Mr. Ntaganda reportedly walked into the American embassy in Kigali, Rwanda last week and asked to be transferred to the ICC. On March 22, he was transferred to the court’s detention center in the Scheveningen area of The Hague. It is not known what prompted his voluntary surrender to the court.

In the period between the issue of the first arrest warrant against him back in August 2006 and his transfer to the court, Mr. Ntaganda lived in eastern Democratic Republic of Congo (DRC), at times as a rebel leader, at other times a general in the Congolese army. He also engaged in business and farming, even as international pressure for his arrest piled on Congolese authorities.

Last year, judges issued a second warrant for his arrest. Initially, he and Mr. Lubanga were indicted for the war crimes of recruiting and conscripting children under the age of 15 and using them in armed conflict. Mr. Lubanga, who prosecutors say was the head of the Patriotic Forces for the Liberation of Congo (FPLC), was sentenced to 14 years in jail in July 2012.

The second warrant against Mr. Ntaganda added murder, attacks against the civilian population, rape and sexual slavery, persecution, and pillaging to the charge sheet. The crimes are alleged to have been committed between September 2002 and September 2003, while Mr. Ntaganda served as the alleged deputy chief of the General Staff of the FPLC in Congo’s Ituri region.

In court today, Presiding Judge Ekaterina Trendafilova asked the accused to identify himself and state his profession.

“I was born on the 5th of November 1973. I was born in Rwanda but grew up in Congo” Mr. Ntaganda replied. Speaking Kinyarwanda, he stated that he was a Congolese citizen, and, “as you know I was a soldier in the Congo.”

He said he did not have any other names besides the two – “Bosco Ntaganda” – given to him by his parents. Mr. Ntaganda also said he was not guilty of the crimes he is accused of, but as he started to explain his innocence, Judge Trendafilova cut him short.

“I want to repeat that the purpose of the initial appearance is a very limited one, just to know whether you were informed of the crimes you are alleged to have committed and whether you were informed of your rights as guaranteed by the statute,” the judge said.

Mr. Ntaganda said he had been informed of the charges against him as well as of his rights. The judge then explained to the accused the rights that the court’s laws and regulations guaranteed him.

Judge Trendafilova said today’s hearing was also aimed at setting a date for the commencement of the confirmation of charges hearing, which was set for September 23, 2013. During the confirmation hearing, the judges will decide whether there is sufficient evidence to establish substantial grounds to believe that Mr. Ntaganda committed each of the crimes he is accused of. If the charges are confirmed, his case will go to the trial phase.

Also at today’s hearing, Hassane Bel Lakhdar, a court-appointed lawyer for the accused, stated that Mr. Ntaganda would apply for interim release. The defense lawyer complained that an official at the court’s detention center had asked him to leave the facility while he was holding a meeting with Mr. Ntaganda. The court official had told him it was time for visitors to leave the facility.

“My client surrendered to court voluntarily, the charges against him are very serious, and we must be given chance to meet face to face,” said Mr. Lakhdar.

Judge Trendafilova directed the court’s registry to ensure that the defense lawyer has access to the accused with absolute confidentiality for purposes of preparing the defense case.

Mr. Ntaganda is the fifth Congolese national to face charges at the ICC. Besides Mr. Lubanga, who was the first individual to be tried by the court, there are on-going trials for Jean-Pierre Bemba and Germain Katanga. Mathieu Ngudjolo Chui, also a Congolese national, was acquitted last December.

Mr. Lubanga’s lawyer Catherine Mabille in a February 20, 2013 petition raised two grounds for seeking Judge Song’s disqualification. She said the judge had made a number of public statements in which he appeared to support the conviction of Mr. Lubanga. Second, the lawyer said Judge Song is the chairman of the United Nations Children’s Fund (UNICEF) Korea Board of Directors, yet UNICEF made presentations to the court in support of Mr. Lubanga’s prosecution.

As such, Ms. Mabille said the current situation is manifestly likely to create a conflict of interests in which Judge Song’s impartiality may be reasonably called into question.

Trial Chamber I of the ICC on March 14, 2012 found Mr. Lubanga guilty of recruiting, conscripting, and using child soldiers in an armed conflict in the Ituri region of the Democratic Republic of Congo. He committed the crimes during 2002 and 2003 while he led the Union of Congolese Patriots (UPC) militia. He was sentenced to 14 years in jail but would serve eight years after deducting the time he had spent in court’s detention prior to his sentencing.

According to the defense application, on November 13, 2012, at an occasion marking the 10th anniversary of the founding of the ICC, Judge Song stated that the Lubanga judgment “sets a crucial precedent in the fight against impunity.” The defense also quoted a statement the judge purportedly made on December 10, 2012, in which he referred to the “landmark judgment” against Mr. Lubanga.

Ms. Mabille said these statements, which were widely broadcast, showed that Judge Song had expressed “opinions that, objectively, could adversely affect the required impartiality of the person concerned.” According to the defense lawyer, “a reasonably informed observer would perforce understand from these statements that Judge Song unreservedly endorses the impugned judgments, which he describes as crucial ‘precedents,’ specifically in that they impose penalties for the prosecuted crimes and, in convicting the Appellant, put an end to the ‘impunity’ of their perpetrators.”

Ms. Mabille added that these statements also indicated that Judge Song was personally convinced of the existence of the crimes charged, Mr. Lubanga’s guilt, and, in general, the merits of the conviction and sentence.

Meanwhile, the defense also referred to a press release dated March 14, 2012, in which UNICEF stated: “As a result of today’s landmark ruling, Lubanga is the first warlord to face international justice for using children as weapons of war.” The press statement added that “thousands of children, some as young as seven, were recruited and used as fighters, as well as other roles such as porters, cooks and slaves, by all sides.”

“That Judge Sang-Hyun Song holds high office in an organization which, in participating in the proceedings, supports the charges against the Appellant and holds positions antithetical to the Appellant’s own case establishes the existence of an ‘interest’ on the part of Judge Sang-Hyun Song,” the defense application stated.

The defense cited Article 41(1)(a) of the Rome Statute, which provides that: “A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.”

Also cited by the defense were other grounds for disqualification of a judge, which are stipulated in Rule 34(1)(d). These include personal interest in the case, “including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship with any of the parties,” as well as “expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned.”

Furthermore, the defense cited Article 3(2) of the Code of Judicial Ethics, which provides that judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence; and article 4(2) of the same code: “Judges shall avoid any conflict of interest, or being placed in a situation which might reasonably be perceived as giving rise to a conflict of interest”.

Mr. Lubanga’s appeals against his sentence and conviction were lodged confidentially last December. In the last week of February 2013, he was due to file a response to the prosecution’s response to the appeals briefs. The court’s prosecutor Fatou Bensouda has filed a separate petition asking judges to raise the 14-year prison sentence.

Besides Judge Song, there are four other judges on the bench handling the Lubanga appeals: Erkki Kourula (presiding), Sanji Mmasenono Monageng, Judge Anita Usacka, and Ekaterina Trendafilova.

The prosecutor considered the 14 years to be “manifestly inadequate and disproportionate to the gravity of the crime.” She argued that this sentence failed to give sufficient weight to the gravity of the crimes against children and the extent of the damage caused to victims and their families.

Moreover, the prosecutor claimed that the sentence failed to give sufficient weight to Mr. Lubanga’s unlawful behavior, his degree of participation, and the means used to commit the crimes.

On March 14, 2012, Trial Chamber I presided over by Judge Adrian Fulford found Mr. Lubanga guilty as a co-perpetrator of recruiting, conscripting, and using child soldiers in the armed wing of the Union of Congolese Patriots (UPC). The judges found that these children were actively used in an armed conflict during 2002 and 2003 in the Ituri region of the Democratic Republic of Congo.

The former militia leader was sentenced to 14 years in jail, but since he had been in court detention for six years at the time of the sentencing, he will only have to serve around eight years. In determining the July 10, 2012 sentence, judges stated that they took into consideration the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time, and location; and the age, education, social and economic condition of the convicted person.

Furthermore, judges took into account Mr. Lubanga’s behavior and conduct throughout the trial which lasted nearly three years. They noted that “he was respectful and cooperative throughout the proceedings, even during times of unwarranted pressure.”

In her appeal, the prosecutor claimed that besides failing to give sufficient weight to the gravity of the crimes, the trial chamber made two additional errors that should result in the upward revision of the sentence. First, it failed to consider as an aggravating circumstance the abuse of the authority and trust held by Mr. Lubanga.

Second, the majority of trial judges “erroneously required the Prosecution to prove Thomas Lubanga’s criminal responsibility for aggravating factors for the purposes of sentencing to the same standard as if he were being convicted of those factors.” As a result of this error, the prosecutor said, the majority refused to find that cruel treatment and sexual violence were aggravating factors that should increase the sentence.

Regarding the effect of Mr. Lubanga’s crimes on victims, she noted that the child victims were particularly vulnerable and defenseless, they were separated from their families and communities, and their schooling was interrupted. Furthermore, they were “exposed to violence and fear; some were killed in battle, others wounded; during their military service, these former child soldiers abused drugs and alcohol and thereafter they suffered from post-traumatic stress disorder, depression, disassociation and suicidal ideation.”

Ms. Bensouda stated that throughout a one year period, Mr. Lubanga made decisions on recruitment policy, actively supported recruitment initiatives, and personally encouraged children to join the army. She added that not only did he fail to cooperate with local and international actors on child protection to disarm or demobilize children under the age of 15, the group he led actively sought to impede their mission. She said Mr. Lubanga was even found to have used a “significant number” of children under the age of 15 in his own personal bodyguard unit, meaning his role was extensive.

The prosecutor also claims trial judges failed to take into consideration that the army included children as young as five and that Mr. Lubanga and other militia members “mounted pressurized recruitment campaigns” to force families to surrender their young children to the UPC armed forces.

While pointing to the inadequate sentence Mr. Lubanga received, the ICC prosecutor referred to sentences that the Special Court for Sierra Leone handed two individuals convicted of child soldier crimes. She said Issa Hassan Sesay, formerly a senior commander of the Revolutionary United Front (RUF), received a 50-year jail sentence, while Morris Kallon, also a commander in the group, received 35 years. Ms. Bensuouda’s predecessor, Luis Moreno-Ocampo, had sought a 30-year jail term for Mr. Lubanga.

