Judges on Thursday ruled that Mr. Lubanga – the first person tried at the International Criminal Court (ICC) should be released unconditionally if the prosecution did not appeal the release order within five days. The stay of proceedings which preceded the release order arose from the failure by the Office of The Prosecutor (OTP) to implement an order by judges to reveal the identity of an individual who helped prosecution investigators identify persons who testified against Mr. Lubanga. Here below we bring some of the media buzz on this order:

The French news agency AFP quoted Mr. Lubanga’s lead attorney Catherine Mabille as saying: “We are satisfied with the chamber’s decision that the prosecutor cannot hold himself above the judges.” http://www.google.com/hostednews/afp/article/ALeqM5gfUn7qh_UJu9y7PldfnNEK2XndHQ

On the other hand, various news agencies quoted OTP spokeswoman Nicola Fletcher as saying they would appeal the stay of proceedings and the release order. A statement issued by the OTP was also quoted widely. In that statement, the OTP regretted the “disturbance” caused by the release order, but argued that this was a sign that the ICC was a court of justice.

“The victims of Thomas Lubanga’s alleged crimes must remain confident that justice will be done in this case,” the OTP statement added.

The Associated Press (AP) described Thursday’s ruling as the latest setback in what rights activists called a landmark case as this was the first trial to deal exclusively with child soldier allegations. According to AP, “the case has been beset with problems and almost from its start in January 2009, as prosecutors and judges clashed over the admissibility of evidence gathered in confidence from U.N. personnel and non-government volunteers in the battlefield, who believed disclosure of their identities could jeopardize their lives or work.” More on this story:

http://hosted.ap.org/dynamic/stories/E/EU_WAR_CRIMES_CONGO?SITE=VAROA&SECTION=HOME&TEMPLATE=DEFAULT

Similarly, the BBC reported that the trial “has been plagued by legal challenges”, pointing out that the first witness at the trial retracted his testimony after first saying he had been recruited by Mr. Lubanga’s fighters on his way home from school. The BBC also noted that one of the problems facing the court was that Bunia – the capital of the Ituri region where Mr. Lubanga was a rebel leader – was still considered a conflict zone. This meant the safety of potential witnesses could not be guaranteed (http://www.bbc.co.uk/news/world-africa-10650399).

Reuters contended that chances that Lubanga would be released in the short term were considered small because the court had built a number of conditions into its ruling. The agency quoted Jan Wouters, a professor of international law at the Catholic University Leuven in Belgium, as arguing that it nonetheless made sense to ask for Mr. Lubanga’s release.

“A fair trial also means a timely trial. In that sense the court has an obligation to set an example,” Prof. Wouters said. “In the meantime it appears that the trial is turning into a sparring match between the court and the prosecutor, while no final ruling has been given in the court’s eight-year existence.” This article is available here: .http://alertnet.org/thenews/newsdesk/LDE66E1ZH.htm

According to The Hague Justice Portal (http://www.haguejusticeportal.net/eCache/DEF/11/887.TGFuZz1FTg.html) , the prosecution had not appealed the two orders with which it had refused to comply last week – the very orders that sparked the stay of proceedings – and judges had noted that the Prosecution continued to be in non-compliance with its orders. However, the judges had decided to adjourn any action under article 71 of the Statute, dealing with the OTP’s misconduct before the Court, until the Appeals Chamber’s judgment on this appeal.

On the other hand, CNN – while observing that Mr. Lubanga was not likely to be freed soon – made reference to ICC prosecutor Luis Morno-Ocampo’s opening address at the start of the trial, in which he stated: “Lubanga’s armed group recruited, trained and used hundreds of young children to kill, pillage and rape. The children still suffer the consequences of Lubanga’s crimes. They cannot forget what they saw, what they suffered, what they did.” CNN noted that Mr. Lubanga has maintained his innocence. This article is available at http://edition.cnn.com/2010/WORLD/africa/07/15/icc.militia.leader.release/?fbid=bNdFByYL_gx .

In its brief report, The New York Times said that while it was unlikely that Mr. Lubanga would go free anytime soon, the order was tantamount to a stern warning to the prosecutors: http://www.nytimes.com/2010/07/16/world/europe/16briefs-Hague.html .

Meanwhile, VOA News quoted Lubanga family member Sylvia Dzbo as saying the family hoped this time around Mr. Lubanga would be freed. “Here, we are very happy about the news, but our main concern is that it’s not the first time that they have said they will release him. If they say he will be freed and go anywhere he wants, then we can say yes we win this war because we believe he is innocent about everything that they say,” Dzbo said. To read more of this story, please see: http://www1.voanews.com/english/news/africa/Butty-DR-Congo-Lubanga-Release-Order-React-Dzbo-16july10-98582194.html

For its part, The Financial Times of UK noted the ICC had been dogged by controversy and criticism almost since it was founded in 2002. “Luis Moreno-Ocampo, the court’s prosecutor, has attracted criticism by going after high-profile indictments but failing thus far to secure any convictions. His most eye-catching target has been Omar al-Bashir, Sudan’s president, for whom the court this week issued a new arrest warrant, adding genocide charges to earlier accusations of war crimes and crimes against humanity,” the FT said.

Moreover, FT stated that human rights groups had said the long-delayed Lubanga case was perhaps a final chance for the ICC to prove that it could be an efficient forum to try the most serious war crime allegations. http://www.ft.com/cms/s/0/698d3408-9042-11df-ad26-00144feab49a.html?ftcamp=rss

The OTP has indeed stated it will be appealing the order to release Mr. Lubanga. Mr. Moreno-Ocampo said the prosecution had filed the appeal and was confident of winning an order suspending Lubanga’s release. See http://af.reuters.com/article/topNews/idAFJOE66F0JW20100716

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Host: Dear listeners, good evening and welcome to this Vox Pop on international justice. This program is regularly produced by Tayna Community Radio, in cooperation with Interactive Radio for Justice, and is designed to focus on your concerns on justice. More specifically, our Q&A will focus on the functioning and level of knowledge of the International Criminal Court, ICC. During this program two questions were asked to various listeners of Tayna Radio. Their responses will allow us to grasp your level of knowledge on international justice. In order to enrich your knowledge on this particular issue, we have invited experts to participate in order to help you better understand the management of international cases. You may realise that the Democratic Republic of Congo, and more specifically its eastern part, has been torn for a long time and has served as the main playing field of armed groups. For now, the International Criminal Court, ICC, has already issued international arrest warrants against some of those men, some of whom have already been brought before international justice to answer for their crimes. This is why we have faith in our Q&A on international justice and that it will catch your attention.

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Journalist: Assessing the level of knowledge of our listeners on the International Criminal Court, ICC, was the first preoccupation of our analysts. To conduct our investigations, we have roamed around with our microphone among the population, targeting various backgrounds, not only in Kasugho but also at the local university, Vosegha, located 8 kilometres north-west of Kasugho. Let’s first listen to listeners interviewed in Kasugho. Have you ever heard of the International Criminal Court, ICC?

