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.

They were brought here to testify for the defendants in the trial of Thomas Lubanga as well as the Germain Katanga and Mathieu Ngudjolo Chui trial. The witnesses were supposed to be returned to the DRC after their testimony. However, they claimed that if they returned to the DRC, they would face mistreatment and human rights abuses—and possibly death—because of their testimony.

Three of the witnesses, Floribert Njabu, Pierre Célestin Mbodina Iribi, and Sharif Manda Ndadza Dz’Na, testified before Trial Chamber II in the Katanga-Ngudjolo trial. Their asylum claims have been discussed extensively on www.katangatrial.org: Three Defense Witnesses Blame the DRC for Bogoro Attack, then Seek Asylum in the Netherlands; Three Defense Witnesses Blame the DRC for Bogoro Attack, Part II; Trial Chamber Orders Protective Measures, Says Witnesses Could be Returned to DRC if Asylum Claim Rejected; and Judges Decide that Detained Witness Could be Securely Returned to the DRC. One of the witnesses, Djokaba Lambi Longba, testified before Trial Chamber I in the Lubanga trial. His testimony has been previously described on the www.lubangatrial.org here.

This issue is novel and groundbreaking at the ICC. It raises issues of cooperation between three international players: the ICC; its Host State, the Netherlands; and the DRC, where the ICC’s Office of The Prosecutor has ongoing investigations. It also touches upon issues of human rights, international asylum law, relationships between internal Dutch government authorities, Dutch domestic law, and important political considerations. How these witnesses are treated, both by the ICC Trial Chambers and by Dutch authorities will set a precedent for the future.

Moreover, adding to the complication, it is not clear whether the ICC Trial Chambers will take a unified approach. The two Trial Chambers, which are not obligated to follow the decisions of the other, have taken different approaches to this unique problem. The Appeals Chamber has not weighed in, denying a request for instructions on how to appeal a Trial Chamber II decision submitted by the Netherlands. The approach of Trial Chamber II has been described elsewhere (see above, postings on www.katangatrial.org). This post covers developments in the case before Trial Chamber I in the Lubanga case. 

Trial Chamber I Orders Longba Back to DRC

In October, the Lubanga Trial Chamber ordered that the Registry send Longba back to the DRC, in spite of his pending Dutch asylum application. Earlier, the Chamber had temporarily deferred the witness’ return. The Chamber had held that under Article 21 of the Rome Statute, it had the obligation to ensure that the witness be provided with a real (as opposed to theoretical) opportunity to make a claim for asylum and to give the Dutch authorities the chance to consider the asylum application before the witness returned to the DRC. The Trial Chamber held that if the Dutch authorities thought the witness’ asylum claim justified deferring his return to the DRC, the Court would give custody of Longba to the Netherlands, since the ICC would then “have no continuing power to detain him.”

The Chamber had then ordered the Registry to consult with the Dutch authorities about transferring Longba into the control of the Netherlands. Thus, transferring custody of Longba was contingent upon the Dutch authorities’ intended to defer his departure pending a decision on his asylum claim.

After this order was rendered, the witness asked the Chamber to reconsider. He claimed that his health would be endangered if he were transferred to the Dutch authorities. He was concerned that if transferred, the Dutch might not respect the rights usually given to asylum seekers because of the special nature of this case.

The Netherlands also thought Longba should remain in ICC custody. The Netherlands refused to consult with the Registry on the transfer. It did not intend to defer Longba’s return to the DRC, it submitted to the Chamber.  It was the ICC’s responsibility to delay Longba’s transfer until his asylum application was complete, the Dutch argued.

The Netherlands considered that the witness should remain at the ICC Detention Center throughout the asylum proceedings. The Netherlands argued that Longba was transferred to the Detention Center according to an agreement between the ICC and the DRC, and that this did not mean the Netherlands was obliged to accept an illegal undocumented foreigner into its territory. Moreover, according to the Netherlands, it does not have jurisdiction to put Longba into custody while his asylum application is being considered.

Based on these submissions from the Netherlands, the Trial Chamber decided that the Registry should return Longba to the DRC. The Chamber reasoned that deferring his departure had been subject to the condition that the Netherlands take custody of Longba pending a decision on his asylum application. The Chamber considered that by giving the Netherlands the opportunity to take custody of Longba—which the Netherlands refused—the Chamber had discharged its duties under Article 21(3) of the Rome Statute.

The Trial Chamber therefore ordered the Registry to proceed with arrangements to send the witness back to the DRC. It is now up to the Netherlands to decide whether it is necessary to intervene to take control of the witness until his asylum application has been decided, the Chamber concluded.

Longba Argues He Should be Transferred to Dutch Authorities

Now Longba has changed his mind and has requested that Trial Chamber I revoke its return order and instead, order his transfer to Dutch custody. Asylum proceedings have begun, but there is pending litigation about the nature and scope of the proceedings, counsel for Longba contends. The Dutch want to hold “quasi” asylum proceedings in the ICC Detention Center.

This means that according to the decision of the Trial Chamber, the witness’ departure for the DRC must be suspended and he must be transferred to the Dutch authorities, they argue. This hasn’t happened, and counsel for the witness claims that it is because the Dutch authorities are intentionally trying to deprive Longba of protection under Dutch law.

Unlike in the Katanga-Ngudjolo case, the Trial Chamber in the Lubanga case accepted an amicus brief from the two Dutch attorneys who are representing all four witnesses. The brief argued that Longba should be transferred to the Dutch authorities. The witness will face great security risks because of his testimony if he is returned, counsel claims.

The brief is summarized below.

Progress of Dutch Asylum Proceedings

Before the Dutch immigration authorities, Longba’s asylum case has been joined with the cases of the other three witnesses. However, it is not clear to what extent the brief’s submissions regarding Longba apply to the Katanga-Ngudjolo witnesses.

In September, the Dutch immigration authorities confirmed that the asylum request would be processed under national law and began to work with the witness’ counsel to find dates for asylum hearings. The Dutch government confirmed that the Dutch national asylum procedure is fully accessible to ICC witnesses. However, according to the amicus brief, the immigration authorities then claimed that they were being delayed because of the need to negotiate with the Registry of the ICC.

At the end of September, the immigration authorities changed tracks. According to the witness’ lawyers, the immigration authorities told the witnesses that their applications were no longer going to be considered as national asylum requests, but were instead regarded as “requests for protection.” The immigration authorities did not consider that the Dutch asylum procedure was applicable in these cases, and the proceedings were to be held within the ICC Detention Center. Hearings are scheduled to take place in November and December, according to the amicus brief.

Counsel for the witnesses argued that the decision to create an “extraordinary quasi asylum procedure” was “not supported by any legal reasoning or adequate motivation.” They claim that the Dutch government’s insistence that the asylum proceedings be conducted in the ICC Detention Center is a bath faith abuse of the Detention Center. They sought Dutch judicial review of the detention issue, but the Dutch District Court ruled in favor of the Netherlands. Counsel are appealing that decision, but argue before the ICC that Trial Chamber I should order the release Longba to the Netherlands because, having initiated asylum proceedings, the Dutch government has accepted the presence of the witness on Dutch territory. 

It appears as though there is little information about how the Dutch authorities will process a “request for protection.” It is not clear whether this will closely follow standard asylum procedures, or whether it will diverge significantly.

Counsel for the witnesses, concerned about this vagueness, raised several questions with the Dutch authorities about this novel procedure, including whether:

• The normal procedural safeguards would be applicable;
• The European Asylum System was applicable;
• The Congolese witnesses would be able to receive effective protection via a refugee status if the well-founded fear of persecution is established;
• The Congolese witnesses would be able to attend hearings if judicial review is necessary;
• If an appeal would have a suspensive effect in conformity with international standards of asylum procedures; and
• Why an administrative court should declare itself competent to pass judgment on an asylum procedure with “absolutely no formal basis in Dutch or international law.

Is the Netherlands Violating the European Convention on Human Rights?

Counsel for the witnesses argues that the “extraordinary” quasi asylum practice runs contrary to rights protected by the European Convention on Human Rights (ECHR).

Article 3 of the ECHR prohibits torture and inhuman or degrading treatment or punishment. This, counsel for the witnesses argue, is the key provision at issue in this case.  The European Court of Human Rights (ECtHR) has held that Article 13 of the ECHR guarantees the availability of a national level remedy to enforce ECHR rights, although states “are afforded some discretion” in how they will provide that remedy.[i]

In the amicus brief, counsel argued that with regards to Article 3, the ECtHR has held that an effective remedy under Article 13 would require the following:

1. Independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there was a real risk of treatment contrary to Article 3 in the event of the witness’ expulsion to the DRC; and
2.  A remedy with automatic suspensive effect (i.e., the remedy would automatically suspend Longba’s removal from the Netherlands until the proceedings had concluded).

Even if the Dutch authorities are allowed “some discretion” in how they conform to their ECHR obligations, counsel for the witnesses claim that the quasi asylum procedure may not meet the effective requirements. There is no guarantee that it will provide access to a judicial body or a remedy with automatic suspensive effect, they argue. The quasi asylum procedure “gives the Netherlands complete discretion” about how the witnesses will be dealt with, counsel argued. Moreover, they protest, there is no justification for this new procedure.

Increasing Threats in the DRC

Earlier this year, upon orders from the Trial Chamber in the Katanga-Ngudjolo trial, the ICC Registry and the DRC authorities worked together to develop security measures so that if the Katanga-Ngudjolo witnesses were returned, they would be adequately protected. In the Lubanga amicus brief, counsel argue that the Court should reassess the Congolese assurances about the security measures, which were related only to the detention of the witnesses.

In addition to general complaints about the DRC’s human rights record, they point to the recent intimidation and physical attack of family members of the four witnesses as an example of the threats the witnesses—and their families—face in the DRC.

The brief states that one witness’ wife was threatened twice by “individuals belonging to [DRC President] Kabila’s party and regime.” The attackers, they claim, specifically referred to the witness’ role in the ICC case. In another incident, four soldiers from the Congolese Army (FARDC) violently attacked the home of one of the witnesses. As a result, a 13-year-old family member of one of the witnesses died.

These attacks are evidence that the DRC assurances regarding the safety of the witnesses have “no value,” counsel contends.

Dutch Will Send Longba Back to DRC if Claim Fails, Counsel Argue

Counsel for the witness argues that the ICC should not be concerned about failing to fulfill its duty to return the witness to the DRC if the Dutch authorities reject the asylum claim.

“There is an increasingly strict Dutch policy to expel any illegal alien on its territory,” counsel note. Should the asylum application fail, counsel reassure, a rejection of the asylum application would trigger an immediate return to the DRC. This would mean that the ICC’s obligations to return the witnesses would be met, the counsel contends.

The amicus brief requests that if the witness is not released, the witness be allowed to attend his Dutch asylum proceedings and that the ICC aid in his transfer to such hearings. Counsel also request that the ICC facilitate family visits for the four witnesses because they have been at the ICC Detention Center for eight months and miss their families.

At the time of posting, the Trial Chamber in the Lubanga case had not made any additional orders regarding Longba. It remains to be seen whether the witnesses from the Katanga-Ngudjolo case and the Lubanga case will be afforded the same treatment by the ICC, and how their asylum applications will be handled by the Dutch authorities.

At a status conference, judges today informed parties to the trial that the gap between the judgment being ready in English and the completion of its French translation thereafter could be up to four months.

“It is likely that the decision in English will be ready to be issued at the turn of the New Year. However, there is a real risk that the French translation will not be ready until April next year,” said Presiding Judge Adrian Fulford.

The judges asked parties to the trial whether to issue the trial verdict in English first while waiting for the completion of the French translation or to issue both versions together. In addition, judges talked about the implications of the two alternatives with regard to the stages that follow the judgment. As a requirement under Rule 150 of the Rules and Procedures of the Court, an appeal to a decision by the chamber has to filed no later than 30 days after notification of the decision.

The prosecution and lawyers representing victims in the trial submitted that they would be happy for the right of appeal to commence upon the issuance of the French version of the judgement and for sentencing or release to go ahead after notification of the decision in English. Mr. Lubanga’s defense only agreed with the prosecution in part. The defense submitted that the subsequent stage of the trial judgment – release or sentencing of the accused and reparations to victims – should not take place until after the appeals chamber had made a ruling.

Judge Fulford stated that the chamber would announce its decision on the timing of the trial verdict and subsequent procedures in due course. The two other judges in the trial are Elizabeth Odio Benito and René Blattmann.