Mr. Lubanga’s defense has lodged appeals against the conviction and the 14-year prison sentence. The defense has requested permission to provide additional evidence in support of the appeals.

Mr. Lubanga’s lawyers told the www.lubangatrial.org website that he has asked appeals judges for permission to present additional evidence as part of the bid to have the conviction quashed.

The trial – the first handled by the court since its formation in 2002 – started on January 26, 2009. The verdict was delivered just over three years later, on March 14 this year. Mr. Lubanga is appealing the conviction, the 14 year prison sentence, and the principles handed down by trial judges for determining reparations to victims.

Judges found him guilty of recruiting and conscripting children under the age of 15 and actively using them in an armed conflict in the Ituri region of the Democratic Republic of Congo.

They concluded that between September 1, 2002 and August 13, 2003, leaders of the Union of Congolese Patriots (UPC) and its armed wing, the Patriotic Force for the Liberation of Congo (FPLC), recruited young people, including children under the age of 15, both voluntarily and coercively. The judges also found that Mr. Lubanga was the president and commander-in-chief of the group and that he had child soldiers among his bodyguards.

At the time of his sentencing, Mr. Lubanga had been in court detention for six years, meaning that he would only have to serve a little under eight years. He would also not make any reparations to victims as court found him to be indigent.

The defense lawyers did not disclose the grounds of appeal or the additional evidence to be presented, as the appeals document was filed confidentially. A redacted version of the appeals brief is expected to be made public by the court later this month.

Mr. Lubanga’s trial has set precedents for the ICC – the world’s first permanent court set up to try war crimes, crimes against humanity, and genocide – including on the participation of victims in proceedings, reparation procedures, and quite likely, the court’s appeal processes.

On November 30, 2012, appeals judges allowed the Lubanga appeals brief to exceed the 100 page maximum, stating that because this was the first appeal directed against a decision under article 74 of the Rome Statute, it “might raise complex and novel issues.” Furthermore, given the length of the Conviction Decision, there were “exceptional circumstances” that justified the extension of the page limit.

The French version of the Conviction Decision is 686 pages, said the defense in their application for an extension to the page limit, noting further that closing briefs filed by parties and participants were also lengthy.

Article 81 of the Rome Statute, the court’s founding law, deals with appeals. It provides that a convicted person can appeal on any of these four grounds: procedural error, error of fact, error of law, or “any other ground that affects the fairness or reliability of the proceedings or decision.”

Meanwhile, a sentence may be appealed by the prosecutor or the convicted person on the ground of disproportion between the crime and the sentence. In Mr. Lubanga’s case, Prosecutor Fatou Bensouda is also appealing the jail term, which she wants raised. At the sentencing hearing last June, former Prosecutor Luis Moreno-Ocampo asked judges to hand down a maximum 30 year jail term but added that the prosecution was ready to recommend a lower sentence if the accused apologized and promoted reconciliation in Ituri.

Mr. Lubanga’s appeal grounds are not likely to lie far from the arguments made by his team at the start of the defense case back in January 2010 or even the address he made at the sentencing hearing. Mr. Lubanga did not testify in his own defense, and his address at the sentencing hearing was the first time he personally addressed the court. He denied the charges and said all he did was in pursuit of peace rather than money or power.

The determination by trial judges that all nine prosecution witnesses, who testified as former child soldiers under Mr. Lubanga’s militia, were unreliable is likely to feature prominently in the appeal. In fact, on the day Mr. Lubanga’s defense case opened, his lawyers vowed they would prove that all those individuals were never child soldiers. Rather, the defense argued, these individuals, as well as their parents or guardians, had been coached to lie to the court.

In their verdict, trial judges faulted the prosecution for having delegated its investigative responsibilities to intermediaries, noting that “a series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on.”

Judges accordingly withdrew the right of six dual status witnesses to participate in the proceedings and did not rely on the testimony of three other victims who testified, as their accounts were found to be unreliable. Judges concluded that there was a risk that three intermediaries “persuaded, encouraged, or assisted witnesses to give false evidence.”

Article 83 (2) provides that if the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may issue a reversal or an amendment or order a new trial before a different trial chamber. The Appeals Chamber may also refer a factual issue to the original trial chamber for it to determine the issue or may itself call evidence to determine the issue.

Mr. Lubanga has always maintained that he was merely the UPC’s political figurehead with no say in military matters and that during the brief period when it was in his powers to demobilize child soldiers, he tirelessly did so in very difficult circumstances. However, judges found Mr. Lubanga was in charge of the militia and that he was part of the common plan to recruit child soldiers.

The trial was stayed twice – in 2008 and in 2010 – after the prosecution failed to honor its disclosure obligations. This, too, is an issue Mr. Lubanga could to mention as a procedural error that denied him the right to a fair and expeditious trial while also depriving his defense of the opportunity to investigate certain matters and question prosecution witnesses on those matters.

The defense has previously stated that while it did not contest the fact that there were child soldiers in the UPC/ FPLC, the number of those soldiers was not known, thus, the scope of the crime was not established. It also stated at the sentencing hearing that reliance on video footage, visual assessments, and documentation to judge the age of soldiers who served in UPC was erroneous, as “appearances are deceptive.”

On the eve of the sentencing hearing, Mr. Lubanga called two witnesses who testified that he worked for the pacification of Ituri, bringing warring ethnic groups to reconciliation meetings he spearheaded. That, too, is a line the appeal is likely to advance. Like all other arguments, prosecutors are certain to oppose it vehemently as they seek a longer sentence for Mr. Lubanga.

On March 14, 2012, Trial Chamber I[i] issued a judgement in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003 (Judgement).^[ii] Lubanga 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).

In a scheduling order[iii] issued the same day as the Judgement, the Trial Chamber invited submissions from parties and participants, as well as the Registry, the Trust Fund for Victims and other interested parties, on the principles to be applied and procedures to be followed by the Chamber with regard to reparations. Specifically, the Chamber invited observations on the following five issues: (a) whether the Chamber should order individual or collective reparations; (b) to whom the reparations should be directed, how the harm is to be assessed, and which criteria to apply; (c) whether it is possible or appropriate to make a reparations order against the convicted person; (d) whether the Chamber should order reparations to be issued through the Trust Fund for Victims; and (e) whether the parties or participants seek to call expert evidence.[iv]

On March 28, 2012, the Women’s Initiatives for Gender Justice filed its request for leave to participate in the reparations proceedings, indicating that the filing would provide observations on, inter alia: ensuring a gender perspective in the elaboration of reparations principles, the recognition of harm caused by sexual violence, ensuring a gender perspective in the design of the reparations order, the importance of effective consultations with victims and the transformative role of reparations for advancing gender equality.[v] On April 20, 2012, the Trial Chamber issued its decision, granting the Women’s Initiatives’ request, along with four additional requests from national and international NGOs and inter-governmental organisations.[vi] On May 10, 2012, the Women’s Initiatives filed its observations.[vii] The Women’s Initiatives for Gender Justice has submitted legal filings to the ICC on six occasions, and has been recognised as amicus curiae in the Lubanga case[viii] and in the case against Jean-Pierre Bemba Gombo (Bemba).[ix] The Women’s Initiatives was the only international women’s human rights organisation to submit observations as part of these reparations proceedings, and is to date the only international women’s human rights organisation to be admitted as amicus curiae before the ICC.

As described in the first Special Issue in this series, discussing the Chamber’s findings on sexual violence, Lubanga was tried for and convicted on limited charges and was not charged with gender-based crimes, with important potential implications for the scope of reparations. During the trial, however, Prosecution witnesses gave extensive evidence and testimony concerning sexual violence committed against child soldiers by the UPC. In the trial Judgement, the majority of the Trial Chamber found that it was precluded from considering evidence concerning sexual violence, pursuant to Article 74(2),^[x] because such factual allegations had not been included in the Pre-Trial Chamber’s confirmation of charges decision.^[xi] In its 10 July 2012 decision on sentencing,[xii] a majority of Trial Chamber I[xiii] did not explicitly consider sexual violence in its assessment of the gravity of the crimes, nor did the Chamber find that the sexual violence committed against recruits constituted an aggravating circumstance. The Chamber indicated in both the Judgement and in the sentencing decision it would determine in due course whether sexual violence would be considered for the purposes of reparations.[xiv]

On August 7, 2012, Trial Chamber I issued its decision on reparations, setting out a series of principles relating to reparations and the approach that ought to be taken with respect to their implementation.[xv] This is the first reparations decision issued by the ICC.

In a statement issued on August 10, 2012, the Women’s Initiatives for Gender Justice welcomed the decision:

This decision recognises that reparations is a key feature of the Rome Statute and therefore of the mandate of the ICC. Reparations is possibly the most tangible representation of the justice process for victims, especially for those who have had little access to or information about the formal legal proceedings. […]  The Trial Chamber has recognised this significance by approving the widest possible reparative remedies with an emphasis on the principles of gender-inclusiveness, flexibility, responsiveness to the diverse needs of the victims and the recognition of victim/survivor agency in the identification and design of reparations programmes. This is very encouraging.[xvi]

The reparations decision as well as the filings submitted by the parties, participants and amici curiae in relation to reparations are discussed in more detail in the Gender Report Card 2012.

The Women’s Initiatives’ observations on ensuring a gender perspective in reparations

At the outset of the observations on reparations submitted to the Trial Chamber on May 10, 2012, the Women’s Initiatives for Gender Justice underscored that the Rome Statute contains ‘unique provisions among international courts and tribunals, requiring [the ICC] to provide gender-inclusive justice’ as well as ‘specific provisions requiring the Court to apply and interpret law consistent with internationally recognised human rights and without any adverse distinction founded on grounds such as gender’.[xvii]  Noting that ‘gender discrimination is deeply rooted in most social and cultural contexts’, including within the DRC, and that ‘women and girls experience conflict differently from men and boys, and often bear a disproportionate burden in situations of armed conflict’,[xviii] the filing proposed that the principles adopted by the Chamber should include specific gender-responsive methodologies and refrain from prejudicing the rights of victims, including victims of sexual violence, under national and international law.