-        1^st interviewee: Of course, Mr. Journalist.

-        2^nd interviewee: What I have to say is that I have not.

-        3^rd interviewee: Never heard of it. We do not follow politics.

-        4^th interviewee: I have heard about it. It is like the court in The Hague, which punishes and sanctions criminals.

-        5^th interviewee: I heard about it on the radio.

Journalist: After Kasugho, we travelled to Vosegha, located 8 kilometres north west of the village. Here, we could not resist asking whether the population ever heard about the International Criminal Court, ICC. This is what was said:

-        6^th interviewee: Concerning the International Criminal Court, ICC, I have some idea but not enough information.

Journalist: Have you ever heard of the International Criminal Court, ICC?

-        7^th interviewee: Yes I often heard about it. I think it is the court that sits in The Hague, in The Netherlands, where big international criminals are punished.

-        8^th interviewee: We never heard of it. We, the mamas, do not follow politics.

-        9^th interviewee: Yes, indeed, the International Criminal Court is the general Tribunal in charge of judicial questions at the international level.

-        10^th interviewee: I have some idea. This is where Jean-Pierre Bemba is being sentenced.

Journalist: Hello, miss. Have you ever heard of the International Criminal Court, ICC?

-        11^th interviewee: Hello. No I have not because I am not interested in this, especially not in politics.

Journalist: On the same question, intellectuals have also participated. We have established contacts with USNDK, a university in Kasugho. Let’s listen to our approach with some of them:

-        12^th interviewee: I know that it is an international court that arrest people, but I do not have enough information on it.

-        13^th interviewee: Yes, I already heard about it, but I note that it is a court that essentially targets the most destitute countries, such as African states that suffer a lot, whereas European countries also have leaders, of western countries, who make a lot of mistakes and nothing is done. It is regrettable.

Journalist: Hello, sir. Have you ever heard of the International Criminal Court, ICC?

-        14^th interviewee: Yes, we have heard about the International Criminal Court, we even heard about “commission” and about how we can assist detainees at the ICC.

-        15^th interviewee: Yes, of course, I have heard about it. I know that the ICC exists. What I can say is that the ICC is here to try offenders and criminals, such as, for instance, Matthieu Ngudjolo, Jean-Pierre Bemba, and others who are there.

Journalist: As we indicated earlier, we always ask experts to intervene during our investigations, in order to provide details on what is said. It is in this context that we invite you to listen to Mr. Sang-hyun Song, President and Judge at the International Criminal Court, ICC.

-        The International Criminal Court is a permanent and independent criminal court, which was created by an international treaty to open investigations and to prosecute persons accused of having committed the gravest crimes affecting the international community as a whole, such as genocide, crimes against humanity and war crimes. The ICC does not substitute itself to domestic justice, it only complements it. It can investigate and, when necessary, prosecute and try persons that the state they are citizens of has not investigated because it does not have the capacity or the willingness to do so. The Court has jurisdiction over three types of crimes: war crimes, such as acts committed on a widespread scale, violating international conventions and customary laws of armed conflicts, such as the conscription of children as soldiers, torture, sexual violence, etc; crimes against humanity, which are crimes committed on a widespread scale against civilian populations, including for instance murder, forced population displacement, sexual slavery or forced prostitution; and genocide, which consists in the commission of criminal acts with the intent to destroy a group on the basis of nationality, race or religion.

Journalist: Concerning the second question, we have followed the same path as for the first, which is to assess the level of knowledge of listeners regarding other personalities against whom the International Criminal Court, ICC, issued international arrest warrants, other that Jean-Pierre Bemba, Thomas Lubanga, Germain Katanga, Matthieu Ngudjolo, for the crimes they committed. I therefore invite you to listen to the survey conducted among the Kasugho population. Do you know other persons against whom the International Criminal Court issued arrest warrants?

-        1^st interviewee: Yes, there is Nkunda, Roger Lumbala and many others.

-        2^nd interviewee: I’d say that I am ignorant on this topic.

-        3^rd interviewee: I do not know these people, maybe you could explain to me.

Journalist: Do you know other persons against whom the International Criminal Court, ICC, issued international arrest warrants?

-        4^th interviewee: Yes, aside from these people, I know there are also Laurent Nkunda, Joseph Kony, Bosco Ntaganda, and others.

-        5^th interviewee: I do not know them.

Journalist: The village of Vosigha was also the centre of our attention in this matter. Let us listen to the intervention of our listeners, some of whom we met while they were working:

-        6^th interviewee: Yes I know some, for instance, Laurent Nkunda, Joseph Kony

-        7^th interviewee: We do not know them.

-        8^th interviewee: Yes, they are many, such as the CNDP General, Laurent Nkunda, who was in eastern DRC.

Journalist: What other persons did the International Criminal Court, ICC, issue arrest warrants against, besides Jean-Pierre Bemba, Thomas Lubanga, Matthieu Ngudjolo and Omar El Bashir?

-        9^th interviewee: Yes, thank you. As far as I know, and I think everyone knows that, there is Mr., Mr. General Nkunda, Bosco Ntaganda, as far as I know.

-        10^th interviewee: No, I do not know any others.

Journalist: There are personalities such as Jean-Pierre Bemba, Thomas Lubanga, Matthieu Ngudjolo, but also Omar Hassan El Bashir, from Sudan, who have been arrested by the ICC. Do you know other persons against whom the ICC issued international arrest warrants, aside from these people?

-        11^th interviewee: I will answer Laurent Nkunda.

Journalist: During our investigations, we asked this particular issue to students of the Kasugho University, USNDK, including professors.

Do you know other persons against whom the ICC issued international arrest warrants, aside from Jean-Pierre Bemba, Matthieu Ngudjolo, Germain Katanga, Thomas Lubanga, and Omar Hassan El Bashir?

-        12^th interviewee: Yes, we have heard about it, but there are others against whom arrest warrants have been issued, but they have not yet been arrested. There are others but I cannot name them just now. This question is quite sensitive for us.

-        13^th interviewee: This is exactly what concerns me, it seems the ICC is only here for Blacks, because indeed all these people are Blacks, from Africa, more particularly from Congo, and I do not know any others. I do not think there are any Westerners. This is what makes me think that the ICC was only created to prosecute Africans.

-        14^th interviewee: Concerning the Congo, there is Bosco Ntaganda, and we heard there was an arrest warrant against him but not yet executed by the Congolese authorities. There is also Laurent Nkunda, who is under arrest in Rwanda but who is not being prosecuted by the Congolese army. We also have regional leaders, such as in Kenya, where the ICC will indict people following the civil unrest that took place after the elections.

Luis Moreno Ocampo

Journalist: Let us now follow explanations provided by Luis Moreno Ocampo, Chief Prosecutor of the International Criminal Court, ICC: 

-        In addition to these five arrest warrants, we have eight pending arrest warrants issued by the Court, which are the following: Bosco Ntaganda for crimes committed in Ituri, Joseph Kony and four other LRA leaders for crimes committed in Uganda. In Darfur, in addition to the arrest warrant against Omar El Bashir, we are prosecuting the former minister Ahmed Harun, as well as Janjaweed militia leader Ali Kushayb, who are indicted for crimes against humanity and war crimes.

