ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 1/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 International Criminal Court
2 Appeals Chamber - Courtroom 1
3 Situation: Democratic Republic of the Congo
4 In the case of The Prosecutor v. Mathieu Ngudjolo Chui - ICC-01/04-02/12
5 Presiding Judge Sanji Mmasenono Monageng, Judge Sang-Hyun Song,
6 Judge Cuno Tarfusser, Judge Erkki Kourula and Judge Ekaterina Trendafilova
7 Appeals Chamber Hearing
8 Tuesday, 21 October 2014
9 (The hearing starts in open session at 9.30 a.m.)
10 THE COURT USHER: All rise.
11 The International Criminal Court is now in session.
12 Please be seated.
13 PRESIDING JUDGE MONAGENG: Good morning.
14 The Appeals Chamber is now in session and I would like to welcome everyone who is
15 here today in the courtroom and the public gallery, as well as everyone joining us via
16 the internet or otherwise.
17 The Appeals Chamber has authorised the taking of photographs for one minute.
18 (Pause in proceedings)
19 PRESIDING JUDGE MONAGENG: Thank you. Half-a-second. Thank you very
20 much.
21 I would now ask the court officer to call the case.
22 THE COURT OFFICER: Thank you, Madam President.
23 The situation in the Democratic Republic of the Congo, in the case of The Prosecutor
24 versus Mathieu Ngudjolo Chui, ICC-01/04-02/12.
25 We are in open session.
21.10.2014 Page 1 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 2/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 PRESIDING JUDGE MONAGENG: Thank you very much.
2 I would now invite the parties and participants at this hearing to introduce
3 themselves and we shall begin with the Office of the Prosecutor.
4 A representative of the Prosecutor, would you please introduce yourself and those
5 members of your office present?
6 MR GUARIGLIA: Good morning, Madam President, your Honours. I am
7 Fabricio Guariglia, Director of the Prosecution Division, and appearing with me today
8 are Ms Helen Brady, senior appeals counsel; Mr Eric MacDonald, senior trial lawyer;
9 Mr Reinhold Gallmetzer, appeals counsel; Ms Priya Narayanan, appeals counsel; and
10 our case manager this morning is Carmen Garcia Ramos.
11 PRESIDING JUDGE MONAGENG: Thank you.
12 The Defence of Mr Ngudjolo is invited to present the members of the team?
13 MR KILENDA: (Interpretation) Good morning, Madam President, your Honours.
14 The team for Mathieu Ngudjolo is three in number today. To my left you have
15 Mr Jean-Pierre Fofé Djofia Malewa, who is our co-counsel; just behind me you have
16 the legal assistant, Godefroid Bokolombe; and Mademoiselle Maria Manolescu, who
17 is our case manager; and myself, Jean-Pierre Kilenda Kakengi Basila, lead counsel.
18 PRESIDING JUDGE MONAGENG: Thank you, Mr Kilenda.
19 The representative of the principal group of victims?
20 MR NSITA: (Interpretation) Thank you, Madam President. Your Honours, I am,
21 as Madam President just said, the legal representative of -- the Common Legal
22 Representative for the main group of victims in this case and the rest of my team is
23 out in the field currently in Ituri and I've just returned from there myself.
24 Thank you.
25 PRESIDING JUDGE MONAGENG: Thank you.
21.10.2014 Page 2 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 3/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 The legal representative of former child soldier victims?
2 MR GILISSEN: (Interpretation) Good morning, Madam President. Good
3 morning, your Honours.
4 My name is Jean-Louis Gilissen, I am a lawyer with the Liège Bar. I am
5 accompanied by Maître Julie Goffin who is my case manager. And thank you for
6 allowing me to take the floor at the beginning of this hearing.
7 PRESIDING JUDGE MONAGENG: Thank you very much.
8 For the record, I am Sanji Mmasenono Monageng, Presiding Judge in the final appeal
9 proceedings in the case of Prosecutor against Mathieu Ngudjolo Chui. Seated on my
10 immediate right is Judge Song and on his right Judge Kourula. On my immediate
11 left is Judge Tarfusser and next to him is Judge Trendafilova. And seated in front of
12 the Bench and to my right is Bruno Zehnder, legal officer, and to my left is Natasha
13 Naidoo, also legal officer of the Appeals Chamber, and next to her is Volker Nerlich,
14 legal adviser to the Appeals Chamber.
15 We are also joined today by staff, including the court officer, court usher, interpreters,
16 stenographers and security officers who I welcome and thank for their assistance.
17 I will briefly explain how the hearing will be conducted. The hearing of the Appeals
18 Chamber is scheduled to last a day. We will commence with the hearing of
19 submissions from the parties and participants on the issues arising in this appeal. At
20 the end of today's hearing, Mr Ngudjolo will also have the opportunity to address the
21 Appeals Chamber.
22 I will first make a few general remarks on behalf of the Bench. The parties and
23 participants are reminded that they are expected to confine their submissions to the
24 issues raised on appeal and complete their submissions within the time frame set by
25 the Appeals Chamber.
21.10.2014 Page 3 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 4/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Furthermore, the parties and participants are reminded to be cognizant of the fact that
2 the proceedings are being translated and they are required to speak at a reasonable
3 rate to facilitate this.
4 Finally, it is recalled that pursuant to the, and I quote, "Order in relation to the
5 conduct of the hearing before the Appeals Chamber," end of quote, the parties are to
6 maintain confidentiality in relation to protective measures in place with respect to
7 certain witnesses and the documents cited in the appeal that relate to the third ground
8 of appeal, in particular, Trial Chamber II's decisions and the Registry monitoring
9 reports.
10 To this end, the parties and participants are hereby informed that the entirety of the
11 submissions that relate to the third ground of appeal will be heard in private session.
12 In this regard, be informed that the Appeals Chamber is currently reviewing the level
13 of confidentiality of all the documents related to the third ground of the appeal and
14 will issue orders in due course with a view to making these documents public to the
15 extent possible.
16 We will now proceed with hearing the submissions of the Prosecutor.
17 Representative of the Prosecutor, you now have the floor for the next 45 minutes.
18 MR GUARIGLIA: Before I start with my submissions, your Honour, may I have a
19 point of clarification? Our understanding of your Honours' order from 17 October
20 was that any reference to the reports had to be made in closed session in
21 relation -- and that's how we also proceeded to redact our core documents, but our
22 understanding was also that the decisions from the Trial Chamber could be referred
23 to in open session. So we were expecting that at least half of the third ground of
24 appeal could be argued publicly. Now, that seems to be at odds with the instruction
25 that we just got from you and I was wondering whether there's been some confusion
21.10.2014 Page 4 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 5/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 as to the different orders, or whether we simply misunderstood your order?
2 PRESIDING JUDGE MONAGENG: The Judges, after what happened last week, we
3 have taken a very informed decision that ground 3 shall be in closed session. So if
4 you are going to be referring to documents that have anything to do with the third
5 ground and that are confidential -- as far as decisions that are confidential, if you are
6 going to refer to them during your submissions in grounds 1 and 2, we have to go
7 into private session, but as for ground 3, we are totally in private session.
8 MR GUARIGLIA: Of course --
9 PRESIDING JUDGE MONAGENG: Because --
10 MR GUARIGLIA: Of course we will do whatever the Chamber --
11 PRESIDING JUDGE MONAGENG: Counsel --
12 MR GUARIGLIA: -- instructs us to do.
13 PRESIDING JUDGE MONAGENG: -- these decisions are confidential. They are
14 still classified confidential.
15 MR GUARIGLIA: That is correct.
16 PRESIDING JUDGE MONAGENG: Yes.
17 MR GUARIGLIA: However, what will happen effectively is I will have to refer in
18 closed session to paragraphs of our brief that on the basis of your decision from
19 Friday are not redacted so there is going to be mismatch, so to speak, between what is
20 available to the public in written form and to what will be available to the public
21 today in our hearing.
22 PRESIDING JUDGE MONAGENG: I think --
23 MR GUARIGLIA: But I'm not asking for reconsideration.
24 PRESIDING JUDGE MONAGENG: Yes. I think --
25 MR GUARIGLIA: We will follow your instructions.
21.10.2014 Page 5 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 6/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 PRESIDING JUDGE MONAGENG: I think for as long as we are referring to a
2 document that is classified confidential we can go into private session --
3 MR GUARIGLIA: I will do that.
4 PRESIDING JUDGE MONAGENG: -- but what is important is that we maintain the
5 level of confidentiality until the Chamber has taken a firm decision on what should go
6 public, which we are hoping will be --
7 MR GUARIGLIA: And I will follow your guidance, your Honour.
8 PRESIDING JUDGE MONAGENG: Yes, thank you very much.
9 MR KILENDA: (Interpretation) With your authorisation, Madam President?
10 With regard to the third ground of appeal, we shall of course scrupulously respect
11 your decision, but we request that the introductory statement of our reply to this third
12 ground of appeal be public and we shall not mention any confidential elements
13 therein.
14 PRESIDING JUDGE MONAGENG: Counsel, if we are to conduct this hearing
15 professionally, everything to do with the third ground will be in private session. A
16 lot of thought, like I'm saying, went into -- into these considerations, so let us not
17 confuse the record, the interpreters, and everybody and the Judges for that matter.
18 We thought about it, the third ground of appeal, whether it's an introductory or the
19 substance, will be in private session. And be assured, like I'm saying, that at a later
20 stage everything -- or, whatever is -- should be in the public will be in the public and
21 we are hoping that we will do that as we deliver the judgment. Thank you very
22 much.
23 Prosecution, please?
24 MR GUARIGLIA: Thank you, your Honour.
25 Your Honours, this appeal raises matters of critical importance for the Court as a
21.10.2014 Page 6 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 7/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 whole. It raises fundamental questions as to the manner in which a Trial Chamber
2 must conduct trial proceedings and, upon their completion, assess the evidence
3 presented and reach a finding of guilt or innocence.
4 The problem here, your Honours, is not that Mathieu Ngudjolo was acquitted.
5 Acquittals are a normal component of any criminal justice system, national or
6 international. This is not the reason why the Prosecution has brought this appeal.
7 This case is before you because the acquittal is the result of fundamental legal
8 procedural and factual errors which collectively amount to a miscarriage of justice;
9 errors which must be corrected by this Chamber not only for the benefit of this case
10 but also to prevent that the flaws lying at the core of the Trial Chamber's judgment
11 affect other cases before this Court.
12 In this case, your Honours, the Trial Chamber effectively imposed a standard of proof
13 beyond any doubt, no matter how fanciful or speculative in violation of Article 66.
14 This error lies at the core of the Prosecution's first ground of appeal.
15 But the Chamber did not stop there. It also declined to consider the evidence in its
16 totality and to verify how the individual pieces of evidence and the findings made by
17 the -- by the Chamber corroborated each other. Instead, the Chamber adopted a
18 piecemeal approach analysing each piece of evidence in isolation and failing to make
19 even the most basic connections between them. This flawed approach to the
20 assessment of the evidence and the fact-finding process lies at the heart of the
21 Prosecution's second ground of appeal.
22 Finally, the Chamber compounded these errors with a clear violation of the
23 Prosecution's right to a fair trial. In the face of clear and compelling evidence
24 showing the existence of a campaign of witness interference and evidence fabrication
25 led by Ngudjolo from the detention centre, the Chamber not only took no steps to
21.10.2014 Page 7 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 8/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 enquire into the matter or take any other type of meaningful remedial action. The
2 Chamber also denied the Prosecution full access to the reports documenting activities
3 and making things even worse for the Prosecution, refused to allow counsel to
4 properly explore in court the issues of witness interference and collusion when the
5 witnesses were testifying.
6 As a result, the Chamber made findings on the credibility of affected witnesses on the
7 basis of an incomplete record --
8 PRESIDING JUDGE MONAGENG: Counsel, are we not now going on to the third
9 ground?
10 MR GUARIGLIA: No, your Honour, I will enter into the third ground in a moment.
11 PRESIDING JUDGE MONAGENG: No, no, no. I am saying your introduction, is
12 that now not part of the third ground?
13 MR GUARIGLIA: But this the -- what is already in the public and it is only an
14 introduction. The details -- no details are being discussed in this introduction, your
15 Honour.
16 PRESIDING JUDGE MONAGENG: Okay.
17 MR GUARIGLIA: Thank you.
18 This defective process which was seriously detrimental to the Prosecution's fair trial
19 rights is the object of the Prosecution's third ground of appeal.