Throughout the filing, the Women’s Initiatives reiterated several key reparations principles for ensuring gender justice, including: a gender-inclusive approach; non-discrimination; the importance of effective consultations with women, girls and victims/survivors; a broad concept of harm; and the transformative function of reparations. Specifically, the filing underscored that reparation strategies and initiatives must effectively recognise and integrate gender issues in order for the particular needs of girls and women to be addressed and satisfied.[xix] Women and girls must be integrated into the consultation process, and have agency and voice in that process.[xx] The Women’s Initiatives suggested that consultations should be conducted by a person or body with expertise on reparations for gender-based crimes, expertise and experience in gender analysis and in the area of sexual and gender-based violence.[xxi] The filing encouraged particular attention to the modalities of the consultation process, as well as to the substantive input provided on the form of reparations most needed by women and girls. It suggested that effective consultation was critical for obviating any unintended discriminatory impact.[xxii] The filing further emphasised the ‘importance of an approach to reparations which fundamentally seeks to transform communal and gender relations through the development and implementation of programmes designed to achieve this goal’.[xxiii] Reparations should particularly seek to be transformative in addressing sexual violence and the conditions that existed prior to the conflict and that may have contributed to the crimes.[xxiv]

Collective vs. individual reparations awards

The Women’s Initiatives’ observations noted that no single legal definitions of the terms ‘collective’ and ‘individual’ reparations exist, and the terms were used to refer to an array of concepts by the parties and participants. As the Registry noted, ‘in practice such concepts are neither entirely distinct nor mutually exclusive’;[xxv] in its filing, UNICEF suggested that they should be ‘mutually reinforcing’.[xxvi] In general concurrence with all participants, the Women’s Initiatives submitted that the Chamber ‘should order both collective and individual reparations, with an emphasis on collective reparations’.[xxvii] The filing suggested that some forms of collective reparations may include individualised components and in this way acknowledge the individual and differentiated experiences of victims/survivors, which is key for restoring rights that were violated or eroded in the conflict, and to support the individual’s personal healing and well-being.

Building on the Trust Fund for Victims’ distinction between ‘collective reparations that are “inherently collective and exclusive” (such as specialised health services for a targeted group of victims), and collective reparations that are “community-oriented and not exclusive” (such as schools that benefit the entire community)’,[xxviii] the Women’s Initiatives argued that both would be appropriate in this case. The observations suggested that the former could address ‘the needs of individual victims/survivors within a collective context’, such as for victims of sexual violence, and emphasised that the latter were necessary for effectuating reparations’ transformative possibilities, particularly in ‘addressing ingrained gender discrimination within a community or society’.[xxix]

The Women’s Initiatives supported the use of collective reparations given that the harm affected not only individuals, but also had an impact ‘at the level of family, village, community, society and ethnic group’.[xxx] Noting the limited number of victim participants (at the time of the trial judgement 129, 34 of whom were female) and reparations applicants (85), the submission also argued that collective reparations would ‘allow the Court to reach unidentified victims, including women and girls’, and that, conversely, providing reparations only to individuals who applied would have an ‘unintended exclusionary effect on women and girls who may be reluctant to come forward due to fears of stigmatisation and other obstacles preventing their access to services and justice generally’.[xxxi] The observations underscored that failing ‘to incorporate a gender perspective in devising the reparations strategy’ and to ensure women’s and girls’ inclusion in the process would have a discriminatory impact on women and girl victims.[xxxii]

According to the Women’s Initiatives, the provision of collective reparations would be necessary ‘to address the harms caused by sexual violence, which is a defining characteristic of the conflict in Eastern Democratic Republic of Congo (DRC), and an integral component of each of the crimes for which Mr Lubanga was convicted’.[xxxiii] In this regard, the observations underscored the transformative potential of collective reparations to address the underlying gender inequalities that contributed to the sexual violence through the provision of programmes that prevent violence against women and children, address the shame and stigmatisation experienced by victims of gender-based crimes, and advance gender equality.[xxxiv]

In the filing, the Women’s Initiatives identified the following forms of collective reparations measures, many of which were also supported by other participants:[xxxv]

rehabilitation programmes providing medical and psychosocial support to victims/survivors, specifically victims/survivors of gender-based crimes; support for rape crisis and health centres providing medical and psychosocial support for women to assist in their recovery from sexual violence, including sexual and reproductive health services and treatment of STDs and HIV/AIDS infections; social rehabilitation and demobilisation programmes for former child soldiers; the establishment of medical and psychosocial services and medical centres with specific expertise in addressing childhood trauma and working with child soldiers; community-wide anti-violence programmes; human rights and legal education programmes informing women of their rights to live free from violence; and community education programmes that are also directed towards men and encourage and embrace male community leaders in supporting these initiatives.[xxxvi]

While prioritizing collective reparations, the Women’s Initiatives also recognized the importance of individual reparations. Individual reparations can acknowledge the individuals who participated in the justice process, assuming a risk to themselves and their families, and who have functioned in the judicial process as representatives for larger communities of victims/survivors.^[xxxvii] The filing further noted that the needs of vulnerable people and victims/survivors may not be met through collective reparations strategies.^[xxxviii] However, the filing also underscored several significant disadvantages to individualized reparations, including: the disproportionate costs of verifying victims, reducing the impact of the award; the potential for stigmatization of individuals identified as receiving benefits; the potential to undermine community cohesion; and the fact that they may be viewed as a ‘reward’ to former child soldiers, thus encouraging future enlistment.[xxxix]

The Women’s Initiatives emphasised the need for consultation with victims/survivors, in particular women and girls, ‘to ensure that women and girls are effectively included in the process of designing and identifying appropriate reparations’,[xl] as they could have different views on the types of reparations and modalities that would be meaningful to them, as well as to prevent the reparations order from replicating ongoing gender discrimination. The submission also underscored that consultations should assess:

whether women have decision-making power in their families and communities, whether women are legally permitted or culturally able to keep and/or own any material form of reparations which may be provided, and will have full access to other forms of reparations, including to the full array of possible programmes, projects and services that may be offered.[xli]

Assessing the harm

Noting that the statutory framework does not define ‘harm’, nor the causal relationship required between the harm suffered and the crime committed, the Women’s Initiatives urged the Chamber to take a ‘purposive’ approach and to interpret ‘harm’ in a way that would not restrict the category of victims who could receive reparations.[xlii] Accordingly, the Women’s Initiatives asserted that all types of harm suffered by victims/survivors as a result of the crimes for which Lubanga was convicted should be addressed, including, but not limited to: ‘physical and psychosocial harm arising from abduction/forced conscription and being forced to fight; rape and other forms of sexual violence; sexual slavery; ostracisation from families and within communities; loss of family life, childhood, education, and other opportunities; and unwanted pregnancies, STDs, and PTSD, as well as other health and reproductive health complications’.[xliii]

As noted above, the Prosecution decision not to bring charges for sexual violence in this case could limit the provision of reparations for related harm, suffered primarily by former girl child soldiers. In the filing, the Women’s Initiatives underscored that ‘rape was an integral component of the conscription process for girl soldiers and sexual violence constituted an integral component to the crimes for which Mr Lubanga has been convicted’.[xliv] Asserting that ‘reparations should not be limited to a narrow assessment of the harms attached to the charges, but should be inclusive of the breadth of harm suffered as a result of these crimes’, the Women’s Initiatives argued that harm resulting from rape and sexual violence should be addressed by a reparations order.[xlv] As the submission pointed out, failure to do so would have a clearly discriminatory impact based on gender.[xlvi]

As indicated in the first Special Issue in this series, while Lubanga was not charged with rape or other forms of sexual violence, evidence of such crimes featured extensively throughout the trial proceedings, including in Prosecution opening and closing statements, and witness testimony.[xlvii] In the filing, the Women’s Initiatives recalled that the Chamber heard directly from witnesses regarding the multiple tasks performed by girl soldiers, which included being forced to fight, working as bodyguards, preparing food, providing sexual services, and serving as ‘wives’ to the commanders, and about the physical and psychological harm.[xlviii] The Women’s Initiatives noted that witnesses: described being whipped or beaten with sticks; spoke about harm as a result of having been raped, including stigmatisation and having contracted STDs; mentioned that girls were thrown out of the armed group when they became pregnant; testified about difficulties reintegrating in society; spoke about harm resulting from  forced abortions, sometimes leading to death; described injuries suffered from being forced to fight in battles; spoke about loss of education; and described continuing psychological harm. The Women’s Initiatives underscored that ‘these harms are also documented in reports on child soldiers in DRC’.[xlix]

The possibility of a reparations order against Lubanga

The Registry has indicated that Lubanga has a ‘total lack of identified resources at this stage’, and that his only participation in a reparation order would necessarily be non-monetary.[l] The Women’s Initiatives supported the concept of symbolic reparations, noting that such an order ‘would provide a powerful public recognition of wrong doing’.[li] In addition to the conviction, which can be considered a form of symbolic reparations, the filing suggested that this could take the form of ‘a public acknowledgement of responsibility during a public ceremony broadcasted by local and national radio and television involving the victims/survivors, or a public apology’.[lii] The observations suggested other forms of symbolic measures, such as ‘an acknowledgement that harm was done, an act of atonement or reconciliation measures involving Mr Lubanga or his representatives’. Furthermore, the Women’s Initiatives suggested that ‘while Mr Lubanga has been assessed as indigent for the purposes of legal aid, should he possess assets in the form of cattle, livestock or other material products, these should be considered by the Court in determining his personal contribution to reparations’.[liii]

The role of the Trust Fund for Victims

Pursuant to Rule 98(5) of the Rules of Procedure and Evidence, the Trust Fund’s ‘other resources’ may be used for the benefit of victims at the discretion of its Board of Directors.[liv] The Trust Fund indicated that the Board of Directors recently increased the amount reserved to complement reparations awards in all cases before the Court to 1.2 million Euros.[lv]  In light of Lubanga’s indigence and the Trust Fund’s expertise in implementing its general assistance mandate, the Women’s Initiatives asserted that the Trust Fund would be an appropriate body to implement the reparations award, a role explicitly envisioned by the statutory framework.[lvi]

The Trust Fund provided extensive observations on its potential role in carrying out the necessary assessments prior to, and in implementing, the reparations award. Specifically, it suggested carrying out assessments to identify localities, consult with victims and communities, assess the harm, solicit victim and community expectations, and collect requests and proposals for reparations.[lvii] These assessments would inform a draft implementation plan, prepared by the Trust Fund, to be approved by the Chamber after a suggested hearing of interested parties.[lviii] The Trust Fund proposed that it would then implement the reparations order pursuant to the approved plan, monitor progress and provide periodic reports and a final report to the Chamber.[lix] The Women’s Initiatives underscored that the consultation process and implementation plan should consider the following specific issues:

How will women participate/how are women participating? If country-based intermediaries are used to implement collective reparations: what requirements should be established to ensure the intermediary operates in ways fully inclusive of women, and includes where appropriate local women’s organisations and actors? What are the modalities for project delivery and how inclusive are these mechanisms of gender issues? What is the involvement of women in the decision-making processes within the set-up of a specific reparations programme?[lx]

Calling experts

In the filing, the Women’s Initiatives noted that the Rome Statute and regulations ‘provide for the appointment of experts at two distinct but complementary levels, one being the appointment of experts by the Chamber to assist them in respect of reparations proceedings, and two, the appointment of an expert panel to assist the Trust Fund with consultations with victims/survivors, assessment of harm and causation, design of the awards, and implementation of reparations orders in this case’.[lxi] The Women’s Initiatives underscored the importance of ensuring that appointed experts have the necessary expertise in gender issues.

