On March 14, the International Criminal Court (ICC) announced its first verdict, in the case of Congolese militia leader Thomas Lubanga. While the verdict has been hailed as a milestone for international justice, it also highlighted the enormity of the continuing challenge of addressing continuing impunity for international crimes in the Democratic Republic of the Congo (DRC). A number of NGOs used the occasion to call for further investigation and prosecution of cases that cannot be addressed by the ICC, for example, through the creation of a hybrid court.

One issue that has garnered particular attention is the situation of Bosco Ntaganda. Ntaganda was accused alongside Lubanga for the role that he played in organizing the Union des Patriots Congolais (UPC) and its military wing and conscripting child soldiers. Despite the ICC arrest warrant, Ntaganda has continued to operate openly in North Kivu, where he is now a General in the DRC armed forces. Following his engagement with the UPC rebels in Ituri, Ntaganda became involved with the Congrès national pour la défense du people (CNDP), a rebel movement then under the direction of Laurent Nkunda. In 2009, Ntaganda took over control of the CNDP and signed a peace deal with the DRC government, agreeing to integrate his forces into the national army.

In research carried out by the International Refugee Rights Initiative and the Association pour la promotion et la défense de la dignité des victims (APRODIVI), with communities in Ituri it was clear that there was a demand for accountability for Ntaganda (alongside Mr Lubanga). Those interviewed expressed frustration with the lack of consistency in the government’s position which indicated an intention to get tough on impunity at the same time as justifying the refusal to hand Ntaganda over on the basis that he was critical to ensuring peace and security in the region. In the words of one activist, the failure to arrest Ntaganda so far seemed “in contradiction with [the government’s] promise to cooperate with the International Criminal Court… numerous voices continue to be raised to demand that the Congolese government fulfill its obligations to the Court.” Iturians lamented that the failure to arrest Ntaganda allowed him to continue “doing the same thing” in the Kivus. A group of United Nations experts assigned to assess mineral exploitation in the Congo have noted that Ntaganda is “directly implicated” in illegal exploitation of minerals there.

Since the Lubanga verdict, NGOs, the ICC prosecutor, and members of the international community have called for Ntaganda’s arrest. The ICC Prosecutor told the press that in the six years since the arrest warrant was issued Ntaganda had become “the leader of one of the more dangerous militias in the Kivu [provinces], allegedly committing mass rapes. He cannot be a general in the DRC army. It is time to arrest him.” The Prosecutor said that he would travel to the DRC to raise this issue directly with the Congolese government. The Prosecutor also indicated that he would seek to add additional charges to the case against Ntaganda reflecting additional crimes allegedly committed in North and South Kivu after he left the UPC.

The Prosecutor’s call was soon echoed by representatives of the international community. On a visit to DRC in late March, according to Jeune Afrique, the Belgian Minister of Foreign Affairs Didier Reynders told the media that he had raised the issue with the Congolese head of state. US Ambassador James Entwistle added his voice to the call, making the US government’s position explicit on April 5: Ntaganda should be arrested and handed over the ICC.

Although it is much more difficult to for local organizations to speak out on these issues, some have courageously done so. One such activist, Justine Bihamba Masika, according to the Observatory for the Protection of Human Rights Defenders, gave an interview to the BBC on March 15, reacting to the Lubanga verdict and calling for the arrest of Bosco Ntaganda. Following the interview, Ms. Masika reported receiving a number of threats. A Congolese professor of international law, Professor Tshibangu Kalala also weighed into the national debate arguing on Radio Okapi that if the government wished to avoid sending Ntaganda to the ICC, they should “contact the Security Council and explain to them why,” presumably in order to obtain a deferral of the case as provided for in Article 16 of the Rome Statute.

International organizations are also active. Human Rights Watch has attempted to build the case for Ntaganda’s arrest with a six minute video detailing some of the crimes which Bosco is suspected of committing after the issue of the arrest warrant against him., in particular continuing forced recruitment, rape, and a massacre at Kiwanja in which an estimated 150 persons were killed in 2008. The Enough Project also released a briefing note calling attention to Ntaganda’s ongoing crimes. This advocacy may be influencing debates in the United States Congress where legislation is being debated to allow the US government, although it is not a member of the ICC, to pay rewards for actionable intelligence leading to the arrest of suspects wanted by the Court.

Initially, the government responded to all of this pressure with its customary line of argument: Ntaganda could not be arrested because he was critical to peace in eastern Congo. She Okitundu, a former Kabila advisor, warned that “Bosco Ntaganda will be arrested sooner or later… but it is for the head of state, in the interests of the country, to decide how and when. The situation in Kivu now is explosive and the priority is to avoid a new war.” Honorable Louis Kyaviro, a parliamentarian from North Kivu, declared that Ntaganda would not be handed over because of the role that he was playing in the pacification of the region.

The UN Mission in the DRC (MONUSCO), which some activists hope might provide assistance to an arrest effort, has distanced itself. MONUSCO’s spokesperson, Madnodje Mounoubai was quoted by Radio Okapi as saying, “MONUSCO doesn’t think anything at all about the arrest of Bosco Ntaganda. It is not implicated directly or indirectly.”

Despite the rhetorical resistance of the government and the lack of enthusiasm for enforcement action from MONUSCO, the Tutsi community of North Kivu reacted strongly to calls for Ntaganda’s arrest. In a letter to the UN Secretary General, six leaders of the Tutsi community expressed concern that the focus on Ntaganda’s arrest and what it argued was the extension of Ntaganda’s presumed guilt to the entire community. The letter expresses the community’s concern that Ntaganda’s arrest could have negative consequences for the whole community.

At the same time, a number of Rwandan speaking officers in the Congolese army, including members of Ntaganda’s CNDP movement, deserted the army. Although the details remain unclear, as many as 600 may have left their posts. Some interpreted the desertions as “a simple show of force on the part of Ntaganda and not a new rebellion.”