Mr. Lubanga, whom prosecutors allege was the founder of the Union of Congolese Patriots (UPC), is accused of enlisting, conscripting, and using child soldiers in the inter-ethnic conflict in the Congolese province of Ituri during 2002 and 2003. He has been in the court’s detention since March 2006, and his trial commenced in January 2009.

Meanwhile, the chamber this afternoon ruled on a request by the defense to visit ‘Witness 19′ on “humanitarian grounds.” This witness testified for the defense last March and April. After his testimony, he expressed concerns regarding his safety and dignity during his transportation from the Democratic Republic of Congo (DRC) to The Hague-based court.

As a result, ‘Witness 19’ remained detained at Scheveningen – the court’s detention center pending removal to the DRC. He is currently reported as “unwell,” and has applied to remain on Dutch territory, claiming he would be unsafe if he were returned to the Congolese jail he is awaiting trial for offenses related to armed conflict.

The court’s registry opposed the defense’s request to visit ‘Witness 19′ during the course of their regular visits to see Mr. Lubanga at the detention center, stating that only inspection authorities “have the right to carry out humanitarian visits” and that “it is up to the detained person himself to refer the case to competent persons.”

Pursuant to Article 68 of the Rome Statute under which the court is obliged to protect the physical and psychological well being of witnesses, the chamber ruled it “necessary and appropriate” for members of the defense team to meet with ‘Witness 19.’ Judge Fulford added that the meetings should not be “limited artificially” by way of time or number of visits.

On August 19, 2011, a parliamentary committee of the Congolese Senate convened in a room in the back of the Parliament’s premises in Kinshasa. The only item on the agenda that day was the most recent in a long line of legislative proposals seeking to address a glaring gap in the country’s reform process––the continued impunity for murder of as many as five million people in a genocidal conflict spanning almost a decade.[ii] After a two hour meeting, the committee’s members concluded that the government’s proposal to set up a Special Court for prosecuting international crimes was inadequate, and recommended that it be revised. Though nobody would say it openly at the time, in practice the decision meant that the Senate would not be able to deal effectively with this issue before the November 2011 elections. Put more bluntly, it meant that in the course of its five year mandate, the Congolese Parliament – the country’s first democratically elected legislature in history – had failed to make any progress on one of its citizens’ most pressing demands and one of the biggest challenges of democracy-building in a post-conflict country: bringing to justice perpetrators of war crimes, crimes against humanity and – in the case of the DRC – possibly of genocide.

The decision three days later of the Senate’s plenary assembly to endorse the committee’s recommendation marked the end of a year of exceptional activity in the field of international justice in the DRC. For months national and international NGOs and organizations – including major players, such as the Open Society Institute for Southern Africa, Human Rights Watch, Amnesty International, the European Union, and the US Ambassador-at-Large for War Crimes – had worked with the Congolese authorities to establish a hybrid tribunal for trying international crimes. This post retraces these developments, and analyzes the major legislative, political and legal debates of the last year. Its larger point is that, if the outcome of this year’s efforts was failure, it was in no way foreordained. There is room for cautious optimism regarding the future of international justice in the DRC.

To be sure, before 2010 the DRC had already had a long history of failed legislative and half-hearted executive proposals aimed at ending impunity for international crimes.[iii] The International Criminal Court, present in the country since 2004, had kick-started the process of trying a few high-ranking perpetrators, but it was never intended – as the DRC government has acknowledged on many occasions – to deliver justice to millions of Congolese victims. That task falls first and foremost to the domestic criminal justice system, in line with the Rome Statute’s principle of complementarity. Ten years after the DRC’s accession to the Rome Statute, the sad but harsh reality is that domestic courts in Congo have proved ineffective, with only a handful of trials taking place for war crimes and crimes against humanity.

This regrettable situation could have started changing in 2011. A combination of international and domestic events gave renewed hope to the quest for international justice. The highly publicized release in October 2010 of the United Nation’s Mapping Report “documenting the most serious violations of human rights and international humanitarian law committed within the territory of the DRC between March 1993 and June 2003” almost sparked a diplomatic feud, when it was revealed that Rwanda had lobbied the UN in the hope of removing the word ‘genocide’ from the document. The report’s contents were leaked to the press in an effort to forestall – successfully, as it turned out – any dilution of its impact through backdoor politics. In retrospect, the tentative legal classification of crimes as potentially constituting ‘genocide,’ “…if proven before a competent court”,[iv] seems less important than the sustained impetus it gave to the struggle against impunity in the DRC. In response to the report’s official release, the Congolese government, instead of dwelling on the term ‘genocide’ or other disputable findings and classifications, welcomed its conclusions and pledged to continue the struggle against impunity.

Domestic developments after the UN report’s publication seemed to confirm a renewed drive to implement long overdue justice reform, especially in the area of international crimes. In early November 2010, much to the surprise of international observers and national NGOs, domestic Rome Statute implementation legislation (la proposition de loi de mise en oeuvre du Statut de Rome) finally found its way onto the National Assembly’s agenda. The draft law had been proposed by two members of the National Assembly (the lower house of Parliament), the Honorable Mutumbe and Nyabirungu, in March 2008, but no legislative debate ensued – for reasons that remain obscure – over the next two and a half years. The draft law’s main goals were to amend the definitions of international crimes in Congolese criminal law, and to reform the justice system by shifting jurisdiction over international crimes from military tribunals to civilian courts. These two changes, coupled with a number of mainly procedural improvements, were intended to revive prosecution of war crimes and crimes against humanity in the DRC, in line with international fair trial standards.

The debates on the implementing law held in the National Assembly on November 3 and 4, 2010 revealed deep-seated distrust of the international community and misunderstandings as to the role of the Rome Statute. Many MPs argued against the legislation based on a false understanding of its aims, and, in truth, the proposal came close to collapsing on a completely unrelated matter: abolition of the death penalty. In the end, after intense debate, the draft law was declared admissible (recevable), subject to a number of amendments, and transferred for further consideration to a technical parliamentary committee (the Political, Administrative and Judicial (PAJ) Committee of the National Assembly). Though the Congolese press reacted very positively to news of the admissibility vote, in reality, this largely symbolic act had little practical significance. It was just the first step in a long legislative process, which would still require several parliamentary committees in both the lower and upper houses of Parliament to assess and approve the draft legislation. At the same time, the sometimes vehement critiques voiced against the draft law urged caution – transposing Rome Statute standards into domestic law was not a foregone conclusion at this point.

A series of developments in the following months suggested, however, that a more comprehensive shift in attitudes toward impunity was afoot. In November 2010, barely a month after the publication of the UN report, the Congolese Ministry of Justice circulated a draft law (projet de loi) on establishing specialized chambers for prosecuting international crimes within the Congolese justice system.[v] This was an endorsement of the hybrid court model – along the lines of similar experiments in Cambodia, Bosnia and Herzegovina and Sierra Leone – which the UN had already recommended in its Mapping Report. Informal discussions on such a project in the DRC had actually begun well before the UN report’s release. The draft law was clearly an unfinished product when it came out, but the Ministry of Justice, seemingly acknowledging its many shortcomings, immediately convened a multi-sector conference in late November 2010 to address unresolved problems and discuss possible improvements.

The Ministry’s proposed draft law on specialized chambers heralded the beginning of a flurry of activity in the realm of international justice in the following months. In response to the Ministry’s call for comments, over ten national and international NGOs and organizations submitted detailed recommendations on how best to create an effective hybrid judicial body tasked with addressing impunity in the highly politicized context of justice in the DRC. A synthesis of these recommendations is available online.[vi] For the purposes of this post, it should suffice to highlight only several issues, since they remain as applicable today as they were several months ago.

First, Congolese authorities were exhorted to guarantee – as opposed to making it optional – participation of international staff within the hybrid court structure.[vii] This would, it was argued, ensure greater impartiality and independence from external influence in the carrying out of investigations. Nonetheless, international staff were to remain a minority relative to Congolese officials, similar to the ECCC structure in Cambodia (Extraordinary Chambers in the Courts of Cambodia).[viii] Second, rights of the accused should be secured more effectively than under Congolese criminal procedure. Third, a completely new victim and witness protection and participation system – non-existent in Congolese law – would have to be created and enforced. Fourth, minors under the age of 18 should not be prosecuted by the hybrid chambers. Fifth, the chambers should have primary but not exclusive jurisdiction over international crimes; in other words, crimes of lesser gravity could be remanded to an ordinary Congolese court for trial. Sixth, and following on the previous point, secondary jurisdiction over such crimes would no longer be administered by military courts – civilian courts were to be responsible, as required by international fair trial standards. Last but not least – this was and remains by far the most controversial issue – the specialized chambers should have jurisdiction over all crimes committed after 1990 until the present. The UN Mapping Report had initially covered only crimes between 1993 and 2003, but the government and most national and international observers decided that the specialized chambers should also deal with atrocities committed after the instauration of democratic reforms in the DRC, i.e. after 2002/2003.

The list above is a simplified and tidy expression of an extremely complex set of legal and political problems. Some of these issues defy easy resolution. Other solutions – most notably, the last point regarding temporal jurisdiction – create more problems than they purport to resolve. This post is not the place to discuss such legal technicalities, and anyway there would also be important longer- and shorter-term policy decisions to account for.[ix] What should be noted, however, is that the Congolese Ministry of Justice seemed to recognize the importance of addressing these technicalities. A second multi-sector conference took place in April 2011 in Goma, and though it was co-organized by the Congolese Coalition for Transitional Justice and Human Rights Watch, the Minister of Justice, Luzolo Bambi Lessa, and other government officials attended. Moreover, in the meantime, the Permanent Committee for the Reform of Congolese Law (Commission Permanente de Reforme du Droit Congolais) had been officially tasked by the Ministry of Justice with proposing technical legal amendments to the draft legislation.

Politics soon compounded the complex legal and policy debates alluded to above. One of the main challenges awaiting the Ministry of Justice, as well as its national and international partners, were time constraints related to the country’s second democratic elections in history slated for late 2011. In January 2011, the government pushed a series of constitutional amendments through Parliament (though at least one of these amendments was itself unconstitutional). The most widely reported modification instituted a one-tour presidential election, which Parliament then had to make logistically possible by approving a number of election-related laws. Against this backdrop of highly volatile and politically charged electoral debates, the Ministry of Justice moved forward with its plan to gain parliamentary approval for specialized chambers. The Council of Ministers, an executive body, endorsed the idea of specialized chambers in February, and the draft law was formally submitted for deliberation before the National Assembly in April.

Severe delays in preparing the elections – which, even today, are still reportedly at risk of a last-minute postponement – meant that the draft law on instituting specialized chambers did not come up for discussion until June 13, two days before the end of the spring legislative session. The Minister of Justice presented the project in person in Parliament that day. After a brief summary of the project’s main goals and strengths, large numbers of MPs declined to vote on the draft law’s admissibility. There was a general sense that the legislation was being railroaded through Parliament, without adequate time for debate. The MPs would have none of it and a substantive debate on the project’s merits had to be adjourned until June 15, the last day of the spring legislative session. The June 15 debate will be discussed later, but it should be noted here that, due to this year’s elections, all legislative proposals had to be approved either in the spring session or in the rump fall session (lasting just one month) or else they risked falling by the wayside with the end of Parliament’s five-year mandate.

In light of these time constraints, the MPs unwillingness to endorse specialized chambers as a way of ending impunity may seem counterintuitive, or even downright sinister. Why would representatives of the people not want accountability for international crimes committed in their country? In reality, deeper resentments and misunderstandings lay at the heart of the National Assembly’s decision. As a matter of parliamentary procedure, lawmakers were entitled to a two day break in order to apprise themselves of the law on which they were going to vote. More importantly, many MPs were confused by the suddenness of the proposal, and by the fact that no explanation had been provided by the Minister of Justice as to the specialized chambers’ relationship to the Rome Statute implementation legislation that had already been declared admissible just several months earlier.