Specifically, the observations submitted that all teams of experts should include members with ‘specific expertise in gender-based violence and working with victims/survivors, children, and other vulnerable groups, as well as specific expertise on reparations for victims/survivors of gender-based crimes and girl soldiers, in addition to expertise on the impact of sexual violence on boy soldiers (for instance, those forced to rape as part of enlistment/conscription or forced to find girls for commanders)’.[lxii]

Read the observations of the Women’s Initiatives for Gender Justice on reparations

Read the Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings

Read the decision granting leave to the Women’s Initiatives for Gender Justice to participate in reparations proceedings

Read the reparations decision issued by Trial Chamber I on 7 August 2012

Read the statement by the Women’s Initiatives for Gender Justice on the reparations decision

Read a more detailed analysis of the reparations decision, and the filings of the participants in the Gender Report Card 2012

The question of reparations in the International Criminal Court (ICC) case of Thomas Lubanga, who was earlier this year convicted of the war crimes of conscripting, enlisting, and using child soldiers during the 2002-2003 conflict in Ituri, is the subject of much debate in the eastern Congolese province. In its decision, the trial chamber in the Lubanga case stated that victims should be awarded reparations and laid out principles for their application. However, the chamber did not make a decision regarding exactly what form these reparations should take. They decided that a proposal based on consultation with victims should be put together for approval by the Court. This left victims and the general public in Ituri with many questions, particularly about the form that reparations may take. Opinion among intellectuals, civil society, and victims is divided on this question. Unfortunately, victims who have been waiting several years for a resolution to their demands for reparations, are having difficulty inserting their concerns in this very technical legal debate.

The Court has created enormous expectations on the part of many victims in Ituri and these expectations will be very difficult to meet. First, there are many who see themselves as victims whose situations are unlikely to be addressed by the Court because their suffering is unconnected with the specific charges related to the Lubanga case. Even for those whose situations are directly addressed by the Lubanga reparations decision, the task of offering effective reparations is daunting. For those who have experienced serious violence and trauma, it is difficult to imagine what reparations might actually address their suffering.

In addition to these more overarching questions about the process there is frustration about the delays that they have experienced in the process. “They have shown great patience to date, and so no further disappointment is countenanced,” said an activist in Bunia. “Why, after the announcement of the decision, are actions delayed and the does the debate continue?” asked a parent of one of the former child soldiers, a victim in the Lubanga case.

Indeed, public opinion in Ituri seemed to be that the announcement of the judgment in the Lubanga case should constitute the end of waiting for the victims. At a recent seminar held by Justice Plus, an NGO based in Bunia, many victims expressed disappointment at the approach that the Court has taken and quality of the reparations that are being discussed. For many victims consulted it would be unacceptable to consider the award collective reparations without individual awards as a supplement. When informed by local NGOs that the Court was leaning towards exclusive collective reparations, most disapproved. They felt that individual reparations were the only way to address their needs: “They are talking about collective reparations. If you want to come and build a monument, that is fine, but don’t call it reparations.” Others reportedly complained that if they had known that their participation in the process would only lead to collective reparations, they would not have bothered to take on the significant risk of participating in the process.

Victims consulted by Justice Plus understood that collective reparations as only symbolic and that incapable of redressing the specific harms that they have suffered. They also contested the extension of the category of those that could benefit from reparations beyond those who had specifically applied to participate in the case, arguing that those who had the courage to approach the court and seek to be part of the trial should not be put on the same footing as those who had not.

A similar sentiment was also expressed by a lawyer in Bunia, who said that he was stunned that the court was refusing to rule on a request submitted to it by the victims. Under Congolese law, he argued, it is for participating victims to lay out what reparations that they consider to be satisfactory. Judges have the authority to assess and adjust the level of the reparations requested by the victim but not to impose a completely different mechanism of reparation. This approach seems to resonate with that of the Lubanga defense team.

Indeed, the September appeal lodged by Lubanga’s defense contested the wide approach adopted by the Chamber as concerns the beneficiaries of reparations measures, arguing that victims who do not have official status in the proceedings and victims of sexual violence should not benefit from reparations measures. They also opposed the approach of the trial chamber in requesting the registry and a group of experts to propose a package of reparations, arguing that this represented an inappropriate delegation of tasks that must be carried out by the judges themselves.

Many lawyers in Ituri, whether or not they are close to the Union des Patriotes Congolais (UPC) – the group Lubanga founded and led during the Ituri conflict – as well as other members of civil society, tend to agree with the position of the defense in this regard. Indeed, the court’s efforts to widen the number of victims who can benefit from reparations have created debate in Ituri, especially around the question of including victims of sexual violence. The question of sexual violence, particularly against girls recruited into Lubanga’s forces, was addressed in the trial, but not specifically charged. The trial chamber’s reparations decision, however, would seem to leave the door open to the inclusion of specific reparations for victims of such violations. However, one lawyer, argued that it was not the Court’s business to create victims and that the efforts to enlarge the group now risked violating the legal contract among the parties to the process. He also argued that the provision of special consideration to the victims of sexual violence would be inappropriate because Lubanga was not convicted of such acts. Extending reparations was a way of implying guilt without a full judicial process. Such an approach would, he argued, create victims who from the judicial perspective did not exist.

Women’s activists in Ituri see it differently. One activist argues that the question cannot be approached on a purely legal basis. If it were, she says, it would run the risk of losing its social relevance. No one can ignore the fact that members of the UPC took girls by force as sexual slaves and that many others were subjected to rape. Some became mothers and others were infected with HIV. These victims of sexual and gender-based violence (SGBV) are terrorized at home; constrained to remain silent by the notion that they should not undermine the honor of their community by denouncing violations committed against them by “their own.” Even if the Court has not been able to afford them the opportunity to express themselves openly, humanity should not ignore their suffering. That, she says, would be real injustice.

There are also those whose situation is not directly linked to the cases being tried at the ICC. Many feel excluded and wonder why their sufferings have not merited the attention of the Court. One activist asked, for example, “How can they say that they are addressing the situation of victims when they are only looking at the situation of children?” In fact, there is concern that a reparations program might even contribute to exacerbating tensions between some groups. “The Court says that reparations should not be discriminatory, but in practice the victims are more or less only Hema or Alur. What does this mean for victims who are Lendu or member of other groups?”

Reparations therefore are dividing public opinion. While some victims are insisting on individual reparations, others in civil society argue that it is necessary to enlarge the frame given the extremely high number of victims who were not able to participate formally in the ICC proceedings against Lubanga in spite of the considerable moral and physical harms that they suffered. In order to address this, they suggest that a mode of reparations that address collective needs or which could be collectively used (such as a hospital serving a victim community) might be employed, rather than collective reparations that are merely symbolic (such as apologies or the construction of monuments or memorials).

Mr. Longa was one of four witnesses transferred in 2011 to the ICC from detention in the Democratic Republic of the Congo (DRC) to serve as defense witnesses in two trials before the ICC. Mr. Longa testified in the Lubanga trial; the other three witnesses testified in the trial of Germain Katanga and Mathieu Ngudjolo Chui. All four witnesses implicated the president of the DRC, Joseph Kabila, in crimes committed in the DRC’s Ituri region. They claimed they feared reprisals for their testimony if they were returned to the DRC.

As discussed in previous posts, their asylum applications raised a number of novel legal issues, in particular about who has jurisdiction over the four men. The two different ICC Trial Chambers have treated these issues differently.

The Lubanga Trial Chamber held that it had satisfied its obligations to Mr. Longa and that he should be returned to the DRC as soon as possible. It was up to the Netherlands to intervene with the transfer back to the DRC if it intended to take custody of the witness. This decision was rendered over a year ago, in September 2011.

In the Katanga-Ngudjolo case, Trial Chamber II held that the return of the other witnesses was impossible while their asylum applications were pending. Trial Chamber II considered their detention a critical issue and ordered consultations between the ICC, the Netherlands, and the DRC to find a solution. However, the Netherlands refused to engage in such consultations, maintaining that the witnesses should remain in the ICC’s detention.

Longa’s Claims about Unlawful Detention

Before the ECtHR, Mr. Longa argued that his detention in the Democratic Republic of the Congo expired on July 2, 2007 and had not been renewed. The ICC had no legal grounds to keep him in detention after he completed giving evidence in April 2011, he claimed. The Dutch, he argued, had never made a claim that there was a legal basis for his detention under Dutch law. This, he claimed, constituted a violation of Article 5(1) of the European Convention on Human Rights (ECHR).

Mr. Longa argued that since the Netherlands had exercised jurisdiction over his asylum claim, it could and should exercise jurisdiction over his detention. Failing to do so amounted to an impermissible and arbitrary exercise of “a la care-jurisdiction,” he maintained.