Nevertheless, the event prompted a forceful response from Kinshasa with government forces taking some of the deserters into custody. President Kabila then travelled to Goma announcing that he would dismantle the Amani Leo military structures – the framework within which Ntaganda’s units have been collaborating in actions against Forces Démocratiques de Libération du Rwanda (FDLR) rebels. Kabila also very publicly placed Ntaganda’s arrest on the agenda, while with the same breath, however, seeming to question the role of the ICC. “We can arrest [Ntaganda] ourselves because we have 100 reasons to arrest and try him here in the country… the crimes that Bosco Ntaganda has committed in the country do not necessitate his transfer to the ICC.”

Activists, however, expressed skepticism about the significance of this announcement. As one said, “We are waiting for actions. So far, this announcement is only causing confusion.” Another claimed that he did not believe “that the President would hand him over – never… He is just trying to calm the NGOs and the international community.”

It would appear that the government has been trying to walk a narrow line, both trying to assert its authority vis-à-vis a rebellious Ntaganda and with respect to its sovereign decision making power in the face of international community pressure.

In this tense environment, a poorly executed arrest strategy could have negative consequences for security in the region and make civilians more vulnerable. Some observers have suggested that the international community should look at how to leverage regional dynamics towards ensuring an arrest. In the words of one activist, “The arrest of Bosco may respond to the same logic as that which permitted the neutralization of Laurent Nkunda in 2009, which required the cooperation of Rwanda and the DRC.”

Meanwhile, Ntaganda remains at large and is showing that he is still a force that cannot be discounted. The Congolese newspaper Le Potential has speculated that he is fomenting a new rebellion in Ituri. On April 30, it was reported that two towns in eastern Congo had fallen to troops loyal to Ntaganda.

International and national mechanisms have a bleak track record for holding to account perpetrators of grave crimes against children in armed conflict. This month the International Criminal Court (ICC) made concrete progress in the fight against impunity for these crimes with its verdict finding Thomas Lubanga, founder of the Union des Patriotes Congolais (UPC), guilty of conscripting and enlisting children as soldiers in the Ituri district of eastern Democratic Republic of Congo (DRC) during 2002 and 2003.

This verdict demonstrates that the Court can and will hold individuals criminally responsible for recruiting and using children. The judgment sets out strong new jurisprudence pertaining to this crime and rightly focuses the world’s attention on the perpetrators. It also gives new potency to the UN’s efforts to prod armed forces and groups to change their policies and end their practice of recruiting and using children. The verdict “will reach warlords and commanders across the world and serves as a strong deterrent,” according to the UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy.

The critical sentencing and reparations stages remain pending. If they produce strong results the case will have even greater potential for a far-reaching and long-term legacy for the children and communities of DRC and others affected by armed conflict around the world.

These are all reasons for optimism and for reinvigorating support for the work of the ICC. Yet, the ICC is not and should not be the sole vehicle for accountability and ending impunity for grave crimes against children in armed conflict. The ICC is expensive and slow-acting by nature. It took nearly eight years for the court to reach this verdict and the sentencing and reparations phases are ongoing. By design the court will only ever target a few select individuals. It will not even reach the large numbers of accused perpetrators in dozens of armed forces and groups already identified by the UN in over 14 countries across the globe.

A strong and effective role for national and other international accountability mechanisms is essential. National governments bear the primary obligation for criminal prosecutions of those responsible for these crimes. National judicial systems and other national level accountability mechanisms have potential for reaching a larger number of accused perpetrators. They also have potential for more sweeping impact as they are closer to the affected populations. There is a need to invest in building or restoring the capacity of these systems in states in the midst of or emerging from conflict. With such support these systems may be more likely to overcome challenges in prosecuting these crimes such as lack of political will or lack of ability due to limited resources or being in a state of disorder.

Improving the track record will also require similar reinforcement of other punitive and non-punitive accountability mechanisms. A few examples of these include:

• The UN’s complex system for addressing children and armed conflict. This entails a “naming and shaming” list, a global monitoring and reporting mechanism and the capacity to threaten and ultimately impose sanctions.
• Ad-hoc tribunals, special courts, mixed chamber courts. These are typically set up to take punitive action in the context of a specific situation of armed conflict and often include an international component.
• Alternative jurisdictions. These are instances of courts other than the ICC or national courts operating in the same jurisdiction where the alleged crimes were perpetrated that prosecute grave international crimes. For example, universal jurisdiction can be used by third party States to address crimes so grave that they impact the interests of the entire international community.
• Truth-seeking and reconciliation processes. These non-punitive processes may take different forms but mandates typically include provisions for investigation, data collection, and documentation of human rights abuses.
• Reparations. These generally seek to recognize the suffering of victims and typically involve some form of formal acceptance of facts or apology as well as compensation to victims for losses suffered.

Like the ICC, each of these mechanisms has the potential to play an important and unique role in ensuring more effective accountability. However, to date most of these mechanisms have made limited progress in the context of violations against children in armed conflict. Typically they have either not been utilized to specifically address violations against children or their efforts to address children have been flawed. As a result, most have fallen short of achieving concrete results and behavior change.

The solution to bridging this accountability gap is to reinforce the capacities of these national and international mechanisms so that they are able to realize their comparative advantages. Just as continued efforts by the ICC in this area are vital, so too is enhanced future work of these mechanisms.

To varying degrees this will require political, financial, technical, and other forms of support as well as action in a few other fundamental areas:

• Increasing national and international priority attention to accountability for grave crimes against children;
• Strengthening incentives for ending crimes against children;
• Mitigating political constraints on accountability mechanisms;
• Increasing coordination and planning efforts within and among accountability mechanisms;
• Developing better approaches for engaging children and their communities; and
• Providing high quality technical assistance and other forms of support.

Finally, the achievement of accountability in any particular context generally depends on the combined efforts of more than one mechanism. As a result it will be beneficial to encourage complementary action among these different mechanisms, such as engendering collaboration and forging partnerships when possible.  While such complementary activity is not without challenges, the potential for increasing accountability is significant and international and national mechanisms should make this a priority.