The relationship between the two draft laws – Rome Statute implementing legislation and specialized chambers legislation – had been a source of tension for some time, and it would turn out to be the proverbial straw that broke the camel’s back. The tension stemmed from the two laws’ similar objectives, yet different means of enforcement. Both laws sought to reform the law and procedure applicable to international crimes. Under the implementing law, existing Congolese civilian Courts of Appeal would be granted jurisdiction, while specialized chambers would draw on the expertise of both Congolese experts and their international counterparts. The international component – and herein lies the fundamental difference – was intended to provide the specialized chambers with a clear mandate and resources to also pursue crimes committed before 2002 (in addition to crimes committed after that date). In short, the implementing law was a more modest version of the specialized chambers – less ambitious in many respects (especially with respect to past crimes), but probably easier, cheaper and quicker to act on.[x] Yet, despite the urgent nature of the legislative process described earlier, the National Assembly’s PAJ committee declined to work on the Rome Statute implementing law between November 2010 and June 2011. Not until June did a special sub-committee of the PAJ convene, under significant pressure from international actors. Only days before the Minister of Justice’s intervention before the National Assembly, a week-long workshop had finally succeeded in developing a revised draft of the implementing law for the Assembly’s (presumably) approval.

This is the context in which the Minister of Justice presented the specialized chambers legislation on June 13. Having witnessed strong opposition from many Congolese MPs that day, he made the fateful, as it turned out, decision to not return to the National Assembly two days later to defend the proposal; instead, he presented a wholly unrelated and unusual authorization law (loi de habilitation) to the Senate. The law’s sole purpose was to grant the Executive extraordinary powers to legislate in a number of areas of heightened importance ahead of the elections, including the specialized chambers proposal. In reality, the authorization law amounted to a not so discrete attempt at circumventing the constitutionally enshrined legislative process; in other words, something of a coup d’état transferring vast amounts of legislative powers to the executive just months before the elections. The Senate would have none of it. The Minister of Justice, who again personally defended on the floor of the Senate the authorization law’s aims as well as the rationale behind the institution of specialized chambers, was rebuffed by the Senators in barely concealed derisive language.

All was not lost, however. A special summer session of Parliament was called for August, and once again the specialized chambers legislation was on the agenda, presumably due to intense lobbying on the part of the Ministry of Justice. In marked contrast, the Rome Statute implementing law – a parliamentary proposal without government backing – was absent from the agenda of the summer session. The Minister of Justice returned to the Senate to present a revised proposal in mid-August – among other legal tweaks, the hybrid jurisdiction was now reclassified as a ‘Special Court’ – but he was met with widespread hostility yet again. A number of Senators assailed the Special Court as an illegitimate and unnecessary infringement on the country’s sovereignty, and a sign of international meddling in the DRC’s internal affairs. The project was viewed by some Senators as an avowal of political impotence by the government to effect meaningful justice reform. Much criticism was also expressed regarding the financial feasibility and sustainability of a hybrid court, and in particular the issue of staff remuneration. Several Senators decried what they viewed as an unavoidable and unfair discrepancy in pay between Congolese court personnel and their international counterparts, which would only serve to perpetuate resentment and hostility between Congolese and foreigners. These and other more minor criticisms suggested that the draft law may be in danger of outright rejection (though this was hardly foreordained), when, in a rather unanticipated turn of events, the President of the Senate, Leon Kengo wa Dondo, did not even allow a vote on the draft law’s admissibility, as was procedurally required of him. This departure from parliamentary procedure seemed worryingly reminiscent of Mobutu-era power politics. Despite violent protests, Kengo refused to budge on the matter – arguing, inter alia, that ‘if you don’t approve it now, the UN will force you to do so anyway’ – and the draft law was in the end forced through the Senate and sent directly to its PAJ committee for further consideration (the Congolese Senate has a separate PAJ committee).

This temporary lifeline proved illusory. The Senators in the PAJ committee rebelled, mindful of how in June the Minister of Justice had attempted to circumvent the legislative process, and how, in this case, the Senate’s President had used ethically and procedurally controversial means to keep the draft legislation afloat. As I noted in this post’s first paragraph, the committee’s members declined to endorse the Special Court on August 19, 2011. Instead, they recommended that the Special Court legislation be merged with the Rome Statute implementing law, with a view to effecting wholesale and coherent justice reform in the area of international crimes. Their proposal was as wise in the abstract as it was unrealistic in practice. Due to time constraints, as well as the complexity and political sensitivity of the task they were calling for, the committee’s decision meant that there would be no tangible progress on the struggle against impunity until after elections, and that the Parliament’s five year mandate will have expired with no new legislation on international crimes. Justice for millions of victims of the country’s wars was once again put on hold, with no guarantee as to when the country’s impunity gap could or would be addressed.

It was an anticlimactic finale to a busy year. There is no denying that the Senate’s rejection of the idea of a Special Court and Parliament’s failure to enact Rome Statute implementation legislation were both serious setbacks for the pursuit of international justice. The Congolese government, through its Ministry of Justice, committed a series of tactical blunders in addressing what is, at the end of the day, a highly politicized and volatile question. It is no coincidence that the first Senator to rail against the Special Court during the summer legislative session was a representative of the former RCD-Goma faction, whose members have long been suspected of serious violations of international humanitarian law in eastern Congo. Indeed, for some Congolese public officials and state agents (especially in the military), accountability for international crimes is hardly an abstract quest for justice. It means choosing between freedom and potential incarceration.

But it would be a mistake to attribute this setback to power politics only. Deeper forces, both of an ideological and institutional nature, were at play, and there are lessons to be learned from these experiences. Thus, it would seem that greater outreach has to be undertaken to explain the ideas behind international criminal justice. Congolese parliamentarians must be apprised of what is at stake in order to avoid perpetuating false dichotomies, such as choosing between justice for victims and international meddling, enacting the Rome Statute or abolishing the death penalty, improving the domestic justice system or abdicating national sovereignty. Domestic civil society and the international community must better coordinate their activities to make this outreach effort possible. The United Nations, conspicuously absent from most negotiations this year and last (following the Mapping Report’s publication), should be more involved. More attention should also be paid to old repositories of power, such as the military justice system, which is clearly trying to maintain its sway over international criminal justice. Neutralizing the military’s political clout and judicial influence is not an easily attainable goal, and a lot will depend on the government’s resolve to confront entrenched power structures.

This year’s elections, the second democratic vote in the nation’s history, harbor both promise and risk. The inauguration of a new group of parliamentarians and, potentially, of a new government (this is less likely as President Joseph Kabila is expected to win re-election) could mark the beginning of a new era for justice efforts in the DRC. But implementing reform will depend, as ever, on learning from in-country experience and avoiding past mistakes. Despite Parliament’s inability to implement reforms this term, this year’s debates surrounding accountability for international crimes have increased awareness of the issue among the Congolese, and given rise to renewed hope and expectations among victims. The government has responded by taking concrete steps – not enough, to be sure – to bring to justice perpetrators of serious human rights violations. This is reassuring. Ultimately, ending impunity can only happen with the support of the Congolese people. But, until that happens, the international community must continue to remain engaged with Congolese stakeholders toward this end by advancing domestic reforms that meet international standards.

The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here.

On 25 and 26 August 2011, Trial Chamber I[i] heard closing statements by the Prosecution, the Legal Representatives of Victims,[ii] and the Defence in the case of The Prosecutor v. Thomas Lubanga Dyilo, the first trial before the International Criminal Court (ICC). Thomas Lubanga Dyilo (Lubanga) is a Congolese national of Hema ethnicity, born in 1960 in the Democratic Republic of Congo (DRC). He is the alleged founder and president of the Union des patriotes congolais (UPC) and is charged with the war crimes consisting of enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo (FPLC) and using them to participate actively in hostilities between September 2002 and August 2003. Charges for gender-based crimes were not included in the case against Lubanga, despite the availability of numerous documents, UN and NGO reports, including reports from the Women’s Initiatives for Gender Justice, indicating that such crimes had been committed by the UPC.  Since the early stages of the case, Women’s Initiatives has advocated for further investigation and re-examination of the charges, was the first NGO to file before the ICC in respect of these issues, and has monitored and analysed the filings, jurisprudence, and witness testimony in particular regarding girl soldiers and gender-based crimes.[iii] Lubanga was arrested and surrendered to the Court on 16 March 2006 and his trial commenced on January 26, 2009.[iv] The trial has been stayed twice by the Chamber: in 2008, immediately prior to the scheduled start of the trial, due to issues with the Prosecution’s disclosure of evidence to the Defense; and in 2010 due to their failure to comply with orders of the Trial Chamber to disclose the identity of a prosecution intermediary to the Defense.[v] On 20 May 2011, Trial Chamber I ordered the closing of the presentation of evidence stage.[vi]

Closing Statements of the Office of the Prosecutor

Deputy Prosecutor Fatou Bensouda stated that the evidence had proved, ‘not just beyond reasonable doubt but beyond any possible doubt’,[vii] that Lubanga was guilty of the war crimes charged against him by means of having systematically recruited children under the age of 15 as soldiers in his political movement known as the UPC/FPLC and used them in hostilities. Bensouda argued that the Chamber had ensured that the accused had received a fair trial in every respect, and asked the Chamber to convict him for the commission of war crimes in order to send the clear message that there will be no impunity for those who recruit children. She drew the Chamber’s attention to one piece of evidence which is of particular importance for the Prosecution: a video showing Lubanga at Rwampara, a UPC/FPLC training camp, ‘in his role as supreme commander of his militia addressing recruits and inspiring them to fight’.[viii] The video showed Lubanga addressing the recruited soldiers saying ‘It is the second time I come here’.[ix] The Prosecution argued that this statement showed that supervising his troops was a regular and normal activity for Lubanga,[x] and that the video was a voluntary, public and taped confession of Lubanga’s crimes. Bensouda then described the harsh daily training camp life of the child soldiers who were beaten, learned how to fight and kill and lived in constant fear.[xi]

With respect to the harm committed against girls, Bensouda argued that girl soldiers – in addition to the tasks which they performed identically to boy soldiers – were subject to specific abuse such as rape by fellow soldiers, serving as sex slaves to Lubanga’s commanders, and being forced to be ‘wives’ of commanders.[xii] Children were used ‘to kill, rape, and pillage’.[xiii] She maintained that enlistment and conscription of children under the age of 15 ‘is a crime of continuous nature committed as long as the child remains in the armed group or is underage. The crime encompasses all the acts suffered by the child during the training and during the time they were forced to be a soldier. This interpretation is particularly relevant to capture the gender abuse, a crucial part of the recruitment of girls.’[xiv] Bensouda urged the Chamber to make clear that the girls forced into marriage with commanders are not the wives of commanders but victims of recruitment, and should be particularly protected by demobilization programs and by the ICC.[xv]

Trial lawyer for the Prosecution Nicole Samson summarised the testimonies and documents that were presented as evidence in the case. She stated that recruitment took place across a wide region of UPC-controlled territory between September 2002 and August 2003, and was part of a deliberate and clearly conceived plan.[xvi] The Prosecution argued that most child soldiers were victims of coercive recruitment campaigns or their parents were forced to give them up, both of which were presented as evidence of the crime of conscription; children were conscripted, abducted and trained to be ready to participate actively in hostilities.[xvii] Samson explained that according to the Prosecution active participation in hostilities does not only mean direct participation in combat, but also combat-related activities such as scouting, spying, being a messenger, guarding military check-points, military objectives or a military commander, and sending out soldiers to procure girls so that the commander could sleep with them.[xviii] To prove the age of the children, the Prosecution put forward statements of witnesses who were former child soldiers, as well as eye-witness testimony, videos, and forensic scientific assessments of their bone and dental growth. With respect to witness credibility, Samson emphasised that the broad range of witnesses (soldiers, commanders, political officers, and neutral observers such as NGO and UN employees) all described in detail that the UPC/FPLC recruited children under the age of 15, and argued that there is no credible evidence suggesting that the testimonies of all these witnesses was ‘one big, organised plot’.[xix]

Presiding Judge Fulford asked for clarification of the Prosecution’s position in relation to the assertion ‘that if an individual is sent out to select women, young women, for commanders to sleep with, that falls on the side of the dividing line of participating actively in hostilities’.[xx] Samson explained the Prosecution’s position by referring to Witness 0294 who had participated directly in combat, but had also been a bodyguard to a commander, so he ‘was actively participating in hostilities in the sense that he was in a noncombat, sometimes combat, related activity but one that is protected’.[xxi] Chief Prosecutor Luis Moreno-Ocampo, who was observing the closing statements from the back of the courtroom, then requested leave to intervene, prompting Judge Fulford to reply: ‘In a moment, Mr Ocampo. I’m just asking some questions to Ms Samson at the moment’ and ‘Really, I don’t think counsel should be receiving e-mails during the course of closing submissions, Mr Ocampo’.[xxii] Judge Fulford then asked Samson ‘am I right in understanding you are, in fact, not saying that selecting young women by itself constitutes participating in hostilities, but you have to look at the position in the round. Is that right?’, Samson answered that this was correct.[xxiii] In response to Moreno-Ocampo’s second attempt to intervene, Judge Fulford replied: ‘Mr Ocampo, really, can we please have some order to how the submissions are advanced. You have selected six advocates to address the Court. Can we remain with them.’[xxiv] Moreno-Ocampo remarked that the Office of the Prosecutor was represented by him as well and that he would like to answer the question, however Judge Fulford declined to give him the floor.[xxv]