20 Your Honours, Mr Gallmetzer will discuss the first and second grounds of appeal. I
21 will subsequently deal with the third ground in private session and, to complete the
22 Prosecution's submissions, Ms Helen Brady will address the issue of remedies.
23 Mr Gallmetzer will have to submit from the back bench for logistical reasons.
24 MR GALLMETZER: Good morning, your Honours.
25 As its first ground of appeal, the Prosecution submits that the Chamber incorrectly
21.10.2014 Page 8 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 9/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 interpreted and applied the standard of proof according to which guilt must be
2 established beyond reasonable doubt. Although the Chamber correctly paraphrased
3 Article 66(3), it effectively required proof beyond any doubt.
4 Reasonable doubt, your Honours, is not a mere hypothetical or speculative doubt. It
5 means that an inference competing with a finding of guilt must be founded on logic,
6 reason and common sense, and it must be based on evidence or lack thereof.
7 During this hearing, I will focus on one key example to demonstrate the error; namely,
8 the Chamber's findings with respect to Ngudjolo's admission to Witness 317, who is a
9 UN Human Rights investigator who talked to Ngudjolo on 4 April 2003 while
10 investigating the crimes committed at Bogoro.
11 317 testified that Ngudjolo admitted to her that he had organised the Bogoro attack.
12 He also explained why he did that, namely to protect the Lendu villages around
13 Bogoro from attacks by the UPC.
14 The Chamber found 317 to be credible and accepted that Ngudjolo made that
15 admission to her. However, instead of accepting Ngudjolo's admission as proof that
16 Ngudjolo was the leader of the group attacking Bogoro, it entertained three
17 unreasonable and speculative doubts; namely, that Ngudjolo's admission was too
18 general, that Ngudjolo could have lied and that his admission was inconsistent with
19 another admission that he made later.
20 By entertaining such fanciful doubts, the Chamber erred in law and in fact. The first
21 unreasonable doubt is that the admission was too general to draw definite
22 conclusions on Ngudjolo's authority over the fighters at Bogoro.
23 Your Honours, Ngudjolo admitted that it was he who had organised the attack and
24 he explained that he did so for strategic reasons. He also said that, in his view,
25 Bogoro was a legitimate military target. The very terms of this admission directly
21.10.2014 Page 9 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 10/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 demonstrate Ngudjolo's leadership. One cannot organise an attack under this
2 understanding without being the leader of the group that carries out the attack.
3 In addition, the admission of Ngudjolo must be considered in the broader context in
4 which it was made and in light of all the evidence. Most importantly, the Chamber
5 accepted that on 18 March, just over three weeks after the Bogoro attack, Ngudjolo
6 signed a peace agreement on behalf of his Lendu community. He did so under the
7 rank of colonel. According to the Chamber, this proved that Ngudjolo carried out
8 duties associated with that rank.
9 The Chamber also accepted that between 6 and 11 March, and that is now just 10 days
10 after the Bogoro attack, Ngudjolo attended a meeting with General Kayihura of the
11 Ugandan army who asked him to be disciplined and to remain on his territory.
12 Moreover, Ngudjolo took the floor at that meeting by interrupting Commander Dark,
13 who was one of the commanders who participated in the Bogoro attack, and he
14 presented himself as a military man. The Chamber found that these are all signs of
15 just how important Ngudjolo was at the date so close to the Bogoro attack.
16 Accordingly, the Chamber accepted that Ngudjolo was a senior military leader of the
17 fighters from Zumbe shortly after the Bogoro attack, but prior to, and independently
18 from, his later appointment as the Chief of Staff of the FNI-FRPI Alliance on 22 March.
19 On that basis, the only reasonable conclusion is that Ngudjolo had the same position
20 also shortly before when Bogoro was at attacked. This is particularly the case
21 because there is no evidence on the record that Ngudjolo was promoted to the rank of
22 colonel after the Bogoro attack, but before 18 March. Nor did the Defence ever make
23 that claim. A finding to that effect would be pure speculation.
24 Moreover, the Chamber made a number of findings that Ngudjolo held important
25 functions already prior to the attack, including the authority to be involved in its
21.10.2014 Page 10 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 11/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 preparation, and it also found that Ngudjolo did not obtain a senior military rank
2 merely through a combination of lack of and opportunism.
3 As a result, your Honours, it is wholly unreasonable to find that Ngudjolo's
4 admission is too general and to dismiss it altogether. His admission that he
5 organised a Bogoro attack can reasonably not be interpreted as anything else than
6 evidence that corroborates that Ngudjolo was the leader of the fighters that carried
7 out the Bogoro attack.
8 The second unreasonable doubt that Ngudjolo, when admitting to having organised
9 the attack, could have lied is in the first place based on no evidence. Ngudjolo's own
10 suggestion that he sometimes lied, for example concerning his part in the Bunia attack,
11 is irrelevant. The Chamber expressly rejected this portion of his testimony and it can
12 therefore not be relied for any purposes.
13 Likewise the statement of Defence Witness 11, who falsely claimed responsibility for
14 the Bogoro attack, is also irrelevant. It is wholly unreasonable to consider the lie of
15 one person as proof that another person is lying.
16 In addition, and as a separate consideration, the Chamber's speculation that Ngudjolo
17 could have lied to bolster his position in case of a possible integration in the
18 Congolese army is wholly unreasonable. Ngudjolo did not have the ascribed motive
19 to lie. The Chamber found that at the time of the admission he was among the
20 highest ranking officers in the FNI-FRPI Alliance. Moreover, Ngudjolo in his
21 testimony denied having met 317. Why would he do that if there was a reasonable
22 explanation for his admission?
23 Finally, the Chamber found that Ngudjolo's proof -- Ngudjolo's admission is proof of
24 his involvement in the preparation of the attack. It thereby accepted its veracity
25 which contradicts a finding that Ngudjolo may have lied.
21.10.2014 Page 11 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 12/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Your Honours, even the evidence of 317 itself demonstrates that Ngudjolo was got
2 trying to bolster his involvement in the attack, but he was trying to defend himself to
3 a UN Human Rights investigator. While admitting that he organised the attack for
4 strategic reasons, he claimed that Bogoro was a legitimate military target and that
5 everyone was there -- everyone there was armed, including women and children.
6 The third unreasonable doubt is that Ngudjolo's admission is inconsistent with his
7 other admission to a DRC prosecutor where he accepted to have led the Bunia attack
8 of 6 March 2003, but where he did not also refer to his involvement at Bogoro. This
9 doubt, your Honours, is predicated on the assumption that, to be credible, each of
10 Ngudjolo's admissions must cover all separate events in which he was involved.
11 This is wholly unreasonable.
12 If assessed correctly, Ngudjolo's two admissions corroborate each other. They go to
13 prove that he was the leader of the same fighters that attacked both Bogoro and Bunia
14 within a very short period of time.
15 Taken together, your Honours, these three unreasonable doubts demonstrate the
16 Chamber's loss of perspective as to the proper meaning of the applicable standard of
17 proof.
18 Turning now to the second ground of appeal, the Chamber erred by failing to
19 consider the totality of evidence and facts for its decision-making. While the
20 Chamber articulated the correct legal principles, it erred by not applying them. This
21 is an error of law. Even if it is demonstrated by a number of factual examples, this
22 does not transform it into an error of fact, nor does it have an impact on the applicable
23 standard of review.
24 Accordingly, the Chamber should not defer to the Trial Chamber's discretion on the
25 application of the legal principles, but it should come to its own conclusions.
21.10.2014 Page 12 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 13/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Therefore, the question on the legal error before you is not whether the Chamber's
2 findings were reasonable by deferring to its discretion. The sole issue is whether the
3 Trial Chamber erred by failing to consider evidence or findings that are clearly
4 relevant, namely, facts and findings that clearly relate to matters under consideration.
5 In this case, the Chamber erred by selectively considering evidence that supported its
6 conclusions while systematically disregarding clearly relevant facts and evidence that
7 militate against it.
8 While Rule 66(4) provides that a Chamber cannot impose a requirement for
9 corroboration to prove a fact, a Chamber has no discretion to disregard corroborative
10 evidence.
11 In our brief, we have referred to many examples showing this error. At this point, I
12 would like -- I would like to highlight the facts surrounding our first ground of
13 appeal that I have referred to before. They demonstrate that the Chamber failed to
14 consider its own findings that are clearly relevant to properly assess Ngudjolo's
15 admission that he organised the Bogoro attack.
16 That example, your Honours, is striking because the Chamber declined to draw any
17 inference from Ngudjolo's admission because it was unable to draw a definite
18 conclusion as to Ngudjolo's authority based on that piece of evidence alone. This
19 clearly shows the Chamber's incorrect approach to evidence. It is as if one would
20 deny the existence of a forest because each tree looked at individually does not prove
21 that there is a forest.
22 Moreover, when assessing the weight of the testimony of Witness 250, the Chamber
23 failed to consider clearly relevant evidence that corroborates his account on
24 Ngudjolo's authority over the fighters who attacked Bogoro. It also disregarded
25 evidence that is relevant to demonstrate that 250 was not a student at the time, but a
21.10.2014 Page 13 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 14/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 militiaman who participated in the Bogoro attack.
2 My colleague, Mr Guariglia, in closed session will talk about other critical evidence
3 that the Chamber disregarded and which had a significant and material impact on
4 assessing the credibility of 250 and other Defence witnesses.
5 Without saying anything more that would potentially go to the third ground of
6 appeal, I hand the word over to Mr Guariglia.
7 MR GUARIGLIA: Your Honours, maybe this would be a suitable time to move to
8 private session in order to prevent any conflict with your Honours' ruling from this
9 morning?
10 PRESIDING JUDGE MONAGENG: Are you doing the third ground?
11 MR GUARIGLIA: I am doing the third ground now, yes.
12 PRESIDING JUDGE MONAGENG: Yes, yes.
13 (Private session at 10.01 a.m.)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Redacted)
24 (Redacted)
25 (Redacted)
26 21.10.2014 Page 14 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 15/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 15 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 15 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 16/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 16 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 16 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 17/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 17 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 17 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 18/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 18 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 18 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 19/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 19 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 19 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 20/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 20 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 20 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 21/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 21 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 21 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 22/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 22 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 22 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 23/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 23 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 23 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 24/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 24 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
26
21.10.2014 Page 24 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 25/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 25 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 25 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 26/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Open session at 10.26 a.m.)
13 THE COURT OFFICER: We are in open session, Madam President.
14 MS BRADY: Thank you, your Honour. If I may, I may start again so that my
15 submissions are in public session.
16 Your Honours, in the remaining short time available, I will be addressing you on the
17 remedy the Prosecution is seeking if you uphold the Prosecution's appeal.
18 We're asking the Appeals Chamber to use its powers under Article 83(2)(b) to order a
19 retrial; that is, a new trial before a newly constituted Trial Chamber, and for reasons I
20 will explain in a moment such a trial, such a new trial, need not be time-consuming or
21 resource intensive.
22 Your Honours, the nature, scope and volume of errors committed by the Trial
23 Chamber in this case call for a new trial. In a case like this, where the Trial
24 Chamber's errors have tainted the whole of the Trial Chamber -- trial judgment,
25 excuse me, and a complete reassessment of the relevant facts is required, the Appeals
26 21.10.2014 Page 26 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 27/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Chamber is not best suited for this task but, rather, a new trial before a new Trial
2 Chamber is called for.
3 The situation is similar to the case of Muvunyi in the ICTR where a retrial following
4 appeal was ordered. In that case the Appeals Chamber noted that a retrial was an
5 exceptional remedy and noted that the accused had already served considerable time
6 in detention but nevertheless held and I quote, "That the alleged offence is of the
7 utmost gravity and interests of justice would not be well served if a retrial were not
8 ordered to allow the trier of fact the opportunity to assess the entirety of the relevant
9 evidence and provide a reasoned opinion." That's at paragraph 148.
10 And the situation is also similar to the case mentioned by my colleague, the Haradinaj
11 case at the ICTY, where the Appeals Chamber ordered a partial retrial against the
12 three accused on counts which they had found were materially affected by the Trial
13 Chamber's failure to adequately counter a campaign of witness intimidation in the
14 original trial.
15 An additional reason to send this case back to a Trial Chamber for a new trial is that
16 no Trial Chamber has yet considered the remaining elements of the charged crimes
17 and modes of liability. Your Honours will be aware from the trial judgment that the
18 Trial Chamber really got no further in its analysis than Ngudjolo's position of
19 leadership over the Lendu fighters who attacked Bogoro that day and not being
20 satisfied on that matter it stopped there. So a new Trial Chamber hearing the
21 evidence in a new trial would be best suited to do this.
22 In addition to remitting the case for retrial, you could also use your powers under
23 Article 83(2)(a) to enter the factual finding as to Ngudjolo's leadership position at the
24 relevant time having found that that was the only reasonable conclusion, or
25 alternatively you could also leave that finding as one to be decided by the newly
21.10.2014 Page 27 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 28/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 convened Trial Chamber.
