Former Congolese rebel commander Bosco Ntaganda refused to attend his trial hearing today and has gone on hunger strike to show his dissatisfaction with an order by judges to maintain restrictions imposed on his communications and contacts.
“As a result of the decision, Mr. Ntaganda has stopped eating since yesterday afternoon, and Mr. Ntaganda does not intend to resume eating normally in the near future,” his lawyer Stéphane Bourgon said this afternoon. He added that the accused had also refused to take medicine prescribed to him by a doctor who saw him today.
Earlier in the morning, Bourgon had asked judges to postpone the scheduled hearing to enable him visit Ntaganda at the detention center, since he had informed him that he would not appear at the court. “I am not in position to reveal the content of my conversation with Mr. Ntaganda. What I can say is that I don’t have the mandate to represent Mr. Ntaganda in his absence,” said Bourgon.
Whereas judges postponed the hearing to the afternoon, they ruled that if Ntaganda did not allow his lawyers to represent him if kept away from court, the judges intended to order defense counsel to represent him. Presiding Judge Robert Fremr, while delivering an oral ruling, noted that Article 63(2) of the court’s founding law, the Rome Statute, provides that in certain circumstances proceedings can continue in the absence of the accused.
After visiting Ntaganda, Bourgon said Ntaganda was in “a very bad psychological situation,” and he would ask the court’s Registry to arrange for a psychologist to see him. He said Ntaganda had returned to detention center officials the telephone hitherto close to his cell by which he normally communicates. As a result, those who wished to speak to him needed to go directly to his cell in order to communicate.
Bourgon said Ntaganda would be ready to appear in court on Tuesday, September 13. In the meantime, he “maintains his position not to be present in the courtroom, and he also maintains his position not to authorize myself or any member of the defense team to represent him during his absence.”
The impasse stems from an August 18, 2015 order that placed restrictions on Ntaganda’s contacts after judges found reasonable grounds to believe that he personally engaged in witness coaching and also directed his associates to do so. Under restrictions imposed on Ntaganda then, his telephone communications are only permitted with two individuals, are actively monitored, and are limited in duration, language, and subject matter, with the use of coded language or discussion of case-related matters prohibited.
The second set of restrictions are those placed on Ntaganda’s visits, which are actively monitored. Conversations must be in a language that can be monitored by the Registry and cannot involve any case-related discussions.
In yesterday’s ruling, judges maintained the existing restrictions, stating that Ntaganda may continue to have contact with his wife and children through actively monitored telephone conversations, visits, and the recording of messages. Under existing restrictions, Ntaganda is permitted to speak to his children through his wife and to record messages to be played to his children after review of their content by the court’s Registry. In an interview a month ago, Ntaganda’s lawyer said the accused had not seen his seven children since his transfer to The Hague three years ago.
The judges considered that under those restrictions, Ntaganda’s rights to privacy and family life were being appropriately balanced with the objectives of protecting witnesses, preventing breaches of confidentiality, and ensuring the integrity of the proceedings.
The judges noted that, since more than 50 prosecution witnesses were yet to testify, and in view of preparations for any defense case, the risk of witness interference and witness coaching remained high.
In her oral submissions today, prosecution lawyer Diane Luping said under the court’s rules the accused’s presence at hearings is required and expected and only in exceptional circumstances should they be excused. Dissatisfaction by a trial chamber’s decision did not represent an exceptional basis for Ntaganda to refuse to go to court, she said. Luping urged judges to order Ntaganda to appear in court in order to guard against “the accused holding the chamber hostage simply because of a decision not to his liking.” Luping also asked judges to consider warning the accused of the possibility of sanctions if he continued refusing to appear, as per the court’s rules.
Pursuant to their ruling in the morning to continue proceedings in Ntaganda’s absence, judges in the afternoon ordered Bourgon to represent the interests of the accused during testimony of a new prosecution witness – Dr. Lars Uhlin-Hansen. During 2014, the Norwegian forensic pathologist carried out autopsies on 13 human remains in Congo’s Ituri district.
Hearings in the trial are scheduled to continue tomorrow morning.