Trial lawyer for the Prosecution Manoj Sachdeva provided an overview of the evidence that was intended to prove the knowledge, intention and individual criminal responsibility of Lubanga. He argued that Lubanga was President and Commander-in-Chief of the UPC, and made the final decisions and dictated the strategy and policy of the hierarchical UPC and its military wing, the FPLC: he had both functional and de facto control over all levels of the organisation[xxvi] and therefore this proved his ‘essential contribution’ to the commission of the crimes charged pursuant to Article 25(3)(a) of the Rome Statute. The Prosecution argued that the crimes were committed with his direct intention and his knowledge: Lubanga was regularly put on notice of the committed crimes and was in a position to order their cessation.[xxvii] He had children in his own personal protection unit; he took charge of recruitment activities; he went to Rwampara training camp where he addressed and encouraged soldiers; he was responsible for military appointments and the planning of military operations; and he had regular military meetings with commanders and his Chief and Deputy Chief of Staff. Furthermore, the Prosecution argued that the supposed demobilisation decrees, which it claimed were intended to provide a cover-up for the crimes being committed, actually proved Lubanga’s knowledge of the presence of child soldiers within his military.[xxviii]

Trial lawyer for the Prosecution Olivia Struyven presented a summary of the video evidence in the case, including the much-cited video of the visit to the Rwampara training camp, arguing that it showed the ultimate authority of Lubanga over the UPC/FPLC, the recruitment and use of children under 15 by Lubanga’s militia and his knowledge, approval and participation in it.[xxix] She highlighted Lubanga’s statement to the children in the training camp while he picked up the Kalashnikov: ‘And that’s why I would like to ask you and all the young people, I ask all our young people, don’t fall asleep, don’t fall asleep.’[xxx] Judge Fulford noted that, during the portion of the Rwampara training camp video shown by the Prosecution, there was no English translation of Lubanga’s statement, and asked the Prosecution to ensure that there was an accurate English transcript already included in the evidence in the case to enable the judges to take the video evidence into consideration.[xxxi]

Professor Tim McCormack, Special Advisor to the Prosecutor on International Humanitarian Law, presented the Prosecution’s position on the nature and legal character of the armed conflict in which the UPC/FPLC was engaged, which the Prosecution argued was most properly described as a non-international armed conflict. The charges which were initially confirmed against Lubanga by the Pre-Trial Chamber in January 2007 included the recruitment and use of child soldiers in both international and non-international armed conflict.[xxxii] He outlined that an international armed conflict only exists where the armed forces of two or more states are engaged in military hostilities against each other.[xxxiii] McCormack urged the Chamber to re-characterise the conflict on the basis of Regulation 55(2), as the Chamber itself had previously suggested.[xxxiv] McCormack argued that the conflict in which the UPC/FPLC was engaged was a non-international armed conflict because:

1. The involvement of Rwanda, Uganda and the Congolese government did not render the conflict international, since there is no evidence of either direct or indirect military hostilities between states as is required by Common Article 2[xxxv] of the Geneva Conventions;[xxxvi]
2. Uganda’s occupation of territory in Bunia had no consequence for the legal characterisation of the conflict, as the existence of occupation does not automatically determine the legal character of an armed conflict and a military occupation does not ipso facto equal an armed conflict;[xxxvii] and
3. Uganda’s occupation was limited to the area of the Bunia airport and parts of Bunia city – one ten-thousandth of the territory of Ituri – and Uganda did not exercise effective authority over Ituri outside the Airport and parts of Bunia city, and its involvement did not and could not have affected the characterisation of a separate armed conflict affecting a much wider geographic area.[xxxviii]

McCormack further maintained that the non-international armed conflict involving the UPC/FPLC did not end in May 2003 when Uganda withdrew its forces from the DRC but continued up to and beyond the end of the period covered by the charges.[xxxix]

Finally, Benjamin Ferencz, a former Nuremberg Prosecutor and Special Counsel to the Office of the Prosecutor, stressed the historical significance of the trial and pointed out the gravity of the harm caused by the recruitment and use of child soldiers. He referenced the special vulnerability of girls, stating that ‘[a]ll of the girls recruited could expect to be sexually violated’.[xl]  He cited the drafting of the Rome Statute as authority for the assertion that recruiting children into armed forces and forcing them to participate in hostilities were ‘among the most serious crimes of concern for the international community as a whole’.[xli] He also highlighted how the Court performs a distinctive function in deterring ‘crimes before they take place by letting wrong-doers know in advance that they will be called to account’.[xlii]

After the closing statements of the Prosecution, Judge Odio-Benito noted that, despite submissions on sexual violence being included in the Prosecution’s final brief and closing arguments, charges of sexual violence had not been included in the document containing the charges or included within the charges confirmed by the Pre-Trial Chamber.[xliii] Making reference to Article 74,[xliv] Judge Odio-Benito asked ‘How is sexual violence relevant to this case, and how does the Prosecution expect the Trial Chamber to refer to the sexual violence allegedly suffered by girls if this was not in the facts and circumstances described in the charges against Mr Lubanga Dyilo?’[xlv] Chief Prosecutor Moreno-Ocampo requested and was granted permission by the Chamber to answer this question.  He stated:

We believe the facts are that the girls were abused, used as sexual slaves and raped. We believe this suffering is part of the suffering of the conscription. We did not allege and will not present evidence linking Thomas Lubanga with rapes. We allege that he linked it with the conscription and he knows the harsh conditions. So what we believe in this case is a different way to present the gender crimes. It presents the gender crimes not specific as rapes. Gender crimes were committed as part of the conscription of girls in — in the militias. And it is important to have the charge as confined to the inscription, because if not – and that’s the point that Ms Coomaraswamy[xlvi] did here – if not, the girls are considered wife and ignored as people to be protected and demobilised and cared. That is why the Prosecutor decided to confine the charges — to present the suffering and the sexual abuse and the gender crime suffered by the girls in the camps just as conscription, showing this gender aspect of the crime.[xlvii]

The Prosecutor went on to explain that the Prosecution believed a commander’s order to abduct girls to use them as sexual slaves or rape them was an order to use the children in hostilities.[xlviii]

Closing Statements of the Legal Representatives of Victims

Paolina Massidda, Principal Counsel of the Office of Public Counsel for Victims, stated that the trial was historical for thousands of victims hoping for justice and praised the extensive participatory rights which had been granted to victims by the Chamber. She emphasised that victims were not the assistants but the allies of the Prosecution, and had expressed themselves independently.[xlix] She noted that the victims in this case, through their legal representatives, had taken a number of initiatives which went beyond what the Prosecution requested, including taking initiatives regarding the modification of the legal characterisation of facts in the case against Lubanga,[l] and requesting the Chamber to find Lubanga guilty as a direct perpetrator in addition to the co-perpetrator liability proposed by the Prosecution.[li] Massidda stressed that, although the harm caused to victims could never be fully repaired by a conviction or reparations,[lii] the main concern of the victims participating in this trial was the establishment of the truth and the punishment of the individuals who were the cause of their victimisation.[liii] She also acknowledged that protective measures can sometimes impose restrictions on victims and their families, and that despite the protective measures applied by the Chamber, some victims were still subject to threats or persecution for having testified against the accused.[liv]

Legal Representative of Victims Carine Bapita Buyangandu outlined the historical context of the conflict and described the ill-treatment of children in the training camps.  She noted that children in training camps were beaten and sometimes killed, were given poor food, inadequate training and no access to medical care, and that ‘they raped and they were raped’.[lv] Bapita also explained the specific abuse of girl child soldiers in the training camps, who – in addition to receiving the same training and treatment as boy child soldiers – were also used as sexual slaves, became pregnant, had unwanted children, performed household chores and were used to actively participate in hostilities by means of scouting, looting, killing and fighting.[lvi] She suggested to the Chamber that these criminal acts against girls should be considered as aggravating circumstances to the crime of enlistment and conscription of child soldiers under the age of 15 and using them to participate actively in hostilities.[lvii]

Legal Representative of Victims Paul Kabongo Tshibangu focused on the recruitment of children and ‘their participation in combat as cannon fodder’.[lviii] He discussed the material legal elements of the war crimes of recruitment and use of child soldiers.[lix] He cited a Human Rights Watch report which quoted a school headmaster who said that at the end of November 2002 half of his pupils had disappeared.[lx] Kabongo further stressed that active participation in combat not only relates to direct participation in fighting but also covers other aspects related to combat such as reconnaissance, espionage, sabotage, body-guarding, transporting ammunition, etc.[lxi]

Legal Representative of Victims Joseph Keta Orwinyo spoke about victim participation in the trial proceedings. He also discussed the Defence allegations of identity theft against three of the victims he represents in proceedings, and noted that, contrary to Defence allegations, their identities had since been proven by means of finger-print analysis.[lxii]

Legal Representative of Victims Franck Mulenda commented on the problems related to civil status registration in the DRC, which he noted was in an advanced stage of degradation.[lxiii] Mulenda noted previous jurisprudence from the Court which established that, although civil status records are the best way of proving the age of an individual, they are not the only possible means of proof.[lxiv] He also discussed protective measures, and noted that, although some victims had been relocated by the Court, they missed their homes in Ituri.[lxv]

Lastly, Legal Representative of Victims Luc Walleyn stressed the central issue of the individual criminal responsibility of Lubanga. He rejected the Defense portrayal of Lubanga as someone who took up arms only to resist oppression, noting that his clients had ‘never known Thomas Lubanga as a human rights activist’.[lxvi] He argued that the UPC militia had done nothing to provide order or protect civilians, but rather had committed crimes of increasing cruelty against the civilian population.[lxvii] Walleyn noted the leadership role played by Lubanga, his authority within the military and his powerful charisma, which caused him to be seen as a ‘semi-god’[lxviii] by some child soldiers and had contributed to some conflicts of loyalty among certain witnesses.[lxix] Walleyn urged the Chamber to convict Lubanga as co-perpetrator and not simply as accomplice as requested by the Defense and added that if the Chamber followed the argument of the Defense, then the Chamber would have to re-characterise the facts pursuant to Regulation 55 of the Regulations of the Court.[lxx] 

Closing Statements of the Defense

Catherine Mabille, Lead Counsel for the Defense, began the closing arguments for the Defense by challenging the reliability of the evidence against Lubanga, arguing that the existence of the crimes charged against him had not been proven beyond a reasonable doubt.[lxxi] She also noted that Lubanga had been in detention at the Court for five and a half years, and that the proceedings against him had been very long and ‘characterised… by serious dysfunction’, including the ‘exceptional circumstance’ of the imposition of two stays of proceedings which were imposed as a result of violations or shortcomings occasioned by the Office of the Prosecutor.[lxxii]

Mabille argued that all of the Prosecution witnesses who had testified as former child soldiers, without exception, had lied to the Chamber,[lxxiii] as evidenced by inconsistencies between their testimony and Defense investigations into their school records, ages and family situations. The Defense maintained that there must have been ‘certain individuals protected by the seal of anonymity’ who had organised this false testimony.[lxxiv] She argued that certain intermediaries[lxxv] working for the Office of the Prosecutor had prepared witnesses to give false testimony before the Court, which constituted manipulation of evidence.[lxxvi] She highlighted the evidence from both Prosecution and Defense witnesses regarding false testimony and their interactions with Prosecution Intermediaries 316, 321 and 143, which the Defense argued suggests that the intermediaries had offered financial inducement to individuals to encourage them to testify about certain facts which they had not experienced. Mabille noted that the Chamber had called Intermediaries 316 and 321 as witnesses in light of the Defense allegations, and that the Prosecutor’s refusal to obey an order from the Chamber to disclose the identity of Intermediary 143 had led to the second stay of proceedings in the trial.[lxxvii] Mabille pointed out that Intermediary 143 and Intermediary 321, in addition to working as intermediaries for the Office of the Prosecutor, had also worked on behalf of the Legal Representatives of Victims.[lxxviii] She argued that, although it had been proven that intermediaries had encouraged witnesses to lie before the Court, the Prosecutor had completely denied their involvement, as exemplified by the press interview given by Beatrice le Fraper du Hellen, at the time Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.[lxxix]