2 Your Honours, the exact scope and nature of any retrial will of course depend on
3 what this Appeals Chamber decides. To redress grounds 1 and 2, the Appeals
4 Chamber should instruct any new Trial Chamber to apply the correct legal standard
5 of proof and legally correct approach to the assessment of the evidence, and to
6 address the errors in ground 3 the Appeals Chamber should also make appropriate
7 orders in relation to the Registry reports.
8 Your Honours, mindful of the order this morning and out of an abundance of caution,
9 I will just very briefly for a minute need to go into private session when I discuss the
10 remedy for ground 3.
11 PRESIDING JUDGE MONAGENG: Thank you. We should also be mindful of the
12 fact that we are now eating into the Defence time.
13 MS BRADY: Yes.
14 PRESIDING JUDGE MONAGENG: Court officer, let's go into private session.
15 Very briefly, Counsel.
16 (Private session at 10.31 a.m.)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Redacted)
24 (Redacted)
25 (Redacted)
21.10.2014 Page 28 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 29/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Open session at 10.32 a.m.)
15 THE COURT OFFICER: We are in open session, Madam President.
16 PRESIDING JUDGE MONAGENG: Okay.
17 MS BRADY: Thank you. Your Honours, a retrial need not be time-consuming or
18 resource intensive. First, given the extensive records of proceedings, including
19 audio-visual recordings, the new Trial Chamber could rely on Article 68 and 69 of the
20 Statute and Rule 68 and 69 of the Rules of Procedure and Evidence to as far as
21 possible admit evidence heard by the original Trial Chamber, at least that which was
22 not affected by the errors.
23 And in regard to calling new evidence, the Appeals Chamber, this Chamber, could
24 direct the new Trial Chamber to consider any potential prejudice that the admission
25 of any new evidence could have on an accused's fair trial rights and even limit the
21.10.2014 Page 29 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 30/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 scope of the issues and evidence, the new evidence that the Trial Chamber may hear,
2 and in this regard I point your Honours to the authorities on our list, from the list of
3 authorities from the Haradinaj and Muvunyi decisions on the scope of evidence in the
4 retrial.
5 In summary and in conclusion, a retrial would be both fair to parties and participants
6 and reflect a number of key objectives. Ngudjolo was charged with very serious
7 crimes. The Prosecution should be entitled to have a fair trial on those serious
8 crimes. The victims and international community also have an interest in seeing
9 justice pursued in this case and, if he were convicted following a retrial, he could get a
10 significant sentence, which far outweighs the time he's already spent in detention.
11 Nor is Mr Ngudjolo prejudiced by this course where the Trial Chamber's error as here
12 has tainted the whole trial judgment and no Trial Chamber has ever made findings on
13 the majority of the elements of the charged crimes and modes, it is procedurally more
14 desirable that a new Trial Chamber and not the Appeals Chamber make such new
15 findings. He of course would have the right to appeal any conviction rendered.
16 The new trial Chamber could make full use of the Statute and Rules thereby making
17 any new trial time and cost effective.
18 Your Honours, those are the Prosecution's submissions on the remedy and it also
19 completes the Prosecution's submissions in the appeal.
20 Thank you very much.
21 PRESIDING JUDGE MONAGENG: Thank you very much.
22 This is the end of the Prosecution's submissions. And we might be asking the
23 interpreters to bear with us. We are running behind schedule.
24 Mr Kilenda, you now have the floor for the next 45 minutes.
25 Mr Kilenda? Oh.
21.10.2014 Page 30 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 31/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 MR FOFÉ: (Interpretation) It will be Professor Fofé who takes the floor first,
2 Madam President, and I thank you.
3 Good morning, Madam President, your Honours, and thank you for allowing me to
4 address the Court.
5 We are each entrusted with the mission before this high judicial body of submitting
6 relevant contributions to enable you to render your judgment in full respect of the
7 legal principles provided for in the Statute of the Court. This will enable your
8 decision to render justice in a fair and authoritative manner in respect of the law.
9 This is our only concern, our sole leitmotif.
10 It is true that lawyers like to wrangle, but when faced with a well-structured judicial
11 soundly-reasoned legal decision that is respectful of fundamental legal principles, as
12 is the case for the judgment rendered by Trial Chamber II of the ICC on
13 18 December 2012, one must have the intellectual honesty to recognise these qualities
14 and acknowledge the work accomplished in a patient, impartial and discerning
15 manner by three professional and experienced judges.
16 Attempting to criticise and attack this judgment is a hazardous undertaking, a
17 hazardous undertaking that has no chance of success. Unfortunately, this is the path
18 chosen by the Prosecution, who advances three grounds of appeal devoid of any solid
19 foundation.
20 Madam President, your Honours, we have sufficiently demonstrated the falseness of
21 these allegations in our written submissions. We shall orally explain the salient
22 points of our arguments in three stages. Maître Kilenda will address the third
23 ground, legal assistant Mr Bokolombe will address the second ground and I will
24 commence by addressing the first. And I shall first put the following question: In
25 its judgment of 18 December 2012 acquitting Mathieu Ngudjolo, did Trial Chamber II
21.10.2014 Page 31 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 32/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 misapply the criminal standard of proof? We say it did not. It did not.
2 According to the Prosecution, Trial Chamber II erred in law in its application of
3 Article 66(3) by misinterpreting the legal standard of guilt beyond a reasonable doubt
4 requiring, as it stated, absolute certainty or in creating it would seem an artificial form
5 of doubt that is not supported by the record of the case and which what is more defies
6 all logic or common sense.
7 As a result of this legal error, the Prosecution alleges that the Chamber entered
8 defective factual findings that no reasonable trier of fact would have reached, thereby
9 also committing a factual error.
10 The Prosecution's criticism is totally unfounded, unfounded. An objective analysis
11 of the judgment dated 18 December 2012 clearly shows that Trial Chamber II did not
12 commit any error whatsoever of law in its judgment.
13 Trial Chamber II correctly applied the criterion of proof beyond reasonable doubt as
14 set out in Article 66(3) of the Statute. Trial Chamber II reached all of it conclusions
15 by correctly fulfilling its duty of assessment, that is to say in examining all the
16 evidence pursuant to Article 74(2) of the Statute. Mr Bokolombe, our legal assistant,
17 will return to this when covering the second ground of appeal.
18 The element of doubt experienced by the Chamber upon completing its assessment of
19 the totality of the evidence is a reasonable doubt which is patiently explained based
20 on contradictions, on inconsistencies and the implausibility of the Prosecution
21 evidence.
22 This doubt is also based on falsehoods and proven lies which totally invalidate the
23 Prosecution's key witnesses and notably P-250, P-279 and P-280, in addition to other
24 Prosecution witnesses, to the extent that in its assessment the Chamber did not even
25 need to take into account the infringements of the intermediaries P-143 and P-183,
21.10.2014 Page 32 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 33/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 who incited these witnesses to lie.
2 Contrary to that maintained by the Prosecution, Trial Chamber II did not commit any
3 error of law, none whatsoever. All of these factual findings are based on evidence in
4 the record. In assessing a witness, the Trial Chamber exercised its discretion by
5 deeming the witness credible on certain points whilst failing to grant any probative
6 value to other points of the testimony.
7 The Chamber adhered strictly to jurisprudence previously confirmed on a number of
8 occasions in the Kupreškic, Musema and Kajelijeli judgments.
9 Any reasonable judge having assessed the evidence tendered would have reached the
10 same conclusions as Trial Chamber II in the light of the Prosecution's admission of
11 failure in its closing arguments and having listened to the decisive words of
12 Mathieu Ngudjolo's former co-accused. They would have reached precisely the
13 same conclusions.
14 One should recall that as true experienced professionals, the Judges of Trial Chamber
15 II gave over point six of the judgment to the assessment of the Prosecution
16 investigations into the attack on Bogoro, on 24 February 2003, in which they claim to
17 have made various findings which it considers material to a better understanding of
18 the judgment.
19 These findings are actually complaints of which there are five in number. First of all,
20 the Prosecution did not visit Bedu-Ezekere or Aveba, the two localities from which
21 Ngudjolo and Katanga respectively hail. This visit would have enabled a true
22 assessment of the reality of the facts ascribed to the accused by the witness.
23 Secondly, the Prosecution omitted to interview the commanders who played a central
24 role before, during and after the attack on Bogoro whilst these soldiers and these
25 military commanders were accessible to them.
21.10.2014 Page 33 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 34/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Thirdly, the Prosecution did not interview Mathieu Ngudjolo himself, thereby
2 depriving the Chamber of the opportunity to collate the witness's previous statements
3 with those taken under oath as a witness in his own trial.
4 Fourthly, the Prosecution failed to establish the marital status and the educational
5 background of its own witnesses, in particular those it was presenting as child
6 soldiers or members of militia notably; notably Witnesses 279 and 280, but also 250.
7 It is the two Defence teams which successfully filled this essential task, as noted in
8 paragraph 121 of the judgment.
9 Fifthly, the Prosecution neglected to analyse from the outset socio-cultural elements
10 which would have prompted a more informed adversarial debate from the outset.
11 In its appeals brief and in its reply to the Defence, the Prosecution does not challenge
12 the Judges' implacable findings. Rather, it makes a desperate attempt to provide an
13 assessment regrettably devoid of any legal basis of the credibility of its witnesses
14 whose ability to testify in a consistent and convincing manner to the facts of the case
15 was found to be non-existent by Trial Chamber II.
16 The Prosecution exceeds its powers and alongside the legal representatives for
17 victims embarks upon an assessment or, more clearly, upon an assessment of the
18 assessment made by the Chamber of the evidence in the case.
19 In concrete terms, the Prosecution conducts a personal analysis of the evidence which
20 is biased in the sense that it concentrates merely on inculpatory elements. In reality,
21 the Prosecution is requesting the Appeals Chamber to favour the Prosecution's
22 assessments over the global, reasoned, neutral, impartial, fair and acquittable
23 assessment provided by Trial Chamber II, yet the Prosecution fails to indicate any
24 legal provision allowing for this.
25 It would not have been possible either for the Judges of this Chamber to forget the
21.10.2014 Page 34 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 35/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Prosecution's public oral submissions which, in front of the Chamber, clearly
2 demonstrated how it had failed to prove its essential factual allegations beyond all
3 reasonable doubt; for example, when answering a question from the Judges on the
4 crucial matter of defining what the Prosecution referred to as Lendu militia, which it
5 said sided with the FRPI based in the Walendu-Bindi collectivity, the Prosecution
6 drew an entirely blank page publicly demonstrating thereby its inability to prove
7 beyond all reasonable doubt.
8 The Prosecution publicly recognised that it had not shown any light and that it had
9 not clarified the situation out in the field, that it did not know the real situation which
10 prevailed at the time and that he had no proof in support of his allegations, or of all
11 the circumstances of the case beyond all reasonable doubt. This is an admission of
12 failure.
13 In the light of the expressions used by the Prosecution in his final arguments, we were
14 able to impress upon the Judges that one does not convict an individual on the basis
15 of possibility, or probability. The evidence is only relevant if it excludes all other
16 possibilities as illustrated clearly in the Delalic judgment.
17 It is yet more surprising to note that the Prosecution drew no conclusions from the
18 testimony of Germain Katanga, who made two significant statements inter alia. First
19 of all, Germain Katanga acknowledged in his final statements, that is in written form,
20 having made a considerable contribution to the UPC -- to the APC and EMOI plan to
21 dislodge the UPC from Bogoro, he clearly stated that Mathieu Ngudjolo played no
22 role in this plan. It is on this basis that Trial Chamber II decided to sever the two
23 cases in its decision number 3319 which remains unchallenged by the Prosecution.
24 Secondly, in his testimony, Germain Katanga gave the names of the main individuals
25 involved in the planning and execution of the attack on Bogoro of 24 February 2003.
21.10.2014 Page 35 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 36/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 His statements, the statements of Germain Katanga, taken under oath are
2 corroborated by documentary evidence admitted into the record and taken into
3 account by the Judges, notably exhibit EVD-D03-00136 supported by documents
4 EVD-D02-147, 148, 202, 203, 149, et cetera.
5 At 14 hours -- at quarter-to-3, Madam President, we shall be responding to the
6 Prosecution with regard to the alleged admission to -- by Ngudjolo to Witness P-317.
7 We shall come back to that.
8 To conclude, Madam President, your Honours, I would like to underscore the various
9 failings noted by the Chamber with regard to the investigations led by the
10 Prosecution which was reinforced by the Prosecution's public acknowledgment of the
11 difficulties associated with the evidence. This and the rigorous analysis of the
12 totality of the evidence resulted in a consolidated finding of reasonable doubt
13 amongst the Judges of Trial Chamber II. These Judges unanimously decided to
14 acquit Mr Ngudjolo.