According to the witness, the ECHR applies in this case because the witness was detained in the territory of the Netherlands. Dutch law forms the starting point for the applicable law in the premises of the ICC, and Articles 93 and 94 of the Dutch constitution provide for direct application of the ECHR as Dutch law. This overrides Section 88 of the Dutch ICC (Implementation) Act, which provides that Dutch law does not apply when it comes to ICC detention matters.

Mr. Longa also argued that the Netherlands held the sole power over his detention. ICC Trial Chamber I had acknowledged that it no longer had a valid reason for his detention but could not send him back to the DRC while his asylum application was pending. The Dutch had refused to even discuss his transfer to Dutch custody and had requested the ICC to continue his detention in the meantime, Mr. Longa claimed.

In the alternative, if the court found he had been lawfully detained, he argued that he had not been brought to trial within a reasonable time. This was a violation of Article 5(3) of the ECHR. The Dutch also violated Article 5(4) of the ECHR by failing to review the lawfulness of his detention, he maintained. Mr. Longa also argued that the Netherlands had violated Article 5(5), which provides that everyone who has been the victim of unlawful arrest or detention has a right to compensation.

The witness argued that regardless of who had authority over his detention, the Netherlands still had an obligation to protect his human rights. He claimed that the level of human rights protections guaranteed by the ICC was insufficient to deal with the unique circumstances of his case—a witness who had applied for asylum.

Mr. Longa also claimed that the ICC also failed to provide sufficient legal protections to its accused. Citing the Jean-Pierre Bemba Gombo case, Mr. Longa argued that even conditional release of ICC accused was impossible if no states were willing to accept him. In these cases, he argued, the Netherlands had a responsibility to step in. Complying with legal obligations pursuant to its agreements with the ICC in such cases was not in accordance with the requirements of the ECtHR, Mr. Longa maintained.

Important Public Policy Issue

According to the judgment, Mr. Longa withdrew his request for asylum on September 4, 2012, although it the judgment did not specify why. The ECtHR held that this withdrawal means the witness should drop his efforts to get the Netherlands to order his release. The witness did not inform the ECtHR of this development nor withdraw his ECtHR application.

Nevertheless, the court addressed his petition because it “touches on essential aspects of the functioning of international criminal tribunals having their seat within the territory of [an ECHR Member State] and invested with the power to keep individuals in custody.” It also considered that an answer was necessary given the “uncertainty” that has arisen from the September decision of a Dutch court to release witnesses from the Katanga trial from detention. Moreover, the ECtHR considered, it was important to answer the petition because of the important role its decisions play in contributing to the protection and respect of human rights and its mission to determine issues on public policy grounds.

ECtHR Finds the Netherlands is not Responsible

Due to these public policy concerns, the ECtHR decided the case on its merits. The court acknowledged that while jurisdiction is usually determined by territory, there are some exceptions. One exception involves international organizations with premises and immunities in the state’s territory.

The fact that the ICC detained Mr. Longa on Dutch soil is not in itself a sufficient reason to bring the issue into the jurisdiction of the Netherlands, the court found. As long as he is not returned to the DRC or handed over to the Netherlands, the court found, the agreement between the ICC and the DRC entered into under Article 93 of the Rome Statute is and remains the legal ground of his detention remains.

“There is thus no legal vacuum,” the ECtHR concluded.

The court grounded this finding in the ICC Trial Chamber I decision from December 2011 that ordered the return of the witness to the DRC once he was prepared to travel.

This is in keeping with previous cases heard before the ECtHR. In Galić v. the Netherlands and Blagojević v. the Netherlands, the court held that the sole fact that the ICTY had its headquarters in the Netherlands was not a sufficient reason to impute responsibility of alleged human rights violations to the Netherlands. In those cases, the court stressed that the ICTY was an international organization established by the UN Security Council, based on the principle of the respect for human rights and specifically designed to protect the rights of those indicted before it.

This case is different however, as acknowledged last month by a Dutch court. The UN Security Council did not establish the ICC, and the witnesses have argued that as witnesses they do not have access to the same human rights guarantees as accused. The ECtHR disagreed.

The ECtHR found that the availability of protection and security measures to witnesses was a way the ICC can ensure the protection of witness’ fundamental human rights. Whether or not the exercise of these measures actually protects those rights is not decisive in this case, the court found.

The human rights court concluded that the ECHR “does not impose on a State that has agreed to host an international criminal tribunal on its territory the burden or reviewing the lawfulness of deprivation of liberty under arrangements lawfully entered into between that tribunal and States not party to it.”

The court also found that the Netherlands has the right to control the entry, residence, and expulsion of aliens in its territory. It is under no obligation to allow foreign nationals to await the outcome of immigration proceedings on its territory. It therefore has no obligation to review Mr. Longa’s detention situation simply because it is hearing his asylum claim.

For these reasons, the court declared Mr. Longa’s application inadmissible.

Impact for Katanga-Ngudjolo Witnesses

One of the complicating factors regarding the asylum claims made by ICC witnesses is that they are being dealt with by multiple chambers in multiple court systems. Not only are there matters pending before many jurisdictions—the ICC, the Dutch courts, the DRC courts and the ECtHR—but also within those jurisdictions there are different chambers addressing the issue.

It is possible that four witnesses who were in relatively the same position vis-à-vis the ICC and the Netherlands will be treated disparately before the courts. While this is not uncommon, in this case it could have serious consequences for the witnesses, who claim that their lives would be in danger if they were returned to the DRC.

In addition to the different approaches of the ICC chambers, described above, the cases have proceeded independently through the Dutch courts. In September, a Dutch court ordered that the Katanga-Ngudjolo witnesses be released from the ICC. This new ECtHR decision could have a significant impact on a potential appeal in that case, as it absolves the Netherlands of responsibility for the witness’ detention.

Goran Sluiter, attorney for the witnesses, claims there is no relevance between the ECtHR case and the recent Dutch decision. He argues that because the two ICC Trial Chambers took different approaches to the detention issue, there are such different factual scenarios that the ECtHR decision wouldn’t apply to those three witnesses.

Although ICC prosecutor Fatou Bensouda did not state how many years the prosecution would ask for, it is noteworthy that former prosecutor Luis Moreno-Ocampo recommended a 30-year prison sentence during Mr. Lubanga’s sentencing hearing.

On March 14, 2012, Trial Chamber I presided over by Judge Adrian Fulford found Mr. Lubanga guilty as a co-perpetrator of recruiting, conscripting, and using child soldiers in the armed wing of the Union of Congolese Patriots (UPC). The judges found that these children were actively used in an armed conflict during 2002 and 2003 in the Ituri region of the Democratic Republic of Congo. According to the judges, some of the child soldiers served as bodyguards to Mr. Lubanga, the UPC president.

Judges Fulford, Elizabeth Odio Benito, and René Blattmann sentenced Mr. Lubanga to a jail term of 14 years. However, because he had been in court detention for six years at the time of the sentencing, he would only have to serve a little under eight years. The accused would not make any monetary reparations to victims as court found him to be indigent.

On October 3, 2012, lawyers for the Congolese militia leader filed two notices of intention to appeal. In the notice to appeal the guilty verdict, lead defense lawyer Catherine Mabille says the defense will be asking for a reversal of the decision and the acquittal of Mr. Lubanga. In the second notice, the defense states that it intends to ask appeal judges to set aside the sentence decision delivered on July 10, 2012 and cancel or reduce the sentence against Mr. Lubanga.

It is on the same day that Ms. Bensouda informed judges of the prosecution’s intention to appeal Mr. Lubanga’s sentence.

In determining the sentence, trial judges said they took into consideration the gravity of the crimes and extent of damage caused and in particular “the harm caused to the victims and their families, the nature of the unlawful behavior and the means employed to execute the crime.”

Moreover, the judges took into consideration the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time, and location; and the age, education, social and economic condition of the convicted person.

Mr. Lubanga’s trial was the first to be conducted at the ICC and is the only one that has seen a verdict delivered by trial judges. Three other Congolese nationals, Germain Katanga, Mathieu Ngudjolo Chui, and Jean-Pierre Bemba are also on trial at the court based in The Hague.

Wairagala Wakabi: One trial has been completed by the court and two others are going on. What are some of the positive things in terms of the way victims’ issues have been handled, in terms of their participation?

Paolina Massidda: First of all, the real possibility for victims to participate at trial, meaning to have their voice heard during the proceedings. This was probably the first success for victims in the Lubanga trial. In the Lubanga trial victims were consulted via their legal representative on any essential issue related to the proceedings. They were able to present their views and concerns. Sometimes they even presented views which were a bit different from the ones presented by the Office of the Prosecutor (OTP) and I think it is very important because often the role of the victims has been identified, mainly by the defense but also by others, as the role of ‘second prosecutors’ which is not the case because victims have an independent role in the proceedings and this has been clearly established during the Lubanga trial.

The second important step is that decisions on major issues related to victims’ participation issued by Trial Chamber I have established precedent for other trials. So for instance the way of intervening in the presentation of evidence by the parties was followed in the Katanga-Ngudjolo Chui case and then in the Bemba case. This established a practice of what victims could do during the proceedings, the way they can interact with the other parties and with the Chamber. These were mainly the novelty in victims’ participating in the proceedings.

And also the possibility of presenting evidence at trial, which was not very evident at the beginning. This was actually one point which was highly litigated among the prosecution, defense and legal representatives of victims, and finally the Appeals Chamber confirmed this possibility for victims to present evidence, including the possibility for victims to appear before the Chamber as witnesses called by the legal representatives; but also, as happened in the Bemba trial, to simply appear in the courtroom providing their story without being assimilated to a witness. In the Bemba trial, victims appeared indeed in their own capacity as victims telling their stories without being obliged to take the oaths.

WW: What is the importance of that? They are not presenting evidence but presenting their views and concerns to the Chamber.

PM: It is always important for a victim to have the opportunity to tell the story as he or she has lived it. If you appear as a witness, then you are a little bit confined in a role, someone is guiding you, and you are questioned on certain events. The fact that a victim can appear simply telling the story means that he or she is free to speak freely about the events he or she has suffered from, in the way he or she perceives the consequences of what happened to him or her. Of course the issue is what kind of value you can give to this appearance; and it is uncertain at this point since this possibility only happened in the Bemba trial and no decision has been taken so far on the way the Chamber will weigh this intervention. What seems clear to me is that it is not a testimony so probably the Chamber will not rely on it for purposes of the judgement, but in any case it could corroborate part of other testimonies or other issues dealt with at trial.

