Consequently, he argues that ‘the Trial Chamber was bound to analyse 2305 [his] responsibility in respect of both operations separately’.

(b) Relevant part of the Conviction Decision

In addressing the contextual elements of crimes against humanity, the Trial Chamber noted that ‘[a]rticle 7(2)(a) of the Statute defines an “attack directed against any civilian population” as’, inter alia , ‘a “course of conduct involving the multiple

Prosecutor’s Response to Appeal – Part II 2299 , para. 287. Prosecutor’s Response to Appeal – Part II 2300 , para. 287. 2301 Observations of Victims Group 2 on Appeal – Part II , para. 101. 2302 Observations of Victims Group 2 on Appeal – Part II , para. 101. 2303 Observations of Victims Group 2 on Appeal – Part II , para. 103. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2304 , para. 54. Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II 2305 , para. 54.

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commission of acts” mentioned in article 7(1)’ of the Statute. 2306 The Trial Chamber considered that the ‘requirement that the acts form part of a “course of conduct”

indicates that Article 7 is meant to cover a series or overall flow of events, as opposed to a mere aggregate of random or isolated acts’. 2307 In this regard, the Trial Chamber found that the ‘UPC/FPLC committed several acts constituting murder, rape, sexual

slavery, persecution, and forcible transfer of civilians, during the First and Second Operation’. 2308 The Trial Chamber considered that ‘[t]hese two operations were part of the same military campaign and constituted a logical succession of events. As such,

although separate in place and time, the acts performed by the UPC/FPLC troops during the First and Second Operation are part of one and the same course of conduct’. 2309

In considering whether Mr Ntaganda entered into a common plan with the other alleged co-perpetrators the Trial Chamber found that the UPC/FPLC military leaders had planned a military campaign that included a series of assaults against the Lendu 2310 community. In particular, the Trial Chamber found that

After the successful taking of Bunia in August 2002, they undertook the planning of a large scale military campaign to prevent the APC from reorganising and launching counter-attacks. As set out above, the UPC/FPLC had the intention to occupy key positions in Ituri, notably Mongbwalu, and secure important roads leading to and from Bunia. It is in this context that the UPC/FPLC undertook to open the Main Road between Mongbwalu and Bunia (Second Operation) after having successfully taken control over Mongbwalu, its airstrip and its surroundings (First Operation). As such, the First and Second Operation are part of the same military campaign and constitute a logical succession of events. Although separate in place and time, the acts performed by the UPC/FPLC troops during these two successive operations are part of one 2311 and the same course of conduct.

Further still, in assessing Mr Ntaganda’s role in the implementation of the

common plan, the Trial Chamber found that Mr Ntaganda had ‘devised the military

tactic which allowed for the success of the UPC/FPLC taking over of Mongbwalu and

2306 Conviction Decision , para. 661. 2307 Conviction Decision , para. 662. 2308 Conviction Decision , para. 664. 2309 Conviction Decision , paras 664, 793. 2310 Conviction Decision , paras 793-807. 2311 Conviction Decision , para. 793 (footnotes omitted).

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the related First and Second Operation’. 2312 In particular, the Trial Chamber found

that

once the UPC/FPLC was in control of Mongbwalu, most notably of its airstrip, it could most effectively launch various assaults on villages located in the Walendu-Djatsi collectivité , seize the Main Road, and drive out the targeted group from this area. As such, the success of the UPC/FPLC assault on Mongbwalu allowed the organisation to continue, pursuant to the common plan, the commission of crimes against the targeted groups during both the First and Second Operation. Consequently, since the First and Second Operation are part of one and the same plan, the Chamber has assessed Mr Ntaganda’s role in a comprehensive way, taking into account the totality of his actions in the context 2313 of the Frist and Second Operation.

Finally, in assessing Mr Ntaganda’s intent and knowledge for each of the crimes

charged the Trial Chamber conducted its assessment in relation to both operations

together and found that

the criminal acts performed by the UPC/FPLC troops during the First Operation were reproduced during the course of the Second Operation, which culminated in particularly violent events, i.e. the “Kobu massacre”, and having found that Mr Ntaganda approved of the behaviour of the troops in this context, the Chamber considers that he intended the troops to continue with the same 2314 criminal conduct during the course of the Second Operation.

2315

(c) Determination by the Appeals Chamber

Mr Ntaganda argues that the Trial Chamber erred in finding that the First and Second Operations ‘were part of the same military campaign’ and constituted a

‘logical succession of events’. 2316 He contends that the two operations were distinct

and as a result, his degree of control over the crimes and related mens rea , with

respect to both operations was different. Consequently, Mr Ntaganda submits that the

2312 Conviction Decision , paras 834-846. 2313 Conviction Decision , para. 838. 2314 Conviction Decision , para. 1187. 2315 As set out in paragraph 879 above, Judge Morrison and Judge Eboe-Osuji entertain considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber. Judge Morrison is unable to agree with the legal reasoning of the majority of the Appeals Chamber pertaining to indirect co-perpetration set out in this section ( see Annex 2 , Separate opinion of Judge Howard Morrison on Mr Ntaganda’s appeal). Judge Eboe-Osuji is unable to concur with the determinations in this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 2316 , paras 362-363, 390-391 referring to Conviction Decision , paras 664, 793.

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Trial Chamber was ‘bound to analyse [his] responsibility in respect of both operations separately’. 2317

At the outset, the Appeals Chamber notes that Mr Ntaganda’s arguments ignore the Trial Chamber’s findings on what constituted the common plan agreed to by Mr Ntaganda and the other alleged co-perpetrators. In addition, his arguments fail to appreciate that for co-perpetration, the decisive consideration is whether his contributions as a whole amounted to an essential contribution to the crimes within the framework of the common plan, such that without it, ‘the crime could not have 2318 been committed or would have been committed in a significantly different way’. 2319 As noted above, the Appeals Chamber has previously held, with regard to coperpetration, that ‘a normative assessment of the role of the accused person in the specific circumstances of the case’ is required to determine ‘whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if that essential contribution was not made at the execution stage’. 2320

In the specific circumstances of this case, the Appeals Chamber notes that the common plan agreed to by Mr Ntaganda and the other co-perpetrators was ‘to drive out all the Lendu from the localities targeted during the course of their military 2321 campaign against the RCD-K/ML’. The UPC/FPLC intended through its military campaign ‘to occupy key positions in Ituri, [such as] Mongbwalu, and secure important roads leading to and from Bunia’. 2322 The Trial Chamber found that it was ‘in this context that the UPC/FPLC undertook to open the Main Road between Mongbwalu and Bunia (Second Operation) after having successfully taken control over Mongbwalu, its airstrip and it surroundings (First Operation)’. 2323 Notably, the Trial Chamber found that it was only once the UPC/FPLC had successfully secured Mongbwalu and its airstrip, could it ‘most effectively launch’ its assault under the

Mr Ntaganda’s Reply to Prosecutor’s Response to Appeal – Part II Mr Ntaganda’s 2317 , para. 54; Appeal Brief – Part II , paras 362-363, 390-393. 2318 Bemba et al. Appeal Judgment , paras 820, 825. 2319 See paragraph 1040 above. 2320 Lubanga Appeal Judgment , para. 473; Bemba et al. Appeal Judgment , para. 820. 2321 Conviction Decision , para. 808 (footnote omitted). 2322 Conviction Decision , paras 438-439, 793. 2323 Conviction Decision , para. 793.

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Second Operation and continue to implement the common plan to drive out the Lendu 2324 from the area.

In addition, the Trial Chamber’s findings demonstrated that the two operations were inter-related. It found: (i) that the timing between the end of the First Operation and the start of preparations for the Second Operation was approximately two 2325 months; (ii) that during both operations the UPC/FPLC troops followed a certain ’ orders were given before each 2326 modus operandi ; (iii) that ‘ kupiga na kuchaji 2327 operation; and (iv) that with the exception of some of the crimes which were found to have taken place in only one of the two operations, the nature of the crimes 2328 committed during the First and Second Operations was the same.

The Appeals Chamber notes Mr Ntaganda’s argument that the Trial Chamber’s approach to its assessment of his contribution to, and mens rea for, the crimes committed during both operations amounted to an improper ‘transfer [of] its findings’ from the First Operation to the Second Operation and that it ‘indiscriminately treat[ed] contributions to the First Operation as contributions to the Second for the purpose of evaluating whether there was the requisite degree of control for coperpetration of the crimes of the Second Operation’. 2329 The Appeals Chamber is unpersuaded by this argument.

The Appeals Chamber recalls that the decisive consideration for co-perpetration is whether Mr Ntaganda’s contributions as a whole amounted to an essential contribution to the crimes within the framework of the common plan. In the circumstances of this case, given that the two operations formed part of the UPC/FPLC’s military campaign and were therefore, in the Appeals Chamber’s view, an integral component of the common plan, the Trial Chamber was entitled to assess Mr Ntaganda’s role therein comprehensively with a view to determining whether, as a whole , his contributions to the implementation of the common plan amounted to an essential contribution with the resulting power to frustrate the commission of the

2324 Conviction Decision , para. 838. 2325 Conviction Decision , paras 550, 539, 543, 566. 2326 Conviction Decision , para. 688. See also paras 695, 1178. 2327 Conviction Decision , para. 688. 2328 Conviction Decision , section VII, Disposition. Mr Ntaganda’s Appeal Brief – Part II 2329 , paras 392-393.

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2330 crimes. Therefore, the Appeals Chamber considers that a separate analysis of Mr Ntaganda’s essential contribution with respect to the specific crimes charged in each operation was not required.

It follows that the Trial Chamber was not required to assess Mr Ntaganda’s mens rea in respect of the specific criminal acts committed in each operation. Indeed, in order to find him criminally responsible as a co-perpetrator for specific criminal acts of murder or rape that took place on particular dates and in particular locations, it need not be established that Mr Ntaganda was aware of the details of these events, including whether and which specific acts had been committed. Rather, what must be established is that he possessed the requisite mens rea with respect to the crimes as such in the sense of murder, rape, persecution, pillage et cetera , committed in implementation of the common plan.

Contrary to Mr Ntaganda’s arguments, it was appropriate for the Trial Chamber to assess Mr Ntaganda’s contribution to the implementation of the common plan and mens rea in relation to the First and Second Operations comprehensively. The Appeals Chamber finds that this approach did not amount to a mere transfer of its findings on his contribution to, and mens rea for, the crimes from the First Operation 2331 to the Second Operation. In the same vein, even though Mr Ntaganda’s ‘presence, actions, and directives’ were found to be more pronounced during the First Operation 2332 than the Second Operation, the Trial Chamber was not prevented from ‘taking into account the totality of his actions in the context of the First and the Second Operation[s]’ and finding that he had made an essential contribution to both 2333 operations. As to Mr Ntaganda’s contention that his contributions to the First Operation were ‘so remote in time [to the Second Operation] that, notwithstanding his

2330 Bemba et al. Appeal Judgment , para. 1248. Mr Ntaganda’s Appeal Brief – Part II 2331 , para. 392. 2332 Conviction Decision , para. 1180. 2333 Conviction Decision , paras 838, 856. The Appeals Chamber also notes that in assessing Mr Ntaganda’s essential contribution, the Trial Chamber considered: (i) the leadership position he occupied during the relevant period ( Conviction Decision , paras 827-829); (ii) that his ‘role was determinative in setting up a strong military group capable of driving out from certain areas all Lendu civilians’ ( Conviction Decision , paras 830-833); (iii) that he ‘devised the military tactic which allowed for the success of the UPC/FPLC taking over of Mongbwalu and the related First and Second Operation’ ( Conviction Decision , paras 834-846); and (iv) that he ‘gave orders to commit crimes and personally engaged in violent conduct towards the enemies’ ( Conviction Decision , paras 847-851).

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2334 participation in the common plan’, he could not have frustrated the crimes of the Second Operation, the Appeals Chamber recalls that a co-perpetrator can make an essential contribution to the common plan at any stage, including the execution stage, the planning and preparation stage, and the stage when the common plan is 2335 conceived.

In sum, the Appeals Chamber finds that the Trial Chamber did not err in finding that the First and Second Operations ‘were part of the same military campaign and 2336 constituted a logical succession of events’. Given that both operations were an integral part of the common plan and were inter-related, the Trial Chamber was correct to assess Mr Ntaganda’s role in a holistic way rather than conduct a separate analysis of his contributions and mens rea for the First and Second Operations respectively. The Appeals Chamber considers that, in so doing, the Trial Chamber did not ‘short-[circuit] the appropriate analysis of mens rea ’ nor ‘[overstate] 2337 Mr Ntaganda’s degree of contribution and control’. Rather the Trial Chamber assessed his contribution to the implementation of the common plan as a whole, to determine whether it amounted to an essential contribution with the resulting power to 2338 frustrate the commission of the crimes. Mr Ntaganda’s arguments under this subground of appeal are rejected.

3 Alleged error in the Trial Chamber’s reliance on direct contributions to the Second Operation

(a) Summary of submissions

(i) Mr Ntaganda’s submissions Mr Ntaganda argues that the ‘purported direct contributions fall far short of showing the requisite degree of control over the crimes of the Second Operation, and that he made those contributions with the necessary awareness of the crimes and his ability to frustrate them’. 2339 In particular, he challenges the Trial Chamber’s reliance on: (i) Mr Ntaganda’s participation in preparatory meetings in advance of the Second

2334 Conviction Decision , para. 398. 2335 Bemba et al. Appeal Judgment , paras 810, 819; Lubanga Appeal Judgment , paras 469, 473. 2336 Conviction Decision , para. 664. Mr Ntaganda’s Appeal Brief – Part II 2337 , para. 363. 2338 Bemba et al. Appeal Judgment , para. 1248. Mr Ntaganda’s Appeal Brief – Part II 2339 , para. 373.