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Host: It was Vox Pop on international justice, which gave you an opportunity to listen to your neighbours’ understanding of this issue. At the same time, you could listen to the explanations provided by relevant authorities concerned with your preoccupation. We thank all our listeners who answered to our questions as well as the authorities who accepted to contribute to the production of this program. Let me remind you that this program stemmed from the partnership between Tayna Community TV-Radio and Interactive Radio for Justice. You can listen to it on your radio on the frequencies in Kasugho or in Goma, as well as on the Internet at www.irfj.org. You may have guessed, this program was presented by your devoted Jean-Pierre Kasere Kamatumo and produced by Trésor Issé. The Sawhili version of this program will be broadcast on 22 April 2010, from 5:10pm to 5:30pm. 

 [Translated and transcribed by Sandrine Gaillot]

Q. Who are the victims and how are they related to the conflict in Ituri?

A. In the Lubanga case, the majority of victims participating are former child soldiers. This is because the charges Mr. Lubanga faces are directly linked to war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. Some of the victims are parents of former child soldiers who, of course, can have a prejudice from the crimes committed.

These are the only categories of participating victims because according to both the trial chamber and appeals chamber, in order to be recognized as victims in the Lubanga trial, you need to have a direct link with the charges confirmed by the pre-trial chamber and you also need to have suffered from a prejudice derived from such charges.

Q. Could you now tell us about how one gets to be recognized as a participating victim?

A. There is a standard application form available through the Registry [of the ICC] which victims fill in explaining what happened to them. The Victims Participation and Reparations Section of the Registry verifies the form to make sure it is complete with documents such as identity card attached, and any others one might want to annex such as medical certificates.

The form is then sent to the relevant chamber to assess that the applicant is a physical person or organization; and to evaluate whether the applicant suffered damage as a result of a crime under the jurisdiction of the court and a crime which is brought against Mr. Lubanga. There’s need for a causal link between the crime committed and damage suffered by the person. With these criteria fulfilled, the person is allowed to participate in the trial.

Q. Looking back at the experience of the Lubanga trial, what do you say is the importance of victims participating in such trials?

A. First is the chance of telling their stories and have their voices heard before the judges. What is also important is the possibility of challenging evidence brought by the prosecution and the defense, and particularly the possibility to provide evidence not only going to the reparations, but also going to the guilt or innocence of the accused. This is indeed a direct recognition that victims have an interest in the outcome of the trial and in the establishment of the truth.

Another important step was the possibility for victims to appear before the chamber. There has been a precedent of three victims who were not on the list of witnesses called by the Office of the Prosecutor (OTP) and were allowed to appear before the chamber to provide testimony.

In this respect, I think it would be more appropriate for victims to appear before a chamber in accordance with Rule 93 of the Rules of Procedure and Evidence, meaning giving them the possibility to simply provide their views and concerns, and not appearing before the chamber in the dual status of victims and witnesses which was actually the case during the Lubanga trial.

Q. Any negative experiences on the participation of victims in the Lubanga trial?

A. There is still difficulty in interpreting the provisions relating to the participation of victims. In the Rome Statute and the Rules of Procedure and Evidence, and all the text of the ICC, there are very few provisions dealing with the participation of victims. This is already a problem.

Second, these few provisions are not detailed enough. This could be positive, or negative, depending on interpretation. What for me is clear is that to a certain extent, chambers tend to have a cautious and sometimes restrictive interpretation of participation of victims, particularly when we are talking of the defense case.

What is happening in the Lubanga trial is that the chamber requests that in order for victims to participate in each piece of evidence produced by the parties, counsel have to show that the personal interest of each client is concerned by, for instance, each witness. Now we are in the course of the defense case and the defense is not providing legal representatives with disclosure of what they have collected for the defense case in a timely manner, so it is impossible for me as counsel to verify whether the interests of my clients are concerned until very few days before the testimony of a defence witness.

Furthermore, the defense wants to limit the ambit of questioning by legal representatives, yet the point is that we have an interest in questioning prosecution witnesses but we have an even higher interest in questioning defense witnesses. This is because defense witnesses are coming to rebut the thesis of the prosecution, even to discredit prosecution witnesses. If you as legal representative are representing someone for instance with dual status, then it is clear that you have an important role to play in questioning defense witnesses.

Q. The defense earlier this year suggested that some Legal Representatives of victims should not be in court when a particular witness was giving evidence.

A. In a recent decision [March 11, 2010 – Editor] the Chamber has clearly indicated that the presence of participating victims during the evidence of the defence even when the court is sitting in closed session is an essential part of their right to participate in the proceedings. The defense had asked the chamber to order that Legal Representatives not concerned by the evidence of specific witnesses should not be present in the courtroom. The argument of the defense, as I understood it, was that they thought Legal Representatives may not be in court in order not to jeopardize the security of the defense witnesses.

But the defense was not considering that Legal Representatives are counsel, they are bound by the Code of Professional Counsel for lawyers appearing before the court, and there is no incident of Legal Representatives having put at risk any of the witnesses. Plus, we are very cautious in how we handle information because even our clients could be put at risk. Now, we have victims who are not anonymous anymore in the proceedings, meaning that Mr. Lubanga knows the identity of some of my clients so I do not see why I should not know the identity of the defense witnesses.

Q. So how do you then, summarise you relationship with the defense?

A. The relationship is very good but we are in a trial and a trial is always a fight. The only thing I find excessive is asking judges to order the Legal Representatives to be in the public gallery for some of the defense witnesses. This is against the spirit of the Rome Statute.

Q. What happens to the victims in the event that Mr. Lubanga is found guilty?

A. Before the court victims can simply participate, meaning making their voice heard in the proceedings through a lawyer. There is also the possibility for victims to ask for reparations, compensation, restitution or any other form of reparation for the damage suffered. So far in the Lubanga trial, the majority of victims have simply asked for participation. We have few victims asking for reparations. And in any case, the procedure for reparation will not start until there is a culpability verdict against Mr. Lubanga.

If, at the end of the trial, Mr. Lubanga is not convicted, there will be no reparations procedures. This could have an impact on victims on the issue of reparations. I can think of other impacts, such as re-traumatization of victims and psychological trouble.

Q. As we understand it, the accused, in this case Mr. Lubanga, as well as the court, would have to provide the reparations?

A. The principle is that reparations shall be paid by the person convicted. If the person convicted has no financial resources, then the court will use the Trust Fund for Victims to provide awards for reparations to victims. The Trust Fund actually has a double mandate: on the one side to implement awards for reparations after the conviction of someone and after the end of the reparations proceedings. On the other side is the possibility of using some of the resources already available for assistance to victims, which is different from reparations.

It means the Trust Fund can put in place projects to help victims of crimes under the jurisdiction of the court, and their families. This is something that the Trust Fund is already doing in Uganda and in Congo. In Congo, there are several projects sponsored by the Trust Fund, including for rehabilitation of former child soldiers, education programmes, or programmes to minimize the psychological impact of the crimes on former child soldiers.