Mabille alleged that the Office of the Prosecutor had been ‘instrumentalised’ by certain state powers, specifically the Congolese Government; she clarified ‘We do not allege that the Prosecutor intentionally served the interests of one of these powers, but it has been shown that the Congolese government in many ways intervened, directly or indirectly, in the investigations as well as in the judiciary process [sic]’.[lxxx] She noted that Intermediary 316 ‘was a person in a high level of authority in a governmental agency… directly related to President Kabila’, and further that he was not the only Prosecution intermediary to have worked for that agency simultaneously to his work for the Office of the Prosecutor.[lxxxi] She went on to argue that the Prosecutor was aware of both the sensitive role played by Intermediary 316 on behalf of the Congolese government and the allegations that he had behaved in a ‘suspicious way’ with certain witnesses.[lxxxii] Mabille argued that the reason that clearly falsified evidence had been presented to the Court lay with the Prosecutor’s failure to carry out proper investigations.[lxxxiii] She pointed out the Prosecutor’s statutory obligation to investigate incriminating and exculpatory evidence equally, and contrasted this with the statement of Bernard Lavigne, the head of investigations at the Office of the Prosecutor until 2007, who testified in closed session in November 2010, that the verification of Prosecution evidence had been entrusted to intermediaries due to security concerns and that Prosecution investigators had never contacted the families of alleged child soldiers, local schools or chiefs of collectivities to verify the information they had provided.[lxxxiv] Mabille questioned how the Chamber could consider criminal proceedings requiring proof beyond a reasonable doubt when there had been no investigations to verify the statements made by the individuals called to testify, despite the assertion by the Prosecutor in the Prosecution response to the Defense abuse of process application in early 2011 that he considered there was no reason to doubt their testimony.[lxxxv] Mabille argued that the entirety of the evidence in the case had been tainted by the methods used in the Prosecutor’s investigations.[lxxxvi]

In the absence of credible witness testimony, Mabille argued that visual evidence alone was not sufficient to prove the age of an individual beyond a reasonable doubt.[lxxxvii] NGO and UN documentation regarding child soldiers had not been independently verified by the Prosecution, leaving Mabille to conclude that ‘[a]gain, the Prosecution is rolling the dice but not very lucky’.[lxxxviii] As a result, the Defense argued, the Prosecutor had not provided adequate evidence to prove beyond a reasonable doubt that children under the age of fifteen years were recruited into the UPC/FPLC.[lxxxix]

Counsel for the Defense Jean-Marie Biju-Duval addressed the individual criminal responsibility of Lubanga alleged by the Prosecution, including the alleged common plan, the alleged role of Lubanga in that common plan, and his alleged contribution to the recruitment policy of the UPC/FPLC. Biju-Duval questioned the foundation of the accusations against Lubanga – namely, the theory of criminal co-perpetration – and the choices made by the Prosecutor in exercising his power to prosecute.[xc] He noted the ‘judicial paradox’ of a case charged as co-perpetration, which by definition requires several perpetrators, but with only one accused.[xci] Biju-Duval noted that one of Lubanga’s alleged co-perpetrators, Floribert Kisembo, Chief of Staff of the FPLC, had never been the subject of criminal proceedings before the ICC, and suggested that this may have been due to Kisembo’s loyalty to President Kabila and the Congolese Government.[xcii]

Biju-Duval claimed that the absence of Lubanga’s involvement in the military activities of the armed force which would become the UPC/FPLC prior to September 2002 proved that his contribution was not necessary to establish the armed force, recruit military personnel, or carry out military operations. Instead, Biju-Duval argued that Lubanga’s only essential contribution was to act as a political leader.[xciii] Biju-Duval claimed that no orders were issued by Lubanga relating to the recruitment or training of soldiers because he did not intervene in military affairs on recruitment or military operations,[xciv] and that the only instructions issued by Lubanga related to the prohibition of child soldier recruitment and provisions for demobilisation.[xcv] He went on to argue that Lubanga did not issue orders to the civilian population regarding the recruitment of child soldiers, and that any public statements made by Lubanga were political in nature and designed only to encourage support for his movement among the civilian population.[xcvi] Biju-Duval dismissed the Prosecutor’s argument that the responsibility of Lubanga was based on the fact that he exercised effective control over the FPLC commanders responsible for recruitment, as this mode of criminal responsibility had been dismissed by the Pre-Trial Chamber and had not been charged in the case.[xcvii] Biju-Duval claimed that Lubanga ‘did not have the effective power to impose his will on the military leadership’, and that this was proven by the establishment of breakaway military movements by former commanders and the defection of Floribert Kisembo as Chief of Staff in December 2003.[xcviii]

Biju-Duval acknowledged that there was a risk that children under the age of fifteen would attempt to enlist in the FPLC,[xcix] but argued that the mode of criminal responsibility charged required awareness on the part of the accused that his conduct would lead to the commission of the crimes charged ‘in the normal course of events’.[c] Biju-Duval referenced existing ICC jurisprudence from the Bemba and Katanga cases and interpreted this requirement to mean that ‘the crime has to appear to be the virtually certain consequence of the conduct of the accused’, rather than a possible risk.[ci] The Defense argued that, rather than accepting or encouraging the recruitment of minors, the evidence showed that Lubanga had done everything possible to prevent the commission of such crimes.[cii] He had issued orders prohibiting the recruitment of children under the age of eighteen and had attempted to ensure these orders were enforced.[ciii]

Biju-Duval then addressed the video of Lubanga visiting the Rwampara training camp. Biju-Duval rejected the Prosecution argument that Lubanga’s uniform reflected his absolute military authority over the FPLC, pointing out that Bosco Ntaganda, assistant Chief of Staff and commander of operations in the FPLC, was wearing civilian clothes.[civ] Biju-Duval also disagreed with the Prosecution’s interpretation of Lubanga’s statement in the video.  According to the Defense, his statement ‘This is the second time I am coming here’ is not evidence that he regularly visited and supervised his troops. The Defence argued that the full quote in the video actually indicated that Lubanga said he had been detained in the Rwampara camp by the Ugandans in September 2000, and that his mention of the ‘second time’ he had visited the camp was in reference to his previous visit as a detainee several years previously.[cv] Biju-Duval criticized the ‘deliberate misrepresentation’ of this evidence by the Prosecutor in order to secure the conviction of Lubanga at all costs and questioned whether this behaviour fulfilled the Prosecutor’s obligations of impartiality in pursuit of the truth.[cvi] Biju-Duval listed the various orders and communications from Lubanga which appeared to prohibit the recruitment or use of child soldiers and rejected the Prosecution argument that these documents had been made solely for public relations purposes.[cvii] He concluded that nothing could be attributed to Lubanga which proved he was responsible for the crimes charged, and therefore urged the Chamber to acquit.[cviii]

The accused Thomas Lubanga Dyilo concluded the Defense statements by making a short, unsworn statement. He stated that he had not been able to recognize himself on the basis of the actions ascribed to him or the intentions attributed to him in the course of the trial.[cix] Lubanga claimed that he had only assumed certain responsibilities in Ituri with the consent of other citizens and with the purpose of combating the inhumane treatment[cx] of Congolese citizens in Ituri and saving lives.[cxi] Lubanga stated that the convictions and values he had received through his education guided him in all his actions, particularly the actions he had taken against the recruitment of minors, and he did not feel that he had failed or acted inconsistently with those values.[cxii]

Judge Fulford closed the proceedings by thanking the interpreters, stenographers and counsel for their efforts in the course of the hearing. He noted that the Chamber would now deliberate, pursuant to Rule 142(1),[cxiii] and would return a verdict under Article 74 ‘within a reasonable period of time’.[cxiv]

Read the transcripts of the closing statements here and here

Read the article byBrigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, reflecting on some of the gender issues in the Lubanga case

Read the Legal Filings submitted by the Women’s Initiatives for Gender Justice to the International Criminal Court

For more information about the Lubanga case, see the Gender Report Cards 2008, 2009, and 2010

As the Democratic Republic of Congo (DRC) hurtles towards elections this November, the opposition has been searching for a common candidate, aware that unseating President Joseph Kabila will likely require a united opposition. The three front-running opposition candidates, Etienne Tshisekedi, Vital Kamerhe, and Leon Kengo wa Dongo, have all rhetorically supported the idea of a common candidate but have yet to agree on who that might be.  

In the fray, candidates are seeking support from all sides, including from the detainees in The Hague. Although Jean-Pierre Bemba, who is on trial for war crimes and crimes against humanity allegedly committed in the Central African Republic, has to date been the main focus of these efforts (see “Gone but Not Forgotten: Bemba and Congo’s 2011 Elections”), it seems that now even Thomas Lubanga, with  his much smaller electoral base, is garnering political attention. Lubanga, whose trial completed in August, is currently awaiting judgment on three charges of war crimes. This is raising concerns among Congolese activists who see the courting of International Criminal Court (ICC) suspects by prominent politicians as evidence of the erosion of support for the court in Congo. In the words of one activist, “If they did not think that this [engagement with suspects] would have positive repercussions at home, they would not do it.”

Tshisekedi Visits Lubanga in The Hague

On Friday, September 16, Etienne Tshisekedi, President of the Union for Democracy and Social Progress (UDPS) and presidential candidate, paid a visit to Lubanga in The Hague. Le Potentiel reported that the two men talked for two hours. In a video chronicling the visit posted on Tshisekedi’s campaign website here, Tshisekedi referred to the visit as “humanitarian” pointing out that Lubanga was a “combatant” (a term used to designate a member of the UDPS). Activists recall that it was with the UDPS that Lubanga got his political start in Bunia the 1990s, when the party was at the forefront of opposition to the Mobutu regime.

Some, however, doubt Tshisekedi’s assertions about his humanitarian motivations. Indeed, it is likely that nothing done at this stage in campaigning is done without a view to advancing Tshisekedi’s electoral position. The fact that a video highlighting the visit was produced is additional evidence of this. What electoral advantage might Tshisekedi be seeking? As the newspaper Le Prospérité pointed out, Lubanga still “enjoys great popularity” in his home region. Indeed, his Hema ethnic group continues to be a source of support.

The UPC and National Politics in Congo

The relationship has already led to speculation about possible deals in the past. One activist recalled that Lubanga had visited Tshisekedi in Kinshasa before being arrested. It is not clear whether this has had a significant impact, some cadres have argued it was unjust, arguing that Lubanga was just a small fish and that the big fish were still enjoying “tranquil liberty,” but the party as a whole has not taken an official position. There is speculation that there might be deeper support for Lubanga in the party but that they are testing the waters before taking a public position.

One activist pointed out that even without any concrete agreement with Lubanga, the visit would boost impressions of Tshisekedi in Ituri. “The mere fact of the visit affirms that Lubanga’s detention is of national concern and will be seen as an act of support by the Hema community.” Other observers speculate that Tshisekedi’s visit was aimed at charming Lubanga and seeking his support for Tshisekedi’s election bid. Some have heralded this effort, Clement Kanku, leader of the Movement for Renewal (MR), saluted efforts to bring together all those promoting change in Congo.  Quoted in le Potentiel, he lauded the “approach taken by Etienne Tshisekedi wa Mulumba, Opposition Presidential candidate in 2011, in meeting for fruitful coordination with the President of the MLC Jean-Pierre Bemba and Thomas Lubanga, two compatriots detained in the jails in the ICC whose political weight, at the present moment, remains undeniable.”

The question of where UPC voters will throw their support, absent a strong statement from Lubanga, remains open. According to the analysis of a local journalist at a community radio station based in Mahagi, Tshisekedi would seem to be a more natural choice of Iturians than one of his leading rivals in the opposition, Vital Kamerhe. He pointed out that Iturians would not forget the role that Kamerhe had played in 2003 in the destabilization of Lubanga’s party, the Union of Congolese Patriots (UPC). The Dar es Salaam Accord, which Kamerhe participated in negotiating, facilitated the cooperation between the two governments for the coordination of the rebel movements which opposed the UPC and eventually drove them out of Bunia. Another factor that might lead UPC supporters to throw their weight behind the UDPS is the fact that the UDPS has integrated former UPC members into its ranks in the region.