When these and other key accountability mechanisms lead to outcomes equally strong as the ICC’s recent success in the Lubanga case, they will achieve the desired end result for children. This means assigning responsibility to perpetrators; imposition of legitimate consequences; reconciliation and reparation for traumatized communities and individuals; and prevention of future violations. The Lubanga verdict is likely to infuse new lifeblood into the work of these other mechanisms. This is the time to build on the case’s groundbreaking advancement for accountability.

For more information on children and armed conflict and accountability see:

“Bridging the Accountability Gap: New Approaches to Addressing Violations Against Children in Armed Conflict” http://cdint.org/documents/CDI-Bridging-the-Accountability-Gap.pdf.

Last week, the International Criminal Court (ICC) handed down its first judgment – finding Thomas Lubanga Dyilo guilty of war crimes in eastern Congo. While the decision was rightly hailed around the world as a landmark for international criminal justice and the fight against impunity for mass crimes, it also reignited the debate about the ICC and Africa – and particularly the notion that the continent is somehow ‘on trial.’

It is a version of events that has increasingly come to dominate the debate in Africa with political leaders past and present publicly accusing the ICC of anti-African bias and of persecuting the continent through its prosecutions. But it is almost certainly not the view of the majority of Africans, who want the political and military leaders responsible for international crimes brought to justice.

And it is definitely not the view of the victims of mass crimes – such as the 129 who participated in the Lubanga trial – who know that their national courts are invariably unable or unwilling to prosecute. And who celebrated when the ICC announced its landmark verdict.

Lubanga is the first person to have been convicted since the Court was established in 2002. The Court found him guilty of enlisting, conscripting, and using child soldiers between 2002 and 2003 when he was Commander-in-Chief of the notoriously brutal Forces Patriotiques pour la Libération du Congo (FPLC). Multiple witnesses testified that Lubanga used these children as his bodyguards and that girl soldiers were subjected to sexual violence and rape.

But even as his victims were finally seeing justice being done, critics were condemning the ICC for taking so long and for costing so much, and castigating the prosecutor for not charging Lubanga with sexual violence crimes, despite allegations that women and girls were raped and abused by his forces. Others were wondering when some of Lubanga’s co-perpetrators, notably his Rwandese deputy, Bosco Ntaganda, might face trial.

Until his conviction, Lubanga was one of 25 people facing trial in 14 different cases before the ICC. All 25 are Africans. This has generated increasing criticism. The African Union (AU) Chair, Jean Ping, has accused the ICC of targeting African leaders unfairly, while the Rwandan President, Paul Kagame, dismissed the Court saying it was made for Africans and poor countries.

Africa played a tremendous role in the establishment of the ICC. Only 11 African countries have not signed the Rome Statute and 33 have ratified its provisions makingAfricathe most heavily represented region in the Court’s membership. Three of the seven current situations under investigations by the Court – DRC, Uganda, and the Central African Republic- were self-referrals to the Court by the respective governments. According to the Court’s incoming Prosecutor, The Gambia’s Fatou Bensouda, “the high rate of referrals in Africa could just as easily show that leaders on the continent were taking their responsibilities to international justice seriously.”

Only two situations – Kenya and Cote d’Ivoire – were opened at the instance of the Prosecutor. The Kenya situation was opened after Kofi Annan, Chairman of the AU Panel of Eminent African Personalities, handed over a sealed list of suspects to the Court and after the Kenyan Parliament dithered over the establishment of a national tribunal.

In Cote d’Ivoire, it was former President Laurent Gbagbo who accepted the jurisdiction of the ICC in April 2003 under the provisions of Article 12 (3) of the Rome Statute. Like many other African leaders, Gbagbo was quick to accept the jurisdiction of the Court so that it could prosecute rebels. However, as soon as he was arrested and hauled off to The Hague, his supporters immediately began referring to the ICC as the ‘White man’s Court’ and complaining about its ‘neo-colonialist’ and ‘imperialist’ agenda.

Contrary to popular opinion, the ICC is not a court of first resort. Entrenched in its statutes is the principle of complementarity – the ICC can only exercise its jurisdiction where the State Party of which the accused is a national or on whose soil the alleged crime was committed, is unable or unwilling to prosecute. Many African countries will be unable to prosecute even if they want to because their judiciaries lack the capacity to prosecute the crimes in the Rome Statute and because their parliaments have failed to domesticate the relevant laws.

In the case of Kenya, even though Kofi Annan and others supported a ‘Kenyan-owned and Kenyan-led process,’ the country’s parliament failed to pass the necessary laws to create a Special Tribunal, thus giving the ICC jurisdiction.

Even though its criteria for selecting situations does not include geographical considerations, the perception that the Court is only targeting Africans will remain until it launches its first non-African prosecution. And while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious. They might all be African but they are also all legitimate. It is farcical that we can equate the trial of 25 accused with the trial of an entire continent.

In addition, the Court is currently analysing at least five situations outside Africa – including Afghanistan, Honduras, Georgia, South Korea, and Columbia – all of which are awaiting determination by the prosecutor as to whether or not to open formal investigations. The Palestinian National Authority has also petitioned the ICC prosecutor to accept jurisdiction over alleged crimes in Gaza from July 1, 2002, when the Rome Statute entered into force.

The Court has certainly made some missteps in its first decade. For example, the judges in the Lubanga trial were far from impressed by the prosecutor’s use of intermediaries during the investigation. And there is clearly a need to ensure greater balance in the geographical scope of the ICC’s investigations and prosecutions. But there is not a case before the Court that critics can honestly argue should not be there.

And ordinary Africans are not complaining. Many have suffered at the hands of the perpetrators of mass crimes – and know that there is little chance that they will see justice done without international tribunals like the ICC. Victims of the alleged atrocities of Chad’s former President, Hissene Habre, have for several years been lobbying the Senegalese government to ensure that justice is done – but to little avail. Had Habre’s crimes been committed after July 1, 2002, his victims may have had their day in court just like Lubanga’s.