Q. There is the issue of sexual crimes, and the unsuccessful attempt by Legal Representatives of Victims to trigger Regulation 55 of the Regulations of the Court to re-characterize the facts in the trial to include sexual crimes. This attempt was rejected by the appeals chamber. Going forward, how do you think these could possibly be handled under the current charges that Mr. Lubanga faces?

A. This is more a question for the OTP, but there is still a possibility that the facts of sexual violence will be recognized at the end of the trial, meaning there is a possibility that in the judgement the judges might acknowledge that during the recruitment, young girls were also raped and obliged to be sexual slaves. This does not mean that the charges against Mr Lubanga will change.

Q. Could that impact the sentencing decision? Could it be an aggravating factor?

A. It could be. And actually, the prosecution is pleading for this, and as Legal Representatives I can not say at this point if we will be ready to plead this in our final submissions.

Q. We wonder if you could say a little bit about the victims’ reactions to the decisions on Regulation 55.

A. I can only speak for my own clients, who are not a lot in Mr. Lubanga’s trial. My clients were expecting something from the chamber particularly after the first decision saying that Regulation 55 could be triggered. We explained to our clients that it was very difficult that the chamber would accept our theory. So when the first decision was out, it was even more than what we as legal representatives expected from the chamber. So it was already, sort of, a victory.

But we explained to the victims that for us it was part of our duty to alert the chamber in the constitution of the truth that the facts were different from what was included in the charges. For the majority of people participating – young girls, former child soldiers – rape and sexual slavery were ‘normal life’ during their stay in the UPC. So it was first of all a moral obligation, an ethical and professional obligation, to explain that these things happened. We explained this to the victims and I think that they accepted this, as long as we had voiced their concerns in relation to these events.

Q. And why was it important to the victims?

A. Because it is part of what happened to them. The first thing that I do when I meet a client is to ask why they want to participate in the proceedings before the court. Majority of them say that they want their voice heard and they want that their story be known so that crimes will not be repeated in future. Very few in the Lubanga trial say that they want reparations. They want their voice heard and they want to contribute to the establishment of the truth. And for them, the establishment of truth also means what happened to them is recognized as it happened, not differently.

Q. And that could have been achieved through the legal re-characterization…

A. Yes. And for them, the fact that there is someone in the courtroom that can voice their concern, it is already important for them. It means that someone is caring about what happened to them. And this is highly important for victims in the proceedings.

Q. In common law systems, victim participation doesn’t happen and in the ICC you have got a mixture of common law lawyers and judges and civil law lawyers and judges. The civil law lawyers and judges are far more used to victims’ roles in the court. Do you think this mixture of common and civil law thinking has contributed to the lack of clarity on victims’ roles and how they can present themselves in court, for example

A. During the drafting process for the Rome Statute, it was very difficult to find a compromise between civil law countries and common law countries and there were actually two positions. The only agreement possible was the wording of Article 68.3 which is really very hard to interpret. Because Article 68.3 says that when the personal interests of victims are concerned, the court shall permit the views and concerns of victims to be heard in a manner which is not prejudicial toward or contrary to the interest of the defense and a fair trial.

Now, if you take this word by word, you can easily see that each term is subject to interpretation what is views and concerns? What does it mean that victims may present their views and concerns? Which kind of personal interests of victims are concerned is again a matter of interpretation. What it means that they can present their views insofar as they are not contrary to the right of the defense and a fair and impartial trial, is again a matter of interpretation.

We are still in the very beginning of the ICC proceedings, so the trend of interpretation is varying depending on the different chambers. But still, in the matter of participation, we are now assisting with harmonization of the practice of the court for the various cases and I hope that in the next years the participation of victims will improve.

Prosecutors at the ICC allege that Mr. Lubanga was the leader of the Union of Congolese Patriots (UPC) and of the Patriotic Forces for the Liberation of Congo (FPLC), which used child soldiers in inter-ethnic fighting in the Congo’s Ituri Province. The prosecutors also charge that UPC used hundreds of young children – some as young as 11 years – to kill, pillage, and rape.

By May 8, 2010, the defense had called 18 witnesses, more than half the number they planned to call. The prosecution called 28 witnesses including three experts, while the chamber called additional expert witnesses. In addition, three of the 103 victims participating in the trial have testified.

Two witnesses, who were on the prosecution’s list but never got to testify, had also testified since the commencement of the defense case last January – but not as prosecution witnesses because some of their evidence was in favour of Mr. Lubanga. On May 19, 2010, judges in the trial disclosed that an investigator from the Office of The Prosecutor (OTP) at the ICC and two intermediaries of prosecution investigators were due to take the witness stand at the behest of the defense.

The Witnesses Presented So Far

The trial kicked off on January 26, 2009 and the prosecution rested their case on July 14, 2009. It had been expected at the time that the defense case would start by October 2009. But in May 2009, legal representatives of victims participating in the trial appealed to the court to re-characterize the charges against Mr. Lubanga to include charges of sexual slavery and cruel treatment.

The trial chamber agreed in July 2009 that a re-characterization could occur, although presiding judge Adrian Fulford dissented from the majority opinion. The appeals court subsequently overturned this ruling in December 2009, paving way for the opening of the defense case.

And so on January 27, 2010, one year and one day after the opening of the prosecution case, lead defense attorney Catherine Mabille presented the main lines of the defense case. She stated that Mr. Lubanga never recruited or used child soldiers, charged that prosecution witnesses were coached by intermediaries of the ICC’s prosecution investigators, and declared that after calling their first 16 witnesses the defense would ask for the case to be dropped on the basis of abuse of process.  Besides the 19 witnesses who have testified since the opening of its case, it will hear from one more witness and from the OTP investigator and the two intermediaries, and then ask judges to consider throwing out the case.

March 2010 saw the reappearance in the witness stand of a former prosecution witness who testified briefly last June but then had his testimony dramatically called to an end when he stated in court that the testimony he was due to give had been fabricated with the assistance of an intermediary of ICC prosecution investigators.

What the Prosecution Has Said

The prosecution contends that Mr. Lubanga was the overall leader of the UPC and FPLC; and that he visited and inspected FPLC military training camps, oversaw the conduct of military affairs and appointed the senior ranks within the FPLC, secured financing for the UPC/FPLC and negotiated the provision of their weapons and other military equipment.

It is also the contention of prosecutors that Mr. Lubanga personally took part in recruiting child soldiers, having them trained, and using them in armed conflict. As Prosecutor Moreno-Ocampo said at the start of the prosecution case, “The children were launched into battle zones where they were instructed to kill everyone regardless of whether their opponents were military or civilian, regardless of whether they were men, women, or children. They were forced to kill all [ethnic] Lendu because the Lendu were the enemy.”