WW: Still on the issue of victims presenting evidence, there has been, mainly in the Lubanga trial but also when victims applied to present evidence in the Bemba trial, the reaction that this would be a double prosecution, that they would be repeating what prosecution witnesses had already said.

It has to be understood that the interests of victims are clearly distinct from the interests of the prosecution. Sometimes victims may have another perspective on the mode of liability or other issues at trial. If you look at the examples in which legal representatives of victims were allowed to present evidence, you will see that the evidence presented by victims was complementary to the evidence presented by the OTP.

One of the criteria established by Chambers in order for victims to be allowed to present evidence is that it will not duplicate what the prosecution had already presented. When victims ask permission to provide evidence, there is an evaluation by the Chamber on whether the proposed evidence is necessary to establish the truth, whether it will help the Chamber in understanding the facts, and whether the said evidence is not repeating something which has already been presented by the Office of the Prosecutor. Only if these criteria are met then will the Chamber allow the presentation of evidence. So it is really restricted. There is a prior evaluation before allowing victims to present evidence. In this sense, I don’t think we can say victims have duplicated the evidence and I think, in fact, victims gave an important contribution to the presentation of evidence because they concentrated on aspects which were not sufficiently explored by the OTP.

For example, witnesses presented by legal representatives in the Bemba trial were mainly people coming from areas of the country outside Bangui, which was the main area where the prosecutor had concentrated in relation to testimonies. So they were able to present another view of the extent of the crimes and the damages suffered because witnesses called by the legal representatives came from different areas ofCentral African Republicequally affected by the crimes as the capital. I think legal representatives contributed in making the Chamber understand the extent of the crimes and damages suffered from by the victims.

WW: Let’s talk a bit about reparations. We have had the first decision or guidance on how to go about making reparations. I have seen information from the Trust Fund for Victims that they have 1.2 m euros they are planning to use and that they can not use all of it for Lubanga victims but they’re also mindful of other trials going on. This looks like little money to cater for the reparations.

PM: Unfortunately I am not well positioned to answer for the Trust Fund, and I do not know how much resources the Fund will be able to reserve for purposes of reparations in the Lubanga trial. I do not know if the Trust Fund will ask for contributions, but the problem that I see is that the decision issued on the 7^th of August 2012 is not a decision the victims were expecting on reparations. The Trial Chamber has indicated that it is a decision on principles for reparations. The Chamber has indeed identified important principles to be taken into account in reparations proceedings, however, in reading the decision what I understand, and this is my personal opinion, is that the Chamber has left to the Trust Fund for Victims the power to manage the entire process of reparations.

The legal representatives of victims and the Defense have considered that some important issues arose from the decision and at present two different appeals are pending on matters related to the procedure to be followed.

Moreover, in the decision, the Chamber has stated that it is essential to have coordination and co-operation between the Registry TFV, OPVC, and experts who will be appointed for purposes of establishing which kind of reparations victims might benefit from. But it is unclear to me which is the role of each of these entities at this point in time. So for me the decision on reparations is good on principles but I am still reflecting whether this decision is sufficient enough to grant victims effective reparations.

It is also true that the decision established that for the purposes of reparations, a Trial Chamber newly constituted will be appointed so that these three new judges could supervise and monitor the implementation of the reparations plan prepared by the TFV. But we are not yet at the very phase of reparations because the Trust Fund will need first to make a plan, then this plan will need to be approved by the Chamber, and as I have said some issues are pending in appeal. So the decision is not implementable at this time.

WW: Let’s look at some of the principles given by the Trial Chamber. The judges said victims should be at the center of reparations proceedings and the needs of vulnerable people such as children, women and victims of gender-based violence should be addressed as a priority. For the case of Ituri, how important is this?

PM: The Chamber did good reasoning in establishing these principles. The trial has to some extent established that many of the former child soldiers suffered from gender-based crimes so this is still a priority in Ituri. What is also important in the decision of the Chamber, is that the Chamber has clearly said it is important to address the issue of vulnerability and the issue of gender crimes also because people who suffered from these crimes were stigmatized from the community and this could be put in relation with other principles which have been established by the decision of the Chamber, the principle of reparations as a means of reconciliation in the community, as a means to again put together the community which has suffered from war and which could try to re-establish some way of living together despite what happened.

It is still a little bit a theoretical discussion because there is a need to see in practice how these principles should work and this is also something which the decision has left to the TFV.  In the decision it is clearly written that there is a need to consult victims, to consult the communities, to understand from them what are the priorities and to find ways in which the victims and the communities can be involved in the process of reparations because if victims and communities aren’t involved, we risk having reparations which are not useful and which will not address the real needs in the field. This is the main challenge coming from the decision by Trial Chamber I.

WW: The same could also be said about offering symbolic reparations and promoting reconciliation between victims of child recruitment with their families and communities?

PM: Again it is too early to say how it will be done because the court has first to explore the possibilities available and what victims want. Only after having explored these two aspects, the court, presumably the Trust Fund, will be able to provide a clear implementation plan and this will probably take some time.

WW: You work with victims in many countries. Generally, and not just in the Lubanga trial, what are the expectations of victims in terms of reparations?

PM: The Office of the Public Counsel for Victims was created in 2005 and since then we have been involved in all situations and cases before the court. This means we have had the opportunity to see almost 10,000 files for victims and we have met in person with 90 percent of them. The first thing we do normally when we meet with victims is to ask why they want to participate, what are their expectations. The great majority of them tell us ‘I want my story to be heard and I want someone in the courtroom to tell my story.’ Sometimes we say that the OTP is also telling their story and often they reply that the OTP has necessarily a more limited view related to the duty to prove a case, so what they mainly want is someone in the courtroom that they trust and they are sure is going to present their interests in the proceedings.

Secondly, very few think about reparations at least at the beginning of their interaction with the court. For some, it is not really a priority and you can even have a difference with people who have suffered from crimes such as pillaging or destruction of property for whom it is more clear what reparations can be, such as to have back their house or property. On the contrary for victims who suffered from gender crimes or enlistment and conscription it is very difficult to think in terms of reparations because their life, as they say, has been completely destroyed. When you speak to them sometimes they will tell you ‘well, I don’t know what can help me because I have suffered so much and I have suffered from so serious events that I think there is nothing in life that can repair what I have suffered from and what I have lost’.

WW: In terms of victims’ participation, what do you think has not been done or has not been done well, where you would wish to see some changes?

PM: There are still a number of issues which need to be addressed in order to render victims’ participation more effective, starting with the timing of decisions on participation of victims. Until very recently, decisions on participation were taken very late in the proceedings, mainly at the eve of the start of proceedings – the eve of confirmation of charge or the eve of the start of the trial, which renders it very difficult for a lawyer to be in a position to properly represent the interests of clients particularly if that lawyer is appointed at a very short notice. When a decision of participation of a victim is taken, a decision is also taken on common legal representation and often the decision on common representation change the appointment of the legal representative of victims just at the start of proceedings. This renders it very difficult for the new legal representative to be ready to represent the interests of the clients effectively since he or she will need to be acquainted with the proceedings, as well as to know his or her clients.

The other issue which needs to be thought about is the way in which victims have to always argue on how their personal interests are affected at each phase of the proceedings in order for them to be able for instance to present evidence or to question witnesses or to participate in interlocutory appeals. When the Chamber, in ruling on victims’ participation, decides that the personal interests of victims are affected by the outcome of the trial, I don’t see why there should be a need each time there is presentation of evidence to still demonstrate that victims have a personal interest in intervening on that specific evidence in order to be allowed for instance to question witnesses at trial. Another issue is the access to documents particularly at pre-trial stage when legal representatives of victims are normally only granted access to public documents which cannot be enough to represent the interests of their clients.

But participation of victims is still a novelty and not even an entire cycle of a proceeding has ended. So there’s still a need to see how in practice the participation of victims could continue. The only thing I am worried about is that there seems to be a tendency to try to limit the participation of victims in the proceedings. For instance very recently in the [Laurent] Gbago case a collective approach to application forms was implemented and the OPCV expressed some doubts about the possibility to adopt the said approach considering that the legal texts of the court refer to individual applications and that victims might not be comfortable in using a collective form. I have also heard some discussions related to the possibility for legal representatives to only appear at specific stages of the proceedings. So we’re at a stage where the participation of victims is being reviewed and I hope this will not mean there will be restriction of the rights of the victims, which in my opinion was not the purpose of the drafters of the Rome Statute.

WW: Why would there be a rethink on victims’ participation at this stage?

PM: Several issues came up: the problem of handling thousands of applications with limited resources available; the problem of costs involved in the assistance and representation of victims. But proceedings before the Court necessarily involve thousands of victims because of the nature of the crimes adjudicated by the ICC. So we need to find a way to grant the rights of victims effectively, taking into account the resources that are needed and the best way to work effectively with the resources available.

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization 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. This Special Issue is the third in a series of four Special Issues reporting on the first trial Judgment handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on 14 March 2012. 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 third Special Issue Legal Eye eLetter, click here. To read the previous Special Issues, click here.   

On March 14, 2012, Trial Chamber I issued a judgment in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to August 13, 2003 (Judgment).^[i] Lubanga 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).  On July 10, 2012, Lubanga was sentenced to 14 years imprisonment.[ii]  The Trial Chamber further ordered that the six years already spent in detention since his surrender to the ICC in March 2006 were to be deducted from his sentence.  ‘That the ICC has reached the stage of sentencing in its first case is an important milestone’, said Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice.  Inder added that the ‘sentencing decision signals an end to the accountability process for Thomas Lubanga, who was rightfully convicted of serious war crimes and will now serve almost 10 more years in prison. It also importantly signals the start of a new era in prosecutions before the ICC.’[iii] The sentencing decision will be addressed in detail in the next Special Issue of Legal Eye on the ICC.