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2340 Operation; (ii) Mr Ntaganda’s distribution of a new operational structure,

reminders to commanders concerning disciplinary matters and ‘asking for

2341 designations of personnel within units to be updated’; (iii) four purported

communications that occurred in the context of the Second Operation, of which some

2342 were recorded in the logbooks; and (iv) the evidence of P-0055 and P-0901, to

2343 conclude that Mr Ntaganda was monitoring the unfolding of the Second Operation.

Finally, he argues that the Trial Chamber failed to establish his whereabouts between

18 February 2003 and 4 March 2003, which, in his view, was necessary in order to

2344 conclude that he was monitoring and communicating through radio devices.

(ii) The Prosecutor’s submissions

The Prosecutor responds that the Trial Chamber ‘provided sufficient reasons to

support its finding that Ntaganda made an essential contribution to the crimes of both

’. 2345 operations and that he had the requisite mens rea She submits, inter alia , that Mr

Ntaganda’s ‘artificial delineation of the Chamber’s findings into the two operations,

and his inability to identify any error in the challenged underlying findings themselves

2346 warrant rejection of this ground of appeal’.

(iii) The victims’ observations

Victims Group 2 submit that Mr Ntaganda’s ‘different contribution’ to the

crimes committed during the Second Operation, namely, his ‘prior instruction,

oversight, and post-factum approval’, does not call into question ‘his overall

contribution to the common plan and the crimes, for which the Trial Chamber had

’. 2347 correctly assessed his mens rea In their view, since the Trial Chamber found the

First and Second Operations to be part of the same plan, ‘it was entitled to assess

2348 Mr Ntaganda’s role therein comprehensively’. In relation to P-0055’s testimony

about the words of endorsement spoken by Mr Ntaganda after the Second Operation

had taken place, Victims Group 2 submit that the Trial Chamber was entitled to rely

Mr Ntaganda’s Appeal Brief – Part II 2340 , para. 374. Mr Ntaganda’s Appeal Brief – Part II 2341 , para. 375. Mr Ntaganda’s Appeal Brief – Part II 2342 , paras 376-380. Mr Ntaganda’s Appeal Brief – Part II 2343 , paras 381-383. Mr Ntaganda’s Appeal Brief – Part II 2344 , paras 384-386. Prosecutor’s Response to Appeal – Part II 2345 , para. 295. Prosecutor’s Response to Appeal – Part II 2346 , para. 295. 2347 Observations of Victims Group 2 on Appeal – Part II , para. 103. 2348 Observations of Victims Group 2 on Appeal – Part II , para. 103.

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on Mr Ntaganda’s words and that his challenges to P-0055’s credibility reflect mere disagreement with the Trial Chamber’s credibility assessment of P-0055. 2349

(iv) Mr Ntaganda’s response to the victims Mr Ntaganda submits that Victims Group 2’s observations ‘fail to rebut’ his 2350 arguments and should therefore be rejected. In his view, Victims Group 2’s submissions on co-perpetration ‘rely on and refer to principles relevant to the JCE mode of responsibility’ which are inapplicable to the joint control theory of indirect 2351 co-perpetration. He further argues that, contrary to Victims Group 2’s submissions, the Trial Chamber’s findings regarding his involvement in the Second Operation, including ‘(i) the role assigned to him within the framework of the common plan; (ii) his interactions with the alleged co-perpetrators and his contribution to the planning of military operations; and (iii) his actions related to UPC/FPLC members involved in the Second Operation’, show that he did not make an essential contribution, did not have control over the crimes and lacked the power to 2352 frustrate their commission. He argues that the Trial Chamber’s failure to establish his whereabouts at the time of the commission of the crimes or ‘what he was doing at the time’ indicate that he did not exert control over the crimes and did not possess the 2353 required mens rea .

(b) Relevant part of the Conviction Decision

The Trial Chamber’s conclusion that Mr Ntaganda exercised control over the crimes committed by UPC/FPLC troops pursuant to the common plan was based upon its consideration of: (i) the position occupied by Mr Ntaganda during the relevant 2354 period; (ii) Mr Ntaganda’s determinative role ‘in setting up a strong military group 2355 capable of driving out from certain areas all Lendu civilians’; (iii) the fact that Mr Ntaganda ‘devised the military tactic which allowed for the success of the UPC/FPLC taking over of Mongbwalu and the related First and Second

2349 Observations of Victims Group 2 on Appeal – Part II , para. 105. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2350 , para. 105. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2351 , para. 94. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2352 , para. 100. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2353 , paras 101-102. 2354 Conviction Decision , paras 827-829. 2355 Conviction Decision , paras 830-833.

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Operation’;

2356

and (iv) the fact that Mr Ntaganda ‘gave orders to commit crimes and personally engaged in violent conduct towards the enemies’.

2357

These findings were,

in turn, based on other findings and evidence.

2358

(c) Determination by the Appeals Chamber

Preliminarily, the Appeals Chamber notes that, although Mr Ntaganda purports

to challenge the Trial Chamber’s findings on both his control over the crimes and his

2359

intent and knowledge, his arguments primarily challenge the Trial Chamber’s

findings supporting its conclusion that Mr Ntaganda exercised control over the crimes

committed by UPC/FPLC troops pursuant to the common plan.

In addition, the Appeals Chamber observes that Mr Ntaganda’s arguments

under this sub-ground of his appeal presuppose that each factual finding relied upon

by the Trial Chamber, should on their own suffice to establish his control over the

2360

crimes and related mens rea . As discussed in the preceding section under this

ground of appeal, the Appeals Chamber has found that a determination of whether an

alleged co-perpetrator exercised control over the crimes with the requisite mens rea

2361

necessarily depends on a holistic assessment of all the relevant facts and evidence.

2356 Conviction Decision , paras 834-846. 2357 Conviction Decision , paras 847-851. 2358 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 2359 , para. 373. Mr Ntaganda’s Appeal Brief – Part II 2360 See e.g. , para. 374 (‘Mr. Ntaganda’s contributions during this first meeting in Bunia had no meaningful impact on any of the subsequent crimes; reveals no control over those crimes (or even the Second Operation as a whole); and reveals no knowledge of, or intent for, those crimes’); para. 375 (‘[t]hese extremely generic actions, however, are not indicative of control over the Second Operation; of control over the crimes that occurred in the context of that Operation; or of the requisite mens rea ’); para. 377 (‘[t]hese four communications […] are manifestly insufficient to demonstrate the knowledge of crimes – or even of the operational details of the Second Operation – necessary to satisfy the mens rea for co-perpetration of the crimes of the Second Operation’); para. 379 (‘[t]hese communications, taken at their highest, do not evince any awareness of crimes, let alone awareness that any action of Mr. Ntaganda constitutes a contribution tantamount to control over any of the crimes of the Second Operation’). , para. 488 (‘[t]he Appeals 2361 See paragraphs 1064-1067 above. See also Lubanga Appeal Judgment Chamber finds that Mr Lubanga’s first set of submissions does not accurately reflect the conclusions of the Trial Chamber, which addressed the question of whether Mr Lubanga’s role and activities amounted cumulatively to an essential contribution, as required for co-perpetration. The Trial Chamber did not rely on any one of these activities in isolation to establish that Mr Lubanga made such an essential contribution’ (footnote omitted)); Bemba et al. Appeal Judgment , para. 812 (‘[t]he Appeals Chamber observes that the Trial Chamber not only carefully analysed each contribution or activity personally undertaken by Mr Bemba, in conjunction with the other co-perpetrators, but also explained

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Thus, to the extent that Mr Ntaganda suggests otherwise, the Appeals Chamber rejects this contention.

In essence, Mr Ntaganda challenges the Trial Chamber’s findings on his ‘direct contributions’ to the Second Operation arguing that they were insufficient to prove his 2362 degree of control over the crimes and his intent and knowledge. These arguments will be considered in turn.

(i) Reliance on Mr Ntaganda’s participation in preparatory meetings Mr Ntaganda disputes the Trial Chamber’s reliance on ‘one “planning” meeting’ during which Mr Ntaganda was found, inter alia , to have: (i) given instructions, jointly with Floribert Kisembo ‘to handle the Lipri road’, which the Trial Chamber determined was ‘indeed attacked by the UPC/FPLC as part of the Second Operation’; 2363 and (ii) ‘specifically gave instructions to go by Centrale to pick up ammunition and bring it to the troops in Bambu’, one of the localities targeted during 2364 the Second Operation. Mr Ntaganda argues that his ‘contributions during this first meeting in Bunia had no meaningful impact on any of the subsequent crimes; reveals no control over those crimes’ let alone the Second Operation as a whole. 2365

The Appeals Chamber notes that, in concluding that Mr Ntaganda had exercised control over the crimes, the Trial Chamber found, inter alia , that Mr Ntaganda had devised the ‘military tactic’ related to both the First and Second Operations. 2366 In particular, with regard to the Second Operation, the Trial Chamber found that Mr Ntaganda had participated in two preparatory meetings and that during one of 2367 these meetings, he had issued instructions as mentioned above. The Appeals Chamber considers that it was reasonable for the Trial Chamber to consider this preparatory meeting in its holistic assessment of Mr Ntaganda’s contributions to the crimes committed within the framework of the common plan. Contrary to

why the activities, taken as a whole , amounted to an essential contribution to the offences covered by the common plan’ (emphasis in original and footnotes omitted)). Mr Ntaganda’s Appeal Brief – Part II 2362 , para. 373. Mr Ntaganda’s Appeal Brief – Part II 2363 Conviction Decision, para. 837 (footnotes omitted); , para. 374. Mr Ntaganda’s Appeal Brief – Part II 2364 Conviction Decision, para. 837; , para. 374. Mr Ntaganda’s Appeal Brief – Part II 2365 , para. 374. 2366 Conviction Decision , paras 834-846. 2367 Conviction Decision , para. 837.

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Mr Ntaganda’s arguments, the absence of a finding by the Trial Chamber that ‘other instructions were given by Mr Ntaganda’ 2368 or that the issue of the ‘treatment of civilians’ was not discussed, 2369 does not detract from the Trial Chamber’s finding that Mr Ntaganda participated in the planning of the Second Operation and gave specific instructions. Consequently, Mr Ntaganda’s arguments are rejected.

(ii) Reliance on Mr Ntaganda ‘generic actions’ as indications of his control over the crimes Mr Ntaganda further challenges the Trial Chamber’s reliance on certain ‘other actions’ as being contributions to the crimes of the Second Operation, namely: (i) his involvement in the distribution of ‘a “new operational structure” of brigades and battalions’; (ii) ‘reminders to commanders regarding disciplinary matters’; and 2370 (iii) his ‘asking for designations of personnel within units to be updated’. He argues that ‘[t]hese extremely generic actions […] are not indicative of control over the Second Operation’, over crimes committed in the context of this operation ‘or of ’. 2371 the requisite mens rea The Appeals Chamber finds no merit in Mr Ntaganda’s argument.

First, the Appeals Chamber notes that the Trial Chamber did not rely on these so-called ‘other actions’ to establish Mr Ntaganda’s contribution to or his mens rea 2372 for, the crimes committed during the Second Operation. Instead, the Appeals Chamber notes that the Trial Chamber’s assessment indicates reliance, in part, on findings that: (i) Mr Ntaganda’s message in reaction to information that a commander had refused to depart for a specific assault forming part of the Second Operation, ‘was to reassert discipline within the UPC/FPLC and ensure the proper execution of orders in the unfolding of the Second Operation’; 2373 (ii) he ‘ensured that UPC/FPLC troops would be obedient, and did not hesitate to remind them that they were expected to execute orders’; and (iii) ‘[p]rior to the launching of the Second Operation,

2368 Mr Ntaganda’s Appeal Brief – Part II , para. 374, referring to P-0055: T-72 , p. 6, lines 12-15. Mr Ntaganda’s Appeal Brief – Part II 2369 , para. 374, referring to P-0055: T-71 , p. 40, lines 3-7. Mr Ntaganda’s Appeal Brief – Part II 2370 , para. 375, referring to Conviction Decision , para. 554. Mr Ntaganda’s Appeal Brief – Part II 2371 , para. 375. 2372 Conviction Decision , paras 826-857, 1176-1189. 2373 Conviction Decision , para. 846.

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Mr Ntaganda announced an important reorganisation concerning the assignment of 2374 commanders, some of which would participate in this operation’.

Second, the Appeals Chamber considers that these findings are indeed relevant to ascertain whether Mr Ntaganda exercised control over the crimes committed during the Second Operation and had the requisite intent and knowledge. Therefore, it was reasonable for the Trial Chamber to consider these factual findings in its holistic assessment of whether Mr Ntaganda exercised control over the crimes, and/or ‘meant for the troops deployed during the First and Second Operation to engage in the conduct and cause the consequences required for the commission of the crimes’ charged, ‘and was aware of the relevant circumstances’. 2375

(iii) Reliance on four purported communications that occurred in the context of the Second Operation Mr Ntaganda questions the Trial Chamber’s reliance on four ‘purported communications that occurred before or at the very beginning of the Second Operation’. 2376 The Appeals Chamber notes that the first communication referred to by Mr Ntaganda concerns ‘a radiophonie message about a skirmish at Kilo preceding the Second Operation’. 2377 This message was not relied upon by the Trial Chamber either in its determination of Mr Ntaganda’s control over the crimes or in its 2378 conclusions on his intent and knowledge. Accordingly, the Appeals Chamber will not consider Mr Ntaganda’s argument in relation to this message any further.