However, some commentators doubt the efficacy of Tshisekedi’s efforts to court the UPC as the party has also been in contact with Kamerhe’s Union of the Congolese Nation (UNC). According to the website Congo Direct, the UPC and the UNC signed a “particular political agreement” last year, suggesting that the UNC may have UPC support in the bag.

What Implications for UPC Engagement for Accountability in Congo?

There have been grumblings, however, on the ground about this attempted rapprochement between former rivals. For example the local newspaper in Bunia, Le Pacificateur, reported that shortly after that agreement was announced, a spokesman of the Hema community announced that the Hema community did not recognize any obligation in this alliance and emphasized that it was important to establish a distinction between the Hema community and the UPC. The spokesman, however, was reportedly later taken to task by the members of the UPC. According to a Congolese activist from Ituri, the signs of an alliance between the UPC and UNC are extremely visible on the ground. Behind the scenes he reports, partisans are circulating rumors that if the opposition wins that the “rights of Lubanga as a Congolese national will be asserted.”

What might this assertion of rights mean in practice? Activists arrest that many in the general population believe that Lubanga could only be arrested because he had no government support, and there is a conviction that the government at least would have had the capacity to support Lubanga. In the words of one activist, however, “it may be too late for Lubanga,” referring to the fact that the trial has been completed. He speculates that a deal might revolve around potential positions in case of acquittal. However, another activist points to the possibility for the Congolese government to support Lubanga legally on appeal or negotiation of an agreement to serve his sentence in Congo under lenient conditions.

Some have, however, criticized the veteran opposition for focusing on ICC suspects who are seen as less necessary to engage due to their distance than those campaigning in Congo itself. The newspaper La Prospérité noted that “observers don’t understand why Etienne Tshisekedi can travel thousands of miles to meet Jean-Pierre Bemba and Thomas Lubanga even though since the moment the submitted his candidacy, he has not shown any interest in negotiating with his fellow opposition candidates remaining in the country.” The Direct Congo blog also questioned why Tshisekedi didn’t meet Bemba, who has a much broader political base, on this occasion in The Hague (although Tshisekedi has previously met Bemba). 

The fact of the engagement by ICC detainees is viewed by activists with equanimity. And in the words of one, these engagements are unlikely to change views on the ground. What is, however, fuelling speculation and confusion, among both those pro and anti-UPC is a question posed by the Kinshasa newspaper La Tempete du Tropiques: what might Lubanga have requested in exchange for such support?

Might a political agreement undermine the court and its ability to pursue justice and credibility? There is concern that all of this negative positioning could lead to government obstructionism in future cases in the event of an opposition win at the polls. In addition, although it does not seem an immediate prospect, there are many, including victims, who fear Lubanga’s release. As fearful as victims are of Lubanga’s release generally, it seems the more dangerous if coupled with central government support.

Jennifer Easterday: What does the Trust Fund for Victims do?

Pieter W.I. de Baan: The Trust Fund for Victims (TFV or Trust Fund) is the first of its kind in the global movement to end impunity and promote justice. It supports activities which address the harm resulting from the crimes under jurisdiction of the International Criminal Court (ICC or Court): victims of war crimes, crimes against humanity and genocide committed after 1 July 2002, and their families. The TFV develops its activities with victims themselves as partners, helping them rebuild their families and communities and return to a dignified and contributory life within their communities.

JE: What is the mandate of the TFV?

PdB: The Trust Fund for Victims fulfils two mandates for victims of crimes under jurisdiction of the ICC, and their families:

1. Reparations: implementing Court-ordered reparations awards against a convicted person when directed by the Court to do so. While several cases are pending before the International Criminal Court, none has reached the reparation stage to date.

The TFV’s reparations mandate is linked to a criminal case against an accused before the International Criminal Court. Resources are collected through fines or forfeiture and awards for reparations and complemented with “other resources of the Trust Fund” if the Board of Directors so determines.

Reparations to, or in respect of victims, can take many different forms, including restitution, compensation and rehabilitation. This broad mandate leaves room for the ICC to identify the most appropriate forms of reparation in light of the context of the situation and the wishes of the victims and their communities. Reparation is in no way limited to individual monetary compensation; it could instead include collective forms of reparation and measures that could promote reconciliation within divided communities.

2. General Assistance: using voluntary contributions from donors to provide victims and their families in situations before the Court with physical rehabilitation, material support, and/or psychological rehabilitation. This mandate is not linked to a trial and does not require a conviction to take place. Rather, general assistance is provided to victims within the broader situations where crimes are alleged to have occurred.

More detailed information on types of support and activities is presented further below.

JE: How does the TFV define who a victim is?

PdB: The definition of victims is set out in Rule 85 of the Rules of Procedure and Evidence. This Rule is applicable both to the Court and the Trust Fund. Rule 85 states:

“For the purposes of the Statute and the Rules of Procedure and Evidence:

(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court;

(b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.”

JE: Who decides who is eligible for reparations?

PdB: With respect to the reparations mandate, the Court/Chamber will decide who may be an eligible victim to receive reparations. Under the Regulations of the Trust Fund, the Chamber may also task the Trust Fund to do identify eligible victims within clear parameters set by the Chamber. Under the reparation mandate only those victims who were directly or indirectly affected by crimes committed by a convicted person can benefit.

JE: Can victims other than those who have been affected by the crimes committed by a convicted person benefit from the TFV?

PdB: With respect to the general assistance mandate, not only the victims who suffered harm as a result of a crime committed by a convicted person can benefit but all victims within a situation who suffered crimes under the Statute. This allows the Trust Fund to offer assistance to a wider scope of victims and before the Court has convicted a perpetrator. For example, the Trust Fund offers assistance to victims of crimes under the Rome Statute in northern Uganda, where, so far, it has been impossible to execute the arrest warrants issued by the Court.

JE: What if a person does not qualify as a victim before the ICC, can they still receive benefits from the TFV?

PdB: Both the Court and the Trust Fund use the same definition of who a victim is which is laid down in Rule 85 of the Rules of Procedure and Evidence.

However, the Trust Fund, in particular under its general assistance mandate can address a much wider scope of victims.

If a person has applied to the Court to participate in a certain trial but is deemed by the Chamber not to qualify to participate in those proceedings, in particular because he/she cannot demonstrate that the harm she/he suffered relates to a crime that is being charged in this trial before the Court, he/she may still receive general assistance, provided that he/she falls within the definition of Rule 85 of the Rules of Procedure and Evidence.

In addition, a victim who may not benefit from Court-ordered reparations which are closely linked to the charges of which the Court finds a perpetrator guilty, may still be eligible for receiving general assistance.

JE: How can victims become involved with the ICC? At what stage of the proceedings can they become involved?

PdB: The Rome Statute contains provisions which enable victims to participate in all stages of the proceedings before the Court.

Hence victims may file submissions before the Pre-Trial Chamber when the Prosecutor requests its authorisation to investigate. They may also file submissions on all matters relating to the competence of the Court or the admissibility of cases.

More generally, victims are entitled to file submissions before the Chambers of the Court at the pre-trial stage, at trial, and during the appeals process.

JE: Is there a particular time when victims have to apply to participate in proceedings?

PdB: The rules of procedure and evidence stipulate the appropriate time for victim participation in proceedings before the Court. They must send a written application to the Court Registrar and more precisely to the Victims Participation and Reparation Section, which must submit the application to the competent Chamber to decide on the logistics of victims’ participation in the proceedings.

JE: What does the application have to show?

PdB: The Chamber may reject the application if it considers that the person is not a victim whose crime falls within the jurisdiction of the Court. Individuals who wish to submit applications to participate in proceedings before the Court must demonstrate in the application that they are victims of crimes which come under the competence of the Court in the proceedings commenced before it.

JE: Are there forms to make these applications?

PdB: The Victims Participation and Reparations Section has prepared standard forms to make it easier for victims to file their application to participate in the proceedings.

JE: Is the application for participation the same as the application for reparations? Do victims need to fill out different forms?

PdB: When submitting an application using the standard form it is possible for victims to request participation, or reparations, or both. These forms as well as a handbook explaining the applications procedure can be found on the Court’s website. See here.

JE: Does the victim himself or herself have to make the application, or can someone make the application on their behalf?

PdB: An application may be made by a person acting with the consent of the victim, or in their name when the victim is a child or if any disability makes this necessary.

JE: Do victims have to file claims with the Court in order to benefit from reparations or general assistance?

PdB: For victims to benefit from reparation awards, it will depend on the judges whether they require victims to have filed a reparations claim form with the Court (Victims Participation and Reparation Section). It is possible under the applicable law, and in particular the Regulations of the Trust Fund, that the Court may award reparations also to victims who did not file any reparations claim with the Court.

For victims to benefit under the Trust Fund’s general assistance mandate there is no need to register with the Trust Fund. The activities for the benefit for victims under the general assistance mandate are carried out by partner organisations in the field. The Trust Fund works with international non-governmental organizations, local grassroots organizations, victims’ groups, women’s associations, and faith-based groups, all rooted in their local communities. The TFV at present has an extensive network of international and local implementing partners (both direct grantees and sub-grantees): 34 in total (20 in the DRC and 14 in northern Uganda), including 8 international and 26 local. It will soon have partners also in the Central African Republic.

JE: Does the TFV have to wait until the end of a trial in order to provide support to victims?

PdB: Under its rehabilitation mandate, the Trust Fund for Victims is guided by its Regulations to provide assistance to victims within the jurisdiction of the Court. This means that the TFV can engage with victims outside of the scope of any particular trial and prior to the conclusion of proceedings.

JE: What kind of support does the TFV provide?

PdB: The Trust Fund provides three legally defined categories of support to victims:

• Physical Rehabilitation which includes reconstructive surgery, general surgery, bullet and bomb fragment removal, prosthetic and orthopaedic devices, referrals to services like fistula repair and HIV and AIDS screening, treatment, care and support;
• Psychological Rehabilitation which includes both, individual and group-based trauma counselling; music, dance and drama groups to promote social cohesion and healing; community sensitization workshops and radio broadcasts on victims’ rights, information sessions and large-scale community meetings. Community awareness responses may include broad-based community education on sexual and gender-based violence and the links between peace, justice, reconciliation and rehabilitation; and
• Material Support initiatives may include livelihood activities, vocational training, or access to referral programmes that offer income generation and training opportunities to focus on longer-term economic empowerment. Material support may also include education grants for victim survivors and their children.

JE: Are there special considerations for victims of sexual and gender-based violence (SGBV)?

PdB: Yes. An important cross-cutting area of support is to victims of sexual and gender-based violence, through providing integrated economic security, fostering reconciliation (at the personal, family, and community levels) and access to physical and psychological rehabilitation.

JE: How are the needs of victims taken into account for TFV projects?

PdB: To extent possible, the TFV supported projects integrate different types of support into assistance packages that are responsive the particular needs of victims. The TFV works with intermediary organisations – local and international implementing partners to ensure efficient and adequate delivery of services.

JE: Where does the TFV operate?

PdB: The Trust Fund may operate in situations before the International Criminal Court. Currently these are northern Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic; the Republic of Kenya; Libya and Ivory Coast. Prior to initiating any operations in a situation country, the Trust Fund conducts a needs assessment through consultations with victims, organizations and other stakeholders.

JE: What kinds of projects does the TFV engage in?

PdB: At present, the Trust Fund is implementing 31 projects for the direct benefit of an estimated 42,000 victims of war crimes and crimes against humanity in the situations of northern Uganda and the Democratic Republic of the Congo. It is currently evaluating project proposals with a view to starting activities in Central African Republic which will address victims of SGBV crimes in the near future.

More detailed information about the TFV’s activities can be found at our website, including our most recent progress report.

JE: How does the TFV obtain funds for reparations?

PdB: There is a variety of sources that may generate resources to pay for reparations, which are described in the Regulations Trust Fund for Victims, adopted by the Rome Statute’s Assembly of States Parties.

The primary source is a person convicted by the Court: money and other property collected through fines or forfeiture, as well as resources collected through awards for reparations.

If these resources are insufficient or should the convicted person turn out to be indigent, there is a possibility that the Board of Directors of the Trust Fund for Victims decides to allocate resources originating from voluntary contributions to the Fund (therefore not part of the Court’s regular budget) be used to complement a reparations award. To this end, the Trust Fund currently maintains a reserve of 1 million euros, which represents roughly one third of total available resources.

Finally, the Assembly of States Parties may decide to allocate to the Trust Fund further resources, other than assessed contributions. These could also be used to fund reparations.

JE: What is your role at the TFV?