Over the course of the Lubanga case, ongoing concerns over the Prosecution’s investigation and use of intermediaries surfaced as major issues, as described in more detail in the Gender Report Card 2008, 2009, 2010 and 2011. The start of the trial was delayed on June 13, 2008 for five months due to the Prosecution failure to disclose exonerating evidence to the Defense, resulting in the Trial Chamber issuing a formal stay of proceedings until the issues were resolved.[iv] The proceedings were stayed a second time in July 2010 for three months, due to the Prosecution’s refusal to immediately comply with the Trial Chamber’s order to disclose the identity of an intermediary implicated in possible witness tampering.^[v]

Intermediaries played a critical role in assisting the Office of the Prosecutor to identify and contact witnesses for the Lubanga case, and in the overall progress of investigations in Ituri.  As outlined in the Trial Chamber’s earlier decision on intermediaries, the Prosecution used seven intermediaries to contact approximately half of the witnesses that testified against the accused in this case.^[vi] Intermediaries are both individuals and organisations working in the field that act as liaisons between the ICC, including the Office of the Prosecutor, and individuals and communities.

Questions around whether intermediaries influenced witness testimony emerged as an affirmative line of defense soon after the opening of the Prosecution case in January 2009.[vii] As described by the Chamber in its decision on intermediaries, the first Prosecution witness, an alleged former child soldier, recanted his testimony and stated that an intermediary had instructed him on its contents.^[viii] Following this and other allegations that witness testimony had been fabricated at the instigation of Prosecution intermediaries, in December 2010 the Defense filed for abuse of process.^[ix] In its filing, the Defense requested a permanent stay of proceedings and the immediate release of the accused. In a decision in March 2011, the Trial Chamber ultimately rejected the application for a permanent stay of proceedings, while reaffirming its right to reserve judgment on the factual allegations set forth in the Defense submissions in its evaluation of the evidence, including on the credibility of witnesses.^[x]  In the trial judgment, the Trial Chamber found all but one of the alleged former child soldiers called as witnesses by the Prosecution to be unreliable.

In light of this complex procedural history, the Chamber devoted a section of the judgment^[xi] to the investigative history of the case ‘in order to demonstrate the extent of the problems the investigators faced and the background to the considerable reliance that the prosecution placed on certain intermediaries’.[xii] By carefully examining the serious security and other constraints under which the investigation operated, the Chamber legitimised the necessity and practice of working with intermediaries in the field, and at the same time identified the specific failings of the Prosecution in its negligent supervision of intermediaries and failure to verify the evidence obtained.  In the judgment, the Trial Chamber’s discussion of the Prosecution investigation in the DRC focused on several key, interrelated themes that had a significant impact upon the evidence presented at trial: security and practical difficulties; collaboration with NGOs and international organizations; corroboration of evidence concerning alleged former child soldiers; and the Prosecution’s reliance on intermediaries. As noted above, the Chamber found that the Prosecution’s undue reliance on three of its principle intermediaries, without appropriate supervision, created the significant possibility that they improperly influenced witnesses to falsify their testimony, rendering most of it unreliable.

The lack of witness credibility had an additional and direct impact on victim participation. Finding their testimony to be unreliable, the Chamber reversed its original prima facie determination authorizing the participation of six Prosecution witnesses as victims in the proceedings (five alleged former child soldiers and the father of one alleged former child soldier). The Chamber also withdrew the victim participation status of three victims whom it had authorized to give evidence upon the request of their Legal Representative. The paucity of credible witness testimony may have also increased the Chamber’s reliance on video and other documentary evidence in reaching a finding of guilt.[xiii] These issues are all discussed further, below.

The Prosecution Investigation

In its decision on intermediaries of 31 May 2010, the Trial Chamber stated that ‘the precise role of the [Prosecution] intermediaries (together with the manner in which they discharged their functions) has become an issue of major importance in the trial’.[xiv] In this decision, the Trial Chamber ordered the Prosecution to call appropriate representatives ‘to testify as to the approach and the procedures applied to intermediaries’.[xv] In response to this order, the Prosecution called two investigators, Bernard Lavigne and Nicolas Sebire.[xvi] In its trial judgment, the Trial Chamber made extensive reference to their testimony, particularly that of Bernard Lavigne, who led the investigation team, in its discussion of the Prosecution investigation.

The Office of the Prosecutor opened its investigation in the DRC on June 23, 2004, with an ‘emerging focus’ on the Ituri region.^[xvii]  The Deputy Prosecutor decided that the DRC investigation team would be led by a francophone magistrate, in order to provide a degree of ‘legal control’.^[xviii]  The Prosecutor subsequently appointed Lavigne as the team leader. In his testimony before the Chamber, Lavigne described a double hierarchy in which he reported directly to the Deputy Prosecutor and his assistant, who in turn, reported to the Prosecutor.[xix]  A parallel structure, described as ‘joint teams’ composed of representatives from the Prosecution, Investigation, and Jurisdiction, Complementarity and Cooperation Divisions working on the same case, reported directly to the Prosecutor and the Executive Committee.[xx]

As described in the judgment, Lavigne’s first task was to establish a team, which consisted of approximately 12 members recruited from NGOs and others with experience in international justice and human rights.[xxi] Between 2004 and 2007, Lavigne also focused on establishing a protection program within the Office of the Prosecutor.[xxii] According to Lavigne, the investigators identified a number of militia groups that were potentially responsible for the commission of several crimes within the jurisdiction of the Court, and ultimately narrowed their focus to two groups: the UPC and the Front de nationalistes et integrationnistes (FNI)/Force de resistance patriotique en Ituri (FRPI).^[xxiii] Both investigators testified that initial field investigations were difficult for numerous reasons, including the lack of sufficient documentary material, severe travel restrictions and ‘the lack of external support for the Court’s activities in the field’, namely  ‘contradictions and inconsistencies’ in the approach and support provided by the UN.^[xxiv] Lavigne testified that these obstacles delayed efforts to locate witnesses and hampered efforts to provide security for them.^[xxv]

Lavigne also testified that the investigation team did not have an operational field office in place in the DRC until 2006.^[xxvi] Prior to the establishment of the field office, the investigators conducted their interviews in a variety of different locations, including churches, ‘libraries, schools, deserted areas and rented houses’.^[xxvii] The investigators were deployed for ten days at a time, but the Chamber observed that the field conditions and the lack of a field office sometimes gave rise to a loss of motivation.^[xxviii] An investigation team member was in the field ‘as frequently as possible’ in the first months of the investigation, but due to the lack of sufficient investigations staff, Lavigne testified that it was not possible to maintain a permanent field presence.^[xxix] He expressed his belief that maintaining a permanent field presence ‘would have been the correct approach’.^[xxx]

Generally, the investigators’ testimonies indicated certain investigatory challenges posed by the directions coming from within the Office of the Prosecutor. The Chamber recalled that the investigators testified that the specific objectives of the investigation varied ‘because of changes in the choices of the OTP and the way it conducted its cases’, resulting in ‘inconsistent requests’ being made to the investigators.[xxxi]  Lavigne suggested that ‘the OTP hesitated in formulating its objectives and the steps to be taken to attain them’.^[xxxii] In his testimony, Lavigne could not recall exactly when the Prosecutor decided to prosecute Lubanga for crimes relating to child soldiers, but that it was decided ‘that they would only try to prosecute the accused on this basis’, following an evaluation of the available documentation, which included an evaluation of UN reports and NGO documents.^[xxxiii]

Lavigne testified that during the initial investigations, ‘UN agencies had received information to the effect that some individuals were falsely presenting themselves at demobilisation centres as former child soldiers from the militias in order to join the reintegration program’.^[xxxiv] He further explained that ‘it became known in Bunia that a threatened witness might be relocated and some individuals treated this as an opportunity to secure free re-housing’.^[xxxv]

Security Risks and Impacts

Both investigators testified that the investigation team faced significant security threats. In his testimony, Lavigne reported that armed groups were still active on the outskirts of the city and that he heard the sound of gunfire every evening during his first mission to Bunia.^[xxxvi] Lavigne also stated that one of the investigators reported that his vehicle was struck by bullets during a mission to a village while being escorted by armoured vehicles from MONUC.^[xxxvii] Because the investigation team did not have an operational field office in place in the DRC until 2006,^[xxxviii] MONUC personnel accompanied the team on visits outside Bunia to provide security.^[xxxix] The investigators risked being attacked or abducted during their investigations, or becoming involved in confrontations between MONUC troops and other armed opposition groups.^[xl] Lavigne further testified that safety risks and travel restrictions limited investigators’ ability to travel to villages to meet with potential witnesses. The fact that ‘[a]ny foreigner seen in Bunia was assumed to be from the ICC’ made operating in an open way impossible and forced the investigators to do ‘everything possible to hide the fact that they were conducting an investigation’.^[xli]

Lavigne testified that the serious security situation affected the investigators’ duty of protection with regard to potential witnesses. The investigators considered that ‘all witnesses – not just from the prosecution – were at risk, regardless of whether individual threats were credible’.^[xlii] This led the investigators to adopt a ‘very specific and rigorous policy for investigators and witnesses’, which slowed their work but prioritised security.^[xliii] While several militias were investigated regarding threats to witnesses, Lavigne testified that ‘[t]he real problem was not the threat from the various groups but rather the risk of an individual being identified by members of his or her community, village or family as having cooperated with the Court’.^[xliv] Lavigne noted that as a result, the investigators did not pursue additional information that might have corroborated witness accounts, such as contacting the families of witnesses or checking school records for alleged child soldiers. He explained that such actions would have exposed the witness ‘to the risk of immediate abduction’ by political or military leaders still active in Bunia, and investigators ‘would have been immediately identified if they had visited the neighbourhoods’.^[xlv]