Some of the prosecution witnesses said in open session that they often saw Mr. Lubanga at training camps, or that there were child soldiers in his compound. Nonetheless, a great number of witnesses who testified in public session did not link Mr. Lubanga directly to the military command of the militia. Instead, most of them identified Mr. Bosco Ntaganda and Mr. Floribert Kisembo as the men who were in charge of the military issues.

What the Defense Has Argued

Mr. Lubanga’s defense team has argued that none of the prosecution witnesses who presented themselves as former child soldiers in the UPC ever were. The defense also contends that the UPC did not have a recruitment policy for child soldiers. As for those children who volunteered to join the FPLC, said Ms. Mabille, defense witnesses will provide evidence to the effect that Mr. Lubanga “during the few months where he did have responsibilities, did all he could to demobilize the minors who were present amongst the ranks of the FPLC.”

However, prosecutors contend that the Rome Statute renders it irrelevant whether children joined “voluntarily,” or parents entrusted them “voluntarily” to UPC/FPLC. According to Deputy Prosecutor Fatou Bensouda, “accepting for military service so-called volunteers under the age of 15 constitutes criminal conduct”, which according to her would make Mr. Lubanga answerable even if the children voluntarily joined.

The defense has attempted to discredit testimony given by prosecution witnesses and participating victims that Mr. Lubanga was the commander of the UPC’s militia group, and that he took part in conscripting and using children under the age of 15 years. The defense says its witnesses will testify that during the time Mr. Lubanga had some control, he did all he could to demobilize child soldiers, in spite of the difficulties in implementing this policy of demobilization.

These lines of argument were repeated by Ms. Mabille when she opened the defense case on January 27, 2010. She stated: “In particular we intend to demonstrate that all the individuals who were presented (by prosecutors) as child soldiers, as well as their parents in some cases, deliberately lied before this court. The defense intends to show that six of them were never child soldiers, the seventh lied about his age and the conditions in which he enrolled, and the eighth never belonged to the UPC.”

By May 8, 2010, some 18 defense witnesses had testified, most of them in closed session and with protective measures such as face and voice distortion and the use of pseudonyms. Shortly before the defense case kicked off, Mr. Lubanga’s team had said most of their witnesses would testify in public minus protective measures. However, the majority of them have gone ahead to request the protection, saying they feared possible reprisals if it were known that they had testified at the trial.

Most of the defense witnesses who have given some of their evidence in public session have stated that intermediaries of the ICC’s prosecution investigators coached witnesses and fabricated evidence to implicate Mr. Lubanga. They have testified further that the intermediaries paid some people who went on to claim to the investigators that they had served as child soldiers in UPC’s armed wing.

These allegedly coached witnesses also reportedly claimed they were told by an OTP intermediary to say that they knew Mr. Lubanga, that the commanders of the FPLC routinely reported to him, that there were girl-child soldiers in the group who were often sexually violated by the FPLC commanders, and that the child soldiers in UPC were conscripted rather than enlisted.

However, prosecutors have put it to many of the defense witnesses that they are liars whose testimonies can not be believed, as they had already confessed to lying to the prosecution investigators for several years.   

The defense has also produced two witnesses, both purportedly former child soldiers in the UPC, who claimed that their identities were stolen by two individuals who went on to gain the status of victims participating at the trial. The two individuals alleged to be using stolen identities testified in court last January, and recounted how they were abducted, tortured during training, and got forced to take part in battles that claimed the lives of some of their friends.

Some Issues to Watch Out For

There are a number of issues which have been prominent in the trial and some of which are likely to remain in focus as the trial progresses.

Abuse of Process
A key issue to look out for is the alleged abuse of process in collecting evidence and putting together the witnesses who have testified against Mr. Lubanga. The defense says it intends to call about 21 witnesses who would provide testimony as to how evidence was fabricated, and then ask judges to throw out the case on the grounds of abuse of process. The prosecution has denied that there was any abuse of process, and promised to vigorously contest this charge by the defense. The defense submissions on terminating the case on grounds of abuse of process are expected to be filed this June.

Role of Intermediaries
A related issue that is likely to stay in focus is the role of the intermediaries of ICC prosecution investigators. Various defense witnesses have implicated them in fabricating and corrupting evidence. Indeed, it can be said that the alleged incidences of abuse of process which the defense has said are ground to have judges consider halting the case have been placed squarely by all defense witnesses heard in public at the feet of intermediaries rather than officials of the OTP or other organs of the ICC.

So much has been said by defense witnesses about intermediaries that judges asked the Office of The Prosecutor (OTP) whether it was considering putting some of them to the witness stand. Judges also ruled that in view of evidence heard about the role played by one particular intermediary, the defense were entitled to knowing his identity.

Was Mr. Lubanga in charge of UPC’s military affairs?

The other issue that could be critical is whether Mr. Lubanga was in charge of the military affairs of UPC/FPLC. According to Mr. Moreno-Ocampo’s opening statement, Mr. Lubanga is the alleged founder of UPC and of FPLC. The ICC prosecutor also charges that Mr. Lubanga was the commander-in-chief of the FPLC, since September 2002 and at least until the end of 2003. The prosecution also alleges that Mr. Lubanga ordered and supervised the recruitment of child soldiers in his militia.

The defense contests these claims, and has promised to tender evidence to the effect that “Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.”

Knowledge and Responsibility

Were child soldiers in UPC/FPLC enlisted or recruited? Mr. Lubanga’s defense has denied that he enlisted or used child soldiers. Instead, the defense argues that Mr. Lubanga opposed the enlistment and use of child fighters. According to several prosecution witnesses, the UPC/FPLC conscripted children, some of them right out of their primary schools. Some of the prosecution witnesses recounted in court how they were abducted, conscripted, trained under inhumane conditions at the UPC’s military camps, and were then forced to take part in fighting.

But a different story has been heard from the defense. First, the defense has submitted that all prosecution witnesses who claimed to have been child soldiers in the UPC were bogus. Second, the defense has indicated that it does not intend to show that there were no minors amongst the ranks of the FPLC. Instead, it plans to answer questions such as whether Mr. Lubanga initiated the recruitment of minors into the UPC forces, whether he helped to recruit minors in one way or another, and what his attitude was to the presence of minors amongst the UPC troops.

The defense has argued that many children volunteered to join the armed group because they wanted to be like their age-mates who were soldiers and routinely extorted money from civilians, or because they had nothing better to do in light of the war situation. Other witnesses – including experts called by prosecutors and by the chamber – suggested that children in an ethnically-motivated war might be forced by their families or community elders to join armed groups so as to defend their communities and to guard against ostracization.

In submitting that Mr. Lubanga did not take part in recruiting any minors, and that when he had the powers he endeavored to demobilize child soldiers, the defense is attempting to get Mr. Lubanga off the three charges of recruiting, conscripting, and using child soldiers.