PdB: My role as Executive Director is to support the TFV Board of Directors in their responsibilities of strategic decision making and the custodianship of the Fund’s resources. On behalf of the Board, I oversee the daily management of the TFV Secretariat, including the use of the Fund’s resources. Other tasks include the management of relations with the principal stakeholders of the Rome Statute, which include States Parties, Court organs, civil society and of course representatives of victims groups. An important responsibility is raising funds – which may come from States Parties, other countries, as well as from private organizations and individuals.

JE: What do you hope for the future of the TFV?

PdB: My hope and ambition for the TFV is to see it develop into an inspirational, credible and effective model of international reparative justice – linked to the Court and responsive to the rights and needs of victims who are within the jurisdiction of the ICC.

The Women’s Initiatives for Gender Justice is an international women’s human rights organization that advocates for gender justice through theInternational Criminal Court (ICC) and works with women most affected by conflict situations under investigation by the Court.

The Women’s Initiatives has over 700 grassroots members and partners in armed conflicts including women victims/survivors, women living in IDP camps, women’s rights and development organizations, networks including transitional and criminal justice partners, parliamentarians, and members of the security sector. In addition, we network with a large number of regional and international partners and allies and have an extensive global outreach program reaching over 100,000 supporters who regularly receive our publications, updates, and e-letters.

Prosecutor v Thomas Lubanga Dyilo

The case against Thomas Lubanga Dyilo is the first trial before the International Criminal Court (ICC) and arose out of the investigation into the Situation in the Democratic Republic of the Congo (DRC). Mr. Lubanga has been in the custody of the ICC since March 17, 2006. He is the former President of the Union des patriotes congolais (UPC), and commander-in-chief of the Forces patriotiques pour la libération du Congo (FPLC). Mr. Lubanga has been charged with war crimes relating to the enlistment and conscription of children under the age of 15 years and using children to participate actively in hostilities.[i] On January 26, 2009, Mr. Lubanga became the first accused to stand trial at the ICC.

Outstanding Features

One of the outstanding features of this case is its historic nature: it is the first prosecution before the International Criminal Court, it is the first international criminal trial ever held on the conflict in eastern DRC, and it is also one of the few international criminal cases in history to charge an individual with acts of enlistment and conscription of child soldiers.[ii] These issues have rarely been adjudicated in international criminal law with only the Special Court for Sierra Leone previously prosecuting such crimes including in its case against Charles Taylor, the former President of Sierra Leone.[iii] As such, the ICC charges and prosecution strategy in the Lubanga case were an important opportunity to advance these issues.

The second outstanding feature has been the absence of charges for gender-based crimes in the case against the leader of a militia group widely known to have committed rape, sexual enslavement, and other forms of sexualised violence. 

Gender-based violence

The DRC has one of the highest rates of sexual violence in the world. The Ituri region, where the UPC operates, continues to experience ongoing conflict and militia attacks, and eastern DRC has been described by Margot Wallström, the United Nations Secretary-General’s Special Representative on Sexual Violence in Conflict, as the ‘rape capital of the world.’[iv]

It was therefore shocking to many of us that the announcement in 2006 of the case against Thomas Lubanga did not include charges for such crimes and overlooked the suffering of thousands of victims of this conflict and victims of this militia. It was unimaginable to us and to our partners in eastern DRC, grassroots women’s rights and peace advocates, that the Office of the Prosecutor (OTP) had not investigated these crimes in their initial strategy. It was also beyond comprehension that the OTP then decided not to undertake any specific investigations into these crimes in the six months between when Mr. Lubanga was taken into ICC custody in March 2006 and before the Confirmation Hearing in November of that year. Still further, the OTP did not investigate these crimes between the Confirmation Hearing and the start of the trial two years later in January 2009.  In fact, there was almost three years from when Mr. Lubanga was taken into custody until the trial started – plenty of time in which the OTP could have conducted investigations of gender-based crimes in relation to child soldiers, thereby expanding thematically on their original charges and providing a more accurate reflection of the crime base. In our view, the OTP could have amended the document containing the charges, sought and held a Confirmation Hearing on such charges and still have been ready for trial three years later, with the rights of the accused to prepare his defence fully observed.

Documentation of gender-based crimes

The Women’s Initiatives for Gender Justice has been directly involved in the DRC Situation for the past five years. In May and July 2006, we conducted two documentation missions in Ituri, eastern DRC and interviewed victims/survivors of gender-based violence, committed by a range of militias including the UPC. We produced a dossier detailing 51 individual interviews with predominantly women victims/survivors of rape and other forms of sexual violence. Of these, 31 interviewees were victims/survivors specifically of acts of rape and sexual slavery allegedly committed by the UPC.

On August 16, 2006, the Women’s Initiatives submitted our dossier and a letter to the Office of the Prosecutor[v] describing our concerns that gender-based crimes committed by the UPC had not been adequately investigated in the case against Mr Lubanga. The dossier provided information about the commission of these crimes, indicated that sexual violence appeared to be an integral component of the attacks against the civilian population, provided material suggesting a pattern of rape, abduction, sexual slavery, and torture by the UPC, and confirmed that women victims/survivors were willing to be interviewed by the ICC.

The OTP has never responded to this dossier.

Integration of gender dimensions within the charges

On September 7, 2006, the Women’s Initiatives became the first NGO to file before the ICC.[vi] We filed in relation to the Lubanga case and requested Pre-Trial Chamber I to review the Prosecutor’s exercise of discretion in the selection of charges and to determine whether broader charges (specifically for gender-based crimes) could be considered. We also described the impact on victims of the narrow and incomplete charge sheet and the severe limitations this imposed on the ability of victims to be recognised by the Court and to participate in the justice process. Only four victims were recognized at the time of the Lubanga Confirmation Hearing in November 2006, despite the large number of actual victims. This has been rectified somewhat over the years and currently there are 123 victims participating in the trial and represented by six legal counsel.[vii]

When it was clear the OTP would not open investigations into gender-based crimes even in relation to child soldiers, and when the Pre-Trial Chamber declined to invite the Prosecutor to consider conducting such investigations pursuant to Article 61(7)(c)(i) as argued in our filing, we redirected our advocacy towards deepening the understanding of the gender dimensions embedded within the existing charges of enlistment and conscription and forcing children to fight.

Since the beginning of 2008, we have advocated that rape and other forms of sexual violence were an integral component of the UPC conscription process for girls, particularly during the initial abduction phase and period of military training. The perpetration of sexual violence, primarily against girls, was an inherent feature of the UPC’s conscription practises. This is borne out in the interviews from our documentation missions as well as our victims’ participation programme involving former child soldiers.

Child Soldiers

According to our documentation, both boys and girls were abducted by the UPC. During the training period the children were deprived of sleep, forced to consume drugs, and shown how to fight. They were sometimes taught how to use a gun through the simulation of the use of sticks as if they were machine guns. The girls were regularly raped, many from the moment of abduction and throughout their time with the UPC, with the most intense period reportedly occurring during the initial abduction phase and once they were relocated to the training camps. Rape and sexual slavery were integral to induction into the militia group to the extent that rape could be considered an indicator of conscription for girls. Sexual violence was used as an effective mechanism for demonstrating control and ownership over child soldiers by the UPC and for severing attachment with their lives prior to abduction. Being raped, witnessing rape, being forced to rape were regular occurrences especially during the training phase of new conscriptees. It is clear and certain, that conscription of children by the UPC was not gender-neutral. 

Once training was completed, the children were forced to fight, sometimes without weapons. Newly enlisted and conscripted children were made to walk at the front of the troops in battle to provoke gunfire, thus enabling their armed fighters to see where the other militia was located and hiding. The children were made to fight and forced to kill.

Impact

The suffering and torment of the UPC child soldiers was and is immense.  Their rights to a childhood, to safety, protection, to physical and bodily integrity, to education, to exercising their reproductive rights and health, and to sexual autonomy were denied and destroyed. Many of those raped by the UPC subsequently tested positive for HIV, suffered multiple internal and external injuries, some of the young women had unwanted pregnancies, and some were rejected by their families or communities upon their return, because they were known to have been with the UPC militia – a group recognized as a source of violence and suffering by thousands of people.

Testimony and Evidence

Although there are no charges for gender-based crimes in the Lubanga case, the gender dimensions of enlistment and conscription of children have been referenced by every actor in this trial. At least 21 out of 25 witnesses who testified during the presentation of the Prosecution’s case in 2009, mentioned the presence of girl soldiers within the UPC.[viii] A significant number of prosecution witnesses, at least 15, also testified explicitly about gender-based violence, in particular the rape and sexual slavery of girl soldiers within the UPC by other combatants and commanders.[ix] On May 22, 2009, the Legal Representatives for Victims jointly requested the Trial Chamber to consider modifying the legal characterisation of the facts to include inhuman and cruel treatment, and sexual slavery to the existing charges, pursuant to Regulation 55.[x]  Although granted by a majority decision of the Trial Chamber,[xi] this was overturned on Appeal.[xii] The Judges themselves have at times enquired about witnesses’ knowledge of girl soldiers and even a witness for the Defence testified about the rape of girl soldiers by the UPC.[xiii]

The UN Under-Secretary General for Children and Armed Conflict, Radhika Coomaraswamy, was recognized with amicus curiae status[xiv] in this case and also provided testimony as an expert witness.[xv] In her submission the Special Representative addressed the multiple roles girl soldiers are forced to play in armed conflicts. In her testimony she described these roles as including participation in combat, scouting, and portering, as well as being forced into marriages and sexual slavery.

Child soldiers were assigned a variety of non combat and combat-related duties. According to our documentation, some of the young women within the UPC were assigned as body guards; in fact several of the commanders had female body guards. As part of their duties in the service of the UPC, young women were often required to procure other civilian girls and young women for the sexual pleasure of their commander and ultimately to become his sexual property.  Boy soldiers were forced to rape and were on occasion also raped. 

Amongst the many activities child soldiers were forced to undertake, it appears that forced marriage and sexual enslavement were roles to which only girls were assigned by the UPC. Taken in totality, all these examples demonstrate just some of the ways in which sexual violence was a component of their conscription and active participation in hostilities.

Lessons

There are many lessons for the OTP in this, their first case. Lessons about shaping investigation hypothesis and strategy; about pursuing leads in relation to gender-based crimes early on in investigations to allow the time needed for interviews; the importance of transparency and compliance with disclosure obligations; the need for better management and oversight of intermediaries hired by the OTP and ensuring their non interference, both perceived and actual, with witnesses; the need for the OTP to exercise prudence regarding the time and place for media comment and the necessity of avoiding public commentary on issues under judicial consideration; the importance of verifying the age and testimony of prosecution witnesses particularly in a case where the age of victims/witnesses forms a key element of the crime; and of course the requirement for all parties and people, including the Prosecutor, to comply with judicial orders. Some of these issues have been raised by the Defense most notably in its abuse of process filing in December 2010 when they requested a permanent stay of proceedings.[xvi] We note, that in March 2011, the Trial Chamber issued a decision rejecting the Defense application but stating that it would reserve its judgement on each of the factual issues raised by the Defense until the end of the trial.[xvii]

Some of the above lessons have already been wisely integrated by the OTP into the ongoing trials, and in new cases and investigations. Some lessons are yet to be fully absorbed and some appear bound for unfortunate repetition.

Jurisprudence

Despite the many challenges in this case, we believe that, based on the factual information before the judges – primarily the testimony from witnesses – there is every possibility important and substantive jurisprudence could emerge from this case. A decision which recognizes the gender dimensions of enlistment, conscription, and the forced participation of children in hostilities, could provide justice for children utilized by the UPC, transform the legal definition of child soldiers and pave the way for future prosecutions. It could also allow for reparations for individuals and communities who have suffered and it would undoubtedly deepen our collective understanding of the terror and impact on children who are forced to participate in armed conflicts.

Prosecutors allege that Mr. Lubanga is guilty of the war crimes of conscripting, enlisting and using children under the age of 15 years for armed purposes in the Ituri region of the Democratic Republic of Congo (DRC). Mr. Lubanga has denied these allegations.

Following submissions from the prosecution and victims’ representatives on Thursday, defense counsel for Mr. Lubanga presented their closing arguments on Friday, telling the judges that Prosecutors had not proved their case against the accused.  Mr. Lubanga likewise rendered a concise, unsworn statement before Presiding Judge Fulford declared the proceedings at a close.