The three remaining communications concern: (i) Mr Ntaganda being ‘informed by the commanders on the ground about the failed assault in Lipri’; 2379 (ii) Mr Ntaganda being copied in a message addressed to Salongo Ndekezi informing him that a battalion commander ‘had refused to depart for the Kobu operation’ to which Mr Ntaganda responded ‘that no commander could refuse an order from his

2374 Conviction Decision , para. 1179. 2375 Conviction Decision , paras 856, 1189. Mr Ntaganda’s Appeal Brief – Part II 2376 , paras 376-379. Mr Ntaganda’s Appeal Brief – Part II 2377 , para. 376, referring to Conviction Decision , para. 555 (where the Trial Chamber found that ‘[o]n 13 February 2003, Mr Ntaganda was copied on a message sent by Salumu Mulenda to Salongo Ndekezi reporting confrontations in Kilo, which included a request for ammunition, including for RPGs, for the upcoming Second Operation’). See also , DRC- OTP-2102-3854, at 3982. 2378 Conviction Decision , paras 826-857, 1176-1189. 2379 st Conviction Decision , para. 565 (1 bullet point), referring to P-0055: T-71 , p. 42.

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2380 superiors and that this had never occurred before’; and (iii) messages indicating

that Mr Ntaganda ‘was aware that the troops arrived in Lipri, Kobu, and Bambu and

that further reports would follow’. 2381

The Appeals Chamber notes that these messages were relied upon to support the

Trial Chamber’s finding that Mr Ntaganda ‘exercised oversight over the unfolding of

the Second Operation and, by reinforcing the chain of command within the group, he

made sure that the forces deployed were carrying out the project as planned’. 2382 This

finding was, in turn, relied upon to conclude that Mr Ntaganda devised the military

tactic which ultimately was but one consideration by which the Trial Chamber

established Mr Ntaganda’s overall control over the crimes. 2383

First, Mr Ntaganda argues that, in accordance with his communications

logbook, of all the radiophonie messages sent and received during the relevant period,

2384 only 2% concerned the Second Operation. In his view, this was highly indicative

of his ‘lack of involvement in the Second Operation’. 2385 The Appeals Chamber

2386 observes that, as noted by the Prosecutor, in assessing the reliability of the

logbooks, the Trial Chamber considered ‘that it must be kept in mind that in addition

to formalised, coded, and recorded communications, which is recorded in the

logbooks, the radiophonie could also be used for uncoded, informal, and direct voice

communication, and was not the only technical means of communication available to

the UPC/FPLC’. 2387 The Trial Chamber referred, in this regard, to Motorola radio

2388 2389 communication, Thuraya satellite phones and mobile phones. As further noted

2390 by the Prosecutor, Mr Ntaganda testified that, if he was able to contact Kisembo

by Thuraya, he would do so and that he did not always use radiophonie to

2380 nd Conviction Decision , para. 565 (2 bullet point), referring to DRC-OTP-2102-3854, at 3998. 2381 rd Conviction Decision , para. 565 (3 bullet point), referring to DRC-OTP-2102-3854, at 3993 (first) and 3998 (fourth). 2382 Conviction Decision , para. 846. 2383 Conviction Decision , paras 826-857. Mr Ntaganda’s Appeal Brief – Part II 2384 , para. 377. Mr Ntaganda’s Appeal Brief – Part II 2385 , para. 377. Prosecutor’s Response to Appeal – Part II 2386 , para. 292. 2387 Conviction Decision , para. 66. 2388 Conviction Decision , para. 343. 2389 Conviction Decision , para. 345. Prosecutor’s Response to Appeal – Part II 2390 , para. 292.

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2391 communicate with him. Finally, the Appeals Chamber notes that Mr Ntaganda’s communications logbook reflected entries until 22 February 2003, shortly after the commencement of the Second Operation which lasted until ‘on or about 27 February 2003’. 2392

In these circumstances, the Appeals Chamber finds that it was not unreasonable for the Trial Chamber to consider these messages, even if they represented just a fraction of Mr Ntaganda’s radiophonie messages. In the Appeals Chamber’s view, these messages were relevant to the assessment of whether Mr Ntaganda exercised control over the crimes committed during the course of the First and Second Operations. Mr Ntaganda’s argument that these communications ‘do not evince any awareness of crimes, let alone awareness that’ his actions could amount ‘to control over any of the crimes of the Second Operation’, 2393 ignores the fact that they were but one of the considerations taken into account by the Trial Chamber to reach its conclusion on Mr Ntaganda’s control over the crimes and his intent and knowledge.

Mr Ntaganda questions the Trial Chamber’s particular reliance on one of the communications addressed to Salongo Ndekezi and in relation to which he was 2394 copied, concerning a battalion commander who had refused to depart for the Kobu 2395 operation. The Trial Chamber found that Mr Ntaganda responded ‘emphasising that no commander could refuse an order from his superiors and that this had never occurred before’. 2396 The Appeals Chamber notes that Mr Ntaganda does not challenge the fact that he indeed responded to this message as found by the Trial Chamber. Rather, he challenges the Trial Chamber’s interpretation of this message arguing that his response was ‘merely a generic and self-evident comment addressing 2397 discipline in general’.

In this regard, the Trial Chamber noted Mr Ntaganda’s testimony ‘that it was a disciplinary matter, and that when he was made aware of a case of indiscipline, he did

2391 D-0300: T-226 , p. 88, line 17 to p. 89, line 12. 2392 Conviction Decision , para. 33. Mr Ntaganda’s Appeal Brief – Part II 2393 , para. 379. Mr Ntaganda’s Appeal Brief – Part II 2394 , para. 380. 2395 nd Conviction Decision , para. 565 (2 bullet point), referring to DRC-OTP-2102-3854, at 3990. 2396 nd Conviction Decision , para. 565 (2 bullet point), referring to DRC-OTP-2102-3854, at 3998. Mr Ntaganda’s Appeal Brief – Part II 2397 , para. 380.

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not hesitate’. 2398 It found ‘that the message shows that the highest levels of authority within the UPC/FPLC, including Mr Ntaganda, were involved in disciplinary matters related to the behaviour of the commanders deployed for the Second Operation’. 2399 The Trial Chamber concluded that ‘the message’s purpose was to reassert discipline within the UPC/FPLC and ensure the proper execution of orders in the unfolding of the Second Operation’ and that Mr Ntaganda ‘exercised oversight over the unfolding of the Second Operation and, by reinforcing the chain of command within the group, 2400 he made sure that the forces deployed were carrying out the project as planned’.

Given the evidence relied upon and the Trial Chamber’s reasoning when considered in light of other relevant findings, particularly those addressing 2401 Mr Ntaganda’s disciplinary powers, the Appeals Chamber finds that it was reasonable for the Trial Chamber to rely on this message in its determination that Mr Ntaganda exercised oversight over the Second Operation.

Mr Ntaganda further questions the Trial Chamber’s reliance on one of the communications in which he was ‘informed by the commanders on the ground about the failed assault in Lipri’. 2402 On the basis of this communication and others, the Trial Chamber determined that ‘Mr Ntaganda remained in contact with the commanders in the field and monitored the unfolding [of the Second Operation] via the UPC/FPLC radio communications systems’. 2403

Mr Ntaganda argues that the finding that he was informed about the failed operation on Lipri is unreasonable because ‘it was based on the uncorroborated hearsay testimony of P-0055 alone’ and it ‘was too important […] to be based on a 2404 proposition that could not be cross-examined’. In its reasoning supporting its finding, the Trial Chamber stated as follows

2398 Conviction Decision , fn. 1723. 2399 Conviction Decision , fn. 1723. 2400 Conviction Decision , para. 846. 2401 See e.g. Conviction Decision , para. 323 (‘[w]ithin the FPLC, Mr Ntaganda was responsible for military training, and had, as part of his role, the power to order disciplinary measures’ (footnotes omitted)). Mr Ntaganda’s Appeal Brief – Part II 2402 st , para. 387, referring to Conviction Decision , para. 565 (1 bullet point). 2403 Conviction Decision , para. 846. 2404 Mr Ntaganda’s Appeal Brief – Part II , para. 387.

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P-0055 testified that Mr Ntaganda followed the developments relating to the failed attack on Lipri, from Fataki before he returned to Bunia, and that Salongo Ndekezi and Tchaligonza said that they had transmitted this information to Ntaganda through the Thuraya. Considering P-0055’s position within the UPC/FPLC, and noting that he explained the circumstances in which he obtained the information, the Chamber considers the testimony in this respect 2405 reliable.

The Appeals Chamber notes that, while it is correct that the testimony of P-0055 is the only evidence cited by the Trial Chamber in support of its finding that Mr Ntaganda was informed of the failed assault on Lipri, and that it consists of 2406 hearsay evidence, this in itself does not render the Trial Chamber’s finding unreasonable. This is particularly so given the Trial Chamber’s reasoning, including its reference to the position occupied by P-0055 who, at the relevant time, was ‘a high level UPC/FPLC insider’. 2407

Mr Ntaganda further argues that the only specific information provided to him by P-0055 ‘was the death of a commander during the attack, which [he contends] falls short of being information about “the failed assault” in general or being indicative of operational level control’. 2408 The Appeals Chamber notes that P-0055 testified, in relevant part, as follows:

2409 [REDACTED].

2410 It is clear that P-0055 testified that Mr Ntaganda [REDACTED]. It is clear from the context of P-0055’s testimony, that the battle to which the witness referred concerns the failed assault on Lipri. The fact that P-0055 only mentioned one specific aspect of the information received does not render the Trial Chamber’s conclusion

that Mr Ntaganda was informed of the failed assault unreasonable. In the Appeals Chamber’s view, the death of the commander was provided as an example of the

information that Mr Ntaganda received in relation to the assault. Mr Ntaganda fails to show an error in this regard.

2405 Conviction Decision , fn. 1720, referring to P-0055: T-71 , p. 42. 2406 Conviction Decision , fn. 1720. 2407 Conviction Decision , para. 118. Mr Ntaganda’s Appeal Brief – Part II 2408 , para. 387. 2409 P-0055: T-71 , p. 42, lines 9-24. 2410 P-0055: T-71 , p. 42.

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Mr Ntaganda also submits that P-0055 lacked reliability ‘in respect of this information’ because the person who supposedly informed Mr Ntaganda about the events in Lipri (Salongo Ndekezi) ‘was actually, according to the Chamber’s own findings, not in Lipri’ but in Mongbwalu. 2411 The Appeals Chamber notes that, in footnote 1673 of the Conviction Decision referred to by Mr Ntaganda, the Trial Chamber did not find that Salongo Ndekezi was in Mongbwalu at the time of the failed assault on Lipri, which was found to have taken place on or about 17 February 2412 2413 2003, but rather it noted P-0907’s testimony in this regard. Finally, the Appeals Chamber notes that the logbook entries referred to by Mr Ntaganda at footnote 1014 of his appeal brief seem to refer to messages dated ‘ février 2003 ’ without any further specification as to the exact date they were sent or received. In these circumstances, the Appeals Chamber finds no merit in Mr Ntaganda’s argument.

Mr Ntaganda argues that yet another finding of the Trial Chamber that, in his view was manifestly unreasonable, was that his ‘account of the Second Operation was damaged because of his purported “categorical denial of knowledge of the Second Operation”’. 2414 Mr Ntaganda argues that this finding was unreasonable given that elsewhere in the Conviction Decision the Trial Chamber acknowledged that ‘he was aware of a general intention to open that key road’. 2415 The Appeals Chamber finds that Mr Ntaganda fails to explain the impact, if any, that this purported unreasonable finding would have had on the Trial Chamber’s finding that he exercised control over the crimes with the requisite mens rea . In any event, the Appeals Chamber notes that the Trial Chamber did not rely on this finding for its conclusion on Mr Ntaganda’s 2416 control over the crimes committed in the Second Operation. His argument is therefore rejected.

Mr Ntaganda’s Appeal Brief – Part II 2411 st , para. 387 (1 bullet point). 2412 Conviction Decision , para. 566. 2413 Conviction Decision , fn. 1673 (‘[a]s regards the Defence submission that P-0907 confirms Salongo Ndekezi’s presence in Mongbwalu […], the Chamber notes that P-0907 referred to Salongo Ndekezi’s actions in Mongbwalu immediately before and during the execution of the Second Operation (P-0907: T-90 , pp. 58-59), which is not in contradiction with P-0055’s evidence of the preparation meetings’). Mr Ntaganda’s Appeal Brief – Part II 2414 nd , para. 387 (2 bullet point). Mr Ntaganda’s Appeal Brief – Part II 2415 nd , para. 387 (2 bullet point) referring to Conviction Decision , fn. 1672. 2416 Conviction Decision , paras 826-857.

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In light of the above considerations, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that Mr Ntaganda was informed by the commanders on the ground about the failed assault on Lipri and to rely on this finding to conclude that he ‘exercised oversight over the unfolding of the Second

Operation’. 2417

(iv) Reliance on the general testimony of P-0055 and P-0901 to conclude that Mr Ntaganda was monitoring the unfolding of the Second Operation Mr Ntaganda also questions the Trial Chamber’s reliance on the testimony of P-

0055 and P-0901 to conclude that ‘[he] “was monitoring the unfolding of the Second Operation”’. 2418 In relevant part, the Trial Chamber found:

Two informed insiders, P-0901 and P-0055, affirmed that Mr Ntaganda was able to follow and supervise the Second Operation. The Chamber notes that while P- 0901 and P-0055 did not discuss specific examples of the interaction between Mr Ntaganda and the commanders and mainly talked about how Mr Ntaganda was generally involved in the unfolding of the Second Operation based on the position that he occupied within the UPC/FPLC at that time, they both confirmed that Mr Ntaganda used radio devices to communicate during the Second Operation. Based on their informed knowledge of the functioning of the UPC/FPLC at the time, and having had regard to the positions they held at the time, the Chamber concludes that Mr Ntaganda was monitoring the unfolding of 2419 the Second Operation.