15 The Chamber's reasoning is more than sufficient and consistent with regard to all
16 subjects under discussion. It reached the necessary conclusion and there is no
17 contradiction between the grounds and the disposition.
18 For these reasons, the Defence respectively requests your august Chamber to rule that
19 the Prosecution's first ground of appeal is unfounded and to, quite simply, dismiss it.
20 Likewise, the Defence will be requesting the same dismissal of the second and third
21 grounds to be analysed by our legal assistant, Mr Bokolombe, and my learned
22 colleague, lead counsel, Maître Kilenda.
23 Thank you, Madam President, your Honours.
24 PRESIDING JUDGE MONAGENG: Thank you, Counsel.
25 You have the floor, Counsel.
21.10.2014 Page 36 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 37/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 MR BOKOLOMBE: (Interpretation) Your Honour -- your Honours, Judges, I
2 would like to go on to the second ground put forward by the Prosecutor after reading
3 the request to the Prosecutor addressed to your Chamber requesting the holding of a
4 public hearing. I spoke on the phone to Maître Kilenda with regard to the position
5 that had been adopted and I said to him that I imagined that the Prosecutor was
6 going to take this opportunity to ask -- to officially ask and solemnly ask for a
7 withdrawal of the appeal against Mr Katanga. I imagined to the extent through
8 withdrawing this appeal against Germain Katanga, through doing so, he was going to
9 cut the umbilical cord binding the case to Bogoro, and so as far as I was concerned
10 there was no reason or ground to continue to support the appeal.
11 Now, Mr Kilenda on the other hand was more realistic than myself, said, and he was
12 convinced, thereof that the Prosecutor was going to maintain his decision to support
13 the untenable and so this was an occasion for myself to greet Mr Kilenda's realism
14 and to respond quickly to this second ground which was presented by the Prosecutor.
15 To sum-up, the Prosecutor claims that the Trial Chamber erred in fact and in law with
16 regards to the facts. The Prosecutor claims or alleges that the Trial Chamber
17 committed an error by not considering the entire body of evidence in the case and for
18 above all not having taken into account the testimony of the Witness 250.
19 When you see the evidence that the Prosecutor addresses in support of these grounds,
20 you can see very quickly that this ground is completely unfounded and that it is,
21 rather, the Prosecutor who is making selective grounds on just some of the statements
22 and taken them out of context from the rest of the other evidence as presented by his
23 own witnesses as well as presented by the Defence.
24 And the Chamber - the Trial Chamber - examined all of the evidence in its judgment
25 of 18 December 2012. The Trial Chamber said that it had examined 643 exhibits
21.10.2014 Page 37 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 38/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 which got an EVD number; 261 of them came from the Prosecutor, 240 of them came
2 from the Defence of Mr Germain Katanga, and 132 of them came from our Defence, as
3 well as the transcripts of hearings.
4 For the Defence, that is what constitutes the entire body of evidence. It is not just a
5 few targeted statements of one or two particular witnesses which constitute the entire
6 body of evidence.
7 Furthermore, these statements are contradictory. And here I will just carry out a
8 brief demonstration in this regard: The Witness 250 alleges that Mr Ngudjolo sent in
9 a delegation -- he sent a delegation to Aveba, which is a stronghold of
10 Germain Katanga, to prepare the attack on Bogoro, and the Prosecutor states that this
11 statement is corroborated by Witness P-28 who stated that he saw this delegation in
12 Aveba, and in particular Witness 250 in Aveba.
13 If we take into account the simple statement of the witness -- the Prosecution
14 witnesses, we see that no Judge -- as Professor Fofé said, no serious Judge could
15 consider these things, with regards to the conviction of Mr Ngudjolo, because indeed
16 the own -- Witness 279 of the Prosecutor, with regards to the same facts,
17 stated -- declared that it was rather Germain Katanga who came to Aveba at the head
18 of the delegation and that on that occasion even a goat was sacrificed in honour of the
19 host.
20 Witness 219, a Prosecution witness, states that no delegation from Zumbe went to
21 Aveba apart, obviously, from Chief Manu who came to Aveba and went to Beni.
22 Witness 280 stated that Mr Ngudjolo went rather to Beni.
23 P-12, Prosecution witness, stated that the structures of Germain Katanga and those of
24 Mathieu Ngudjolo did not know each other before 18 March. They never met before
25 18 March.
21.10.2014 Page 38 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 39/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Witness 28, who said that he had seen the delegation in Zumbe -- from Zumbe, in
2 Aveba, went back on his statements.
3 And it has to be said also that the two witnesses, 250 and P-28, were introduced to the
4 Office of the Prosecutor by the same intermediaries as those who, according to the
5 decision of Pre-Trial Chamber I, a notorious intermediary, incited witnesses to lie.
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted) to cross-examine the witness. How can you trust
20 someone -- how can a serious Chamber take into consideration the statement of this
21 witness? This is the reason why in its decision 3319 the Trial Chamber decided not
22 the take into consideration the untruths, to contradictions, the lies that this witness
23 stated here.
24 In fact, in truth the attempt made by the Prosecutor to give credibility to Witness 250
25 was aimed at giving credibility to the soap letter.
21.10.2014 Page 39 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 40/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Now, what does this letter say? This letter doesn't say anything more than there
2 were two villagers who, when they visited a locality which was less barricaded than
3 theirs, they met an old friend and asked for soap and this person, in order to cover
4 himself, asked or suggested that a letter be written and he dictated certain terms
5 within the letter to cover himself with regards to the witness.
6 Now, the Prosecutor quickly jumped to Zumbe delegation and to the stamp which
7 was thereon. Afterwards, according to this witness, put there afterwards, to say that
8 the testimony of 250 was true, but what the Prosecutor will never tell you, your
9 Honour, is that the Witness 250 has links - ties - with the persons who wrote the letter,
10 at least via his mother. So certainly there is a possibility that that person heard a
11 conversation and that this -- about this letter being written, which made it possible to
12 speak about it.
13 Now, the Prosecutor also states that the Chamber did not take into account the
14 statement of Witnesses 317, P-12 and 160. 317, as has already been said, stated that
15 Mr Ngudjolo made admissions, but the witness was not able to say where Ngudjolo
16 had made such admissions, in the presence of whom and the witness didn't even
17 recognise Dark with whom he said he had spent a long part of the day.
18 And the Chamber has put -- set against this statement another statement which
19 states -- from the public prosecutor's office in Beni, it states that they asked Ngudjolo
20 which attacks he participated in and he answered that he did not -- that he only
21 participated in the attack on Bunia on 6 March 2003 and that this admission
22 that -- was made in a period when Ngudjolo didn't know that he was going to testify
23 here and so to take that into consideration as against that of P-317, who even
24 contradicted himself before the Trial Chamber.
25 Now, P-12 also alleged that Ngudjolo made admissions to him on another attack.
21.10.2014 Page 40 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 41/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Not Bogoro, but another attack, and he said that this admission was made in Kampala
2 on a particular date. And after examination thereof, the Defence found that on this
3 date it's client was held in detention in the Makala prison. The Prosecutor says,
4 "Well, the witness made a mistake with regard to the date." If the Defence had been
5 informed of the precise date, then it is clear, your Honour, Honourable Judges, that it
6 would have brought the contradiction to the alleged evidence of this witness.
7 First of all, after investigation we have evidence which we're not bringing up here
8 because it is not in the case file but, whatever the case, Mr Ngudjolo at -- on that date
9 he was not free so he couldn't make admissions to Witness P-12.
10 The entire body of evidence that, your Honour -- your Honours, the entire body of
11 evidence, that's not just one witness statement. The entire body of evidence, that's
12 also the contradictions of Witness 219, (Redacted)
13 (Redacted).
14 And the soap letter, which the Prosecutor refers to here, well, this letter is not
15 corroborated by any other documentary evidence.
16 Now, the Defence has brought another letter and this letter is the so-called Samba
17 letter, EVD-D03-00136. This letter has all the evidence of indirect co-perpetration.
18 Now, at the legal level, the Prosecutor complains that the Trial Chamber did not,
19 according to the Prosecutor, correctly apply the Article 74(2) which obliges the
20 Chamber to base its decision on its evaluation of the evidence and the entire
21 proceedings, and the decision shall not exceed the facts and the circumstances and the
22 charges. And we can see that this ground is also non-operative because the
23 Chamber did not come out of the evidence which was presented in the case. Quite
24 the contrary, the Chamber correctly examined the evidence and the contradictions
25 and the untruths that were brought by the Prosecution witnesses as well as the
21.10.2014 Page 41 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 42/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 contradictions made by the Defence witnesses.
2 So with regard to this provision mentioned by the Prosecutor, there's no error of law
3 to the extent that the Trial Chamber did not go beyond the evidence produced during
4 the proceedings. The provision mentioned by the Prosecutor is therefore
5 non-operative.
6 Your Honour, in order to finish, I would like to say a word as the Prosecutor said a
7 moment ago, the representative of the Office of the Prosecutor, Mr Ngudjolo is
8 accused of serious crimes and it is necessary that we have the appropriate proof, and
9 for his conviction there has to be evidence which is coherent, evidence which is up to
10 the level of the crimes that he's accused of and evidence which is in the case file.
11 The attitude of the Prosecutor shows hounding, unreasonable badgering of the person,
12 Mr Ngudjolo. There is no consistency in the evidence. There is no coherence in the
13 evidence brought by the Office of the Prosecutor. We have the impression rather
14 that the -- that our client is being hounded by the Prosecutor, as is done for others,
15 and I will stay there and we say that you just have to have evidence from the
16 proceedings.
17 I have had my say and I would like to thank you.
18 PRESIDING JUDGE MONAGENG: Thank you, Counsel.
19 You have the floor, sir.
20 MR KILENDA: (Interpretation) Are we in private session?
21 PRESIDING JUDGE MONAGENG: Are you --
22 MR KILENDA: (Interpretation) Are we in --
23 PRESIDING JUDGE MONAGENG: Are you doing the third ground? Are you
24 doing the third ground?
25 MR KILENDA: (Interpretation) Exactly, the third ground.
21.10.2014 Page 42 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 43/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 PRESIDING JUDGE MONAGENG: Thank you.
2 Court clerk, please.
3 (Private session at 11.14 a.m.)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Redacted)
24 (Redacted)
25 (Redacted)
26 21.10.2014 Page 43 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 44/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 44 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 44 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 45/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 45 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 45 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 46/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Recess taken at 11.25 a.m.)
23 (Upon resuming in open session at 1.29 p.m.)
24 THE COURT USHER: All rise.
25 Please be seated.
21.10.2014 Page 46 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 47/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 PRESIDING JUDGE MONAGENG: Good afternoon and welcome back.
2 We will continue with the hearing of submissions from the parties and participants.
3 You would have received the adjusted timetable for this hearing. We will proceed
4 this afternoon with two sessions starting now up until 3 o'clock and after the break
5 from 3.30 to 5.
6 Once again, you are reminded that your submissions regarding the third ground of appeal
7 will be heard in private session.
8 Mr Luvengika, you have 20 minutes to make observations on behalf of the principal
9 group of victims and you are reminded that your observations are limited insofar as
10 they must relate to the submissions of the Prosecutor, or counsel for Mr Ngudjolo,
11 and must only address issues affecting the personal interests of the victims that you
12 represent.
13 You have the floor.
14 MR NSITA: (Interpretation) Madam President, your Honours, thank you for allowing me
15 to address the Court.
16 As you know, I represent the 353 victims of the attack of Bogoro dating back to 24
17 February 2003. This attack was led jointly by the Lendu and Ngiti militia. It killed
18 many civilians and gave rise to the pillaging and systematic destruction of their
19 property. This attack quite simply eradicated a village and annihilated an entire
20 population.
21 Madam President, your Honours, I would like first and foremost to reassure this
22 august jurisdiction, this august Chamber, but more especially my eminent colleagues
23 from the Defence, notably Maître Kilenda, that I am not here -- that I am here to
24 defend the interests of the victims. And if our observations are in keeping with
25 those of the Prosecution and complement them, it is not because we form a collective
21.10.2014 Page 47 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 48/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 prosecutorial group, to use the Defence terms, but simply because there is a reality at
2 hand. The judgment under appeal is so tarnished with errors that it affects the
3 Chamber's conclusions.
4 The proceedings have been so flawed that the Trial Chamber failed to fulfil its
5 obligations to guarantee a fair trial. The judgment must be recast.
6 Madam President, your Honours, in view of the time constrictions, I shall very briefly
7 broach the question of admissibility to then turn my concentration to the essential or
8 salient points of the three Prosecution grounds of appeal. In order to be efficient, I
9 shall not give or provide oral references to the documents that I quote, so please refer
10 to my notes from the hearing filed on 16 October last.