Two attorneys for the defense split their allotted two hours evenly, encouraging the Chamber to acquit the accused for evidentiary, legal, and procedural reasons.

Lead Defense Attorney Catherine Mabille rose first, recalling the five and a half years that Mr. Lubanga had been in the custody of the Court and declaring that the “long proceedings” against Mr. Lubanga had been characterized by “serious dysfunction” on the part of the prosecution.

Ms. Mabille maintained that the question before the Court was “whether the evidence matches the charges,” devoting much of her hour to arguing that the prosecution’s evidence was unreliable.

She insisted that prosecution witnesses – nine alleged former child soldiers – had lied to the Court, arguing that eight had never served in the Patriotic Forces for the Liberation of the Congo (FPLC)—the military wing of the Union of Congolese Patriots (UPC) and that the ninth had joined the FPLC only in 2003, and had lied about his age.

Explaining why so many witnesses might have lied to the Court, Ms. Mabille submitted that “in post-conflict situations, some individuals could be seduced by the prospect of gaining some advantage,” like financial assistance, educational opportunities, or even relocation arranged by the Court.

She added that prosecution witnesses lied “because they had been asked to lie,” recalling defense arguments that intermediaries working on behalf of the prosecution had coached witnesses in fabricating testimony.

Ms. Mabille alleged that although “the danger of false testimony is a danger in every court around the world” – and although testimony in this trial had reached a level of falsehood “unparalleled” elsewhere – the greater danger in the trial of Mr. Lubanga had been the Office of the Prosecutor itself.  In this fashion, Ms. Mabille recalled the abuse of process motion submitted by the defense and invited the judges to affirm Mr. Lubanga’s right to a fair trial.

She clarified that the defense did not accuse the prosecution of intentionally encouraging witnesses to lie, but insisted that the Congolese government, through various intermediaries—non-ICC staff who helped the prosecution to identify witnesses—had created this problem before the Court.  She wondered how an accused could receive a fair trial when Court intermediaries were simultaneously agents of the prosecution and agents of Laurent Kabila’s government, referring to the president of the DRC.

At the same time, the defense accused the prosecution of gross incompetence, observing that Mr. Ocampo himself had admitted that he never confirmed the ages of his witnesses because he had not considered the possibility that they might have lied to him.  Scolding the prosecution for its shortsightedness, Ms. Mabille reminded the Court that the prosecutor is charged with investigating inculpatory and exculpatory evidence alike.

Despite the “meager resources” enjoyed by the defense, Ms. Mabille insisted that her team had investigated the ages of prosecution witnesses and learned that they were indeed older than they had claimed.  Such a discovery impacted the reliability of the evidence submitted by the prosecution, evidence that in the defense’s view was “tainted” in its entirety.

Ms. Mabille concluded by suggesting that the prosecution “cannot seriously claim to have proven” Mr. Lubanga’s guilt beyond a reasonable doubt.

Co-defense counsel, Mr. Jean-Marie Biju-Duval then sought to re-characterize Mr. Lubanga as a political leader only, and as one who actively opposed including children among the ranks of soldiers.

Challenging the claim that Mr. Lubanga was individually responsible for the crimes with which he was charged as co-perpetrator, Mr. Biju-Duval submitted that FPLC commanders Mr. Floribert Kisembo and Mr. Bosco Ntaganda had already organized armed forces in the Ituri region before Mr. Lubanga had been made president of the UPC in the fall of 2002. Mr. Ntaganda, who is presently at large, is also a subject of an ICC arrest warrant for alleged crimes committed in the Ituri region of DRC.

As such, Mr. Lubanga had not been needed for the role the prosecution accused him of playing.  According to Mr. Biju-Duval, Mr. Lubanga had been needed only “to play a role in the political activities taking place at that time,” and that UPC rebel soldiers had needed only “to be represented by a political leader they trusted.”

He then submitted that Mr. Lubanga had been commander-in-chief of the UPC “only pursuant to the [UPC] statute,” alleging that Mr. Lubanga had not exercised “effective control” over the armed forces.  The defense asked the Court to believe that Mr. Lubanga lacked the “effective power to impose his will” on the armed forces.

Mr. Biju-Duval emphasized the voluntary enlistment of many young people in the armed forces, suggesting that “in any conflict when people rise up against their oppressors” there is a risk that people younger than fifteen will want to join the ranks.

He then sought to establish that the efforts Mr. Lubanga had made to demobilize the child soldiers had been sincere.  Observing that Mr. Lubanga’s orders had been internal communications only, Mr. Biju-Duval dismissed the prosecution’s argument that these orders had been “for public relations purposes only” and lamented that Mr. Lubanga’s wishes had not been implemented due to “certain impractical difficulties and reticence.”

Mr. Biju-Duval concluded by submitting that “no word, no document” could prove that Mr. Lubanga is guilty of the crimes for which he is charged, insisting that “we cannot condemn or convict somebody who has always opposed” the participation of minors in armed conflict.

For the two and a half hour proceedings, Mr. Lubanga maintained the stoic demeanor that has characterized his attendance at these many hearings.  When he finally rose to speak on his own behalf, he crossed his wrists at his waist and read, in French, from a short written statement prepared in advance.

Thanking the judges for the opportunity, Mr. Lubanga explained that he wished to “express his feelings” from throughout the proceedings, declaring that it had been “impossible” for him to recognize himself in the characterization submitted by the prosecution.

Although Mr. Lubanga acknowledged having taken leadership in the Ituri province during the period encompassed by the charges against him, he did so, he claimed, “only with a view to protecting what is dearest to every man, namely life.”  In this way, Mr. Lubanga echoed the characterization of himself submitted by Mr. Biju-Duval not as a war criminal but as a man who had risen to defend a people wrongly oppressed.

Mr. Lubanga concluded his brief remarks by declaring, “Today I defer to the wisdom of your august court.”  In doing so, he manifested the respectful attitude he sustained throughout his trial, a respect in marked contrast to the demeanor and behavior of other international criminal suspects who have stood trial in The Hague.

In concluding the proceedings, Presiding Judge Fulford displayed the gentleman’s touch that has characterized his courtroom leadership.  He first thanked the stenographers and interpreters, whose contributions in the last two days he called “heroic,” and then acknowledged the extraordinary efforts of counsel on both teams, including those who never spoke in court but who had worked tirelessly behind the scenes.

Presiding Judge Fulford reminded the assembly that the Rules of the Court require only that the Chamber return their decision “within a reasonable period of time,” adding – with good humor – that he and his colleagues would offer no estimate since “this trial has shown we will surely get it wrong.”

With that, the judges exited through the door behind the bench, and bailiffs escorted Mr. Lubanga out of the courtroom and back to the ICC detention center near the coast in The Hague.  There, Mr. Lubanga will await a judgment that, whether he is convicted or acquitted, will no doubt be appealed.

Jeffrey Pierce (Stanford Law School) and Alpha Sesay prepared this report.

The very first case before the ICC, the trial comes to a close more than five years after the Court issued its arrest warrant for Mr. Lubanga and some two and a half years after the trial began.  Judges are expected to issue their decision sometime early next year, by which time Mr. Lubanga will have been in the custody of the ICC for six years.

Irrespective of Mr. Lubanga’s guilt or innocence, the trial has highlighted the plight of child soldiers in armed conflict.  Among the viewers in the Court’s capacity-filled public galleries today were actress Angelina Jolie, Goodwill Ambassador for the UN’s High Commissioner for Refugees, and Radhika Coomaraswamy, the UN Secretary-General’s Special Representative for Children and Armed Conflict.

Over the course of the four and a half hour proceedings, lawyers and advocates reminded the judges of the brutality of the conflict between the Hema and Lendu peoples in that Ituri region in the DRC and sought to establish Mr. Lubanga’s individual responsibility for building an army of the young.  That there were children under fifteen in that army “was no accident,” prosecutors insisted.

Deputy Prosecutor Fatou Bensouda, the first to address the judges, insisted that the evidence proved Mr. Lubanga’s guilt not merely beyond a reasonable doubt “but beyond any possible doubt.”  She submitted that the prosecution had given voice to the children whom Mr. Lubanga had “transformed into killers,” children whom the world had resolved to protect by enshrining in the Rome Statute – the treaty that created the ICC – a definition of war crimes that included the charges against Mr. Lubanga.

Ms. Bensouada also recalled certain video evidence against Mr. Lubanga – in which he visited a training camp in Rwampara in February 2003 and allegedly addressed the child soldiers gathered there – calling it Mr. Lubanga’s “voluntary and public confession.”

Prosecutor Nicole Samson went on to suggest that a major theory of the defense – that each of the prosecution’s witnesses either lied or had been egregiously mistaken – was simply too baroque to believe.

Prosecutor Manoj Sachdeva dismissed Mr. Lubanga’s three attempts to demobilize child soldiers as mere “cover-ups,” arguing that these efforts had, conversely, proven both Mr. Lubanga’s knowledge that it was wrong to use child soldiers and his intention to use them anyway.

The tension between the bench and the prosecution that has characterized this entire trial was manifest in the courtroom today.  Chief Prosecutor Luis Moreno Ocampo – whose refusal to implement judge’s orders nearly twice halted the trial and nearly resulted in the release of the accused – tried to intervene when Presiding Judge Adrian Fulford sought a point of clarification from Ms. Samson.  In a cryptic remark, Judge Fulford scolded Mr. Ocampo for using email in the courtroom and observed that Mr. Ocampo had already appointed six people to speak for the prosecution.

When Mr. Ocampo tried a second time, Judge Fulford said, with detectable impatience, “Mr. Ocampo, not at the moment,” departing from a demeanor otherwise marked by extraordinary politeness.

Later in the proceedings Mr. Ocampo was granted permission to field a question that Judge Elizabeth Odio Benito directed to Ms. Bensouda.  Judge Benito wished to know how sexual violence against female child soldiers was relevant, since it was not included in the charges against Mr. Lubanga.  Mr. Ocampo explained that sexual violence was a “gendered aspect” of conscription.

When Judge Fulford observed that Mr. Ocampo’s submission differed from Ms. Samson’s argument – who had reasoned that sexual violence against female child soldiers was an aspect of their direct participation in hostilities – Mr. Ocampo instructed the bench to accept his argument over Ms. Samson’s, since he is the Chief Prosecutor.  Notably disturbed, Judge Fulford promised to “ignore” Mr. Ocampo’s remark.

In an especially symbolic moment in the proceedings, Mr. Benjamin Ferencz recounted how, at the age of twenty-seven, he had been a prosecutor during the Nuremberg Tribunals in the wake of World War Two.  Now aged ninety-two, Mr. Ferencz celebrated the development of human rights in the intervening years and urged the Court to take seriously the deterrent effect that a conviction might have.

Upholding the unique place the Rome Statute affords to victims during criminal proceedings, legal representatives of the victims were likewise granted two hours, during which they expounded on the trauma suffered by the victims and urged the bench not to rule in favor of impunity.

Six victims’ representatives testified in turn, commending the Court for its careful adherence to victims’ rights and submitting that the essential concern of the victims had been to establish the truth, which Ms. Paolina Massidda, Principal Counsel in the Office of Public Counsel for Victims characterized as the identification, conviction, and punishment of those who harmed them.

Another victims’ representative, Ms. Carine Bapita Buyangandu proposed that the sexual abuse of female child soldiers, even though not among the charges against Mr. Lubanga, should nevertheless be considered an “aggravating circumstance.”  That is to say, should the judges convict Mr. Lubanga of the war crimes charged against him, the judges may weigh the abuse of girls in determining how to sentence him.

Mr. Lubanga, who had sat stone-faced throughout the proceedings, reserved his most expressive moments for the testimony from victims’ advocates.  When Mr. Joseph Keta Orwinyo, also representing a set of victims submitted that the defense had fabricated the claim that two prosecution witnesses had utilized “stolen identities” in testifying against the accused, Mr. Lubanga looked across the courtroom and shook his head.

Similarly, when victims’ representative Mr. Paul Kabongo Tshibangu presented reports detailing that the schools in Ituri had been half-emptied by the conscription and enlistment of child soldiers, Mr. Lubanga shook his head and smiled incredulously.  He later placed his head in his hands.

Defense lawyers, who will submit their closing arguments on Friday, are expected to argue that Mr. Lubanga was merely a political leader, that the prosecution’s case is undermined by fabricated witness testimony, and that Mr. Lubanga sought not to recruit but to demobilize child soldiers.

Jeffrey Pierce (Stanford Law School) and Alpha Sesay prepared this report.