The Trial Chamber relied upon this finding to conclude that ‘Mr Ntaganda

remained in contact with the commanders in the field and monitored the unfolding via the UPC/FPLC radio communications systems’. 2420 This finding was, in turn, relied upon to establish that Mr Ntaganda devised the military tactic related to the First and Second Operations which was but one of the considerations in the Trial Chamber’s holistic assessment of Mr Ntaganda’s exercise of control over the crimes. 2421

In this regard, P-0901, [REDACTED], testified as follows:

2417 Conviction Decision , para. 846. Mr Ntaganda’s Appeal Brief – Part II 2418 th , para. 381 referring to Conviction Decision , para. 565 (4 bullet point). 2419 th Conviction Decision , para. 565 (4 bullet point and footnotes omitted). 2420 Conviction Decision , para. 846. 2421 Conviction Decision , para. 846.

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2422 [REDACTED].

The Appeals Chamber notes Mr Ntaganda’s argument that the Trial Chamber’s

reliance on the testimony of P-0901 was misplaced because he did not refer to any examples of monitoring by Mr Ntaganda and did not identify Mr Ntaganda as being 2423 one of the interlocutors whom he heard on the Motorola radio traffic. The Trial Chamber acknowledged that P-0901 did not discuss any specific example of the interaction between Mr Ntaganda and the commanders but nonetheless relied upon his testimony to find that Mr Ntaganda was monitoring the unfolding of the Second Operation ‘[b]ased on [his] informed knowledge of the functioning of the UPC/FPLC

2424 at the time, and having had regard to the position [he] held at the time’. In the Appeals Chamber’s view, this was a reasonable conclusion to draw in light of the

reasoning provided in support thereof.

The Appeals Chamber notes that the Trial Chamber’s finding was also

2425 supported by the evidence of P-0055. In addition to his testimony, referred to above in relation to the failed assault on Lipri, of which Mr Ntaganda was informed,

the relevant part of his testimony on which the Trial Chamber relied reads as follows:

A. There was no operation that could be planned without Ntaganda. And even when Kisembo planned an operation, Ntaganda had to be aware. And I’m talking of major operations such as Kobu, Lipri and Bambu. Wherever he was positioned, Ntaganda had to have information through Motorola or Manpack. In Fataki, he had a Manpack. He had a communication equipment, and he was able to follow operations on a regular basis.

Q. And my question is more than just whether Mr Ntaganda was aware of the operations, but what is it that makes you conclude that he was commanding the operations?

A. I really do not know how to explain this to you. [REDACTED]. During the battle of Kobu, I would say that Lipri and Bambu were taken on the same day. Lipri was occupied in one hour. But I would say that the battle that took a long time was the Kobu battle. Most of the time Ntaganda was following developments through Manpack, and he was in communication with the people who were in Kobu and in Mongbwalu.

2422 P-0901: T-29 , p. 13, lines 6-22. Mr Ntaganda’s Appeal Brief – Part II 2423 , para. 382. 2424 th Conviction Decision , para. 565 (4 bullet point). 2425 th Conviction Decision , para. 565 (4 bullet point).

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Q. And did you ever hear him transmit commands or instructions to the troops during this operation?

2426 A. I cannot tell you what type of orders he gave [REDACTED].

Mr Ntaganda questions the Trial Chamber’s reliance on P-0055’s testimony

because he testified that ‘he had to [REDACTED] - a distance of just 25 kilometres,

which is far less than the distance between anywhere in the area of the Second

Operation and Fataki (where Ntaganda was located for most of the Second

Operation)’. 2427 The Appeals Chamber notes that, in his testimony, P-0055 referred to

Mr Ntaganda having a Manpack in Fataki and that ‘[m]ost of the time Ntaganda was

following developments through Manpack’. 2428 While it is correct that the Trial

Chamber found that the normal range of the Motorola radio network was 15 to 20

2429 kilometres, the Trial Chamber also determined that this range ‘was sometimes

extended through modification of the antenna’. 2430 Furthermore, in relation to the

range of the manpacks, the Trial Chamber noted that ‘[t]he range of the network

extended to Aru and Mahagi’. 2431 Moreover, Mr Ntaganda’s argument is premised on

his submission that he was in Fataki for most of the Second Operation which, as

explained below, was not conclusively established by the Trial Chamber.

Mr Ntaganda further questions P-0055’s evidence in relation to the manpack

communication system because of the limited number of messages in the radiophonie

2432 logbooks. The Appeals Chamber recalls, however, the Trial Chamber’s finding

‘that it must be kept in mind that in addition to formalised, coded, and recorded

communications, which is recorded in the logbooks, the radiophonie could also be

used for uncoded, informal and direct voice communication’ 2433 and that

Mr Ntaganda’s communications logbook reflected entries until 22 February 2003,

2426 P-0055: T-71 , p. 43, line 14 to p. 44, line 8. Mr Ntaganda’s Appeal Brief – Part II 2427 , para. 382 (footnotes omitted), referring to P-0055: T-71 , p. 41, line 16 to p. 42, line 8, T-74 , p. 22, lines 14-17. 2428 P-0055: T-71 , p. 44, lines 1-2. 2429 Conviction Decision , para. 343. 2430 Conviction Decision , para. 343, referring to P-0016: DRC-OTP-0126-0422-R03, at 0467, para. 260; P-0901: T-28 , pp. 15, 38; D-0243: T-257 , pp. 35-36, 39, T-259 , p. 23. 2431 Conviction Decision , para. 341. Mr Ntaganda’s Appeal Brief – Part II 2432 , para. 383. 2433 Conviction Decision , para. 66.

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shortly after the commencement of the Second Operation which lasted until ‘on or

about 27 February 2003’. 2434

In light of the above, the Appeals Chamber rejects Mr Ntaganda’s argument that

the Trial Chamber erred by relying on the evidence P-0055 and P-0901 to conclude

that Mr Ntaganda was monitoring the unfolding of the Second Operation.

(v) Alleged failure to establish Mr Ntaganda’s whereabouts

Mr Ntaganda argues that the Trial Chamber erred by failing to ‘give any

account’ of his whereabouts. 2435 He contends that had the Trial Chamber considered

his whereabouts, it would have concluded that he was not ‘within range of the “radio

devices” in question’ 2436 and therefore could not have found that he ‘“used radio

devices to communicate during the Second Operation” and “was monitoring the

unfolding of the Second Operation”’. 2437

At the outset, the Appeals Chamber notes that Mr Ntaganda is correct in arguing

that the Trial Chamber does not appear to have made specific findings on his

2438 whereabouts between 18 February 2003 and 4 March 2003. In this regard, the

Appeals Chamber recalls that the Second Operation commenced on or about

2439 12 February 2003 and lasted till on or about 27 February 2003. Regarding this

timeframe, the Trial Chamber did make some findings concerning his whereabouts.

According to the Trial Chamber, Mr Ntaganda attended the preparatory meetings that

2440 took place in Bunia on or before 13 February 2003. The Trial Chamber further

found that in said meetings, it was agreed that ‘Mr Ntaganda was to go to Fataki for a

graduation ceremony’. 2441 The Trial Chamber also appears to have accepted the

testimony of P-0055 that Mr Ntaganda was following ‘the developments relating to

the failed attack on Lipri, from Fataki before he returned to Bunia’. 2442 The failed

2434 Conviction Decision , para. 33. Mr Ntaganda’s Appeal Brief – Part II 2435 , para. 384. Mr Ntaganda’s Appeal Brief – Part II 2436 , para. 385. Mr Ntaganda’s Appeal Brief – Part II 2437 th , para. 384, referring to Conviction Decision , para. 565 (4 bullet point). Mr Ntaganda’s Appeal Brief – Part II 2438 , para. 384. 2439 Conviction Decision , para. 33. 2440 Conviction Decision , paras 550-551, fn. 1668. 2441 Conviction Decision , para. 552. 2442 Conviction Decision , fn. 1720.

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2443 attack on Lipri was found to have taken place on 17 February 2003. Although the Trial Chamber seems to have made no finding regarding how long Mr Ntaganda was 2444 in Fataki, it did find that Mr Ntaganda was in Bunia at least as of 5 March 2003.

The Appeals Chamber further notes that in Mr Ntaganda’s Closing Brief and by reference to his own testimony, he indicated that he was in Bunia at least from 2445 17 February 2003 to 19 February 2003, at night, when he went to Libi. He noted 2446 that he stayed in Fataki on 20 February 2003 but further to a request from th Mr Lubanga he returned to Bunia and stayed there on the night of the 20 of February st 2447 st and the 21 of February. Mr Ntaganda testified that on the night of the 21 of rd February 2003, he left Bunia for Libi and did not return to Bunia until the 3 of 2448 March 2003.

The Appeals Chamber considers that establishing the whereabouts of an accused at the time that the alleged crimes – that he or she is said to have coperpetrated through another person – took place may be relevant in establishing his or her control over the crimes in question. This, however, does not mean that for an accused to be held responsible he or she must be present when the crimes are taking place. Nevertheless, when, in cases such as the present one, it is alleged that the accused is controlling the crimes indirectly through, inter alia , the monitoring of the operations in the course of which crimes are being committed, the whereabouts of the person may be an important consideration.

Accordingly, the Appeals Chamber notes that Mr Ntaganda does not seem to be disputing the Trial Chamber’s limited findings on his whereabouts during the Second Operation. Rather, his argument seems to be that, given his whereabouts during this operation, he was not within the range of the radio devices through which he was 2449 allegedly monitoring the unfolding of the operation.

2443 Conviction Decision , fn. 1720. 2444 Conviction Decision , para. 648. Mr Ntaganda’s Closing Brief 2445 , paras 1057, 1060, 1064, 1066, 1073. Mr Ntaganda’s Closing Brief 2446 , para. 1074. Mr Ntaganda’s Closing Brief 2447 , para. 1074. Mr Ntaganda’s Closing Brief 2448 , para. 1078. Mr Ntaganda’s Appeal Brief – Part II 2449 , para. 385.

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As explained above, from the Conviction Decision and the submissions of

Mr Ntaganda, it does not appear to be disputed that during the Second Operation

Mr Ntaganda was either in Bunia, Libi or Fataki. The question then is whether from

these locations it was possible for Mr Ntaganda to have monitored the operation

through the devices to which the Trial Chamber referred in its findings.

The Trial Chamber’s finding that ‘Mr Ntaganda remained in contact with the

commanders in the field and monitored the unfolding via the UPC/FPLC radio

communications systems’ 2450 is based on: (i) a Thuraya communication informing

2451 him of the failed assault on Lipri, which took place on 17 February 2003; (ii) two

2452 radiophonie messages dated 18 February 2003, one of which Mr Ntaganda

2453 acknowledged having sent; (iii) one radiophonie message dated 19 February 2003

stating that troops arrived in Lipri, Kobu and Bambu and that further reports would

2454 2455 follow, which Mr Ntaganda acknowledged having received; (iv) the evidence

2456 of P-0901 who testified that he did not know where Mr Ntaganda was but that he

2457 2458 would call the commanders using the Motorola; and (v) the evidence of P-0055

who testified that wherever he was positioned, Mr Ntaganda had to have information

2459 through Motorola or Manpack.

In order to address Mr Ntaganda’s argument, it is important to recall the normal

range of the three main communication systems used during the Second Operation

2460 ( radiophonie or manpacks, Motorola network and Thuraya). The Trial Chamber

2461 found that the normal range of the Motorola network was 15 to 20 kilometres but

it noted that this range was sometimes extended through modification of the

2462 antenna. Furthermore, in relation to the range of the manpacks, the Trial Chamber

2450 Conviction Decision , para. 846, referring to Conviction Decision , para. 565. 2451 st Conviction Decision , para. 565 (1 bullet point), fn. 1720. 2452 nd Conviction Decision , para. 565 (2 bullet point). 2453 Conviction Decision , fn. 1723, referring to D-0300: T-228 , p. 3, lines 12-23. 2454 rd Conviction Decision , para. 565 (3 bullet point). 2455 rd Conviction Decision , para. 565 (3 bullet point); D-0300: T-220 , p. 78, lines 9-13. 2456 th Conviction Decision , para. 565 (4 bullet point). 2457 Conviction Decision , fn. 1726, referring to P-0901: T-29 , p. 13, lines 9-16. 2458 th Conviction Decision , para. 565 (5 bullet point). 2459 Conviction Decision , fn. 1727, referring to P-0055: T-71 , p. 43, lines 14-19. 2460 See Conviction Decision , section IV.A.2.g (Communication System). 2461 Conviction Decision , para. 343. 2462 Conviction Decision , para. 343, referring to P-0016: DRC-OTP-0126-0422-R03, at 0467, para. 260; P-0901: T-28 , pp. 15, 38; D-0243: T-257 , pp. 35-36, 39, pp.41-43; D-0243: T-259 , p. 23.

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2463 noted that it extended to Aru and Mahagi. As to the Thuraya, the Trial Chamber did not specify the normal range but Mr Ntaganda testified that with a Thuraya it 2464 would be possible to communicate between The Hague and Africa.