11 With regard to admissibility, the admissibility of the appeal, as explained in our
12 appeal brief, convicting Mr Katanga for complicity does not stand in the way of
13 convicting Mathieu Ngudjolo on the basis of Article 25(3)(a).
14 Firstly, the Trial Chamber found that Mr Katanga's responsibility as an accomplice
15 did not exclude the fact that he was a member of a group acting with a common
16 purpose, that notably of destroying the village of Bogoro. In other words, the legal
17 recharacterisation of his responsibility is no obstacle to the existence of a common
18 plan to destroy Bogoro.
19 Secondly, in the judgment on Katanga, the same judgment, the Chamber does not
20 hesitate to examine first and foremost the responsibility of Mr Katanga as
21 co-perpetrator and even -- and even having acquitted Mr Mathieu Ngudjolo and
22 therefore even if Mr Mathieu Ngudjolo could no longer be designated as one of the
23 co-perpetrators of the crimes in Bogoro. Mutatis mutandis, the same reasoning
24 should apply here. The Prosecution appeal is therefore admissible.
25 With regard to the grounds of appeal, if you allow, I shall jointly address the first and
21.10.2014 Page 48 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 49/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 second grounds of appeal. Their legal basis is outlined in our written submissions,
2 and I shall therefore not return to that.
3 First and foremost I would like to draw your attention to the fact that this is not the -- that it is
4 not the victim's role to substitute themselves to the evaluation of the evidence made by the
5 Chamber contrary to that claimed by the Defence.
6 The victims will be careful not to play a role that is not theirs. The trier of fact is the
7 Trial Chamber above all. It is its role to assess the evidence. This role must
8 nevertheless be fulfilled as follows: Firstly, by analysing the totality of the evidence
9 and not in a piecemeal fashion; secondly, by only taking into account evidence
10 admitted and not establishing hypotheses that are not reasonably based on admitted
11 evidence; thirdly, by applying a standard of reasonable doubt without demanding
12 that any other plausible explication be -- or, explanation be excluded; fourthly, the
13 decision not to take certain evidence into account should be sufficiently reasoned in a
14 consistent manner.
15 Unfortunately, the judgment under appeal does not meet these criteria. It is
16 moreover symptomatic that both the Prosecution and the victims emphasise in their
17 written submissions a series of examples which are different from the errors of fact or
18 law committed by the Chamber.
19 Let me take an example here to illustrate what I've just said in the case of Prosecution
20 Witness P-280. Due to time constraints, I shall not recall the ideas developed in our
21 written submissions. I would just like to highlight a number of points.
22 The Chamber did not retain the testimony of P-280 because of its claims as to the
23 existence of an airport in Zumbe and an alleged group of militia at Zumbe airport.
24 However, an attentive perusal of Witness P-280's testimony bears out the fact that (1)
25 the witness never said that there was an airport in Zumbe. He said that during
21.10.2014 Page 49 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 50/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 training he would run from Lagura to a location that the inhabitants of Zumbe said
2 was used as an airport. He never said he had in fact seen an airport. Furthermore,
3 he said he had never seen planes in Zumbe.
4 The witness never stated during the hearing that there was a group of militia at
5 Zumbe airport, nor was he ever questioned on the existence of such a Zumbe airport
6 militia.
7 The Defence for Germain Katanga read him an excerpt from his testimony and
8 requested clarification as to the number of militia in Zumbe. It did not ask him any
9 questions as to the existence of a group of militia at Zumbe airport.
10 Under such circumstances, how could the Chamber reasonably find that such an
11 imprecise and accessory element of P-280's testimony was a salient point in his
12 testimony that affected his credibility as such?
13 Likewise, the Chamber refuses to rely on P-280's testimony on the grounds of a
14 possible collusion between Prosecution Witness 279 and P-280. The Chamber felt
15 that P-280 remained silent with regard to any relations that may have been
16 entertained with P-279.
17 However - however - P-280 was never questioned as to his relationship with P-279.
18 It was only the Defence for Mr Mathieu Ngudjolo who asked him not whether he
19 knew P-279, but whether he could provide names of childhood friends that P-280
20 lived with before he fled. He was not asked if he knew P-279. He was not
21 presented with any photograph of P-279. Nobody, neither the Defence nor the
22 Judges, gave him his name. Under these circumstances, how could the Chamber
23 reasonably deduce that P-280 denied knowing P-279?
24 This is just one example among many that we have borne out in our written
25 conclusions.
21.10.2014 Page 50 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 51/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 Madam President, your Honours, I shall give but a few points of illustration here.
2 We are not out to claim that the Chamber willy-nilly misassessed one item or other of
3 accessory evidence. We are not talking of an isolated error, but of an accumulation
4 of errors. May I refer you to the numerous examples in our brief and that of the
5 Prosecution?
6 Indeed the Chamber provided a fragmented analysis of the evidence, ascribing words
7 to certain witnesses that were never uttered, and this analysis has had a global effect
8 on the factual findings with regard to the guilt of the accused.
9 Madam President, your Honours, let me first with your leave broach the three
10 grounds of appeal in brief and I would request that we go into private session.
11 PRESIDING JUDGE MONAGENG: Court officer, please. Let's go into private session.
12 (Private session at 1.43 p.m.)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Redacted)
24 (Redacted)
25 (Redacted)
26 21.10.2014 Page 51 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 52/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Open session at 1.47 p.m.)
24 THE COURT OFFICER: We're in open session, Madam President.
25 PRESIDING JUDGE MONAGENG: Thank you.
21.10.2014 Page 52 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 53/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Please continue.
2 MR NSITA: (Interpretation) As a conclusion, I can see that I have earned the Chamber a
3 few times because I needed to condense what I had to say.
4 Madam President, your Honours, the victims are not requesting that the judgment be
5 recast because of errors committed by the Chamber here and there. By dint of a
6 piecemeal approach of its analysis of the evidence, alongside conclusions based on
7 unfounded speculation, in addition to inconsistent reasoning and a failure to
8 guarantee a fair trial, the Chamber reached factual findings that no reasonable trier of
9 fact could have reached.
10 There is a true accumulation of errors which must lead to a recasting of the judgment,
11 and I thank you.
12 PRESIDING JUDGE MONAGENG: Thank you very much, Counsel.
13 We shall now proceed to Counsel Gilissen. Thank you. You have 20 minutes,
14 Counsel.
15 Counsel, before you start, I would also want to remind you that your observations are
16 limited insofar as they must relate to submissions of the Prosecutor, or counsel for Mr
17 Ngudjolo, and must only address issues that affect your clients. Thank you.
18 MR GILISSEN: (Interpretation) Thank you very much, Madam President.
19 Madam President, your Honours, I'd like to begin with a preliminary point that I
20 really must raise. This is most necessary.
21 I wish to pay tribute to the work that has been -- that was done by the Trial Chamber.
22 The amount of work was enormous. The volume of information to be dealt with
23 was immense. The work took tremendous time, tremendous energy, and with all
24 due respect I do wish to say that these children - who are no longer children
25 today - who I represent, and myself, I think this is really the crux of the matter when
21.10.2014 Page 53 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 54/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 it comes to the law; namely the issue of the criteria not relating to the admissibility of
2 evidence, but rather the credibility of evidence.
3 In actual fact, I will confine myself to making points related to my clients; the ones I
4 represent. No one here today challenges the fact that there were child soldiers
5 throughout all of Ituri within all the various groups of fighters. No matter what
6 their names were, no matter what their allegiance was, there were child soldiers
7 within these groups and who met the definition of child soldier.
8 The Chamber came to a number of factual conclusions because of the testimony it
9 heard, and on 24 February 2003, when the village of Bogoro was attacked, there were
10 child soldiers amongst that group of attackers; both boys and girls.
11 The Chamber did state clearly that amongst the attackers of the village some of those
12 child soldiers came from Bedu-Ezekere.
13 It is in the interest of the victims as well to pinpoint, to identify the people who are
14 responsible for the fact that they have become victims. A few moments ago the
15 Prosecution very clearly reminded the Court of a number of points. And -- and I
16 also heard the submissions from the Defence, and I thank them for their clarity. And
17 I must stress that Mr Ngudjolo, and I'll be very brief here, a few weeks -- barely a few
18 weeks after the massacre that occurred in the village of Bogoro, Mr Ngudjolo
19 represented the people of his territory at the well-known peace and reconciliation
20 talks that were held in Bunia.
21 As the military leader of all the combatants of Bedu-Ezekere, that fact is -- has been
22 established. We also know that only a few weeks later when a radio programme
23 was broadcast, and we heard what was said during that programme, and we saw the
24 participants, because in actual fact the interview was also filmed, we saw and we
25 heard combatants attribute the victory of Bogoro to Mr Ngudjolo, who was there.
21.10.2014 Page 54 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 55/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 No one, no one will contradict that point and say, "No, that is a mistake," not at all. And Mr
2 Ngudjolo, who was present himself, will not respond and say, "No, no, no, I had nothing to
3 do with that." He will not even address the Court and downplay -- correction, he did not
4 even downplay his role during that interview.
5 A witness, and mention was made of this witness earlier, Witness 317, one month
6 after Bogoro massacre on 4 April 2003, received admissions from Mr Ngudjolo and I
7 feel quite comfortable mentioning that particular witness. The Prosecution was very
8 comprehensive in his treatment of that witness.
9 But what did the Chamber say about that witness? She is credible. She is credible.
10 She was not lying. She was telling the truth. She heard what was said -- correction,
11 the Chamber heard what was said.
12 The reason, you see, is that the remarks made by Mr Ngudjolo do not affect the
13 credibility of the witness but to say these statements by mister -- the Trial Chamber
14 said that Mr Ngudjolo's statements were too general and were not credible enough,
15 but I do think that that particular observation represents a major legal difficulty, your
16 Honours. And why? Because that was never Mr Ngudjolo's Defence. The
17 Defence of Mr Ngudjolo was that he never met that particular witness, Witness 317.
18 He said that he had never met with that person and never spoke to that person.
19 And acting the way that the Trial Chamber did, I agree with the Trial Chamber but, you see, if
20 you think about this point for a few moments, what does an Appeal Chamber do? Well, the
21 Appeals Chamber must go beyond the Defence of Mr Ngudjolo and add for reasons that we
22 do not understand because it was not motivated explanations that were never provided by
23 Mr Ngudjolo.
24 When the Trial Chamber says, you know, those admissions were to make himself appear
25 more important - I hope that my remarks will be properly interpreted - his remarks were
21.10.2014 Page 55 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 56/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 made to appear smarter than he really was, but Mr Ngudjolo never said that. Why did the
2 Trial Chamber not take into account the nature of that admission? Why did they say that
3 they were -- that the admissions were too general, circumstantial?
4 I think if you review the ruling, particularly paragraph 434, you will realise that, no,
5 this was not the case. In his admissions, Mr Ngudjolo even gave the tactical military
6 reasons, his strategic -- his strategical reasons for attacking the village of Bogoro.
7 So it seems to me that we have a major issue here, and it is your task to deal with this
8 problem. It is you who shall determine running contrary to legislation throughout
9 the entire world. The judges can add a ground of defence not supported by the
10 accused and could not be supported, because according to Mr Ngudjolo he never met
11 that witness, Witness 317.
12 This is a technique. And I think we need to have the honesty and the courage to say this:
13 With all due respect to the Chamber, this is a true problem. And why? Because all our
14 faculties, be it the Prosecution, all our faculties, all our considerations relating to admissibility
15 of evidence were deceived. It was impossible for us to imagine that when assessing evidence,
16 the Chamber was going to say, "Oh, I'm going to add something to that," something that no
17 one had spoken of. So no one, no one had spoken of this additional material. And this is
18 contrary to what Mr Ngudjolo actually said.
19 Furthermore, Madam President, your Honours, allow me to add this: This technique has
20 been used repeatedly within the criteria of the assessment of evidence followed by the
21 Chamber, and some items were deemed admissible.
22 A few moments ago you were told, and this will be my second example because in 20
23 minutes one can't do everything. This is not a criticism, this is the rule and I comply
24 with the rule quite willingly. Witness 279. Witness 279, why do I mention this
25 witness? Because you see, this witness was not deemed to be credible in relation to
21.10.2014 Page 56 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 57/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 any of his statements, but this young man did provide exceptionally good
2 information about the use of child soldiers within the camps, the handling of
3 weapons, the teaching of basic weapons handling to the children, the roles and tasks
4 assigned to the children in the camps particularly.
5 And this under the leadership of Mr Ngudjolo in Bedu-Ezekere. He also provided, and I
6 think this is crucial when analysing the credibility, he added information about the use
7 to -- the use of amulets and fetish priests and the magical waters that combatants drank to be
8 invincible. And this young boy who was in Bogoro, a place he did not know, a place he had
9 never gone to before, found himself one night taking part in the fighting. He massacred
10 people, he raped and, at one particular point, he said that once dawn had broken and victory
11 was assured he saw Matthew Ngudjolo. He was with Germain Katanga. They went into a
12 school. "I was in the centre of Bogoro, close to the very centre, close to the marketplace."