Abdul Tejan-Cole is a former prosecutor at the Special Court for Sierra Leone and is presently the African Regional Director of the Open Society Foundations.

The run up to the International Criminal Court (ICC) verdict in Ituri was marked by fear and anticipation, highlighted by rumors that the judgment would be favorable to Thomas Lubanga. Since the announcement of the verdict last week, there have been no major security incidents, but the mood remains tense and a serious national debate is developing about the Court. The strands of this conversation are varied. Those who support Lubanga view the verdict as unjust and are attacking the Court; others, particularly victims, express qualified satisfaction but express concern about the future. In the national media, a debate is ongoing about questions of sovereignty, Congo’s role in fighting impunity, and the appropriateness of the Court’s approach. Meanwhile, Iturians remain concerned about how this debate will affect security, and victims and witnesses feel particularly vulnerable.

Prior to the announcement of the verdict, a dominant rumor in Ituri was that the ICC would announce a decision favorable to Mr. Lubanga, either finding him not guilty or issuing a relatively light sentence which, with time already served, could result in Lubanga being released soon. Supporters of Lubanga’s Union of Congolese Patriots (UPC), which now functions as a political party, were, according to one activist, seen wearing t-shirts emblazoned with the slogan “he will be acquitted.” John Tinanzabo, the interim president of the UPC and a member of the national assembly, had been quoted in the press as saying that a conviction would be “a last minute judicial surprise.”

March 14: News of the Verdict Reaches Ituri

Against this backdrop, the population anxiously awaited the announcement of the verdict. According to sources on the ground, in the Mudzipela neighborhood of Bunia, a Lubanga stronghold, people gathered around radios to listen attentively to Lubanga’s fate. People also gathered in the central market around radios in groups of two to five, from 9:30AM waiting for news. When, around 10:00 AM, they realized that the verdict would not be played live on the radio, some headed to a local internet café to hear the news that way. There was reportedly a strong security presence in the area around the UPC headquarters and in the Mudzipela neighborhood, which local commentators interpreted as preparations to monitor and contain an impromptu celebration in the event that Lubanga were to be acquitted.

For these supporters, hearing the verdict was painful. An activist in Bunia described how a Hema lawyer reacted when she received a phone call informing her of the verdict, saying that she looked drained, “like someone had informed her of a death.” Others expressed quiet satisfaction. One activist pointed out that victims and others who welcomed the decision were forced to do so quietly, out of fear for potential reprisals. One local activist noted, “You can see the tension in the fact that not a single Iturian organization has issued a public statement responding to the Lubanga case. One hears from organizations in Kinshasa, but in Ituri, people do not feel free to speak out.”

The population at large is nervous about the potential of Lubanga supporters and the UPC to destabilize Bunia town and surrounding areas. On Saturday, March 17, a rally planned by the UPC to protest the verdict was blocked by a heavy show of force from anti-riot police. Although for the moment the UPC has called on its supporters to remain calm and allow the appeals process to work, the angry words of its leaders attacking the ICC and the attempted demonstrations make others nervous. Particular concern in this context is focused on witnesses and intermediaries, who are accused of participating in a vendetta against Lubanga. In the words of one activist, their situation “will become more worrying because the situation is now brought home to the masses.” Although the role of intermediaries and witnesses on the process has been discussed in Bunia for some time, the verdict brings home the implications of this engagement with the Court in a new way.

In this tense environment, distinct views are forming around the verdict. Those who see the outcome of the trial as unjust, in particular members of Lubanga’s Hema community and UPC partisans, are experiencing disappointment and frustration; those who see the verdict as fair, on the other hand, express qualified satisfaction. Although the latter, including many victims and human rights activists, welcome the verdict as a positive step, questions of “what next?” minimize their satisfaction.

Disappointment and Frustration

It is clear that Lubanga continues to enjoy significant support in Bunia. In the days following the decision these supporters have expressed disappointment and frustration. Another woman, quoted by Radio Okapi, said “[w]e expected his release, but we are surprised that he was convicted. I am against this judgment. Personally, I would like them to physically show us these children who were enlisted.” A UPC press conference that had been scheduled for Wednesday evening never took place, with speculation that this might have been due to a split in the party’s leadership about how to react. Could it also be that the UPC were so convinced of an acquittal that they had prepared the press conference only for that eventuality?

On the radio, however, the UPC interim president attacked the Court. He said that he was sorry that the Court had reached this decision and described the process as “political.” He said that it was designed for “settling accounts,” accusing the government of the DRC of manipulating the Court to settle scores domestically. “The government says that it is cooperating with international justice, but they are protecting Bosco Ntaganda [Lubanga’s co-accused].”

Indeed, a number of serious questions have been asked about the integrity of the process, for instance about the level of proof presented at the trial. In the words of one Hema, “The real child soldiers, if they exist, would be for us to produce as we know them.” The others are accused of being liars. Others see the ICC as a mechanism more preoccupied with its own institutional development and securing a win at trial than with delivering justice for Ituri. Some see the process as one in which the strong impose their will on the weak, or as a western intervention that cannot, or does not care to, understand Congo. In Tinanzabo’s words: “I am a close colleague of Lubanga’s. If we committed crimes, then why have I been elected a member of the National Assembly? We have to see if international justice is suited to Congo.” Many in the Hema community still see Lubanga as a hero. As one activist said, he is seen as “a savior who sacrificed himself to avoid the extermination of the Hema people.”

Although questions of process are being raised most vociferously by Lubanga’s supporters, it is by no means limited to this group. As IRRI documented prior to the verdict in its report Steps Towards Justice, Frustrated Hopes: Reflecting on the Impact of the ICC in Ituri, those on the ground in Ituri were familiar with some procedural issues, including the use of intermediaries and quite critical of the Court for not doing enough to ensure that those acting on its behalf were doing so appropriately. Although the judges found that there was sufficient evidence to find Lubanga guilty, they also criticized the prosecution’s methods in this area. Since the verdict, it has been debated in the national press.

