20 09 13 TRIAL REPORTS – Ntaganda Asks to be Released From ICC Detention

His
lawyer, Marc Desalliers, said Mr. Ntaganda’s willingness to cooperate could not
be disputed at this stage of the proceedings because he voluntarily surrendered
to the court and on numerous occasions stated his desire to appear before a
judge.

In
the August 20, 2013 application, the lawyer said the war crimes accused would
not leave Dutch territory for the duration of the proceedings against him.
Furthermore, Mr. Ntaganda would comply with any conditions judges attached to
his release, including appearing at hearings and not obstructing investigations
and court proceedings.

Judge
Ekaterina Trendafilova has asked the Dutch government to comment on any
conditions that would have to be met to enable the Netherlands to accept Mr.
Ntaganda on its territory. Prosecutors were also asked to file a response to the
release request.

On
March 18, 2013, Mr. Ntaganda turned up at the American embassy in the Rwandan
capital Kigali and asked to be transferred to The Hague, where there were two
arrest warrants on his head.

The
first warrant – issued in 2006 – alleged that Mr. Ntaganda, along with Thomas
Lubanga, recruited, enlisted, and used child soldiers in armed conflict during
2002 and 2003.

Whereas
the Congolese government handed Mr. Lubanga to the world court, his co-accused
remained at large until this year, oscillating between service with the national
army and command of anti-government militia groups. The Lubanga trial was the
first conducted by the court and resulted in a March 2012 conviction. Mr.
Lubanga is currently appealing his 14 year jail sentence.

The
second arrest warrant for Mr. Ntaganda, issued in July last year, accused him of
the crimes against humanity of murder, rape, and sexual slavery, and war crimes
of murder, attacks against a civilian population, pillaging, rape, and sexual
slavery.

Prosecutors
charge that Mr. Lubanga was the head of the Patriotic Force for the Liberation
of Congo (FPLC), a group that used children under the age of fifteen in armed
conflict, while Mr. Ntaganda was the group’s deputy chief of
staff.

In
the application for the second warrant of arrest, prosecutors said the
circumstances that led to issuing the first warrant still subsisted, including
Mr. Ntaganda’s “potential, continued commission” of crimes and intimidation of
potential witnesses.

In
the application for interim release, the defense said arguments made years
earlier could not “satisfy the requisite threshold” to warrant pre-trial
detention, particularly given more recent developments.

Mr.
Desalliers stated that Mr. Ntaganda surrendered to the court eight months after
the July 6, 2012 order by Congolese president Joseph Kabila for his dismissal
from the country’s army. The surrender was made “once he had planned his
voluntary surrender to ensure that it took place in conditions guaranteeing its
effectiveness and security.”

He
added that Mr. Ntaganda never sought to evade justice and surrendered when he
was in a position to do so. Furthermore, Mr. Desalliers said, the prosecution
had confirmed to the court that it had been informed of Mr. Ntaganda’s place of
residence, “which, in any case, he had never sought to
conceal.”

The
defense lawyer also submitted that because Mr. Ntaganda was considered indigent
by the court and was a subject of United Nations resolutions that imposed a
travel ban and an asset freeze, he could not abscond from justice. He also said
the accused did not hold a passport or other travel document that could make him
a flight risk.

Mr.
Desalliers stated that Mr. Ntaganda wanted to make “an active contribution to
the preparation of his defense,” and if released he would be able to communicate
readily with his defense team.

The
defense argued that the conditions for Mr. Ntaganda’s detention were not
justified at this stage in the proceedings. “It rests with the prosecution to
establish the necessity for detention and the defense must be afforded the
opportunity to respond to the prosecution arguments,” said Mr.
Desalliers.

A
request by the public counsel for victims, Paolina Massidda, to make comments to
the release application, was rejected by Judge Trendafilova. The judge said no
victims had been permitted yet to participate in the
proceedings.

The
confirmation of charges hearing for Mr. Ntaganda is scheduled for February
2014.