13 Because of that final item of information, the Chamber said no, no, no, this is not possible.
14 The Chamber actually travelled to the place and concluded that the marketplace was too far
15 away from the market -- from the military camp where the victory -- the so-called victory of
16 Bogoro. Although I, myself, would call it a massacre or butchery.
17 They killed men and woman. They engaged in cannibalism. And if one takes the trouble to
18 read this particular statement, under conditions that were less difficult because -- than in
19 deliberations because there are trends during a deliberation, but what was seen?
20 The boy was not talking about the military camp. What did he say? You will see when he
21 was questioned by Mr Garcia, transcript 135, page 35, paragraphs 19 and on, Mr Garcia asked
22 him to provide clarification about the school. "The school was not far from the military
23 camp," he said. So he was not talking about the military camp. He was not talking about
24 the Bogoro institute because the camp was the Bogoro institute. The combatants set up
25 operations there and made that school into a military camp. He didn't even use the word
21.10.2014 Page 57 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 58/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 "institute. He spoke of a school. And what did he see?
2 You can reread this transcript relating the visit to that place. Forty-to-45 metres from the
3 marketplace there is a school, the Kavali school. We saw that place and all of the people who
4 went there saw the Kavali school directly beside the marketplace.
5 And so at one particular point during this trip -- this testimony, be it just about this particular
6 point, this testimony is credible. It can be used within the reasoning, and overall the
7 witness's testimony was credible.
8 We wish to stress that in actual fact, when one pays careful attention to this point, one sees
9 that the criterion is not doubt beyond -- is not beyond all reasonable doubt. It is certainty.
10 To be credible one has to provide information that is certain, and by adopting such a high
11 standard -- obviously my Defence colleagues argued that Mr Ngudjolo should benefit from
12 the doubt, but such a criterion keeps us, and this exists in all legislation throughout the world,
13 this -- what about the balance of -- this can lead to a comprehensive analysis because there are
14 incriminating elements, and if we have to choose, if we have to say, well, all in all, this
15 particular witness is saying certain things and we must believe him because there is no reason
16 not to believe what the witness is saying, if this witness, which I just mentioned, 279, is
17 credible in what he says, you will see that all of a sudden the serious diligent high-quality
18 work of the Chamber collapses and I'm very sorry to have to put it this way. This sort
19 of -- the work of the Chamber comes unravelled, just like a sweater becoming unravelled.
20 Your Honours, I represent young men and young women whose lives have been
21 shattered forever. No matter what you may decide, their lives have been shattered.
22 These people were the mere pawns - the unfortunate pawns - of people who were
23 making decisions within their communities and used them.
24 It was not life that was unfair to these young men and young women. It was their
25 leaders who were unfair to them. It's not that they were unlucky. Some of them - a
21.10.2014 Page 58 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 59/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 handful of them - used these young people as if they were cattle, like beasts, like dogs
2 of war, and you must realise they no longer have any illusions. They lost their
3 illusions a long time ago. They lost all hope long ago.
4 I have seen them, I have seen their physical and moral suffering and I had to explain
5 to them the decision that was taken. And you may not find me credible, but I can
6 assure you of this. I did the best I could. And these young people, poor -- and I'm
7 speaking of finances and poor in terms of a lack of education. These poor,
8 uneducated people have understood. They have understood the decision. They
9 have understood that the people who dared to come to The Hague, because when
10 you're a Congolese person from a remote area of Ituri it is an act of daring to come to
11 The Hague. They were far away from home and we would visit them at times, but
12 they would come to this.
13 PRESIDING JUDGE MONAGENG: Excuse me. Excuse me, Counsel.
14 MR GILISSEN: Yes.
15 PRESIDING JUDGE MONAGENG: You have gone outside your time.
16 MR GILISSEN: (Interpretation) I am concluding, your Honour. If you allow me two
17 minutes I will be able to conclude?
18 PRESIDING JUDGE MONAGENG: Thank you.
19 MR GILISSEN: (Interpretation) They were like Congolese people on a sheet of ice, but all
20 the same they came and said what they had to say. These poor people were given clothing.
21 The Court gave them clothes to wear. Of course their Congolese clothing was not suitable
22 here in the courtroom, nor were their statements, nor just as their truths were not suitable to
23 the Court.
24 And what I do hope, your Honours - what I do hope - is that you will be able to
25 review their statements and take into account the realities of the situation. There
21.10.2014 Page 59 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 60/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 was pressure placed on the witnesses, perhaps even bribery of witnesses, and I'm
2 merely asking that in light of these elements, in light of the mentalities, the cultures,
3 the various approaches, the difficulties that each and every one of us is subject to, we
4 do not all have the same colour, we are -- of skin, but I call upon you to review their
5 statements and you will see that things are not so simple. And when you -- if you
6 refocus the criteria of assessment, you will no longer be dealing with the same case.
7 I thank you for allowing me to address the Court. I apologise for going past my time
8 limit, but I do have one thing to ask you on behalf of the victims I represent. May
9 justice be done, your Honours. May justice be done, because the people I represent
10 deserve justice. They represent thousands of people in the Ituri region whose lives
11 have been shattered.
12 There you have it. I thank you.
13 PRESIDING JUDGE MONAGENG: Thank you very much, Counsel.
14 I'll now move on to the Prosecution, if you need to make any -- to respond in 25
15 minutes.
16 MR GUARIGLIA: Thank you, your Honours.
17 Mr Gallmetzer will first reply to the Defence and then I will take the floor for the third
18 round.
19 PRESIDING JUDGE MONAGENG: You both have 25 minutes. Thank you.
20 MR GALLMETZER: Good afternoon, your Honours.
21 In its submissions in relation to the first ground of appeal, the Defence made
22 arguments that do not relate to the Prosecution's ground of appeal. The Defence's
23 submission attacked investigation conducted by the Prosecution and contests
24 individual pieces of evidence. The Defence also mischaracterises the record when it
25 states that the Prosecution admitted failure in proving its case beyond reasonable
21.10.2014 Page 60 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 61/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 doubt.
2 In so doing the Defence merely repeats almost word by word what it stated in its
3 closing submission at the end of the trial, and that is to be found at trial transcript
4 number 339 at page 26.
5 However, the Prosecution stated quite the opposite and I refer you to the trial
6 transcript 337 at pages 27 to 28.
7 Your Honours, the fact is that nothing in the Defence's submission on the first ground
8 of appeal counters the Prosecution's position that the Chamber erred in law by
9 applying an incorrect standard of proof. In particular, the Defence did not address
10 the specific examples raised by the Prosecution to show that error. For that reason,
11 there is no need to go further in our reply to the first ground of appeal and I turn
12 already to the second ground of appeal.
13 On that second ground of appeal the Defence's submissions, with all due respect, they
14 missed the point. The Defence makes numerous factual submissions to demonstrate
15 that the findings of the Trial Chambers were correct. In so doing, the Defence even
16 goes outside the evidentiary record in this case when it referred to matters about
17 intermediaries from the Lubanga case, or alleged family links in relation to the soap
18 letters. These matters were simply not before the Trial Chamber and it could not
19 possibly have taken them into consideration.
20 To be very clear, the issue in the Prosecution's second ground of appeal is whether the
21 Trial Chamber erred in law by failing to apply the correct legal principles when
22 assessing the evidence and making its findings of fact.
23 In particular, it is whether the Trial Chamber erred by failing to consider the totality
24 of the evidence and ignoring findings that are clearly relevant to determine the
25 credibility of witnesses, or other evidence, and to draw its factual conclusions.
21.10.2014 Page 61 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 62/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 As mentioned this morning, this is an error of law and therefore the Chamber must
2 decide the matter de novo and must not defer to the discretion of the Trial Chamber.
3 Article 74(2) of the Statute states that, "The Chamber's decision shall be based on its
4 evaluation of the evidence in the entire proceedings." This requires the Chamber to
5 take into consideration the totality of the evidence submitted and discussed at trial.
6 While neither the Defence nor the Chamber dispute this principle in the abstract, the
7 Chamber erred by not applying it to the assessment of the evidence and the
8 fact-finding.
9 Concerning the assessment of the evidence, a tribunal of fact must never look at the
10 evidence of each witness separately as if it existed in a hermetically sealed
11 compartment. It is the accumulation of all the evidence in the case which must be
12 considered. The evidence of one witness when considered by itself may appear at
13 first to be of poor quality, but it may gain strength from other evidence in that case.
14 To support these submissions, your Honours, I refer you to paragraph 77 of our
15 appeal brief and the authorities that we use in that context.
16 Similarly, for its findings of fact the Chamber must look at the totality of the relevant
17 evidence in relation to a specific fact and determine whether that fact is proven to the
18 required standard. In fact, it must even consider its own factual findings. Once it
19 was satisfied that a certain fact exists, that constitutes the basis for the lost logical
20 chain of reasoning that a Chamber must follow.
21 Individual facts do not necessarily establish guilt, but are a link in that chain of
22 ultimate proof. This does not mean that the Chamber must refer in its analysis to
23 every single item of evidence, as long as there is no indication that the Trial Chamber
24 completely disregarded any particular piece of evidence. Such disregard, your
25 Honour, is shown when evidence which is clearly relevant is not addressed by the
21.10.2014 Page 62 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 63/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Trial Chamber's reasoning.
2 And this submission, your Honours, is supported by Article 80 of our appeal briefs
3 and the authorities that we include under that article, and I specifically refer you to
4 the decision of the Supreme Court of Canada in the case against Morin.
5 Accordingly the question is not whether individual findings of the Chamber were
6 reasonable by deferring to the discretion of the Trial Chamber, but the Defence's
7 argument on the secondary ground -- on the second ground of appeal relate exactly to
8 that question. They are therefore irrelevant to your determination.
9 For instance, the Defence submits that the Chamber dismissed the Prosecution's
10 evidence in light of contradictions or in light of discrete portions of evidence
11 submitted by the Defence. These submissions are predicated on the wrong legal
12 approach. Because the Chamber never looked at the totality of the relevant evidence,
13 it was in no position to find whether there were real contradictions, or to dismiss
14 evidence on any other ground.
15 The question of whether certain findings are reasonable is a determination to be made
16 by a trier of fact on the basis of the entire evidence. For the Appeals Chamber to
17 make that determination, you would need to acquaint yourself with the totality of the
18 evidence in that case and not only on the basis of some partial submissions made by
19 the Defence.
20 Having demonstrated the existence of an error under its second ground of appeal, the
21 Prosecution must separately persuade the Appeals Chamber that the error materially
22 impacted on the decision.
23 Your Honour, on the basis of the example of Mr Ngudjolo's admission to 317 that he
24 organised the Bogoro attack, we have demonstrated most clearly how the error
25 impacted on the Chamber's findings that Ngudjolo was not the leader of the fighters
21.10.2014 Page 63 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 64/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 who attacked Bogoro.
2 Had the Chamber assessed that admission in the context of the entirety of the
3 evidence, and in particular in light of its own findings that he was a leader of the
4 fighters shortly after the attack, the Chamber would have rendered a substantially
5 different decision.
6 The same applies to the example of Witness 250. Had the Chamber considered the
7 totality of the evidence and information, including the one that Mr Guariglia referred
8 to under the second ground of appeal, the Chamber would have rendered a
9 substantially different decision, especially if these two examples are considered
10 cumulatively which is the right approach to be taken.
11 To conclude, I would also like to stress that the principle of free assessment of
12 evidence under Rule 63(2) does not imply that the evidence, or the assessment of the
13 evidence, may be free of any logic and common sense. Rather, this principle
14 expresses that the Chamber may not impose strict rules that determine under what
15 condition a Chamber may determine a fact to be proven.
16 Accordingly, it does not mean that the Chamber can disregard evidence that is clearly
17 relevant and draw its conclusions based on a partial and incomplete consideration of
18 the record.
19 MR GUARIGLIA: Your Honour, since I have to deal with the third ground of appeal, we
20 should move to private session.
21 PRESIDING JUDGE MONAGENG: Thank you.
22 Court officer, let's go into private session.
23 (Private session at 2.21 p.m.)
24 (Redacted)
25 (Redacted).
21.10.2014 Page 64 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 65/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 65 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 65 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 66/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 66 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 66 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 67/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 67 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 67 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 68/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 68 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 68 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 69/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Open session at 2.30 p.m.)
10 THE COURT OFFICER: We're in open session, Madam President.
11 PRESIDING JUDGE MONAGENG: Thank you very much.
12 We have actually gained about 30 minutes and, to that extent, I think we should continue onto
13 the Defence.