Qualified Satisfaction

Those who see Lubanga as guilty of the crimes that he is accused welcome the verdict, expressing satisfaction and relief. The general population shares this satisfaction according to one activist, “One can read a lot of smiles on people’s faces.” Victims also appear to be relieved; the Ligue pour la Paix et les Droits de l’Homme (LIPADHO), a Congolese human rights organization, quoted one victim as saying, “We had lost hope of seeing this baobab fall and we were afraid that he would return in triumph to Bunia.”

A number of issues, however, dampen this feeling of satisfaction. As noted above, there is fear of expressing too much warmth for the decision might bring down reprisals from angry UPC supporters. In addition, it does not take long in talking with activists for them to ask “what next?” Those who welcome the verdict quickly begin asking about the next phase in the proceedings in the Lubanga case and, more broadly, what is next for the fight against impunity. Even those who see Lubanga as guilty do not think that he committed these crimes alone, and they ask when others will face the same justice.

Next Steps: Remaining Phases of the Lubanga Process

On the legal front, there is still much to be determined. The verdict could be overturned on appeal. Lubanga’s lawyers will have 30 days from the receipt of the French translation of the judgment to file their appeal. Given the length of the published judgment translation will take some time, and litigation in the appeals process will continue for some time after that.

The ICC still needs to address the question of Lubanga’s sentence, “a determining factor,” in the words of one activist, of how the process as a whole is viewed on the ground. The ICC Prosecutor, Luis Moreno-Ocampo, has indicated that he will seek “close to the maximum” sentence for Lubanga’s crimes. As one victim put it, “It is one thing to be convicted, but he may be given a suspended sentence or time served. In this case it means nothing.”  The Congolese government has indicated in the media that they would be pleased with a heavy sentence. On the ground, however, there is a divergence of views. One activist argues that a heavy sentence “will be perceived as unjustified” given perceptions of the crime on the ground as a lesser crime than other atrocities that have been committed. On the other hand, he argues that “a weaker penalty will not be dissuasive for others.”

For victims, perhaps the most important element of the verdict is that, in the words of Guy Mushata of the International Center for Transitional Justice, it “will open the way to reparations.” As one victim said, “It is good that he has been convicted, but the most important thing is the height or value of the reparations that should console us.” Another asked, “What do they say about our women who have been raped, our houses that have been burned, and our goods carried off.” La Synergie des ONG Congolaises pour les Victimes (SYCOVI), a victim’s organization in the DRC, pointed out that there is now hope that the Court will carry out reparations efficiently. If badly managed, they warn, the process could re-traumatize, rather than assist, victims. Effective reparations, as Mushata has noted, could serve as a model to the Congolese justice system, which has awarded reparations in a number of cases, but not succeeded in recovering and handing over any of those awards.

What Next in the Fight for Justice?

The idea of deterrence is critical to arguments in support of international justice generally, so it is not surprising that they also feature prominently in reactions to the Lubanga verdict. Those who welcome the decision highlight the critical role that it may play in deterring future crimes. For example, in the words of one prominent activist, Dismas Kitenge, “The Lubanga trial and this verdict have the potential to have an important deterrent effect on the commission of international crimes in the country, and in particular the use of child soldiers.”  Likewise, SYCOVI greeted the decision as having “a dissuasive character for those who have, to this day, the intention of creating hotbeds of tension in the DRC.”

For others, however, this deterrent impact is called into question by the fact that this is the only ICC verdict in the Court’s ten years in existence. In a poll on the website of Radio Okapi, only 14 percent of respondents, for example, highlighted the potential deterrent impact as their primary response to the verdict. By way of contrast, the majority (62 percent) focused on the need for additional prosecutions. Iturians and other Congolese seem to be looking beyond the judgment and asking “what next?” in terms of the fight against impunity more broadly.

The Kinshasa-based newspaper Le Phare has pointed out “there are plenty of senators, members of the national assembly, ministers, provincial governor, superior officers in the army and the policy … who should be in the same box as Lubanga.”  One activist, concurred, urging that the charges “should not be limited to Lubanga alone, because this crime was committed by nearly all the belligerents in the war in the DRC.”  One Ituri resident said, “It is regrettable to see that there has been only one person convicted in relation to the disaster that occurred in Ituri.”

One of the most visible cases in this regard is that of Bosco Ntaganda, who was charged alongside Lubanga for recruitment of child soldiers in Ituri but who remains at large, operating openly in the eastern Congolese town of Goma. Many activists and NGOs, including the Congolese Coalition for the International Criminal Court, used the opportunity of the verdict to call on the Congolese government to arrest him. The Minister of Justice, however, when interviewed by AFP, would only say that the government continues to cooperate with the Court and that he could not say more.

Beyond Ntaganda, as research by IRRI has shown in the Steps Towards Justice report, the call for accountability for Rwandan and Ugandan interveners has been particularly strong – and has been renewed since the verdict. The local NGO LIPADHO put it starkly, “Other co-authors and accomplices found in the political spheres and in the armed forces of Kinshasa, Kigali, Kampala as well as Bujumbura should be prosecuted.” This sentiment has been repeated by other activists and on various blogs reflecting on the crisis.

Looking forward, what can be done to ensure that we learn from reactions to the Lubanga verdict? What can be done to address the security concerns raised by witnesses and intermediaries? What more can be done to address the allegations of bias at the Court? How can communications strategies and interventions on the ground respond to potential responses to decisions on Lubanga’s appeal and sentencing? What can be done to follow up on the need to pursue justice more broadly?

In the judgment today, the judges found that Thomas Lubanga was the president of the militia group known as the Union of Congolese Patriots/Patriotic Forces for the Liberation of Congo (UPC/FPLC) in the eastern region of the Democratic Republic of Congo during the non-international armed conflict from September 2002 to August 14, 2003.

