By Sofia Stolk –
Another rainy Wednesday morning in The Hague. The ICC urged me to be early if I want to secure a seat at their next ‘key judicial event’, the opening of the Ntaganda trial. The sober waiting room is decorated with portraits of the honorable judges and a gallery of state parties, which has only about 15 empty spots left, showing hope as well as pessimism. Thirty minutes before starting, I’m still one out of only five members of the general audience waiting next to a handful of journalists and some NGO representatives. Eventually, the public gallery slowly fills up as the blinds covering the windows to the courtroom open.
The court officer starts with reading out the 18 counts, an almost meditative exercise of summing up the alleged crimes and the villages where they took place; Mongbwalu, Pluto, Nzebi, Sayo, and Kilo; Kobu, Sangi, Bambu, Buli. Ntaganda pleads not guilty to all the charges. Now it is up to the parties to make their opening statements; today the Prosecution, tomorrow the representatives of the victims, the Defense, and Mr Ntanganda himself. As Judge Fremr emphasizes, everything what is told and shown on the opening day is not regarded as evidence. The speakers use this freedom to be a bit less technical and a little more dramatic. The speeches can tell a story, one that is made understandable for a broader audience and thus, ironically, will probably be better remembered than the ‘real’ hearings that will enter the case records. The Prosecution seems well aware of the fact that journalist tend to leave after the first 11 o’clock break. When Fatou Bensouda takes the floor, her task is to forcefully open the case, after which her colleague Nicole Samson takes us in a calm pace through the rest of the material.
Bensouda neatly printed out her texts, double-spaced, with words that deserve some emphasis marked in green and blue. She directly kicks off with an appeal on our imagination and empathy, by introducing witness P-106, a Lendu civilian who escaped a brutal trap set up by the Union des Patriotes Congolais. When he returns to his village to look for his family, he witnesses a bloody massacre on a banana field, just behind hotel Paradiso as we will find out later when senior trial lawyer Nicole Samson shows us the pictures. After looking through the bodies, he finally finds his wife and kids. Their deadly injuries are described in detail. Another witness of the banana field massacre is introduced, who ‘had never seen a mass killing before.’ Bensouda’s accusation is straightforward: Bosco Ntaganda is the notorious, merciless, greedy, and powerful leader who is responsible for the death of this family and thousands of other victims who are waiting for justice. Justice, she claims, that is demanded by humanity.
In line with previous openings at international criminal trials, this one not only functions as a summary of the case but also as a legitimation of the work of the Court itself. Victims and humanity are put forward as entities on whose behalf the Prosecutor speaks. The defendant is depicted as a truly despicable person, which is contrasted with the innocence of the victims. Almost every time Bensouda and Samson describe the crimes and the victims, they single out a particularly vulnerable one to emphasize how the crimes were not only legally but also morally wrong. The people killed include little girls, elderly, priests, and a ‘retired school principal with disabilities’. The buildings destroyed include schools, hospitals, and churches. Examples that make the audience shiver for they symbolize the intrusion of unquestioned innocence, which is exactly the picture the Prosecution wants to paint. Explicit accounts and many metaphors help us to imagine what is hard to describe; black pools of blood, cascades of bullets, kids dragging rifles because they are too small to carry the weapons. Manhunt is the word Samson frequently uses to describe the activities of the UPC and FPLC with regard to Lendu civilians. This is the language that will find its way to the media, which illustrate their story about Ntaganda, a.k.a. ‘The Terminator’, with these tragic images and the Prosecution’s fierce condemnations. In the courtroom however, an uncomfortable contrast arises between the sterilized, technical, language-focused environment and the almost indescribable suffering that is brought forward. It remains to be seen if the attention that is paid to the personal stories of the victims and their pain can sustain during the rest of the trial, where legal language and strict judicial categorization will prevail.
There is another important point that Bensouda wants to bring across. It is not the entire Hema community that stands trial, but an individual that exploited the ethnic divide. According to Bensouda, both sides of the conflict in Ituri, the Hema and the Lendu, committed crimes and suffered as victims, which she emphasizes by also repeating it in French. Hereby, she directly engages with the possible criticism that the Prosecution’s selection mechanism may, and already does, receive. Another issue to be tackled in the opening statement is the accusation of the Prosecution’s lack of ‘feet on the ground’. Pictures in the ICC hallways show how local communities follow trials and take part in outreach activities en masse, which is slightly at odds with the persistent critique of the ICC being too far removed from local realities. Today, the Prosecution invests in showing local knowledge cultural awareness. Samson clearly practiced the pronunciation of the many villages. She shows visualizations of the crimes scenes, mentions exhumations performed by the prosecution, and depicts the routes of the ‘ratissages’ as well as the escape routes by colored arrows on a map. She introduces the Swahili terms that were used to refer to, for example, the operations and the girl soldiers. Interpretations to which the Defense later vigorously objects, accusing the prosecution of a lack of cultural awareness. A potentially uncomfortable way of bringing the DRC to The Hague is a remark by Samson who, in order for the Judges to visualize, compares the size of Ituri to that of The Netherlands and Belgium together. Didn’t the Judges know of this already or is it a gesture to the audiences outside the courtroom? And what does this rather Western oriented comparison say about the assumed geographical knowledge of this intended audience? This reflects how the opening statement constantly shifts between different audiences; the judges, the local community, the Defense, the victims, the international community and Mr. Ntaganda personally, although Samson looks at him during her statement only once.