Corroborating the Ages of Alleged Former Child Soldiers

Given that one recurring issue in the case was whether some intermediaries had encouraged children to lie about aspects of their past, including their ages, the Chamber reviewed the investigative steps taken by the Office of the Prosecutor to objectively establish the ages of alleged child soldiers. In his testimony, Bernard Lavigne had noted that, at the relevant time, ‘the civil administration in the DRC functioned only to a limited extent, and the conditions the team were operating under were not ideal for establishing, with ease, the age of the alleged child soldiers’.^[xlvi] Lavigne testified that ‘as an investigation leader, [he] was not alone in considering that a prosecution forensic expert should be instructed immediately, in order to provide at least an approximate idea of age’, and that this remained an ‘important debate’ within the Office of the Prosecutor.^[xlvii] However, Lavigne testified that ‘the Executive Committee within the [Office of the Prosecutor] was of the view that the statements given by the witnesses sufficiently indicated that the relevant individuals were below 15 years of age’.[xlviii]  The investigators requested, but did not collect in person, relevant civil status documents from the administration in Bunia and information about whether the children had been seen by a doctor.^[xlix]  The Chamber noted that investigators did not speak to their families or arrange interviews with the children due to security concerns.^[l] Lavigne testified that their policy ‘was to not meet with the families in order to avoid endangering them: it was feared that a member of the extended family might reveal to the militia leaders the identity of the individual who had provided the information. This policy was applied to all witnesses and it was only varied on an exceptional basis.’^[li]

Lavigne testified that he did not ask village chiefs about child soldiers, given their close ties to the militia groups. He further explained that investigators did not request the files of child soldiers from the headmasters or directors of the relevant schools to cross-check their ages. Although he noted that Intermediary 143 carried out some research into school registers and requested birth certificates for some individuals on behalf of their families in order to pass the information on to investigators.^[lii] However, he clarified that the Prosecution ‘was not seeking to verify whether particular children were listed in the relevant school registers; instead […] they wanted to establish whether, at a particular age, a child would be in an identified class’.^[liii]

The Chamber concluded that, while acknowledging the difficulties faced by investigators in the field, ‘this failure to investigate the children’s histories has significantly undermined some of the evidence called by the prosecution’.^[liv] It also noted that ‘the prosecution invited the Chamber to draw conclusions as to the age of various witnesses when it had presented markedly contradictory evidence on this issue’,^[lv] citing differences between the oral testimony and documentary evidence as to the ages of several alleged former child soldiers.

The Prosecution’s Reliance on Intermediaries

From the investigators’ testimony it became clear that the Prosecution’s extensive reliance on intermediaries in this case was in large part due to the prevailing security concerns in the DRC. The Chamber noted that ‘from the outset of the investigation, human rights activists gave the investigators the names of potential witnesses, since they had “seen these people and they knew what they were going to say”’.[lvi] Lavigne explained that the intermediaries were ‘better placed’ to move about freely and to speak to witnesses and potential witnesses without endangering them.^[lvii] He testified that as a result, ‘the investigation team or some of the activists suggested the latter should act as intermediaries’.^[lviii] The other investigator called to testify, Nicolas Sebire, stated that ‘the only solution to the security problem was to use intermediaries, who enabled the team to contact witnesses’.^[lix] However, as the Chamber noted, ‘many – although by no means all – of the evidential difficulties in this case as far as the prosecution is concerned have been the result of the involvement of three particular intermediaries (P-0143, P-0316 and P-0321)’.^[lx]

Intermediary 143 introduced numerous witnesses to the Prosecution, including five of the alleged former child soldiers whom the Trial Chamber found lacking in credibility, and one of the other intermediaries in question.[lxi] As noted above, the Prosecution’s failure to immediately comply with the Chamber’s order to disclose the identity of Intermediary 143 was the subject of the second stay of proceedings in this case in July 2010.[lxii] In evaluating the allegations about witness tampering, the Trial Chamber concluded that there was ‘a risk’ that Intermediary 143 ‘persuaded, encouraged or assisted witnesses to give false evidence’.[lxiii]

Intermediary 321 facilitated contact between the Prosecution and its first witness, who recanted his testimony.[lxiv] In addition to the testimony of alleged former child soldiers and Defense witnesses, alleging that Intermediary 321 had encouraged and assisted them to give false evidence, the Chamber also noted discrepancies between the lists of alleged former child soldiers from which the witnesses were selected. Essentially, the discrepancies indicated that Intermediary 321 did not utilise lists provided by the Office of the Prosecutor in setting up interviews between investigators and the children; 8 of the 11 children whom the investigator met with in 2007 were not on the original list provided by the Prosecution.[lxv] The Chamber concluded that ‘a real possibility exist[ed]’ that Intermediary 321 ‘encouraged and assisted witnesses to give false evidence’.[lxvi]

Intermediary 316 also had contact with numerous witnesses.[lxvii] He was simultaneously employed by the Congolese intelligence services, Agence Nationale de Renseignement.[lxviii] The Chamber expressed its concern ‘that the prosecution used an individual as an intermediary with such close ties to the government that had originally referred the situation in the DRC to the Court’.[lxix] It also determined that Intermediary 316 had falsely claimed that Congolese police services had threatened witnesses,[lxx] and had lied about the fact that his assistant and his family had been murdered, and that the killers were pursuing him.[lxxi] Of the three intermediaries in question, the Chamber issued its strongest words of condemnation regarding Intermediary 316, stating that there were ‘strong reasons to believe’ that he ‘persuaded witnesses to lie as to their involvement as child soldiers within the UPC’.[lxxii]

In the Judgment, the Trial Chamber formally ‘communicated’ this evidence to the Prosecution for the purpose of an Article 70[lxxiii] investigation into the alleged improprieties of these three intermediaries, and concluded:

The prosecution should not have delegated its investigative responsibilities to the intermediaries . . . notwithstanding the extensive security difficulties it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinize this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation.^[lxxiv]

The Chamber’s analysis established the links between each intermediary in question and the alleged former child soldier witnesses. In doing so, it thus combined its assessment of the reliability and credibility of evidence proffered by each alleged former child soldier witness with the evidence concerning the improper influence over these witnesses by the intermediaries in question. The standard used by the Chamber in determining witness reliability was whether it was:

persuaded beyond reasonable doubt that the alleged former child soldiers have given an accurate account on the issues that are relevant to this trial (viz. whether they were below 15 at the time they were conscripted, enlisted or used to participate actively in hostilities and the circumstances of their alleged involvement with the UPC).^[lxxv]

During the trial proceedings, the Chamber heard testimony from 11 Prosecution witnesses who were alleged former child soldiers. Evaluating the reliability of these witnesses together with the evidence about the intermediaries, the Chamber determined that all of the alleged former child soldiers who were witnesses for the Prosecution gave contradictory evidence concerning either their ages, school attendance, the identity and well-being of family members, or the circumstances of their recruitment, with one exception.^[lxxvi] This led the Chamber to reject ‘the prosecution’s submission that it ha[d] established beyond reasonable doubt that P-0007, P-0008, P-0010, P-0011, P-0157, P-0213, P-0294, P-0297 and P-0298 were conscripted or enlisted into the UPC/FPLC when under the age of 15 years, or that they were used to participate actively in hostilities’ during the relevant period.^[lxxvii]  These witnesses were all alleged former child soldiers or their immediate relatives. In fact, the Chamber found only one of the alleged former child soldier witnesses for the Prosecution to be reliable: Witness 38.

The Chamber recognised that the witnesses might have given a truthful account of elements of their testimonies, while ‘lying about particular crucial details, such as their identity, age, the dates of their military training and service, or the groups they were involved with’, facts directly related to the guilt of the accused.^[lxxviii] For example, while the Chamber found Prosecution Witness 38 to be a credible witness, it also found that he was above the age of 15 when he joined the UPC. Conversely, the Chamber relied on those portions of the testimony of Prosecution Witness 10 (a female alleged former child soldier) concerning the video of the training camp in Rwampara, although it otherwise found her not to be a credible witness. In general terms, with respect to former child soldiers, the Chamber frequently found Defense witnesses to be more credible than the Prosecution witnesses whose testimony they were contradicting.^[lxxix] Finding that its original prima facie evaluations as to their meeting the criteria of victim participant were incorrect, the Chamber withdrew the victim status it had previously granted to Prosecution Witnesses 7, 8, 10, 11, 298 and 299 (Witness 298’s father).^[lxxx]

The Three Participating Victims who Gave Evidence

In January 2010, for the first time at the ICC, three participating victims were given the opportunity to testify as witnesses in the proceedings against Lubanga.^[lxxxi] Referring to the testimony of Defense witnesses that raised material doubts as to the identities of two of the victim-witnesses who had testified, in the trial judgment, Trial Chamber I withdrew the victim participation status of the three victims who had been authorized to appear as witnesses upon request by their Legal Representatives. The Chamber based its decision to withdraw their status on their ‘evasiveness’ and internal inconsistencies in their testimony, including the fact that they could not identify photos of the parents of the children whose identities were in question.

At issue was the assertion by Defense Witnesses 32 and 33 that Victims a/0225/06 and a/0229/06 had stolen their identities at the instigation or encouragement of Victim a/0270/07, who claimed that he was their guardian. Victim a/0270/07 was alleged to have encouraged ‘pupils at the Institute where he worked to claim falsely that they had been child soldiers in order to participate in proceedings before the ICC’,^[lxxxii] with the aim of receiving benefits. Victims a/0225/06 and a/0229/06, as well as Defense Witnesses 32 and 33, paid Victim a/0270/07 to register them as victims.  Witnesses 32 and 33 were later told that others were going to replace them. The Chamber found the Defense witnesses credible, partly based on the fact that they correctly identified photographs of the parents of Thonifwa Uroci Dieudonne and Jean-Paul Bedijo Tchonga, whom they claimed to be.

While issues concerning victim-witness credibility clearly extended beyond the ambit of Prosecution witnesses, its failure to provide effective oversight of intermediaries and to verify evidence related to alleged former child soldiers significantly increased the amount of litigation in the case, with resultant delays affecting the rights of the accused. As described in the Second Special Issue, the lack of sufficient credible witness testimony likely increased the Chamber’s reliance on video and documentary evidence in reaching the verdict, and provided the Defense with substantial additional grounds to challenge the case, thus jeopardising the successful outcome of the trial.

Read the Trial Chamber’s Judgment

Read the previous Special Issues of the Legal Eye on the ICC eLetter, discussing the Chamber’s findings on sexual violence and on Lubanga’s individual criminal responsibility

Read more about the Defense abuse of process claims in Legal Eye on the ICC, May 2011

For more background on the Lubanga case, see Gender Report Card 2008, 2009, 2010 and 2011