The judgment makes several landmark findings. The charges concerned conscripting, enlisting, and using children in armed conflict. The fact that the first ICC judgment concerns child soldiers shines a further spotlight on the need to protect vulnerable groups at risk during war. The ICC built upon the jurisprudence from prior UN courts such as the Special Court for Sierra Leone in finding that the crime of using child soldiers is committed as soon as the child joins the armed group—“with or without compulsion.” This sets a high threshold prohibiting any use of children in fighting forces, even when families or children themselves may appear to support the child’s involvement due to the coercive circumstances of armed conflict.

Similarly, the judgment established a high threshold for the protection of children who have an “indirect” role, such as children who may be forced to conduct domestic duties or general support activities that may not include taking up arms. The judges found that, in such circumstances, the question is whether the child has been exposed to “real danger as a potential target.” As a result, the judges found that both the “child’s support and this level of consequential risk” meant that a child could be actively involved in hostilities even if she or he was absent from the immediate scene of the conflict.

The judges also paid particular attention to the experience of girl soldiers. The prosecutor had not specifically charged sexual violence and rape. During the trial, the appeals chamber rejected an attempt by the victims participating in the case to amend the charges to include gender crimes. However, in the course of presenting evidence, witnesses raised the use of girls in domestic work and the abuse of girls and women as sex slaves. This underscores the ever-prevalent risk of sexual violence during conflict and the need for vigilance in investigating all potential crimes, particularly crimes against women.

It is monumental that victims, including former child soldiers, were able to be involved directly in the trial. The International Criminal Court was the first such court to include victim participation in its Statute. During the course of the trial, 129 victims participated by making submissions to the judges, by seeking to introduce evidence, and by questioning witnesses. Three victims themselves testified as witnesses.

Concerns were raised in the judgment regarding the prosecution’s “lack of proper oversight” over their work with intermediaries. Intermediaries are non-Court staff who may cooperate with the Court in implementing various aspects of its work, and may potentially include people such as aid workers or local human rights monitors who are familiar with the local environment. They have assisted the ICC on a range of matters, including assisting victims to participate in proceedings, and judges in other cases at the ICC have been “mindful of the importance of their role.” It makes sense that an international court based outside the country under investigation—one covering all 120 countries who have accepted the Court’s jurisdiction and running 15 cases in seven countries—needs assistance from local people or organizations. Intermediaries facilitate activities such as locating or communicating with witnesses or victims particularly in settings without mobile phone coverage or transportation access.

In the judgment issued today, however, the judges found that the prosecutor “should not have delegated its investigative responsibilities to the intermediaries as analyzed in the judgment, notwithstanding the extensive security difficulties that it faced.” The judges indicated that three prosecution intermediaries may themselves have committed a crime under the ICC Statute by potentially facilitating witnesses in giving false evidence. The evidence derived from interaction with these intermediaries was therefore excluded from consideration.

The Court has learned many lessons and last year compiled a draft set of guidelines on intermediaries. These draft guidelines are currently pending finalization by the Court and consideration by the countries that have accepted the ICC’s jurisdiction, known as the Assembly of States Parties. The Open Society Justice Initiative strongly urges the Court and the State Parties to act upon the lessons learned following the Lubanga judgment by adopting the guidelines on Intermediaries at the next session of Assembly of States Parties this November.

From here, the Court now moves into the sentencing and reparations stages. After the judgment is translated into French for the defense, a separate sentencing hearing will take place. The judges have also requested submissions from the prosecution, defense, and victims regarding how consideration of potential reparations ought to be conducted. This will be the first time the issue of reparations is addressed at the ICC.

Prosecutors accused Lubanga of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese Patriots (UPC) rebel group in the Ituri region of the Democratic Republic of Congo (DRC). Lubanga denied all allegations against him, insisting that he gave orders for children not to be involved in combat and that prosecutors had influenced witnesses to lie against him.

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

The judges agreed with the defense on allegations that the prosecution had delegated its investigations to local intermediaries in the Democratic Republic of the Congo and that these intermediaries manipulated and influenced some witnesses to lie against Lubanga. The evidence of these prosecution witnesses were in doubt and were therefore disregarded by the judges. On the strength of other prosecution evidence, including a video footage of Lubanga addressing children at a UPC training camp, the judges found that Lubanga is guilty of the charges against him.

James A. Goldston, executive director of the Open Society Justice Initiative, has welcomed the delivery of the Lubanga judgment by the ICC today saying:

“The judgment is an important step forward in the worldwide struggle against impunity for grave crimes. Its pointed criticism of the prosecution’s supervision of ‘intermediaries’ further underscores the need for the Court to reform its investigative procedures and establish clear rules for working with persons other than Court staff to identify and help gather evidence.”

Lubanga will now remain in custody until the judges schedule a separate sentencing hearing during which they will determine the length of jail term that he will serve.

The International Criminal Court (ICC) will announce its first verdict in the case of Thomas Lubanga, former leader of the Congolese rebel group, the Union des Patriots Congolais (UPC) tomorrow. In eastern DRC’s Ituri region, where Lubanga led the UPC and is accused of committing the crimes for which he is on trial, all eyes are on the Court. Speculation about the outcome is buoying the hopes of some and increasing the fears of others. In particular, rumors abound that Lubanga will be either acquitted or given a very light sentence, which, with time already served, might lead to an early release.  As one Congolese activist put it, “Public opinion is preparing itself for only one eventuality, that of the liberation of Thomas Lubanga.”

On the ground, opinions are divided. Not surprisingly, supporters of Lubanga hope that he will be acquitted or given a short sentence and released. Supporters include members of Lubanga’s UPC, which continues to operate as a political party, and many from his ethnic group, the Hema, which makes up a significant of the population of Ituri and the majority in the region around Bunia. In the words of one such supporter, “It would be regrettable to condemn Thomas on the basis of unsubstantiated evidence.”