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Host: Hello everyone! It is our pleasure to introduce you to our Vox Pop program, a Colombe Radio production, in cooperation with Interactive Radio for Justice. This new program allows you to update your knowledge on international justice. We collect your answers to our questions with our roaming microphone and shed light on these issues with quality participants. What best way when we know that many Congolese are currently prosecuted before the International Criminal Court and that it is your right to know about their situation at the Court. Through this second Vox Pop program, we will go to the second-hand shoes tourist market of Goma and then to the Free University of the Great Lakes, ULIGOM, as well as the sports league roundabout, three popular places for Goma inhabitants. We will ask two questions during this program, the first one being who ever heard of the ICC, and the second relating to persons against whom the Court issued arrest warrants, aside from Jean-Pierre Bemba Gombo, Thomas Lubanga, Matthieu Ngudjolo and Omar El Bashir. Without further ado, follow me to the market:

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Journalist: Hello everyone, and welcome to the second program of Vox Pop. We are now at the second-hand shoes tourist market of Goma, one of the most popular markets of the city. We will ask two questions to Goma inhabitants: first, what do they know about the International Criminal Court and, second, besides those they know have already been arrested by the ICC, whether they know other persons against whom the ICC issued arrest warrants. We will now get started. Hello, sir.

-        1^st interviewee: I heard about the ICC a while ago, the ICC is the International Criminal Court.

-        2^nd interviewee: I heard about it, but I am not well informed about the ICC.

-        3^rd interviewee: The ICC is the International Criminal Court.

-        4^th interviewee: The ICC is where people who committed crimes against humanity are being tried.

-        5^th interviewee: I do know much but only that the ICC is the International Criminal Court.

-        6^th interviewee: The ICC was constituted; it is a Tribunal, the International Criminal Court. It is supposed to try every person who perpetrated war crimes, acts genocide and such kinds of things.

-        7^th interviewee: I never heard about it. Huh, I do not know much but I do know that the ICC is the International Criminal Court. This is what I can say.

-        8^th interviewee: I can say that the ICC is the International Criminal Court, where people are being tried and other such things.

Journalist: Ladies and gentleman, our program continues and we are now at the sports league roundabout in Goma. As you know, in this Vox Pop program, we ask questions and seek answers from the population. The first question relates to their knowledge of the International Criminal Court, and the second question concerns their knowledge of other persons prosecuted by the Court. Hello, miss.

-        9^th interviewee: Hello. Yes I have already heard about the ICC but I do not really know what it is about.

-        10^th interviewee: I do not really know. I don’t know.

-        11^th interviewee: No idea, I never heard of it.

-        12^th interviewee: (…inaudible…)

-        13^th interviewee: This is the first I heard about it.

-        13^th interviewee: ICC means International Criminal Court.

-        14^th interviewee: The ICC is the International Criminal Court, based in The Netherlands, and it is responsible for arresting rebels who destabilise regions facing critical crises.

-        15^th interviewee: Yes, on TV. I saw an ad on TV. It is the International Criminal Court.

-        16^th interviewee: I don’t remember. I saw it a long time ago.

-        17^th interviewee: Not really but I know this is where we try people.

-        18^th interviewee: I already heard about the ICC. It is an organisation that deals with people who committed crimes against humanity.

-        19^th interviewee: The International Criminal Court is an institution that punishes offenders around the world.

-        20^th interviewee: Of course, we know the ICC quite well because it is an office among all the UN offices, which tries to catch those who violated human rights.

Journalist: Ladies and gentlemen, we are continuing our Vox Pop program and we continue to ask Goma inhabitants from various backgrounds, such as sales persons at the touristic market of Goma, students at the university, as well as various other people at the roundabout, and we are now at the Free University of the Great Lakes, ULGL-Goma. Hello miss, have you already heard about the ICC?

-        21^st interviewee: Yes, I have heard about the ICC. It is the International Criminal Court.

-        22^nd interviewee: I have heard about it but do not know what it is.

-        23^rd interviewee: The International Criminal Court is the Court who sentences big offenders.

 -        24^th interviewee: The ICC is, I think, a criminal court that tries offenders. Huh, this is all I know.

-        25^th interviewee: Yes, it is the International Criminal Court.

Journalist: Ladies and gentlemen, this Vox Pop program continues. We are now at the Free University of the Great Lakes of Goma with our roaming microphone and will now ask the same questions to academics of this university: what do inhabitants of Goma from various background know of the International Criminal Court, but also who do they know is under arrest by the Court. Hello, miss. Have you already heard of the ICC?

-        26^th interviewee: Hello. Yes, it is the International Criminal Court.

Journalist: Vox Pop continues. We will now see what was the correct answer to the first question concerning people’s knowledge of the ICC. We thank Sang-hyun Song, President and Judge of the International Criminal Court, who answered this question. Let’s listen to him:

-        The International Criminal Court is a permanent and independent criminal court, which was created by an international treaty to open investigations and to prosecute persons accused of having committed the gravest crimes affecting the international community as a whole, such as genocide, crimes against humanity and war crimes. The ICC does not substitute itself to domestic justice, it only complements it. It can investigate and, when necessary, prosecute and try persons that the state they are citizens of has not investigated because it does not have the capacity or the willingness to do so. The Court is competent for three crimes: war crimes, such as acts committed on a widespread scale, violating international conventions and laws of armed conflicts, such as the conscription of children as soldiers, torture, sexual violence, etc; crimes against humanity, which are crimes committed on a widespread scale against civilian populations, including for instance murder, forced population displacement, sexual slavery or forced prostitution; and genocide, which consists in the commission of criminal acts with the intent to destroy a group on the basis of nationality, race or religion.

ICC President Sang-Hyun Song

Journalist: Ladies and gentlemen, this Vox Pop program continues. We are now at the Free University of the Great Lakes in Goma with our roaming microphone and will now ask university students whether they know other persons the Court has issued arrest warrants against. Hello, miss. Do you know other persons against whom the ICC issued arrest warrants, aside from Jean-Pierre Bemba, Thomas Lubanga and Matthieu Ngudjolo?

-        1^st interviewee: Hello. No I do not know anyone else.

-        2^nd interviewee: I know Laurent Nkunda.

-        3^rd interviewee: No, I have no idea. Besides Bemba and those you named, I do not know anyone else.

-        4^th interviewee: Aside from them, I can say that there is also Bosco Ntaganda and Laurent Nkunda.

-        5^th interviewee: No I do not know anyone else.

-        6^th interviewee: Of course, the ICC issued other international arrest warrants against specific persons, especially against those who destabilised our province of North Kivu, such as Bosco Ntaganda, who was the rebel leader of CNDP, as well as his chief Laurent Nkunda, who also deserve to be prosecuted by the ICC because they both violated human rights.

-        7^th interviewee: Yes, I think there is one European dictator, Milosevic, as well many other persons, such as Charles Taylor, I think, and many other persons.

Journalist: Ladies and gentlemen, our Vox Pop program continues and we are now at the sports league roundabout of Goma. As you know, during this Vox Pop program, we ask questions and seek answers from the city inhabitants. The first question consists in knowing what they know of the International Criminal Court and the second relates to other persons the Court is prosecuting. Hello, miss. Do you know other persons the ICC has issued arrest warrants against, aside from Jean-Pierre Bemba, Thomas Lubanga or Matthieu Ngudjolo?