After the first break, half of the public, including most journalists, already leave. After the second break, only some zealous interns and enthusiast researchers return back to their seats. While the speeches dwell on, the judges hardly make any notes, contrary to Mr. Ntaganda. Prosecutor Bensouda yawns from time to time. Others keep their faces straight, only some dare to peek at the public gallery once in a while. They silently sip from their glasses of water and rearrange the coasters with ICC logo. Only Ntaganda drinks from a plastic cup – no glass for the defendant. When we all rise and the Judges leave, the trial participants quickly take of their robes, stretch their backs and faces, and turn into normal people who put on raincoats before they will bike back to their homes. Tomorrow, the victim representatives will present their statements. Nobody in the audience intents to attend, besides me.
The next morning, a similar uncomfortable feeling with regard to the description of the suffering victims persists. Interestingly, while the importance of the incorporation of independent representation of the voice of the victims was widely propagated and supported, only half of the room is filled when the special representatives make their opening statements. Indeed even less people than yesterday after lunch. The dramatic account of the ongoing suffering of child soldiers and victimized civilians due to addictions, poverty, hunger, diseases, and trauma is a call for the international community to care and for the court to fulfill its promise of bringing out the truth about what happened. The reference to the frustration of the participating victims after the Lubanga trial is a serious comment on the functioning of the court. The long enumerations of suffering must annoy the defense, who requested neutral observations from the victim representatives and who will later note that criminal justice is about individual responsibility and not ’therapy for the suffering victims’. The lack of attention for these appeals is poignant, even if one considers the valid critique on the introduction of a waiting, suffering, passive victim who has nothing left but the hope that the ICC will finally bring some justice.
A larger crowd turns up to see the Defense’s first attempt to turn the ruthless, greedy commander into a man of discipline with peaceful plans for his people, a man that is victim of his terminator reputation made up by people who don’t like Tutsis. Their opening is true team effort; the many interns who alternately sit in the courtroom or on the first rows of the public gallery make sure that the Defense is undeniably present. Two young trial assistants make their first appearance before the ICC, their trembling but firm voices still a bit too fast for the interpreters. They quote French philosophers and call for vigilance and strict adherence to the law. They emphasize how their team suffered from a lack of preparation time and they warn the victim representatives not to become a second Prosecutor and disturb the balanced trial proceedings. By showing the famous optical illusion that can be perceived as either an old woman or a young lady the Defense wants to illustrate that one case can be viewed in two totally opposite ways. The Prosecution showed the old woman, we are going to show the pretty lady, Mr. Bourgon tells us; irony and cynicism is part and parcel of his address. Their aim is to present the other Bosco Ntaganda; the military man. The Defense ends with the introduction of Ntaganda’s nickname ‘The Terminator’, a name by loved the media. Both the Defense and Ntaganda condemn this nickname. They note that Ntaganda’s deeds are on trial, and not his reputation. Perhaps it would have been beneficial if the Prosecution had referred to ‘the Terminator’ in their statement. Now, the Defense’s introduction of the name followed by an objection to the use of it comes a bit out of nowhere. Nevertheless, it makes for a dramatic ending of these first days.
The Judge thanks the parties for their informative and impressive presentations and the dignified manner in which they were conducted. He deems these statements important for the public to see the different views on the case. For the larger audience, it will – perhaps until the judgment – be the only thing they will see of the lengthy trial that is about to begin. The opening statements touch not only upon the facts of the case and the accompanying emotions but also on the challenges of determining the goals, legitimacy, and effectiveness of the ICC in general. In a nutshell, this opening day reflected the whole set of identity issues international criminal justice struggles with, no matter what the final judgment in this case will bring.
Sofia Stolk is a Research Fellow at the Centre for the Politics of Transnational Law (CePTL) and PhD candidate at the VU University. Her research focuses on opening statements in international criminal trials.