Recent events have given his supporters reason to be positive. According to research done by the Congolese NGO, Justice Plus, the recent decision by the Court not to confirm charges in the Callixte Mbarushimana case was seen by the Hema community as affirming the independence of the Court. Although, they have little interest specifically in Mbarushimana’s crimes, they see that the Chambers are acting as an effective check on the actions of the prosecution. This decision went a long way towards addressing the fears of some within the community who believe in Lubanga’s innocence, but who were concerned that he would be condemned by the lack of independence and impartiality of the Court. If Lubanga is released, this faith is likely to be reinforced. Some are reportedly already planning a homecoming celebration. With such expectations being fostered, what will the reaction be in the event that this is not the way that the decision comes down? What kind of backlash against those who have been prominent in supporting the work of the Court can be expected?

Those who have worked with the Court are concerned that victims and intermediaries (individuals who worked with the Court but were not formally staff) and others generally supportive of the Court may be at particular risk in the event of a conviction. There is concern that there might be temptation to strike out against the Court and those who have supported it in revenge. In the event that Lubanga is released, on the other hand, there would be less interest on the part of Lubanga supporters in attacking the Court and those viewed as associated with it.

Those who do not support Lubanga are deeply concerned about the prospect of his release. Although it is laudable that the independence of the Court appears to be viewed with greater credibility, attention needs to also be paid to the opinions and views of those that do not support Lubanga, particularly concern about the impact of an acquittal or light sentence on the promotion of justice in Ituri and conflict dynamics more generally.

An acquittal or light sentence is likely to cause concern among the Lendu community. Narratives that position the Lendu as victims of bias in the ICC process abound. For example, one member of the related Ngiti community said, “We have experienced a lot of suspicion on the part of communities that think we are a very bad ethnicity…we will see…if the ICC can demonstrate its competence.” Although rebel leaders were charged on both sides of the conflict, the fact that Thomas Lubanga (and his un-arrested colleague Bosco Ntaganda) are charged “only” with the recruitment of child soldiers, whereas leaders on the Lendu and Ngiti side (Germain Katanga and Mathieu Ngudjolo Chui) are charged at the ICC with a broader range of crimes, has created an impression of bias in the process. This perception has been reinforced by how victims have been allowed to participate in the trials. In the Lubanga case, those officially recognized by the Court as “victims” are members of the Hema and related groups, who were recruited from their own communities, by Lubanga’s UPC. The primary focus of the Katanga and Ngudjolo case is an attack on the primarily Hema village of Bogoro, meaning that again, the Hema are primary victims. All this has contributed to a sense among the Lendu that they are being excluded and that the Court is not taking their suffering seriously. Lendu interviewed by Justice Plus in the course of their research indicated that they would view an acquittal as an insult, as “spitting on the memory of victims in Ituri in general.”

If the decision is favorable to Mr. Lubanga, will it reinforce and harden narratives of ethnic persecution and fuel conflict rather than promote reconciliation and stability? Will Hema view their narratives justifying the fighting as legitimate defense of the community as affirmed? Will the Lendu see this as confirmation of biased treatment by the international community? If the decision does not go in Lubanga’s favor, would that be read in the reverse, as reinforcing a narrative of injustice against the Hema? How will the Lubanga decision interact with the decision of the Court in the Katanga and Ngudjolo case, which is expected in late 2012? Will the work of the Court be viewed as more equitable if they are acquitted? Would tensions then be reduced? If they are convicted, however, will the rhetoric that the Lendu community is being undermined and that the community must defend itself be reinforced?

For victims of the attacks of the UPC, a decision to acquit or give a light sentence to Thomas Lubanga is likely to result in indignation. In the words of one activist, “That would be unacceptable in light of the suffering of the thousands who were the objects [of Lubanga’s crimes].” Another activist noted, “For me, if Lubanga is released, it would be a grave error on the part of the Court because what these people have done in Ituri is something that even a blind man could see.” Faith in international justice, and in the international community by extension, is likely to be deflated. Victims will feel betrayed by the Court and frustrated with the outcome. Some fear that this frustration could well up into violence.

Others fear that the liberation of Thomas Lubanga and his potential return to Ituri might negatively impact the security situation on the ground because he may be a destabilizing figure. One man interviewed in Ituri before the verdict speculated that a liberated Lubanga would be a politically strengthened. It is unclear whether and how Lubanga might seek to leverage that political power, but some are concerned that Lubanga’s release will lead to “panic and disorder.” Some victims are asking that he be required to remain in The Hague or, at any rate, away from Ituri, if he were to be released. For some, as expressed by one activist, hearing Lubanga’s name makes them think of war.

However, some argue that other developments in the situation in Bunia have made it more difficult for Lubanga to mobilize violence, even if he is released. The security situation generally has improved and several important allies of Lubanga are no longer on the scene. One example is General Kisembo, who was killed by Congolese authorities. Bosco Ntaganda is no longer in Ituri and has been integrated into the Congolese army, although there is still fear about the potential that he might return.

In Ituri, all eyes are on the Court. After Wednesday’s judgment, however, the world’s eyes will turn back to Ituri to see what the impact will be on the ground.

Thomas Lubanga is the alleged former president of the Union of Congolese Patriots (UPC), an armed group involved in the conflict in the Democratic Republic of Congo. He is charged with conscripting child soldiers, an international war crime.

This briefing paper (link below) summarizes the main issues in the case, which is the first ICC case to reach a judgment, with hyperlinks to relevant portions the Lubanga trial monitoring website.

Briefing Paper: The Trial of Thomas Lubanga Dyilo at the ICC

For more information specifically related to the issue of intermediaries at the ICC, see the below briefing paper.

Intermediaries and the International Criminal Court 

According to a statement issued today by the court, the decision on the innocence or guilt of Mr. Lubanga will be issued in a public hearing at 10.00 a.m. on Wednesday, March 14, 2012.

“In the event of a conviction, the chamber will later consider the appropriate sentence to be imposed. Irrespective of whether the accused is acquitted or convicted, the court is required to establish the principles to be applied in relation to reparations, and it may make orders as regards awards of reparations to victims,” added the statement.