14 You have 25 minutes if you are ready.
15 MR KILENDA: (Interpretation) Thank you very much, your Honour. Your Honours,
16 could we go into private session, please, because I'm going to go onto the third ground?
17 PRESIDING JUDGE MONAGENG: Court officer, let's go into private session, please.
18 (Private session at 2.31 p.m.)
19 (Redacted)
20 (Redacted)
21 (Redacted)
22 (Redacted)
23 (Redacted)
24 (Redacted)
25 (Redacted)
21.10.2014 Page 69 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 70/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1
2
3
4
5
6
7
8
9
10
11
12
13 Page 70 redacted – Private session
14
15
16
17
18
19
20
21
22
23
24
25
21.10.2014 Page 70 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 71/85 SZ A
Appeals Hearing (Private Session) ICC-01/04-02/12
1 (Redacted)
2 (Redacted)
3 (Redacted)
4 (Redacted)
5 (Redacted)
6 (Redacted)
7 (Redacted)
8 (Redacted)
9 (Redacted)
10 (Redacted)
11 (Redacted)
12 (Redacted)
13 (Redacted)
14 (Redacted)
15 (Redacted)
16 (Redacted)
17 (Redacted)
18 (Redacted)
19 (Open session at 2.37 p.m.)
20 THE COURT OFFICER: We're in open session, Madam President.
21 PRESIDING JUDGE MONAGENG: Thank you, court officer.
22 Counsel can continue.
23 MR KILENDA: (Interpretation) Thank you very much, your Honour, Honourable Judges.
24 I will be very frank with you. Today I really don't know what the thesis that -- the
25 hypothesis that the Prosecutor is looking at here with regards to the trial. On 24
21.10.2014 Page 71 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 72/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 November 2004, now the Prosecution proclaimed to the world that it was going to
2 prove beyond all reasonable doubt that Mathieu Ngudjolo as the highest commander
3 of the FNI, and Germain Katanga as the president of the FRPI, had planned the attack
4 on Bogoro to wipe that town off the map.
5 Now, over the time, with the time that went while each party presented its case, the
6 Prosecutor abandoned this theory. And after Mr -- the testimony given by Germain
7 Katanga, which the Chamber found credible - credible - the Trial Chamber II gave its
8 decision on -- its 3319 decision. The Prosecutor didn't appeal that 3319 decision, and
9 surprise -- and our surprise was even greater when we saw that there was an appeal
10 for the acquittal decision of Ngudjolo. And why? Because for us it was done once
11 there was a disjoinder. From the moment there was a disjoinder, then the Prosecutor
12 had no interest in attacking the acquittal judgment in appeal. And why? Because
13 all the conclusions of the decision of 3319 were taken over by the Prosecution. They
14 were supported by observations and we no longer saw why today the Prosecutor is
15 hounding - and is really hounding - Mr Ngudjolo. We no longer understand that,
16 and that's the reason why in our brief, in response to the Prosecution brief, we started
17 with certain points to show the lack of consistency and incoherence that there was on
18 the part of the Prosecutor.
19 The Prosecutor has to be logical in their statements and today with regards to
20 procedural developments they also have to be so, but the Prosecutor it would seem
21 had no -- was not regarding the consequences of its own behaviour.
22 I'm not having a monopoly of the floor. I'm going to leave time to Professor Fofé
23 and my assistant to continue.
24 PRESIDING JUDGE MONAGENG: Yes, you can continue, Counsel.
25 MR FOFÉ: (Interpretation) Thank you very much, madam. I'm just looking at the time.
21.10.2014 Page 72 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 73/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Thank you very much, madam, your Honour, your Honours.
2 I wanted to start by directly answering the comments made by the Office of the
3 Prosecutor in order to ensure the Prosecutor would say the Defence has not turned
4 the debate. When we took the floor this morning, we are not -- we didn't go into the
5 details because we believed that we had spoken sufficiently in our written
6 submissions. We had gone sufficiently into detail. As such we limited ourselves to
7 summarising as it were what we had put in writing and what in our mind are clear
8 arguments, but we're going to go back just for a moment to your submissions with
9 regard to P-317.
10 He spent a long time discussing that witness in order to say the following, your
11 Honour, your Honours: The evaluation of the testimony of 317, an assessment
12 thereof, precisely demonstrates the legality, the relevance, the consistency and the
13 coherence of the intellectual approach of the Trial Chamber II. Indeed Trial
14 Chamber II found 317 credible, but it considered that it couldn't base itself on his
15 remarks with regards to the involvement of Mathieu Ngudjolo in the preparations of
16 the attack on Bogoro and that grounds -- and the Chamber says this very clearly and
17 here I'm going to quote the Chamber when it gives its grounds, that "... his comments
18 were too general for one to be able to draw definitive conclusions therefrom with
19 regard to what the exact status of the accused was …", and that is the fundamental
20 point here, the status of the accused, what was that person's status, "... as well as with
21 regard to the role that the accused played within the Bedu-Ezekere groupement ...",
22 and the Chamber continues, "... where it concerns the supposed or alleged
23 admissions."
24 The Chamber continues, "It is not ruled out that Mathieu Ngudjolo, such as other
25 actors present in Ituri, wished to claim the organisation of the attack with a few of
21.10.2014 Page 73 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 74/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 having been recognised as a higher grade within the army." End of quote.
2 Now, the Defence would like to state that the motivation of the Chamber is entirely
3 consistent here. The Chamber is making a distinction between the credibility of a
4 witness here and the probative value of that person's statements with regard to
5 certain precise points. There is a difference between the witness credibility and the
6 probative value that the Chamber accords to certain precise points.
7 Exercising its power and authority to assess the evidence the Chamber in its
8 reasoning not only stated on the basis of an analysis of 317's testimony with regard to
9 this precise point, the status of Ngudjolo, but also by putting it against other evidence
10 which is in the case file.
11 Now, with regards to this aspect, the Chamber was completely right to argue that
12 comments of 317, which were too general, did not make it possible for the Chamber to
13 draw definitive conclusions with regard to what the status of the accused was and
14 with regards to the role that person allegedly played within the Bedu-Ezekere
15 groupement, but after the analysis of the testimony of 317 and other evidence in the
16 case file, the Chamber did not rule out the possibility that the alleged admissions
17 made by -- admissions made by 317 were pure fantasy.
18 Indeed, your Honour, Honourable Judges, the Prosecutor did not know that even
19 these admissions allegedly coming from the accused had to be controlled even if they
20 were received by the Judges by applying Article 70 -- 65 of the Statute.
21 The admissions of the accused had to be checked by the Prosecutor in applying
22 Regulation 70 -- 62; Regulation 62 of the Rules of the Office of the Prosecutor.
23 Now, the Prosecutor did -- you have to carry out rigorous analysis and checking of
24 the serious and authentic nature of supposed admissions allegedly received by third
25 parties, here P-317, who never -- who only carried out his mission in Ituri in March
21.10.2014 Page 74 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 75/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 and on 6 and 7 April 2003 and who carried out investigations within the framework
2 of human rights investigations and not in the framework of legal investigations; that
3 is to say in the case of investigations carried out with less rigour without the
4 application of the adversarial principle as judicial investigations have inherent to
5 them.
6 Now, with regards to 317's testimony, the Chamber - Trial Chamber II - could not
7 blindly accord all credibility thereto on every single point in the testimony. It had to
8 take into account not only the points in that testimony, but also other evidence
9 present in the case file. For example, you had to look at the founding president of
10 the FNI, D03-11, who also claimed responsibility for the attack on Bogoro.
11 Counsel Gilissen, speaking about the admissions of Mr Ngudjolo and not making a
12 difference between credibility and probative value of certain comments, states that
13 the Defence limited itself to saying, or rather Ngudjolo limited himself to saying that
14 he had never met P-317 and that Ngudjolo had said nothing on the subject of alleged
15 admissions, but this is false. This is false, your Honour.
16 Ngudjolo always said that he never made admissions in this regard. And why?
17 Because he never met this person. Ngudjolo always asked the question as to what
18 interest there would be? Why would he have made admissions to this woman? To
19 obtain what? To obtain what?
20 And Maître Gilissen goes on to say that there are inculpatory material and he stops
21 there, but what does he do with all the exculpatory material that also exists? Maître
22 Gilissen fails to say anything about the exculpatory material and it is precisely this
23 lack of neutrality, this lack of independence, that we deplore on the part of the legal
24 representatives of victims. There is not only inculpatory evidence in this case.
25 There's also exculpatory evidence. The legal representatives of victims, it is not in
21.10.2014 Page 75 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 76/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 their interest for Mr Mathieu Ngudjolo to have committed that. We deplore this lack
2 of independence and this lack of neutrality on their part.
3 Madam President, I will go on because I have scattered my notes somewhat. I'm
4 trying to find my train of thought here.
5 Now, with regard to what was said at an earlier stage today by Maître Gilissen, he
6 returned to the cessation of hostilities agreement in order to say that Ngudjolo had
7 signed the agreement as the chief of the Bedu-Ezekere combatants, but that is entirely
8 false. Ngudjolo, along with other individuals - three or four individuals I
9 believe - signed this agreement as representative of the Lendu community in
10 Bedu-Ezekere, so this is clearly written in the exhibit. I do not have the reference
11 here; that is 0044, the reference. It's clearly said therein.
12 And specifically, Madam President, with regard to the statutes of Mr Ngudjolo -- or the status,
13 pardon me, of Mr Ngudjolo, the Prosecutor did not really provide us with any more details in
14 this regard. He began by presenting him, as Mr Kilenda just said, as the very highest
15 commander of the FNI. Then he went on to introduce him as a commander of the FNI in
16 Bedu-Ezekere. And when it came to light that the FNI did not exist at the time in
17 Bedu-Ezekere, the Prosecution changed his status and introduced him or presented him as
18 commander of the Lendu militia in Bedu-Ezekere, this militia saying, the Prosecution claimed,
19 that he had relations with the FRPI of the Walendu-Bindi collectivité.
20 Now, because the facts, criminal facts must be crystallised at one moment in time, we cannot
21 continue to navigate in the mist. Trial Chamber II during the final submissions came back on
22 this point, notably in question number 10, and I'm not coming back to this for any old reason,
23 because specifically the Trial Chamber wanted to be sure or concentrate in fact on the status of
24 Ngudjolo, and the Trial Chamber enabled the Prosecution or provided it with the opportunity
25 to specify precisely what his status was. And then rather than specify his status, rather than
21.10.2014 Page 76 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 77/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 clarify his status or shed light on the situation, the Prosecutor spoke of the fact that it was a
2 grey area out in the field. He said, and I quote, "The evidence is not really easy in this regard.
3 The evidence is difficult. So the entire question related with the FRPI has not been
4 specifically pinpointed. We want to help the Chamber." This is the Prosecution speaking,
5 Madam President. "We want to help the Chamber as much as we can but, you know, there
6 are some answers that are not easy to come by because the evidence itself is no simple matter.
7 The situation out in the field, well, there was this movement." End of quote.
8 That is what we qualify as an admission of failure in public, the fact that the
9 Prosecution did not clarify the situation, that he did not provide any evidence of these
10 allegations beyond any reasonable doubt.
11 Now, Maître Kilenda has just suggested that I provide you with the references of the
12 transcript, and we are here talking of transcript 337 in the French version, page 31,
13 lines 18 to 25, and page 32, lines 9 to 15.
14 So, Madam President, your Honours, there we have it. Now, with regard to what
15 has been said by our learned colleagues as to the assessment made by Trial Chamber
16 II with regards to witnesses P-250, P-279, P-280, Madam President, I shall not come
17 back to that.
18 I would like to call upon you to refer to paragraphs 157, 158 of our written filing
19 number 131, that is our reply to the observations made by the legal representatives of
20 victims, that is Defence filing 131 in which we provide statistics referring to the
21 paragraphs of the judgment of 18 December 2012 given over to the analysis of the
22 credibility of witnesses 250, 279, 280 and 317.
23 PRESIDING JUDGE MONAGENG: Counsel, you've exhausted your time, please. Wind up,
24 please.
25 MR FOFÉ: (Interpretation) I thank you, Madam President. I have finished. And I would
21.10.2014 Page 77 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 78/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 like to emphasise the fact that the judgment of 18 December 2012, your Honours, Madam
2 President, is a judgment that respects the rights, it is worthy of the ICC. Trial Chamber II did
3 not err in law or in fact, and we would respectfully request that you uphold this judgment.
4 And I thank you.
5 PRESIDING JUDGE MONAGENG: Thank you very much, counsels, all of you. We shall
6 take a 30-minute break, come back and continue with our programme, which should be
7 shorter. I thank you. We are adjourned.
8 THE COURT USHER: All rise.
9 (Recess taken at 2.59 p.m.)