Given the Trial Chamber’s findings as to the normal range of the radiophonie or 2465 manpack communication system and the fact that Mr Ntaganda acknowledged receiving and sending messages through this system in the course of the Second 2466 Operation, the whereabouts of Mr Ntaganda have no impact on the Trial Chamber’s finding that he received and responded to messages through the radiophonie communication system. As to the relevance of Mr Ntaganda’s whereabouts to establish that he could communicate via the Thuraya, the Appeals Chamber recalls that Mr Ntaganda testified that this system permitted inter- 2467 continental communications, that P-0055 testified that [REDACTED] while the 2468 latter was in Fataki, and that Mr Ntaganda testified that Thurayas worked in 2469 Bunia. In light of the foregoing, the Appeals Chamber considers that, regardless of where Mr Ntaganda was located during the Second Operation (Bunia, Libi or Fataki), it was reasonable for the Trial Chamber to conclude that he was monitoring the unfolding of the operation via ‘the UPC/FPLC radio communications systems’.

In terms of whether it was possible to monitor the operations through the Motorola network, the Appeals Chamber notes that, according to the Trial Chamber’s 2470 findings, this was possible while Mr Ntaganda was in Bunia. From the Trial Chamber’s findings, it is not possible for the Appeals Chamber to discern whether it was technically possible to establish communication via Motorola between Fataki or Libi and the area of the Second Operation. However, given that at least four of the incidents in the course of which crimes were committed in the context of the Second

2463 Conviction Decision , para. 341. 2464 D-0300: T-235 , p. 59, lines 15-17. 2465 Conviction Decision , para. 341. 2466 Conviction Decision , fns 1723, 1725, referring to D-0300: T-228 , p. 3, lines 12-23; D-0300: T-220 , p. 74. 2467 D-0300: T-235 , p. 59, lines 15-17. . 2468 Mr Ntaganda’s Appeal Brief – Part II , fn. 1002 2469 D-0300: T-238 , p. 29, lines 13-16. 2470 Conviction Decision , fn. 1726.

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2471 Operation occurred while Mr Ntaganda was in Bunia, the Appeals Chamber considers that Mr Ntaganda’s whereabouts do not have an impact upon the Trial Chamber’s reliance on the evidence of P-0901 and P-0055, who testified, inter alia , that Mr Ntaganda was monitoring the unfolding of the Second Operation via this means of communication. Accordingly, it was reasonable for the Trial Chamber to find that Mr Ntaganda was monitoring the unfolding of the Second Operation through the UPC/FPLC radio communications systems, namely, a manpack, radiophonie , Thuraya, Motorola, or a combination thereof. While this may not have been possible for the entirety of the Second Operation in relation to the Motorola network, it was technically possible for a substantial part of it.

Given that during the entirety of the Second Operation it was possible for Mr Ntaganda to communicate through either some or all of the communications systems, the Appeals Chamber considers that it was reasonable for the Trial Chamber to find that ‘Mr Ntaganda remained in contact with the commanders in the field and 2472 monitored the unfolding via the UPC/FPLC radio communications systems’. (vi) Conclusion on the Trial Chamber’s findings on Mr Ntaganda’s direct contributions to the Second Operation Having found that the Trial Chamber did not err in assessing Mr Ntaganda’s exercise of control over the crimes by reference to his essential contribution to the common plan to drive out all the Lendu from the localities targeted during the course of the UPC/FPLC’s military campaign against the RCD-K/ML, and having rejected Mr Ntaganda’s challenges to the Trial Chamber’s findings related to the Second Operation, the Appeals Chamber rejects Mr Ntaganda’s over-arching argument that his role in the Second Operation was de minimis and that ‘[t]hese de minimis contributions to the Second Operation reveal no awareness that he was exercising control over, or making an essential contribution to, the crimes of the Second Operation’. 2473

2471 Conviction Decision , para. 567 (assault on Lipri and surrounding villages on 18 February 2003), para. 572 (assault on Kobu on 18 February 2003), paras 583-584 (assault on Bambu on 18 and 19 February 2003), para. 640 (assault on Nyangaray at the start of the Second Operation). 2472 Conviction Decision , para. 846. Mr Ntaganda’s Appeal Brief – Part II 2473 , para. 388 (emphasis in original).

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4 Alleged error in the Trial Chamber’s finding on Mr Ntaganda’s

awareness of the Kobu massacre

(a) Summary of submissions

(i) Mr Ntaganda’s submissions

Mr Ntaganda submits that the Trial Chamber’s finding that he was informed of

the Kobu massacre soon after it occurred is only supported by the evidence of P-

2474 0055. In his view, the Trial Chamber erred by relying on this witness’s evidence

2475 and by failing to consider the contradictory testimony of P-0317. Mr Ntaganda

also argues that the Trial Chamber erred in relying on his alleged ‘expression of post

2476 facto approval’ to establish his mens rea .

(ii) The Prosecutor’s submissions

The Prosecutor responds that Mr Ntaganda ‘merely disagrees’ with the Trial

Chamber’s assessment of the evidence and fails to identify an error. 2477 She refers to

the Trial Chamber’s ‘in-depth credibility assessment of [P-0055]’ that found the

2478 witness to be credible and reliable. The Prosecutor further contends that the

2479 evidence of P-0317 does not contradict P-0055’s evidence.

(iii) The victims’ observations

Victims Group 2 submit that the Trial Chamber did not err in relying ‘on Mr

Ntaganda’s words of endorsement for the conduct employed during the Second

Operation’. 2480 They submit that Mr Ntaganda’s challenges to the credibility of P-

0055 ‘are nothing more than a disagreement with the Trial Chamber’s assessment of

that witness’s credibility without demonstrating an error’. 2481

(iv) Mr Ntaganda’s response to the victims

Mr Ntaganda submits that the evidence of P-0055 was: ‘(i) uncorroborated;

(ii) directly contradicted by P-0317; (iii) contradicted by Mr. Ntaganda; and

Mr Ntaganda’s Appeal Brief – Part II 2474 , para. 399. Mr Ntaganda’s Appeal Brief – Part II 2475 , para. 399. Mr Ntaganda’s Appeal Brief – Part II 2476 , para. 399. Prosecutor’s Response to Appeal – Part II 2477 , para. 296. Prosecutor’s Response to Appeal – Part II 2478 , para. 297. Prosecutor’s Response to Appeal – Part II 2479 , paras 298-299. 2480 Observations of Victims Group 2 on Appeal – Part II , para. 105. 2481 Observations of Victims Group 2 on Appeal – Part II , para. 105.

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2482 (iv) undermined during cross-examination’. In his view, the Trial Chamber ‘was

required to provide a reasoned opinion as to why [the evidence of P-0055] was

nonetheless considered capable of reliance’. 2483

(b) Relevant part of the Conviction Decision

The Trial Chamber found:

637 After the events, in Bunia, sometime before 6 March 2003, Thomas Lubanga received a visit from MONUC staff who asked him about the alleged killings in Kobu. He asked the G2 to investigate. An intelligence officer from Salumu Mulenda’s brigade was summoned for an oral report and was told that UPC/FPLC soldiers from Salumu Mulenda’s brigade had shot Lendu ‘civilians’ in Kobu under the pretence of negotiations. Thomas Lubanga was given this information.

638 Straight afterwards, the G2 went to see Mr Ntaganda and asked him if he heard ‘what happened in Kobu’, discussing the fact that Lendu ‘civilians’ were killed in Kobu by UPC/FPLC soldiers led by Salumu Mulenda. Mr Ntaganda confirmed that he was already aware of ‘the incident’ and said that he was glad with how things had turned out. He also said, in Kinyarwanda, that Salumu Mulenda was a ‘gentleman’, ‘a brave, a fine person’, or a ‘real man,’ which was interpreted to mean that Mr Ntaganda agreed with ‘what had happened’. 2484

In assessing Mr Ntaganda’s intent and knowledge for the crimes committed

during the Second Operation, the Trial Chamber observed in relation to this finding,

that ‘on this occasion, Mr Ntaganda approved the behaviour of Salumu Mulenda’s

troops during the “Kobu massacre” in the context of the Second Operation’. 2485

2486

(c) Determination by the Appeals Chamber

Mr Ntaganda challenges the Trial Chamber’s finding that he was informed of

the Kobu massacre soon after it had occurred and that he reacted in a manner that

showed he ‘“approved of the behaviour of the troops in this context”’. 2487 In essence,

Mr Ntaganda seeks to impugn the Trial Chamber’s reliance upon the evidence of P-

0055 for this finding which, in his view, was unsafe and resulted in an erroneous

Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2482 , para. 104. Mr Ntaganda’s Response to Observations of Victims on Appeal– Part II 2483 , para. 104. 2484 Conviction Decision , paras 637-638 (footnotes omitted). 2485 Conviction Decision , para. 1185. 2486 As set out in paragraph 879 above, Judge Eboe-Osuji entertains considerable reservations regarding the theory of indirect co-perpetration applied by the Trial Chamber and is unable to concur with this section of the judgment ( see Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji). Accordingly, the determinations in this section are made by the majority of the Appeals Chamber. Mr Ntaganda’s Appeal Brief – Part II 2487 , para. 399, referring to Conviction Decision , para. 1187.

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2488 finding that he possessed the mens rea for the crimes of the Second Operation. In

this regard, Mr Ntaganda raises several arguments concerning the veracity of P- 0055’s testimony when examined against the testimony of P-0317, who was a

2489 MONUC human rights officer at the time of the events. In addition, Mr Ntaganda

takes issue with other aspects of P-0055’s testimony, such as the alleged

‘inconsistency of this testimony as to the timing of [REDACTED]’. 2490 The Appeals

Chamber will consider these arguments in turn.

At the outset, the Appeals Chamber observes that, in raising his arguments,

Mr Ntaganda appears to suggest that the Trial Chamber’s finding concerning

Mr Ntaganda’s knowledge of the crimes committed in the context of the Second

Operation is based only on the finding impugned in this section. However, the

Appeals Chamber notes that Mr Ntaganda’s intent and knowledge for the crimes

committed during both operations was based on a holistic evaluation of several

considerations, of which the finding challenged by Mr Ntaganda in this section, is but

2491 one.

The Appeals Chamber notes that, for its finding on Mr Ntaganda’s knowledge

of, and reaction to, the Kobu massacre, the Trial Chamber relied on the evidence of P-

2492 0055. The Trial Chamber found that ‘in Bunia, sometime before 6 March 2003,

Thomas Lubanga received a visit from MONUC staff who asked him about the alleged killings in Kobu’. 2493 Following this encounter, Mr Lubanga had ‘asked the G2 to investigate’. 2494 In doing so, the G2 spoke to Mr Ntaganda who ‘confirmed that he was already aware of “the incident”’ and said that he was glad with how things had

turned out’. 2495 Moreover, the Trial Chamber found that, in response to being told that

soldiers led by Salumu Mulenda had killed civilians in Kobu, Mr Ntaganda stated in

Kinyarwanda ‘that Salumu Mulenda was a “gentleman”, “a brave, a fine person”, or a

Mr Ntaganda’s Appeal Brief – Part II 2488 , paras 399, 409-410. Mr Ntaganda’s Appeal Brief – Part II 2489 , paras 402-406. Mr Ntaganda’s Appeal Brief – Part II 2490 , paras 407-410. 2491 Conviction Decision , paras 1177-1189. 2492 Conviction Decision , paras 319, 637-638. See also P-0055: T-74 , pp. 60, 69, 70; T-71 , p. 52. 2493 Conviction Decision , para. 637. 2494 Conviction Decision , para. 637 referring to P-0055: T-74 , pp. 60, 69, 70; T-71 , p. 52. 2495 Conviction Decision , para. 638, fns 2030-2031, referring to P-0055: T-71 , p. 52, lines 21-23; T-71 , p. 56, lines 18-22; T-74 , p. 70, lines 6-10; P-0768: T-34 pp. 60-64.

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“real man”, which was interpreted to mean that Mr Ntaganda agreed with “what had happened”’. 2496

Mr Ntaganda argues that, in the Trial Chamber’s view, his mens rea for coperpetrating the ‘Kobu massacre’ was substantiated by its finding that he was 2497 informed of the massacre soon after it occurred and expressed approval of it. In the first place, the Appeals Chamber understands Mr Ntaganda to be arguing that in order to find him criminally responsible as a co-perpetrator for the crimes that took place during the Kobu massacre, it must be established that he was aware of the details of this event, including whether and which specific acts had been committed. The Appeals Chamber considers this argument to misconstrue the applicable law on coperpetration. As stated elsewhere in this judgment, Mr Ntaganda’s mens rea with respect to the specific crimes committed during the Kobu massacre need not have 2498 been established. Rather, what must be established is that he possessed the requisite mens rea with respect to the crimes as such in the sense of murder, rape, persecution, pillage et cetera committed in implementation of the common plan.

In addition, Mr Ntaganda argues that the Trial Chamber improperly imputed his mens rea based on his apparent ‘expression of post facto approval, without any evidence that [he] performed the actus reus of the crime with the requisite mens ’. 2499 rea The issue arising from this argument is whether it was proper for the Trial Chamber to rely on Mr Ntaganda’s conduct after the commission of the crime for its assessment of his intent at the time of the offence. The Appeals Chamber considers that, depending on the circumstances, the conduct of an accused after the commission of a crime may provide information or evidence that may be of relevance to the assessment of his or her intent at the time of the offence. In the present case, the Trial Chamber assessed Mr Ntaganda’s mens rea by conducting a holistic assessment based on several considerations, including the fact that he had expressed approval of the crimes that had been committed in Kobu when he was informed of what had

2496 Conviction Decision , para. 638 (footnote omitted), referring to P-0055: T-71 , p. 52, 56; T-74 , p. 70. 2497 Mr Ntaganda’s Appeal Brief – Part II , para. 399. 2498 See paragraph 1065 above. Mr Ntaganda’s Appeal Brief – Part II 2499 , para. 399.

