Ntaganda’s ICC trial in DRC?

However, while this would fulfil a long-held aspiration by the court, several factors may affect whether the suggestion will become reality. They include concerns about the security of court personnel, availability of suitable and secure detention facilities for the accused, lack of appropriate court facilities, and a shortage of accommodation for judges and court officials.

Mr. Ntaganda faces 18 counts of war crimes and crimes against humanity that were allegedly committed while he was deputy military head of the Patriotic Forces for the Liberation of Congo (FPLC). The crimes allegedly occurred against civilians in Congo’s Ituri province in 2002 and 2003. Bunia is the province’s capital and was the location of the FPLC’s headquarters.

Trial judges Robert Fremr (presiding), Kuniko Ozaki, and Chang-ho Chung haverecommended to the court’s presidency that opening statements in the trial, which may last three or four days, be held in Bunia.

Pursuant to Rule 100 of the Rules of Procedure and Evidence, where the court considers that it would be in the interests of justice, it may decide to sit outside of its host country for such a period as may be required.

In a submission on the possibility of holding part of the hearings in Bunia, the legal representatives for victims said any effort to bring the ICC’s work closer to the affected community was of paramount importance for the victims and the court as whole. They said that because the large majority of victims in the case reside in Ituri, Bunia was the suitable location for holding such hearings.

For years, the ICC has grappled with criticism that trials conducted in The Hague are too removed from the victims of the crimes.  So far, all trials conducted at the court have concerned crimes committed in Africa. Although hearings at the ICC are routinely streamed via the internet, victims often live in areas with limited internet connectivity.

At the opening of Thomas Lubanga’s trial in January 2009, the court organized a public screening of the proceedings in a community hall in Bunia, but the screening was reportedly suspended over security concerns. Mr. Lubanga, the former FPLC president, was the first person to be convicted by the ICC. He is currently serving a 14-year prison sentence for recruiting, enlisting, and using children under 15 in armed conflict.

In the trial of former Congolese vice president Jean-Pierre Bemba, judges considered holding hearings in the courtrooms of the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, partly because many defense witnesses were unable to obtain passports and visas to Europe. Many of them were exiled former soldiers from the DRC or the Central African Republic, and their inability to travel to the seat of the court led to repeated delays to the trial.

When ICC prosecutor Fatou Bensouda visited Uganda earlier this month, she was inundated with calls for the trial of Lord’s Resistance Army senior commander Dominic Ongwen to be held in Uganda. Many of the victims and local leaders that she met told her The Hague was too far from where the Joseph Kony led rebels committed crimes and that the population in Uganda would not be able to follow proceedings.

Although the prosecution and defense welcomed the idea of holding a part of the Ntaganda trial in Bunia, the Office of the Prosecutor (OTP) raised numerous concerns, such as whether there was appropriate accommodation for court staff and a suitable trial venue; the intermittent internet connectivity in Congo; and the likelihood that electronic presentation of evidence would be impossible – something the prosecution would require for its opening statement. In its latest feasibility report, the court’s Registry has clarified that a laptop with a large projector or screen could be provided.

In their recommendation, judges stated that should electronic presentation of material be permitted, the facilities proposed by the Registry would be adequate. They said “the inconvenience of a more basic courtroom set up, and similarly of accommodation arrangements, would be substantially outweighed by the potential benefits of enabling the hearings to be brought closer to the affected communities in a meaningful manner.”

The OTP also observed that limited access to the hearing and lack of live broadcasts would frustrate the aim of bringing the trial closer to the victims.

Judges noted, however, that the Registry had indicated the possibility of enabling attendance at the hearings on a rotational basis, including for community leaders; facilitating local and international media coverage of the hearings, including the provision of live feed for radio or audio-visual broadcast; and producing and disseminating a summary of the hearings, including in video format.

Regarding the security situation in the proposed region, the judges emphasized that this would need to be “continuously monitored and carefully considered in any ultimate decision” on whether or not to hold the proceedings in the DRC.

Lastly, the judges recognized that whereas cooperation agreements had not been finalized between Congolese and United Nations authorities, the Registry had indicated that “a positive reaction” had been received from both authorities for the proposal.

A final decision on the trial judges’ recommendation will be taken by the presidency in due course, in consultation with the chamber, and subject to the agreement of the relevant State authorities.