-        8^th interviewee: Hello. I know Laurent Nkunda.

-        9^th interviewee: Yes, such as General Bosco Ntaganda, Laurent Nkunda, the Rwandan President, Kagame, Paul.

-        10^th interviewee: Aside from Jean-Pierre Bemba, there are people from Congo [who were arrested] such as Bosco Ntaganda.

-        11^th interviewee: There is Jean-Pierre Bemba, there is Ngudjolo, I do not know the full name. There is Thomas Lubanga and others.

-        12^th interviewee: No, I regret, if I knew I would tell you.

-        13^th interviewee: I only know Mr. Ntaganda.

-        14^th interviewee: I hear a lot about Ntaganda, Laurent Nkunda.

Journalist: Vox Pop continues its path and, we continue to ask Goma inhabitants from various backgrounds and we are now at the Free University of the Great Lakes of Goma, ULGL. Hello, miss. Do you know other persons, besides Jean-Pierre Bemba, Thomas Lubanga and Matthieu Ngudjolo, against whom the International Criminal Court issued arrest warrants?

-          15^th interviewee: No, I do not know anyone.

-          16^th interviewee: I do not know enough people, but I can name Thomas Lubanga and Jean-Pierre Bemba.

-          17^th interviewee: Of course yes, for instance, Jean-Pierre Bemba, who is a candidate before the ICC. There is also Bosco Ntaganda, as well as the former Liberian President.

-          18^th interviewee: I can name Laurent Nkunda, for instance.

-          19^th interviewee: Yes, I know Thomas Lubanga.

-          20^th interviewee: No, I have no idea.

Journalist: To shed light on this question and get details in order to bring your more information we had the opportunity to talk to Luis Moreno Ocampo who willingly answered our question, in spite of his busy schedule:

-        In addition to these five arrest warrants, we have eight pending arrest warrants issued by the Court, which are the following: Bosco Ntaganda for crimes committed in Ituri, Joseph Kony and four other LRA leaders for crimes committed in Uganda. In Darfur, in addition to the arrest warrant against Omar El Bashir, we are prosecuting the former minister Ahmed Harun, as well as Janjaweed militia leader Ali Kushayb, who are indicted for crimes against humanity and war crimes.

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Host: Here is our happy ending; we are now reaching the end of our second Vox Pop program. Thank you for having followed our program; we also thank the authorities of the International Criminal Court who answered our questions in spite of their busy schedules. We also thank everyone who willingly answered our questions, at the market, the university and sports league roundabout of Goma. If you have any suggestions, comments or proposals on this program, you can contact us at 081 019 92 76 or 085 31 11 945. You can also email us at rtccolombe@yahoo.fr (repeat). Vox Pop programs are also available on the Internet at www.irfj.org (repeat). This program was produced by Colombe Radio, in cooperation with Interactive Radio for Justice. Alban Manengo Mbengala was presenting, and Romain Semakuba was our sound engineer. Our next appointment is next Tuesday at 8:30am and Thursday at 8pm. Ciao!

[Translated and transcribed by Sandrine Gaillot]

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Host: Dear listeners, hello and welcome to this Vox Pop on international justice. This program is produced by Tayna Radio, in cooperation with Interactive Radio for Justice, and is designed to focus on your concerns on justice. More specifically, Vox Pop programs will focus on the functioning of the International Criminal Court. Some questions were asked to a group of listeners of Tayna Community TV-Radio. Their answers will allow us to know what you understand of international justice. At the same time, it is your opportunity, dear listeners, to share your knowledge with your neighbours. You will notice that we ask experts to intervene and answer your questions in order for them to assist you in better understanding what is happening in those international trials. In the Democratic Republic of Congo, these questions are quite on point. As you know, four Congolese have been arrested and are in The Hague to be held accountable before justice. The North Kivu province, where conflict took place, is not forgotten. Crimes similar to those committed in Ituri continue to be perpetrated in this province. This is why we think that the theme of our Q&A on international justice will probably interest you.

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Journalist: With a view to evaluate the level of knowledge of our listeners concerning specific personalities, such as Thomas Lubanga, Matthieu Ngudjolo, Germain Katanga, Jean Pierre Bemba Gombo, Omar Hassan El-Beshir, we conducted a Q&A with some students of the University of Kasugho, USNDK. Let us now listen to how the first student reacted?

-        1^st student: The men you are referring to committed crimes against humanity, which means that they killed, raped and others are even known to have committed cannibalism.

-        2^nd student: Concerning these Congolese Patriots, the first thing I can say is that there was violence; they instigated violence against the Congolese population. This is a grave offence that we cannot support.

-        3^rd student: I do not really know because I am not really interested in politics.

-        4^th student: The main idea is that they are charged for having committed crimes against humanity. In fact, they are [sic] presumed guilty of such offences. I can detail the type of offences they committed. For instance, concerning Thomas Lubanga, he was charged of conscription of minor children in his armed group. Matthieu Ngudjolo, I think he was accused for crimes committed such as the massacre of young boys, burning of a village, and so on, approximately 10 kilometres before Kasenyi, on Lake Albert. This is what he has been charged with. Concerning Jean-Pierre Bemba, it is massacres, theft and looting committed by his troops in Central African Republic.

Journalist: Hello miss. Do you know anything about Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba, Matthieu Ngudjolo, but also Omar Hassan El Bashir? Do you have any knowledge of these personalities?

-        5^th student: Hello sir. Yes, what I know is that these people are Congolese rebels and [sic] Albert is the Sudanese president. These four Congolese are now under arrest at the International Criminal Court, ICC.

-        6^th student: What I know, all I know on these guys is that they are all being prosecuted for crimes against humanity.

-        7^th student: In reality I have no information on these people.

Journalist: On the same question, Kasugho village was not set aside; we visited its central market with our roaming microphone. It would have been a huge oversight to not inquire as to the level of knowledge of inhabitants on these various personalities. Let us now listen to this operation:

Journalist: Do you know anything about Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba, Matthieu Ngudjolo, but also Omar Hassan El Bashir? Do you have any idea about these personalities?

-        1^st interviewee: These people did not respect human rights and most of them enrolled children in their politico-military movements. For instance, Jean-Pierre Bemba is currently detained, as well as Matthieu Ngudjolo and Germain Katanga. They are all in The Hague.

-        2^nd interviewee: I know the persons you cited as politicians and president. In any case, I know them as being politicians.

-        3^rd interviewee: I have some idea of who they are. Concerning Germain Katanga, Ngudjolo and Jean-Pierre Bemba, all I know is that they enrolled children in the army, so they worked with children in the army.

Journalist: Hello sir. Do you know anything about Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba but also Matthieu Ngudjolo and or Omar Hassan El Bashir?

-        4^th interviewee: I know that they are currently detained at the International Criminal Court. Till now, El Bashir _ El Bashir is wanted, there is an arrest warrant issued by the International Criminal Court, but till now he has not been arrested.

-        5^th interviewee: These men committed crimes against humanity. This is what they have in common. This is probably the cause of their, huh, of their transfer to The Hague for them to be interviewed.