10 (Upon resuming in open session at 3.30 p.m.)
11 THE COURT USHER: All rise.
12 Please be seated.
13 PRESIDING JUDGE MONAGENG: Welcome back.
14 According to our schedule the Judges were to meet and to deliberate on what has
15 been the submissions the whole morning from the parties and participants and we
16 were supposed to come back to you with an indication whether or not we had any
17 questions, but at this time the Appeals Chamber will not be posing any questions to
18 either of you. We have heard you, we have noted what you were saying or what
19 you said, and so we will move on with our programme, so to say.
20 Mr Ngudjolo has requested to address the Appeals Chamber in Lingala and at this
21 point in time I invite him to do so, but before he does that the Appeals Chamber
22 recalls its, and I quote, "Decision on the Prosecutor's request for the parameters of
23 Mr Ngudjolo statement at the appeal hearing to be established." End of quote. This
24 is our decision of 17 October 2014, wherein directions were given in relation to
25 Mr Ngudjolo's address here today.
21.10.2014 Page 78 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 79/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Further to this, Mr Ngudjolo, you are reminded that those parts of your personal
2 address that relate to the third ground of appeal will also be heard in private session.
3 Therefore, Counsel, please indicate to us beforehand the need to go into private
4 session.
5 I will ask Mr Ngudjolo to stand up and I have a very short question.
6 Mr Ngudjolo, have you understood what I have just said and the instructions that
7 were given in our decision?
8 MR NGUDJOLO: (Interpretation) Yes, your Honour.
9 PRESIDING JUDGE MONAGENG: Thank you very much. You may proceed and you
10 have 30 minutes to make your statement. Thank you.
11 MR NGUDJOLO: (Interpretation) Madam President, your Honours, good afternoon.
12 I have been in the Court's custody, in the custody of the International Criminal Court,
13 since 7 February 2008. You will shortly be called upon to deliberate and render
14 judgment in the case of The Prosecutor against myself.
15 Since the beginning of the case, I have pleaded not guilty and I made a statement
16 under oath. I stated that I played no role in planning the attack on Bogoro on
17 24 February 2003, nor did I send Boba Boba to Aveba to negotiate a common plan to
18 attack Bogoro.
19 The Prosecution speaks of a letter to Savo in support of this common plan. However,
20 the letter bears neither my name nor my signature, nor that of Boba Boba who I am
21 said to have sent to Aveba according to the Prosecution.
22 Moreover I was never a leader of the Lendu militia of the Bedu-Ezekere groupement,
23 nor did I ever take part in that fighting.
24 Furthermore, I was never a commander of the FNI as alleged by the Prosecution. I
25 was a nurse and I have provided evidence in support of that fact; evidence that was
21.10.2014 Page 79 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 80/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 accepted by the parties and participants, including the Prosecution.
2 The letter sent to Savo is not in any way linked to me, or Boba Boba.
3 I stated before this Court that the attacks were planned by the head of state, President
4 Kabila, himself. I testified to the fact and called witnesses to testify to the fact that
5 I was -- that it was the head of state himself who planned the attack on Bogoro. I
6 also presented letters to this effect proving that the attack was planned by the head of
7 state.
8 Please refer to the letter from Samba Kaputo, who was the chef de cabinet for
9 President Kabila, may he rest in peace.
10 I would also refer you to Savo and Samba's letters. These letters speak of the attack
11 on Bogoro.
12 My co-accused also stated that I never planned or contributed to the planning of the
13 attack by the Government of Kinshasa, but that it was he who implemented the plan
14 of attack and contributed greatly to it.
15 May I refer you to what Mr Katanga and Witness P-317 said, which was used by the
16 Prosecution to allege that I planned the attack? May I also refer you to the notice of
17 discontinuance filed by the Prosecution and Mr Germain Katanga in regard to which
18 judgment was rendered on 7 March 2014?
19 Germain Katanga's witnesses supported this theory and, what is more, the EMOI
20 documents provided by Germain clearly show the responsibility of the Kinshasa
21 government, the responsibility of EMOI and of the RCD-K/ML of Mbusa Nyamwisi.
22 You can also refer to what I said in comparison to those of Witness P-317.
23 Now, since the very outset I have always said that the truth will prevail. It is now
24 the hour of truth. It is always said that the truth is stubborn and that the enemy of
25 the truth is time. It is now time for the truth.
21.10.2014 Page 80 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 81/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 When my co-accused testified, his statement corroborated mine. What is more, he
2 was the one to show how the attack was prepared in Beni. At the time I did not have
3 access to Samba's letter, but with the help of God I managed to obtain it.
4 The Prosecution and Germain Katanga in fact acknowledged the truth in filing their
5 respective notices of discontinuance.
6 The truth is to be found in the judgment of 7 March 2014 convicting Germain Katanga
7 as an accomplice. That is the truth and that is why I respectfully request, Madam
8 President, your Honours, that the judgment of 18 December 2012 be confirmed as the
9 truth as has been borne out by Trial Chamber II firstly in its judgment of
10 18 December 2012 and again in that of 7 March 2014 which put an end to this.
11 Madam President, your Honours, all the parties and participants in this case, notably
12 the Prosecution, the legal representatives of victims for whom I have a great deal of
13 respect, the Defence, we are all gathered here to establish the truth.
14 This truth came to the fore in the judgment on 7 March 2014 and was confirmed by
15 the discontinuance of the Prosecution and Mr Katanga. I wonder what truth will be
16 borne out in this case.
17 The true perpetrators and the people behind the crimes are identified in this
18 judgment. Why does the Prosecution not bring them to trial? I do not understand
19 the Prosecution's attitude.
20 The truth on the attack on Bogoro has already come to light. I wonder why it is that
21 people are so hell-bent on accusing me? How many truths has the Prosecution come
22 up with? I have been described as all sorts of things: As the highest commander of
23 the FNI, the general chief of staff of the FNI, the commander of the FNI in Zumbe and
24 even the commander of the Lendu militia of the Bedu-Ezekere groupement. In the
25 face of all this, I claimed I was a nurse and the Prosecution finally accepted this.
21.10.2014 Page 81 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 82/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Today I am surprised that the Prosecution continued to accuse me and that it
2 categorically refuses to try the real people behind this attack. As Mr Katanga was
3 found guilty as an accomplice, this clearly shows that the true perpetrators of the
4 attack were known entities. They are there, but the Prosecution refuses to try them
5 for reasons that only he is -- or she is aware of.
6 From the outset, the Prosecution has fought for a disjoinder in this case to show that
7 we devised a plan with Germain Katanga. When the decision of November 2012 on
8 the severance of the case was announced, the Prosecution supported it. The
9 Prosecution and Mr Katanga supported the decision of 7 March 2014 in their notice of
10 discontinuance. This decision is definitive.
11 Today the Prosecution is holding me responsible for this attack, but I know that the
12 truth is to be found in the judgment of 7 March 2014. Nowadays I am unable to set
13 foot in the DRC subsequent to my testimony incriminating President Joseph Kabila.
14 I shall be a target for the Kinshasa government, a target for EMOI, a target for the
15 RCD-K/ML of Mbusa Nyamwisi and other communities in Ituri. One should not
16 forget that Joseph Kabila is the supreme commander of the Congolese armed forces.
17 I am his subordinate.
18 Also the fact that I disclosed confidential Defence documents, for example Samba's
19 letter, in keeping with the penal code of military justice in DRC, this could lead to the
20 death sentence for me. You may consult the documents relative to EMOI presented
21 by my co-accused.
22 And do not forget the position of the African Union with regard to the ICC as I have
23 just publicly denounced one of the African head of states before the ICC. As a result,
24 I cannot visit any African country. In light of all these considerations I would be
25 deemed to be a traitor or a collaborator because I cooperated with the International
21.10.2014 Page 82 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 83/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 Criminal Court.
2 And I want the ICC to move ahead. If that is not the case, we, the weak, will not be
3 protected. My hope lies with the ICC. Otherwise, the strong shall defeat the weak
4 and yet justice is for everyone, be it Joseph Kabila, be it the authorities of the EMOI,
5 be it the authorities of the RCD-K/ML of Mbusa Nyamwisi, be it the Ugandan or
6 Rwandan authorities. All of these people know full well that the ICC is a permanent
7 institution. Even though they are not being prosecuted now and may not be
8 prosecuted any time soon, one day justice will catch up to them because the evidence
9 I provided has incriminated them.
10 The dramatic situation of the DRC is not restricted to the attack on Bogoro. Millions
11 of Congolese people died when the UPDF of President Museveni, the APR of
12 President Paul Kagame, the FAC of President Joseph Kabila were active in the DRC,
13 active on the field of war. The people of the Congo are awaiting for justice.
14 I myself am a victim of everything that happened. In actual fact everything -- this all
15 stems from the Bogoro attack. And you see Rwanda was supporting the UPC/RP
16 militarily and Uganda logistically. I did all I could to ensure that the victims of the
17 attack on Bogoro learn who is truly responsible for what happened and that the truth
18 be revealed, even if the Prosecutor does not want to prosecute the people who are
19 really responsible. It is truly painful to see that the Prosecutor does not wish to bring
20 the true perpetrators of this tragedy to justice.
21 I do not know whether the millions of Congolese people who were victims of the
22 Rwandan army of President Kagame, the UPDF of President Museveni or the
23 Burundi army, whether one day these people will have concerns. If only the people
24 responsible for the Bogoro attack are prosecuted, then these other people will be at
25 peace today.
21.10.2014 Page 83 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 84/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 I can no longer go back to the DRC. If I were to go back, I do not know when
2 I would die or when an unfortunate accident or incident might occur and who would
3 be responsible for that. President Kabila is still in power. Furthermore he is in the
4 process of amending the constitution so that he can remain in power forever. Why?
5 Because he is afraid that one day he will have problems with justice. All the officers
6 of the EMOI, of the APC and all the authorities of the RCD-K/ML are in the army and
7 hold high-ranking positions in the army, in the government or in various
8 communities within the Ituri region.
9 PRESIDING JUDGE MONAGENG: I didn't want to interrupt you, but I think your
10 submission should be directed at yourself and the case and not go outside. I don't want
11 to -- I don't want to say that you are now on some other ground, but please just focus on
12 yourself, focus on the case without touching on other things that might give the impression
13 that you are deviating. Thank you very much.
14 MR NGUDJOLO: (Interpretation) Thank you very much, your Honour. I think I'm
15 coming to the end of my remarks. Now if I am coming to the end of my remarks, it is
16 because, you see, I wanted to show what the problems were and what the consequences are
17 for me. That is why I wanted to say all of that, because the people that I mentioned are
18 people who are mentioned in the case file and the information I provided is information that I
19 provided in the case file, right now they are not -- even if they are not concerned or involved
20 in the Bogoro attack.
21 I was saying this, since the Prosecutor does not wish to prosecute those who are truly
22 responsible for the attack and since they continue to hound me, I don't know why,
23 I don't know whether today when an unfortunate incident might befall me if I go back
24 to my country. So you see the three witnesses that we called who gave testimony
25 before this Court, look at them now. They are in prison.
21.10.2014 Page 84 ICC-01/04-02/12-T-4-Red-ENG WT 21-10-2014 85/85 SZ A
Appeals Hearing (Open Session) ICC-01/04-02/12
1 To conclude, your Honour, Madam President, your Honours, the Prosecutor should
2 stop hounding me because the truth about the attack on Bogoro is well known. The
3 Prosecutor should prosecute those who were truly responsible for that attack.
4 In light of all these previous considerations, I am afraid to go back to the DRC for
5 your information. I am afraid to go back to Africa. With all due respect I call upon
6 the Appeals Chamber, your Honours, to uphold the ruling of 18 December 2012 in
7 which I was acquitted because there is only one truth. There are not two versions of
8 the truth, there are but one.
9 If there were two versions of the truth, the Prosecution would be -- well, even the
10 Prosecution recognised and acknowledged the truth. That is why I call upon the
11 Chamber to uphold the decision of 18 December. Madam President, your Honours,
12 I thank you.
13 PRESIDING JUDGE MONAGENG: Thank you very much, Mr Ngudjolo. Your address -
14 personal address - has been noted by the Court.
15 Having heard Mr Ngudjolo, we have now come to the end of today's hearing. On
16 behalf of the Chamber, I wish to thank all the parties and participants for their
17 assistance. I thank the court staff, interpreters, stenographers as usual, and my dear
18 colleagues here, my fellow Judges.
19 And I also wish to say that the Chamber is working very diligently towards the
20 resolution of the issues on appeal in this case, and to that extent the parties and
21 participants will be informed in due course as to when our judgment will be
22 delivered.
23 The hearing is closed.
24 THE COURT USHER: All rise.
25 (The hearing ends in open session at 3.57 p.m.)
21.10.2014 Page 85