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2500 happened. Notably, the Trial Chamber found that ‘the criminal acts performed by

the UPC/FPLC troops during the First Operation were reproduced during the course

of the Second Operation, which culminated in particularly violent events, i.e. “the Kobu massacre”’. 2501 This, coupled with Mr Ntaganda’s expression of approval of the

crimes committed in Kobu, led the Trial Chamber to find ‘that [Mr Ntaganda]

intended the troops to continue with the same criminal conduct during the course of

the Second Operation’. 2502

In these circumstances, the Appeals Chamber finds that it was reasonable for the

Trial Chamber to consider Mr Ntaganda’s reaction to the crimes committed in Kobu

as a relevant consideration, together with other considerations in its assessment of his

mens rea . Consequently, Mr Ntaganda shows no error in this finding and his

argument in this regard is rejected.

Furthermore, Mr Ntaganda challenges the evidence of P-0055 that MONUC

was the source of the information regarding the Kobu incident on the basis that it is

2503 not supported by any MONUC document or witness. While Mr Ntaganda is

correct that P-0055’s account as to how the information was first made known to

Thomas Lubanga and himself is not corroborated by evidence from MONUC, the Appeals Chamber finds that this, in and of itself, does not render the witness’s

evidence unreliable. Indeed, the Appeals Chamber notes that P-0055’s evidence on

this point is partly corroborated by evidence of P-0768, who testified that the

2500 Conviction Decision , paras 1177-1189 (the Trial Chamber considered the following factors: (i) Mr Ntaganda agreed and worked with others to achieve their plan to drive out all the Lendu from the localities targeted during the course of the First and Second Operation’ and the execution of the agreement ‘inherently involved the conduct that constitutes the crimes under consideration’; (ii) the repetition over time of crimes that followed a certain modus operandi ; (iii) Mr Ntaganda’s position as the highest ranked leader of the FPLC; (iv) Mr Ntaganda’s non-hesitation ‘to remind [UPC/FPLC troops] that they were expected to execute orders, as he did on 18 February 2003 in the context of the Second Operation’; (v) Mr Ntaganda being informed of the training and composition of the troops to be deployed; (vi) Mr Ntaganda’s announcement prior to the launching of the Second Operation of an important reorganisation concerning the assignment of commanders; (vii) Mr Ntaganda’s presence, actions and directives in the context of the First Operation; and (viii) the fact that at the conclusion of the Second Operation ‘Mr Ntaganda had a conversation with the G2 about the fact that UPC/FPLC soldiers killed civilians in Kobu under the command of Salumu Mulenda’ during which Mr Ntaganda ‘said that he was glad with how things had turned out and also said that Salumu Mulenda was a “gentleman”, “a brave, a fine person”, or a “real man”’ thereby approving the behaviour of Salumu Mulenda’s troops during the Kobu massacre). 2501 Conviction Decision , para. 1187. 2502 Conviction Decision , para. 1187. Mr Ntaganda’s Appeal Brief – Part II 2503 , para. 402.

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2504 hierarchy of the UPC/FPLC knew about the Kobu massacre. In the Appeals Chamber’s view, how and when the witness came to know of the Kobu massacre was not decisive for the Trial Chamber’s finding that Mr Ntaganda was aware of the Kobu incident and that he had reacted to this information in a manner that showed that he ‘approved of the behaviour of the troops in this context’. 2505 In these circumstances, the Appeals Chamber finds that the absence of corroborating evidence from MONUC with respect to this discrete aspect of P-0055’s testimony does not render the evidence of this witness on Mr Ntaganda’s knowledge any less reliable.

Mr Ntaganda further argues that the evidence of P-0317 contradicts that of P- 0055 given that P-0317, a MONUC officer who arrived in Bunia on 24 March 2003, ‘could not recall that MONUC had any contemporaneous information about a massacre at Kobu’. 2506 Thus, in his view, Mr Lubanga could not have obtained information before 6 March 2003 about an alleged massacre in Kobu from MONUC officials nor could he have had a meeting with them as described by P-0055. In addressing this argument, the Trial Chamber noted that Mr Ntaganda’s arguments were based on the testimony of P-0317 who had only arrived in Bunia on 24 March 2507 2003. In this regard, the Trial Chamber noted that it did ‘not believe that she reliably knew what information was or was not available to MONUC before 6 March 2003’, therefore the Trial Chamber found that there was no ‘contradiction between 2508 her testimony and that of P-0055’. In relevant part, P-0317 testified

Q. […] in the case of Bogoro, in respect of which you received information from MILOBS and from Congolese NGOs, you didn’t receive any such information while you were in Kinshasa from those sources about a massacre in Kobu; is that right? A. We did not receive information when we were in Kinshasa, we received information only when we arrived in Bunia. Q. *And once you did arrive in Bunia, did the military observers or anyone else in MONUC tell you that they had information about an attack in Kobu or a massacre in Kobu?

2504 Conviction Decision , fn. 2031, referring to P-0768: T-34 , p. 60, line 12 to p. 61, line 9. 2505 Conviction Decision , para. 1187. Mr Ntaganda’s Appeal Brief – Part II 2506 , para. 403. 2507 Conviction Decision , fn. 2029, referring to P-0317: T-192 , p. 43, lines 21-25. See also P-0317: T- 192 , p. 45, line 12 to p. 46, line 1. 2508 Conviction Decision , fn. 2029.

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A. Well, I should point out that there were six military observers at the time in Bunia and they were afraid to leave town. They had some vague information regarding attacks on the villages but no direct information.

Q. *So they did not tell you that any information about a massacre in Kobu had been reported to them; is that right?

A. I don’t believe so. 2509

Mr Ntaganda maintains that ‘[i]f MONUC officials had had sufficiently

substantiated information to raise it during a meeting with Lubanga, then this information would undoubtedly have been recorded, reported and communicated as a matter of the highest importance to the human rights officer with direct responsibility for such matters’. 2510 The Appeals Chamber notes that the reference provided by Mr Ntaganda to support this claim is unrelated to the Kobu incident and refers generally to the witness’s preliminary preparations before going into the field to

investigate:

Q. Now, before you would go into the field to conduct an investigation, what type of preliminary preparations did you undertake?

A. If we had received information from the field, I would share that with everyone. As regards preparations, we would look at the map where the villages were situated, et cetera, and of course we would read the reports that had already been drafted on Ituri. And we would also see the NGOs in Kinshasa. Some of them had information on Ituri. We spoke to soldiers as well, because 2511 we also had information that came from MILOBS.

Mr Ntaganda makes reference to P-0317’s position as head of the special investigations unit of the human rights section of MONUC at the time to argue that ‘[i]t is inconceivable that MONUC officials would have informed Thomas Lubanga,

2512 but not P-0317 about a massacre at Kobu’. He further refers to P-0317 being

informed of smaller attacks on civilians and specifically indicating that the first 2513 information she received about the Kobu incident came from a Lendu civilian.

The Appeals Chamber considers that it is reasonable to conclude, as the Trial Chamber has, that the fact that P-0317 was not told by the six military observers about

2509 P-0317: T-192 , p. 45, lines 12-25. Mr Ntaganda’s Appeal Brief – Part II 2510 , para. 403. Mr Ntaganda’s Appeal Brief – Part II 2511 , fn. 1045, referring to P-0317: T-191 , p. 24, lines 6-13. Mr Ntaganda’s Appeal Brief – Part II 2512 , para. 405, referring to P-0317: T-191 , p. 8, lines 16-22. Mr Ntaganda’s Appeal Brief – Part II 2513 , para. 405, referring to P-0317: T-191 , p. 38, lines 17-18.

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a massacre in Kobu does not exclude the possibility that the information was available to the observers. Furthermore, even assuming Mr Ntaganda’s assertion, that P-0317 should have known about the incident if MONUC officials truly were the source of the information, was correct, the Appeals Chamber considers that such a contradiction in the testimony of P-0055 and P-0317 would not render the Trial Chamber’s finding on Mr Ntaganda’s awareness and reaction to the Kobu massacre per se unreasonable. As explained above, that aspect is the core part of P-0055’s evidence and is partially 2514 supported by other corroborating evidence, particularly that provided by P-0768.

According to Mr Ntaganda, the credibility of P-0055 ‘is further undermined by 2515 the inconsistency of this testimony as to the timing [REDACTED]’. He notes that P-0055 first testified that [REDACTED] occurred after Mr Ntaganda returned from Fataki but prior to the UPC/FPLC’s defeat on 6 March 2003 and subsequently stated 2516 [REDACTED] the Kobu incident was not discussed. The Appeals Chamber notes that the Trial Chamber addressed Mr Ntaganda’s argument that ‘it is impossible that, in Bunia, Mr Ntaganda could have received information about the alleged crimes while Floribert Kisembo was still in Mongbwalu’. 2517 The Trial Chamber ‘view[ed] the timing of Kisembo’s return to Bunia as peripheral to the core of P-0055’s evidence on this subject, and therefore [did] not consider any purported inconsistency 2518 on this matter to affect the credibility of P-0055’s account’.

The Appeals Chamber notes that Mr Ntaganda’s argument on appeal does not concern the timing of Floribert Kisembo’s return to Bunia but specifically the timing [REDACTED] in Bunia. In this regard, relying on the evidence of P-0055, the Trial Chamber found that [REDACTED] straight after Mr Lubanga had asked the G2 to 2519 investigate and a report on what had happened in Kobu was provided to him. In relevant part, P-0055 testified as follows:

2520 [REDACTED].

2514 See paragraph 1129 above. Mr Ntaganda’s Appeal Brief – Part II 2515 , para. 407. Mr Ntaganda’s Appeal Brief – Part II 2516 , para. 407. 2517 Conviction Decision , fn. 2029. 2518 Conviction Decision , fn. 2029. 2519 Conviction Decision , paras 637-638. 2520 P-0055: T-71 , p. 52, lines 19-23.

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2521 [REDACTED]. 2522 [REDACTED]. The Trial Chamber found that, ‘[…] in light of the context provided by [P- 0055]’ the meeting between Thomas Lubanga and MONUC staff ‘occurred between the “Kobu massacre” [on or about 25-26 February 2003] and 6 March 2003’. 2523 The Trial Chamber did not specify when exactly Thomas Lubanga was provided with a report about the massacre in Kobu, or when [REDACTED] had met with Mr 2524 Ntaganda. However, it found that the meeting in which Mr Ntaganda alleges that 2525 [REDACTED], took place on 5 March 2003.

The Appeals Chamber notes that, despite the Trial Chamber’s lack of clarity as to the dates in which these events took place, the parts of P-0055’s testimony relied on by the Trial Chamber and cited in paragraph 1135 above, do not support Mr Ntaganda’s argument that the witness provided contradictory evidence on the timing [REDACTED]. In his testimony, he did not provide a [REDACTED] and did not indicate, as Mr Ntaganda seems to suggest that this was the first occasion [REDACTED] after Mr Ntaganda’s return to Bunia. The Appeals Chamber further recalls the Trial Chamber’s finding that generally ‘P-0055 had obvious difficulties remembering dates or timeframes, which he openly emphasised at the beginning, and throughout the course, of his testimony, preferring to frame periods by indicating major events’. 2526 The Trial Chamber considered that ‘the aforementioned difficulties do not render his evidence unreliable’. 2527

The Appeals Chamber notes that the Trial Chamber provided the following assessment of the timing as to when Mr Ntaganda found out about the Kobu massacre:

Mr Ntaganda denied having ever discussed or obtained information from the G2 relating to civilians allegedly killed in Kobu by members of the UPC/FPLC in

2521 P-0055: T-74 , p. 81, line 23 to p. 82, line 8. 2522 P-0055: T-74 , p. 83, lines 20-25. 2523 Conviction Decision , fn. 2026. 2524 Conviction Decision , paras 637-638. See also fn. 2035. 2525 Conviction Decision , para. 648. 2526 Conviction Decision , para. 123 (footnotes omitted). 2527 Conviction Decision , para. 123.

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February or March 2003 […]. He testified to the effect that from 17 February 2003 to 6 March 2003, he only had two contacts with the G2, one Thuraya call while he was in Fataki, and again at a meeting on 5 March 2003, at which the Second Operation was not discussed […]. Mr Ntaganda also denied having obtained any information about civilians allegedly killed in Kobu by members of the UPC/FPLC in February or March 2003 […]. According to Mr Ntaganda, he first heard allegations about civilians being killed in Kobu in February or March 2003 by the UPC/FPLC in 2004 from media reports […]. The Chamber, in line with its general assessment of P-0055 as a credible witness, accepts as truthful P-0055’s detailed description, including his testimony to the effect that Mr Ntaganda already knew about the ‘Kobu massacre’, and consequently does not accept Mr Ntaganda’s denial. Considering P-0055’s evidence, and in light of the Chamber’s findings on the involvement of Mr Ntaganda specifically in the Second Operation, and generally in UPC/FPLC operations, it is not necessary to discuss further how and when exactly Mr Ntaganda found out about the ‘Kobu massacre’. 2528

Consequently, the Appeals Chamber finds that Mr Ntaganda’s argument

regarding the timing of [REDACTED], during which, in the testimony of the witness,

Mr Ntaganda [REDACTED], does not render the Trial Chamber’s finding on this

point unreasonable.

In addition, Mr Ntaganda contends that P-0055 failed to assert 2529 [REDACTED]. Mr Ntaganda argues that the ‘testimony adduced by the Prosecution was only that Mr. Ntaganda was “already aware of the incident,” without

confirming exactly what the incident was’. 2530 In his view, no reasonable Trial

Chamber could have inferred without more that this was a reference to the Kobu 2531 massacre. The Appeals Chamber finds no merit in this argument. On a plain

reading of the relevant part of P-0055’s testimony it is evident that he was indeed

referring to the Kobu massacre [REDACTED]:

2532 [REDACTED].