If an accused is found guilty, victims can ask for reparations, compensation, or restitution for the damage suffered. If the person convicted has no financial resources, the court would have to use the ICC’s Trust Fund for Victims to provide reparations to the victims.

A total of 129 victims are participating in the Lubanga trial, three of whom testified at the bidding of their legal representatives. Over the course of 204 days of hearings, the trial heard 36 witnesses called by prosecutors, 24 witnesses called by the defense, and four experts called by judges. Three of the prosecution witnesses were expert witnesses.

Mr. Lubanga, who was president of the Union of Congolese Patriots (UPC), a political group that prosecutors claim had an armed wing that used child soldiers, has been in ICC detention since March 16, 2006. His trial commenced on January 26, 2009. The closing oral statements took place on August 25 and 26, 2011.

Mr. Lubanga is charged with committing three war crimes between July 2002 and December 2003. The specific counts against him are: conscripting children under the age of 15 years into armed groups; enlisting children into armed groups; and using children to participate actively in armed conflict. His trial is the only one conducted to date by the ICC that is solely related to the use of child soldiers.

In his defense, Mr. Lubanga has argued that he was only a politician and had no say in the command of the Patriotic Forces for the Liberation of the Congo (FPLC), the armed militia of the UPC. Although he has conceded that there were child soldiers in the FPLC, he denies that he took any part in enlisting or conscripting any child. Rather, Mr. Lubanga argues that when it was within his means, he worked tirelessly to demobilize child soldiers from the group.

However, prosecutors have claimed that Mr. Lubanga took part in conscripting children, that some of the child soldiers served as his bodyguards, and that he was the overall commander of the UPC’s armed wing. Moreover, prosecutors have stated that whereas Mr. Lubanga publicly told the international community that he would demobilize the child soldiers, in reality he opposed their disengagement from the group.

Notably, Mr. Lubanga’s trial was stayed twice. In June 2008, judges issued the first stay of proceedings, arguing that it was impossible for the trial to be fair because the ICC prosecutor had not disclosed to the defense, or availed to judges, important potentially exculpatory evidence.

While the judges also ordered Mr. Lubanga’s unconditional release, the decision was not effected following a prosecution appeal. Appeals judges in October 2008 upheld the decision to stay the proceedings but reversed the decision to release Mr. Lubanga. On November 18, 2008, trial judges lifted the stay of proceedings against Mr. Lubanga, after determining that the reasons for the suspension had “fallen away,” because prosecutors had complied with the disclosure obligations. 

In July 2010, judges ordered a second stay of proceedings and that Mr. Lubanga be released from ICC detention when prosecutors refused to honor an order by trial judges to disclose to the defense the identity of an intermediary, who had helped prosecution investigators contact witnesses. The order was prompted by defense claims that prosecution intermediaries bribed and coached witnesses to provide false evidence.

The prosecution immediately appealed while also securing the agreement of the intermediary in question to be identified to the defense, accompanied by witness protection measures. In October 2010, appeals judges ruled that the trial chamber erred in staying proceedings without first applying less drastic measures, such as imposing sanctions against the prosecutor following his failure to comply with the orders of the trial judges. The trial resumed less than three weeks later with the evidence phase of the trial concluding April 18, 2011.

Longba and three other witnesses from the DRC, who testified in the ICC’s trial of Germain Katanga and Mathieu Ngudjolo Chui, have been in detention in the DRC for over five years. The witnesses came to The Hague to testify in defense of the three Congolese defendants on trial at the ICC.

After their testimony, the witnesses claimed asylum in the Netherlands. They argued that they would be subject to human rights abuses – and possibly murdered – if they were sent back to the DRC. The various legal matters related to their claims have been discussed on the www.Katangatrial.org and www.Lubangatrial.org websites.

While giving testimony and pending resolution of their asylum claims, the witnesses were detained at the ICC detention center, according to an agreement between the ICC and the DRC.

This latest decision from the Lubanga Trial Chamber comes after Longba’s lawyers submitted a brief calling questioning the legality of the Dutch asylum process and asking the Chamber to revoke its order for Longba’s return, and instead have him transferred to Dutch custody.

The asylum issue is a complicated one that seems to be a contest over who has jurisdiction over the witnesses. Although they are currently being held in the ICC Detention Center, it is not clear that this means the ICC has custody over the witnesses, or whether the DRC has in essence “loaned” the witnesses to the ICC and still retain custody over them. Complicating this matter is the fact that they are physically present in the Netherlands and have petitioned the government of the Netherlands for asylum.

At one point in this process, the Dutch confirmed that the witnesses could have their asylum claims processed under Dutch asylum law. However, the Netherlands then backtracked, saying that asylum law was inapplicable and that the Congolese witnesses’ requests would be considered “requests for protection.” It is not clear what this means legally or what kinds of procedures would be put into place to process a “request for protection.” In particular, Longba’s lawyers argue that the process risks violating due process guarantees that are mandated for asylum applications.

However, in its most recent decision, Trial Chamber I held that all of these matters are outside of its powers. Longba was able to, and did, file his application, which the Dutch authorities confirmed would be processed under Dutch asylum law. Therefore, the Chamber considered, Longba had the “real” (as opposed to theoretical) opportunity to make an asylum claim. This meant, the Chamber stated, it had fulfilled its duties related to the issue. The fact that the Dutch authorities changed course and reclassified the asylum application to an undefined “request for protection” is a matter for the Dutch authorities to decide, the Chamber held.

Based on this reasoning, the Trial Chamber ordered that Longba be sent back to the DRC once he is healthy enough to travel.

“It is for the Dutch authorities to determine whether it is necessary to intervene in order to take control of him for the purposes of conducting any extant national proceedings,” the Chamber noted.

It seems that the matter of Longba’s detention and return is now completely in the hands of the Dutch authorities. While waiting for his transfer back to the DRC, the Chamber ordered that the ICC Victims and Witnesses Unit to look into the possibility of arranging family visits or video link calls with his family.