Please find Katanga and Ngudjolo Chronicle #5, which was originally published on the Aegis Trust website.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

The morning starts with a discussion of procedural matters in the presence of the witness. The Prosecution has 40 minutes to complete their examination and to allow other parties to cross-examine the evidence presented by the witness. The Presiding Judge announces the intention of the Legal Representatives of Victims to also put some questions to the witness. To do so, the lawyers are requested to submit their questions to the Chamber, who will assess their pertinence. According to the rules of the Court, victims must show that the witness’s testimony covers certain matters affecting their personal interest, and their request to participate in the proceedings must be made in writing at least seven days before the evidence is presented. This has not happened here, so the Chamber’s flexibility on the “7 days decision” will be put to the test.

”Good morning, Sir,” Prosecutor Eric MacDonald greets the witness. “We are in open session and I would like to turn to the issue you were discussing on Friday afternoon – the list of the victims of the attack on Bogoro. How did you prepare that list?” asks Mr. MacDonald. Witness 233 explains that, to draw up the list, each person tried to remember the people who had died or who had disappeared. “We put that name on the list,” says the witness. Two hundred victims were listed. The casualties resulted from the attack on the 24^th of February 2003.

But before that attack happened, there were other assaults on the village too. “How many previous attacks took place before the assault on 24 February?” asks Mr. MacDonald. “Before that assault, there were another two, in 2001 and in 2002,” says the witness. The Prosecution wants to explore these dates further but finds that Witness 233 has forgotten the month and the specific days. “If I could take a look at my notebook…” points out the witness. “What notebook you are referring to?” asks Mr. MacDonald. Witness 233 made some notes concerning the events in 2001 and 2002. “They were historic events; perhaps someone would ask me about these episodes,” he explains.

The Prosecution requests that the Chamber show the witness his notebook. The Chamber discusses this petition in closed session and in the absence of the witness. The blinds go up once more and Mr. MacDonald, standing, holds a sheet of paper. It is a photocopy of the witness’s notebook. He asks that this document not be exhibited publicly. It should remain confidential. After a discussion between the Defence and Prosecution lawyers, the Chamber gives its consent to the use of this piece of evidence in order to refresh the witness´s memory. After all, as pointed out by the judges, it is a piece of evidence produced by the witness himself and based on his own memory.

Witness 233 enters the courtroom and Mr. MacDonald resumes his examination. “Mr. Witness, do you recognize this page?” asks the Prosecutor, referring to his notebook. On this page are written those details concerning the previous attacks on Bogoro: the first assault, on the 9^th of January 2001, in which nearly 110 people died; and the second attack, on the 14^th of August 2002, in which 32 people were killed. According to the witness, the numbers referred only to civilians, and those responsible for the killings were the Lendu and Ngiti ethnic groups.

Before Mr. MacDonald concludes his examination, he comes back to the events of 24 February 2003 to finally get the answer he has been looking for since the beginning of the testimony. “Mr. Witness, what does this expression mean?” asks Mr. MacDonald, reading out a sentence in Swahili. “Does it mean ‘kill them with our hands?'” Immediately the Defence objects once again. The witness says he heard those words being uttered by “the enemy soldiers.”

After the mid-morning break, the request of the legal representatives of victims (LR) leads to an interesting debate that will define the level of participation by their clients. Once they disclose the questions they intend to put to the witness, the other parties in the trial issue their response. The Defence opposes their request, arguing that the LR want to cover areas of the evidence that should be addressed by the Prosecution. This comment displeases one of the victims’ lawyers: “We are not here as observers. We are here to represent concerns and views of the victims that I represent,” says Mr. Luvengika. “All these questions are consistent with the interest of our clients. There are some elements of confusion in the witness’s testimony and we want to clarify it,” he says.

For their part, the Judges affirm that they will be flexible with the “7 days rule,” and admit the questions raised by the Legal Representatives as relevant to this case, and therefore they assume these matters will be put during the cross-examination conducted by the Defence. “If the Defence does not ask about these matters, the Chamber will ask,” says Presiding Judge Cotte.

The witness enters once again. A couple of questions put by the Chamber, and the cross-examination starts. “Good afternoon Mr. Witness. My name is David Hooper and I will ask you questions on behalf of Mr. Germain Katanga,” announces the Defence Counsel. Mr. Hooper wants to find out whether what the witness has said during the examination is true. “You told us that the first attack took place on the 9^th of January 2001, and that attack lasted for three days and caused 110 civilian deaths. Is that correct?” Mr. Hooper is interested in what the witness remembers now without referring to his notebook. His first interview with the OTP investigators was in 2007. Three years have passed and that may have affected the witness’s ability to recall the events.

“On the August 2002 attack,” introduces Mr. Hooper, “that occurred after [the governor of Ituri] Mulondo Lopondo was ejected from Bunia by the UPC?” “Yes,” says Witness 233. On that day, amongst the enemy soldiers – the Lendu and the Ngiti – there were other fighters. Some of those who entered Bogoro on the 14^th of August 2002 wore the uniforms of the Armee populaire congolaise (APC), the armed wing of the RCD-K-ML led by Mbusa Nyamwisi, who control of areas in North Kivu and Ituri, and were allied with Kinshasa.