2533 [REDACTED].

With reference to, inter alia , the above extracts of P-0055’s testimony, the Trial Chamber found that ‘the G2 went to see Mr Ntaganda and asked him if he heard

2528 Conviction Decision , fn. 2035. Mr Ntaganda’s Appeal Brief – Part II 2529 , para. 408. Mr Ntaganda’s Appeal Brief – Part II 2530 , para. 408, referring to Conviction Decision , para. 638. Mr Ntaganda’s Appeal Brief – Part II 2531 , para. 408. 2532 P-0055: T-71 , p. 52, line 7 to p. 53, line 2 (emphasis added). 2533 P-0055: T-71 , p. 57, lines 11-21.

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“what happened in Kobu”, discussing the fact that Lendu “civilians” were killed in

Kobu by UPC/FPLC soldiers led by Salumu Mulenda’. 2534 In light of this testimony and the Trial Chamber’s assessment thereof, the Appeals Chamber finds that there

was no ambiguity as to whether P-0055 was in fact referring to the Kobu massacre

when Mr Ntaganda confirmed that he was ‘already aware of “the incident”’. 2535

Mr Ntaganda’s argument is therefore rejected.

With respect to Mr Ntaganda’s final argument that ‘the Trial Chamber’s

reliance on P-0055’s testimony was determinative in reaching its conclusions about

[his] purported knowledge of, and reaction to, the Kobu massacre’ and in turn was

‘essential for the Chamber’s findings concerning his mens rea in relation to the crimes

of the Second Operation’, 2536 the Appeals Chamber finds that it ignores the other

considerations that the Trial Chamber relied upon to enter its finding on his intent and knowledge for each of the crimes charged. These included ‘evidence indicating that:

(i) on 24 February 2003, Thomas Lubanga met with persons including personnel from

MONUC and discussed fighting in the area of Kobu, Lipri, and Nyangaray, including

allegations that UPC/FPLC troops were chasing fleeing people in forests around Nyangaray and Kobu’; 2537 (ii) ‘UPC/FPLC soldiers who killed people in “Kobu massacre” discussed rapes and killings with other UPC/FPLC soldiers shortly after

the event’; 2538 and that (iii) ‘a vice-governor heard about the death of Mr Burombi, who was one of the victims in the “Kobu massacre”, through Mr Burombi’s family,

although he heard about it in the context of allegations that a UPC/FPLC group had gone to Lipri on the pretext of pacification and killed Lendu “civilians” there’. 2539

Contrary to Mr Ntaganda’s argument, the Appeals Chamber finds that these

2534 Conviction Decision , para. 638. Mr Ntaganda’s Appeal Brief – Part II 2535 , para. 408, referring to Conviction Decision , para. 638. Mr Ntaganda’s Appeal Brief – Part II 2536 , paras 409-410. 2537 Conviction Decision , fn. 2035, referring to DRC-OTP-0127-0061 (a video recording of Mr Lubanga together with personnel from MONUC where they discuss fighting in the area around Kobu, Lipri and Nyangaray, including allegations that UPC/FPLC troops were chasing fleeing people in forests around Nyangaray and Kobu); D-0300: T-230 , p. 51, lines 19-25. 2538 Conviction Decision , fn. 2035, referring to P-0017: T-60 , pp. 17-18; P-0963: T-79 , p. 74. 2539 Conviction Decision , fn. 2035, referring to the prior recorded testimony of P-0041 (DRC-OTP- 0147-0002 at 0016-0017, paras 82 to 86).

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considerations were indeed probative of the fact that ‘Mr Ntaganda was informed of the massacre’ and that ‘news of this massacre was widely known at the time’. 2540

Accordingly, the Appeals Chamber finds that the Trial Chamber did not err in relying, inter alia , on P-0055’s evidence to establish Mr Ntaganda’s knowledge of, and reaction to, the Kobu massacre.

5 Overall conclusion Having rejected the entirety of Mr Ntaganda’s arguments challenging the Trial Chamber’s finding that Mr Ntaganda exercised control over the crimes, meant for the troops deployed during the Second Operation to engage in the conduct and cause the consequences required for the commission of crimes of murder as a crime against humanity and as a war crime (counts 1 and 2), intentionally attacking civilians as a war crime (count 3), rape as a crime against humanity and as a war crime (counts 4 and 5), sexual slavery as a crime against humanity and as a war crime (counts 7 and 8), persecution as a crime against humanity (count 10), pillage as a war crime (count 11), forcible transfer of population as a crime against humanity (count 12), ordering the displacement of the civilian population as a war crime (count 13), attacking protected objects as a war crime (count 17), and destroying the adversary’s property as a war crime (count 18), and that Mr Ntaganda was aware of the relevant circumstances, the Appeals Chamber, by majority, Judge Eboe-Osuji dissenting, rejects this ground of appeal.

V. PROSECUTOR’S APPEAL

The Prosecutor raises two grounds of appeal, under which she argues that the Trial Chamber erred in not considering that the term ‘attack’ in article 8(2)(e)(iv) of the Statute has a ‘special meaning’ and that an ‘attack’ for the purpose of this provision ‘is not limited to the conduct of hostilities’. 2541 She argues that ‘the special meaning of the term “attack” […] also applies to hospitals and other places where the sick and wounded are collected’. 2542 The Appeals Chamber will examine both grounds of appeal together.

Mr Ntaganda’s Appeal Brief – Part II 2540 , para. 409. Prosecutor’s Appeal Brief 2541 , para. 9 (emphasis in original omitted); T-270 , p. 7, lines 15-21. Prosecutor’s Appeal Brief 2542 , para. 11.

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A. Relevant part of the Conviction Decision

Under count 17, Mr Ntaganda was charged with attacking protected objects as a 2543 war crime, including in relation to the hospital in Mongbwalu, as well as the 2544 church and the health centre in Sayo. The Trial Chamber convicted Mr Ntaganda 2545 as an indirect co-perpetrator only for the attack on the health centre in Sayo.

1 Hospital in Mongbwalu The Trial Chamber found that in the context of the First Operation ‘UPC/FPLC soldiers looted the Mongbwalu hospital’ 2546 and also noted that ‘[t]he UPC/FPLC 2547 soldiers [...] looted medical equipment from the Mongbwalu hospital’. This finding is made in the section regarding a ratissage operation, conducted in the aftermath of the takeover of Mongbwalu by members of the UPC/FPLC and Hema ‘civilians’. 2548

2 Church in Sayo The Trial Chamber found that ‘[o]n or about 24 November 2002, the UPC/FPLC attacked Sayo, coming from the direction of the factory in Mongbwalu’. 2549 The Trial Chamber held that, immediately after ‘the assault on Mongbwalu and the surrounding areas, members of the UPC/FPLC and Hema “civilians” continued the 2550 ratissage operation in Sayo’. It further found that ‘some time after the assault on the village, the UPC/FPLC set up a base inside the church in Sayo; they broke the doors of the church, removed the furniture, dug trenches around the church, and started a fire inside to prepare their food’. 2551

3 Trial Chamber’s interpretation of the term ‘attack’ under article 8(2)(e)(iv) of the Statute Regarding the term ‘attack’, in its determination of the applicable law, the Trial Chamber held that:

2543 Confirmation Decision , para. 36; UDCC , p. 65. 2544 Confirmation Decision , para. 69. 2545 Conviction Decision , paras 1145-1147, p. 538. 2546 Conviction Decision , para. 1138. 2547 Conviction Decision , para. 514. 2548 Conviction Decision , para. 512. 2549 Conviction Decision , para. 500. 2550 Conviction Decision , para. 526. 2551 Conviction Decision , para. 526. See also para. 1138.

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the term ‘attack’ is to be understood as an ‘act of violence against the adversary, whether in offence or defence’. As with the war crime of attacking civilians, the crime of attacking protected objects belongs to the category of offences committed during the actual conduct of hostilities. Article 8(2)(e)(iv) only requires the perpetrator to have launched an attack against a protected object and it need not be established that the attack caused any damage or destruction 2552 to the object in question.

In making this finding, the Trial Chamber relied on the definition of ‘attack’

adopted in relation to the crime of intentionally attacking civilians:

The Chamber notes that neither the Statute nor the Elements of Crimes include a definition of the term ‘attack’. Having regard to the established framework of international law, the Chamber notes that the crime as described in Article 8(2)(e)(i) of the Statute is based on Article 13(2) of Additional Protocol II. This protocol does not define attacks, but Additional Protocol I does, and the term is considered to have the same meaning in Additional Protocol II. ‘Attack’ must therefore be understood within the meaning of Article 49 of Additional Protocol I as ‘acts of violence against the adversary, whether in offence or defence’. 2553

The Trial Chamber thus rejected the Prosecutor’s proposed definition of ‘attack’, in terms of article 8(2)(e)(iv) of the Statute, which covered pillaging of

2554 protected objects.

The Trial Chamber concluded that it would not further consider the looting of medical equipment from the hospital in Mongbwalu, noting that ‘pillaging of protected objects […] is [not] an “act of violence against the adversary” and, consequently, it does not constitute an attack’. 2555

With respect to the church in Sayo, the Trial Chamber found that, since the attack on the church ‘took place sometime after the assault, and therefore not during the actual conduct of hostilities’, the first element of article 8(2)(e)(iv) was not

2556 2557 met. As a result, this incident was not further considered.

2552 Conviction Decision , para. 1136 (footnotes and emphasis in original omitted). 2553 Conviction Decision , para. 916 (footnote omitted). Prosecutor’s Closing Brief 2554 See Conviction Decision , para. 1141, referring to , para. 408. 2555 Conviction Decision , para. 1141. 2556 Conviction Decision , para. 1142. 2557 Conviction Decision , para. 1142.

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B. Summary of submissions

1 The Prosecutor’s submissions

The Prosecutor argues that the term ‘attack’ in article 8(2)(e)(iv) of the Statute

has a ‘special meaning’, which ‘give[s] effect to the broader prohibition in

international humanitarian law which this crime was intended to implement’. 2558

While the Prosecutor accepts that the formulation of article 8(2)(e)(iv) is based on

2559 article 27 of the 1907 Hague Regulations, she submits that article 8(2)(e)(iv)

‘derive[s] from’ articles 27 and 56 of the 1907 Hague Regulations. 2560 The Prosecutor

argues that ‘cultural’ objects listed in article 8(2)(e)(iv) differ from other objects,

persons or property which receive special protection from an attack in articles

2561 8(2)(b)(iii), 8(2)(b)(vii), 8(2)(e)(ii) and 8(2)(e)(iii).

Regarding the protection of hospitals, the Prosecutor argues that adopting a

special meaning of attacks against hospitals, consistent with the interpretation she

proposes to ‘cultural’ objects, would ensure that the nature of the protection offered

2562 by article 8(2)(e)(iv) is the same for all objects listed therein. She submits that

such interpretation would also avoid duplication between the crime under this article

and the crime of attacking buildings using the distinctive emblems of the Geneva

2563 Conventions under article 8(2)(e)(ii) of the Statute. The Prosecutor submits that

the term ‘attack’ in article 8(2)(e)(iv) of the Statute refers to an act of violence which

may lead to the destruction or damage of the hospital, including its ‘ability […] to

carry out the function which it serves’. 2564 The Prosecutor also contends that the

UPC/FPLC soldiers in this case could not be said to have lawfully requisitioned

medical equipment from the hospital in Mongbwalu, as there was no assurance that

2565 that equipment was not required for the civilian population.

Prosecutor’s Appeal Brief 2558 , para. 30; T-270 , p. 9, lines 22-24. 2559 1907 Hague Regulations . Prosecutor’s Appeal Brief 2560 , para. 36. Prosecutor’s Appeal Brief 2561 , para. 61. Prosecutor’s Appeal Brief 2562 , paras 115-117. Prosecutor’s Appeal Brief 2563 , paras 118-121. 2564 Prosecutor’s Appeal Brief , para. 128. Prosecutor’s Appeal Brief 2565 , paras 143-144.

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2 Mr Ntaganda’s submissions

Mr Ntaganda submits that the Trial Chamber’s interpretation of the term attack

2566 in article 8(2)(e)(iv) of the Statute is correct. He avers that the term ‘attack’ in that

provision does not have a special meaning for ‘cultural objects’ and is limited to acts

2567 committed during the actual conduct of hostilities. Mr Ntaganda argues that

consistent with the established framework of international law, the term ‘attack’

‘should be interpreted in accordance with article 49(1) of [Additional Protocol I]’. 2568

In Mr Ntaganda’s view, such ‘approach is […] consistent with the drafting history of

article 8(2)(e)(iv), with a consideration of the Statute as a whole, with the Court’s case

law and with the principle of legality’. 2569

Mr Ntaganda finds the Prosecutor’s argument that in order to ensure that parties

to an armed conflict always respect hospitals requires that article 8(2)(e)(iv) of the

Statute to be interpreted beyond its original scope intended by the drafters to be

2570 misguided. Mr Ntaganda adds that the proper interpretation of article 8(2)(e)(iv)

does not ‘extend to the appropriation of property’ given the limited scope of the term

‘attack’ used in that provision. 2571

3 The victims’ observations

Victims Group 2 submit that the term attack under article 8(2)(e)(iv) of the

Statute should be ‘equally interpreted with regard to all protected objects covered by

2572 the provision, including churches and hospitals’. In their view, ‘the term “attack”

does not need to be given a “special meaning”’; 2573 rather, it should be ‘interpreted in

a way that accounts both for combat action and its aftermath’. 2574 Victims Group 2

allege that the Trial Chamber ‘erred in not extending its analysis to […] the objective

of the protection of the listed categories of property and the rationale of including

Mr Ntaganda’s Response to Prosecutor’s Appeal 2566 , paras 2-28. Mr Ntaganda’s Response to Prosecutor’s Appeal 2567 , para. 47. Mr Ntaganda’s Response to Prosecutor’s Appeal 2568 , para. 47; T-270 , p. 24, lines 19-22. Mr Ntaganda’s Response to Prosecutor’s Appeal 2569 , para. 47. Mr Ntaganda’s Response to Prosecutor’s Appeal 2570 , paras 55, 58. Mr Ntaganda’s Response to Prosecutor’s Appeal 2571 , paras 65-71. Observations of Victims Group 2 on Prosecutor’s Appeal 2572 , para. 1. Observations of Victims Group 2 on Prosecutor’s Appeal 2573 , para 10. Observations of Victims Group 2 on Prosecutor’s Appeal 2574 , para. 13 (emphasis in original omitted). See also para. 33.

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religious sites, hospitals, and buildings dedicated to art and religion within the same provision’.

2575

4 Mr Ntaganda’s response to the victims

Mr Ntaganda submits that the observations of Victims Group 2, which focus on the ‘temporal parameters of the term “attack”’ pursuant to article 8(2)(e)(iv) of the

Statute should be dismissed as they are ‘misplaced’ and ‘misconceived’.

2576

He argues that by ‘acknowledging the limited origins of article 8(2)(e)(iv) of the Statute,

[Victims Group 2] reveal[] that, at core, the approach taken to the interpretation of

2577

this provision by both the Trial Chamber and the Defence is correct’.

5 The Prosecutor’s response to the victims

The Prosecutor concurs with Victims Group 2 that ‘objects entitled to special

protection under article 8(2)(e)(iv) not only benefit from protection from attacks in the

conduct of hostilities but also “other adverse conduct, such as destroying, vandalising, ransacking, or otherwise rendering [the object] unusable”’.

2578

However, she disagrees with Victims Group 2’s contention that ‘the material question merely concerns “the

2579

temporal parameters of the term ‘attack’”’.

6 The amici curiae ’s observations

In their written and oral observations, made pursuant to rule 103 of the Rules,

amici curiae presented various views on the meaning of ‘attacks’ in article 8(2)(e)(iv)

2580 2581

of the Statute. Mr Newton, Mr O’Keefe, the Association for the Promotion of International Humanitarian Law ‘ALMA’,

2582 2583

Mr Corn et al ., Ms Levina and

2584 2585 2586

Ms Vaid, Ms Jachec-Neale and Ms Bagott argue that in international

Observations of Victims Group 2 on Prosecutor’s Appeal 2575 , para. 34 (emphasis in original omitted); T-270 , p. 34, lines 15-18. Mr Ntaganda’s Response to Observations of Victims Group 2 on Prosecutor’s Appeal 2576 , paras 2, 7, 22. Mr Ntaganda’s Response to Observations of Victims Group 2 on Prosecutor’s Appeal 2577 , para. 5. Prosecutor’s Response to Observations of Victims Group 2 on Prosecutor’s Appeal 2578 , para. 19; T- 270 , p. 12, lines 14-18. Prosecutor’s Response to Observations of Victims Group 2 on Prosecutor’s Appeal 2579 , para. 2. Mr Newton’s Observations 2580 , para. 7; T-270 , p. 41, lines 2-7; p. 42, lines 15-21. Mr O’Keefe’s Observations 2581 , paras 2, 6. ALMA’s Observations 2582 , paras 3, 12. ’s Observations 2583 Mr Corn et al. , paras 10, 19; T-270 , p. 48, lines 19-25. Ms Levina’s and Ms Vaid’s Observations 2584 , para. 4. 2585 Ms Jachec-Neale’s Observations , paras 2, 10. Ms Bagott’s Observations 2586 , paras 4, 8.

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humanitarian law the term ‘attacks’ means ‘combat action’ and that this term has the

same meaning under article 8(2)(e)(iv) of the Statute.

The Public International Law and Policy Group submits that the meaning of

‘attacks’ is ‘broader in the context of hospitals and cultural property and […] must

aftermath’. 2587 account for the conduct of hostilities and its The Antiquities Coalition,

Blue Shield International and Genocide Watch argue that the term ‘attacks’ ‘should

not be narrowly interpreted’, as otherwise the Court ‘would not recognize the harm to

the victims’. 2588 Mr Heyns et al. submit that outside the conduct of hostilities the term

‘attacks’, as applicable to hospitals and cultural property, is ‘to be defined broadly as

encompassing all military operations in any armed conflict’. 2589 Ms Gamarra submits

that the term ‘attacks’ is under discussion and that some key terms of article

2590 8(2)(e)(iv) of the Statute are vague. Mr Clancy and Mr Kearney, of Al-Haq, aver

that it is not a legal element that the relevant acts took place in the context of ‘conduct

of hostilities’. 2591

C. Determination by the Appeals Chamber

The Appeals Chamber finds, by majority, Judge Ibáñez Carranza dissenting,

that the Prosecutor’s appeal should be rejected. The views of the Judges are presented

below.

1 The views of the Judges

Judge Morrison and Judge Hofmański find 2592 that the term ‘attack’ used in

article 8(2)(e)(iv) of the Statute means ‘combat action’ and that the Trial Chamber did

not err by not applying a different definition of ‘attack’. Judge Balungi Bossa

2593 considers that it was unacceptable for the Trial Chamber to find that the conduct of

hostilities ceased after the assault in Mongbwalu; for reasons set out in her separate

opinion, she declines to overturn Mr Ntaganda’s acquittal for the charge of attacking

Public International Law and Policy Group’s Observations 2587 , para. 2 (emphasis in original). Antiquities Coalition, Blue Shield International and Genocide Watch’s Observations 2588 , paras 2, 13. .’s Observations 2589 Mr Heyns et al , paras 1, 15; T-270 , p. 40, lines 4-14. Ms Gamarra’s Observations 2590 , paras 4, 20. Mr Clancy’s and Mr Kearney’s Observations 2591 , p. 4. 2592 The views of Judge Morrison and Judge Hofmański are presented in full in their separate opinion appended to this judgment. See Annex 1 , Separate opinion of Judge Howard Morrison and Judge Piotr Hofmański on the Prosecutor’s appeal. 2593 The views of Judge Balungi Bossa are presented in full in her separate opinion appended to this judgment. See Annex 4 , Separate opinion of Judge Solomy Balungi Bossa on the Prosecutor’s appeal.

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protected objects as a war crime against the hospital in Mongbwalu and the church in 2594 Sayo. Judge Eboe-Osuji is of the view that the kind of attack that the Rome Statute forbids can occur outside the course of active hostilities and he does not accept the Trial Chamber’s findings in this respect; for reasons set out in his partly concurring opinion, he declines to overturn the Trial Chamber’s dispositif on this particular 2595 matter. Judge Ibáñez Carranza partly concurs with Judge Balungi Bossa and Judge Eboe-Osuji that the Trial Chamber erred in the interpretation of the term ‘attack’ in article 8(2)(e)(iv) of the Statute, and finds that the term ‘attack’ includes the preparation, the carrying out of combat action and the immediate aftermath thereof; she would grant the Prosecutor’s appeal and would reverse the Trial Chamber’s findings in this respect.

2 The dissenting opinion of Judge Ibáñez Carranza Judge Ibáñez Carranza finds that the Prosecutor’s appeal should be granted and the Conviction Decision overturned insofar as it adopted a narrow interpretation of the term ‘attacks’ in article 8(2)(e)(iv) of the Statute, as a result of which it declined to consider the attacks on the hospital in Mongbwalu and the church in Sayo under the 2596 crime of attacking protected objects. Her opinion is informed by an interpretation that accords with the ordinary meaning of the term ‘attack’ and in the light of the object and purpose of the provision, and the Rome Statute more broadly.

The term attack is ordinarily defined as ‘ an act of using violence to try to hurt or ’ 2597 kill somebody and as ‘a violent act intended to hurt or damage someone or something’. 2598 These definitions properly reflect the common understanding of this term. Judge Ibáñez Carranza further notes article 49(1) of Additional Protocol I which stipulates that ‘attack’ means any ‘acts of violence against the adversary, whether in offence or in defence’. 2599 Judge Ibáñez Carranza considers, in line with the findings of the Pre-Trial Chamber in this case, that ‘[i]n characterizing a certain conduct as an “attack”, what matters is the consequences of the act, and particularly whether injury,

2594 The views of Judge Eboe-Osuji are presented in full in his partly concurring opinion appended to this judgment. See Annex 5 , Partly concurring opinion of Judge Chile Eboe-Osuji. 2595 The views of Judge Ibáñez Carranza are presented in full below. 2596 Conviction Decision , paras 1136, 1141-1142. 2597 https://www.oxfordlearnersdictionaries.com/definition/english/attack_1?q=attack . 2598 https://dictionary.cambridge.org/dictionary/english/attack . 2599 Additional Protocol I .

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death, damage or destruction are intended or foreseeable consequences thereof’ and

therefore

in principle, any conduct, including shelling, sniping, murder, rape, pillage, attacks on protected objects and destruction of property, may constitute an act of violence for the purpose of the war crime of attacking civilians, provided that the perpetrator resorts to this conduct as a method of warfare and, thus, that

2600

there exists a sufficiently close link to the conduct of hostilities.

In the view of Judge Ibáñez Carranza, the narrow interpretation of attack

adopted by the Trial Chamber is contrary to the object of the provision, namely to

prevent attacks against protected buildings in the context of non-international armed

2601

conflicts. Such interpretation is also at odds with the object and purpose of the

Rome Statute to put an end to impunity for the perpetrators of the most serious crimes

of concern to the international community as a whole, including for acts that are

2602

undoubtedly serious violations of international humanitarian law. Finally, the interpretation proposed would not be in line with the ‘established framework of

international law’ as stipulated in the chapeau of article 8(2)(e) of the Statute.

2603

In line with the above considerations, Judge Ibáñez Carranza is of the view that the term ‘attack’ includes the preparation, the carrying out of combat action and the

2600 Confirmation Decision , para. 46 (emphasis added and emphasis in original). See also Antiquities Coalition, Blue Shield International and Genocide Watch’s Observations , para. 7: ‘the definition of “attack” should recognize the continuous nature and duration of acts of violence carried out in continuing pursuit of an overall military objective. Crimes committed under Ntaganda’s command, both during and after the immediate “conduct of hostilities”, occurred in the context of continuing UPC/FPLC operations and thus, were part of a continuing attack’. Antiquities Coalition, Blue Shield International and Genocide Watch’s Observations 2601 See , para. 13: ‘[i]f the decision of the Trial Court is not reversed, “attacks” on cultural property under Article 8(2)(e)(iv) would not be punishable unless they occur during the immediate “conduct of hostilities” or heat of battle. If the protected site is attacked during the conduct of hostilities, the Court would recognize the harm to the victims. If the site is attacked after the heat of battle has subsided, but during continuous activities serving the military objectives of the attackers, the Court would not recognize the harm to the victims. This would not be a logical result’. See also Mr Heyns et al . Expression of Interest as Amici Curiae , pp. 5-6. Ms Gamarra’s Observations , para. 22: ‘[i]n any “attack”, including a 2602 See ratissage operation, there is [no] justification for not respecting the protected objects. Every military operation is governed by the rules of customary international law, in particular by the principles of proportionality and necessity’. See also Public International Law and Policy Group’s Observations , paras 9, 11. , para. 5: ‘the “established 2603 See Public International Law and Policy Group’s Observations framework of international law,” which shapes the meaning of all subparagraphs in Article 8(2)(e), protects hospitals and cultural property well beyond the hostilities phase of armed conflict. Under [International Humanitarian Law], such properties are protected “at all times” and against all “act[s] of hostility,” meaning all substantially detrimental “act[s] arising from the conflict” ’ (emphasis in original, footnotes omitted).

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immediate aftermath thereof, including criminal acts committed during ratissage 2604 operations carried out in the aftermath of combat action. The assaults on the hospital in Mongbwalu and on the church in Sayo committed by UPC/FPLC forces in 2605 the aftermath of combat action, fall squarely within the definition of attack under article 8(2)(e)(iv) of the Statute.

3 Overall conclusion In light of the foregoing, the Appeals Chamber by majority, Judge Ibáñez Carranza dissenting, rejects the Prosecutor’s appeal.

VI. APPROPRIATE RELIEF

In an appeal pursuant to article 81(1) of the Statute, the Appeals Chamber may confirm, reverse or amend the decision appealed or order a new trial before a different trial chamber (article 83(2) of the Statute). In the present case it is appropriate to confirm the conviction of Mr Ntaganda. With respect to Mr Ntaganda’s appeal, Judge Morrison and Judge Ibáñez Carranza append separate opinions, whilst with respect to the Prosecutor’s appeal Judges Morrison and Hofmański, as well as Judge Balungi Bossa append separate opinions. Judge Eboe-Osuji appends a partly concurring opinion with respect to Mr Ntaganda’s appeal, which also contains his separate views in relation to the Prosecutor’s appeal.

Done in both English and French, the English version being authoritative.

_____________________________ Judge Howard Morrison Presiding

, para. 2: ‘the meaning of 2604 See Public International Law and Policy Group’s Observations “attack(s)” is broader in the context of hospitals and cultural property and […] must account for the conduct of hostilities and its aftermath. This would include a ratissage operation, which is a series of acts committed outside the conduct of hostilities’ (emphasis in original). 2605 Conviction Decision , paras 500, 512, 514, 526.

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