        6^th interviewee: Among these people, I can tell you that I only know one; it is Jean-Pierre Bemba. We heard that he committed cannibalism. Other than that, I do not know anything else.

-        7^th interviewee: I only know that these people were arrested and transferred to The Hague because they committed crimes against humanity. But what surprises me most is that we left their partners in crime, if I may call them that, such as other Congolese leaders, who also committed such crimes.

-        8^th interviewee: What I know of them is that they are Congolese nationals. You know, to access to power, especially in Congo, you always have to cause a rebellion. My sentiment is that they have a thirst for power.

IRFJ journalist Jeanne Pierre taking question - Kasugho

Journalist: It would also have been a grave omission to forget about the village of Kaheri. We also conducted investigations on the ground. Let us now hear how the listeners of Kaheri reacted to our Vox Pop.

Journalist: Do you know anything about Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba, Matthieu Ngudjolo but also Omar Hassan El Bashir? Do you know anything about these people?

-        9^th interviewee: No, I have no idea about these people.

-        10^th interviewee: I know some things about Jean-Pierre Bemba. First of all, I know that Jean-Pierre Bemba was the first vice-president of the Democratic Republic of Congo during the Transition and, during the elections, he was a candidate to the presidency.

Journalist: After having listened to various comments from the population on the first question of our Vox Pop concerning the level of knowledge of the population on personalities such as Thomas Lubanga, Germain Katanga, Jean-Pierre Bemba, Matthieu Ngudjolo, Omar Hassan El Bashir, let us now listen to details provided by the Prosecutor of the International Criminal Court, ICC, Mr. Luis Moreno Ocampo:

-        All these men are suspects of massive crimes. We intervened and issued international arrest warrants against each of these men. Our intervention consists in ensuring that these men are prosecuted and that victims are assisted, protected and respected. The people accused by the International Criminal Court are: the President Omar El Beshir, as the head of state of Sudan, who attacked billions of his own citizens. Thomas Lubanga, the leader of the Hema community in Ituri and president of the Congolese Patriotic Union, or UPC. Germain Katanga and Matthieu Ngudjolo, leaders of different groups: the FNI and the FRPI. And Jean-Pierre Bemba, president of the MLC, Movement for the Liberation of Congo, and former vice-president of the Democratic Republic of Congo, is being prosecuted for systematic and widespread rapes committed in Central African Republic. There is also Joseph Kony, leader of the LRA group, or Lord’s Resistance Army.

Journalist: As with the first question, we have followed the same path with the second one. However, we are now focusing on the degree of knowledge of our listeners concerning common offences committed by the subject of these investigations. Let us listen to the survey conducted among the students of USNDK .

-        1^st student: What they have in common with El Bashir is that they committed war crimes against humanity. This is a current topic. You understand that, given the current state of war in Darfur, there are talks that Sudan will split, because we hear about Sudan north and Sudan south, and everything that is taking place over there are crimes: war crimes against humanity.

Journalist: What is the infraction they have in common?

-        2^nd student: They are all accused of having committed war crimes and crimes against humanity, as well as the conscription of young children in the army.

-        3^rd student: The offence they have in common is to have instigated violence in the country. That we all agree on. But we demand that they reflect on this matter because every time there is a case at ICC it has to do with Congolese, it concerns Congolese, which is very serious. Here, for instance, in Congo-Brazza _ huh, in Central African Republic _ the president, well former president, Angel Felix Patassé is currently well guarded by his president, so much so that he can no longer be touched by the ICC. So we think that if our president could do the same, that would be good for us.

-        4^th student: The common infractions they committed was to commit crimes here and there. This is why some of them now end up in Holland, where they will have to face the consequences of what they did on their path.

-        5^th student: Common infractions? These people are accused of crimes against humanity. There were human rights violations, looting, rapes, and others, such as conscripting young children into the army.

Journalist: Concerning this same preoccupation, we also visited Kasugho, where we visited listeners who were willing to express their opinions on the question that leads us today. Let us listen to them:

Journalist: What infraction are they all accused to have committed?

-        1^st interviewee: They are accused of having violated human rights and waged a war, which was not justified. Jean-Pierre Bemba was arrested for the acts of his men. His army raped women and stole the property of the population who was peacefully living in CAR. Concerning president El Beshir of Sudan, you know that there is a war in south Sudan, where the Janjaweed are waging war, and the president El Beshir does not respect conventional rules, rules that are recognised around the world on how to conduct hostilities.

-        2^nd interviewee: Concerning their common infraction, I can say that it must be the use of young children in their armies. I think this is what they all committed.

-        3^rd interviewee: The offence they committed is that they killed and perpetrated crimes against humanity, in short.

-        4^th interviewee: What they have in common is that they committed crimes against humanity.

Journalist: What infraction are they all accused of having committed?

-        5^th interviewee: All are accused of having committed war crimes and crimes against humanity, as well as having conscripted young children into the army.

-        6^th interviewee: I know that these people you mentioned have all been transferred to The Hague. They have in common that they all committed crimes against humanity.

-        7^th interviewee: All these personalities have in common the fact that they committed crimes. These people massacred the population, if I may say so. They committed crimes against the population.

Journalist: As mentioned earlier, we ask experts to bring light to these answers collected among the population. Concerning the answer to the second question, we contacted the same personality that provided us details on the first question, Mr. Luis Moreno Ocampo, Prosecutor of the International Criminal Court, ICC.

-          What these people have in common is that they committed massive crimes against people in Darfur, in the DRC, in CAR as well as in northern Uganda. Lubanga, Ngudjolo, Katanga and Bemba have already been arrested by the Court. They are now in The Hague and their trials have started. The trials against Jean-Pierre Bemba will start soon. The charges against Thomas Lubanga concern the use of children as soldiers to fight, kill and rape. Matthieu Ngudjolo and Germain Katanga are accused of having destroyed Bogoro village, and of having committed war crimes and crimes against humanity, including murders, rapes and looting. Jean-Pierre Bemba is accused of several counts of war crimes and crimes against humanity, especially rape and looting. President Beshir is on the run. The ICC is accusing him of crimes against humanity and war crimes and we are currently discussing the need to include genocide charges.

In addition to these five arrest-warrants that I just listed, there are eight other arrest warrants that have been issued by the Court. These are: Bosco Ntaganda, for crimes committed in Ituri; Joseph Kony and four other leaders of the LRA, for the massive crimes committed in Uganda. In Darfur, in addition to our warrant against president El Beshir, we are prosecuting the former minister Ahmed Harun and the leader of the Janjaweed militia, Ali Kushayb, who are also accused of crimes against humanity and war crimes. The international community mandated us to render justice to those who are not protected, justice for those who cannot present their testimonies in other courts and tribunals, justice for victims of crimes in the Democratic Republic of Congo, justice for the victims of crimes in the Central African Republic, justice for the victims in Darfur and for the victims of northern Uganda. Our message is that we are listening to victims, we work for victims. Criminals, and all those who think they are above the law, will have to be held accountable. There will be justice for those victims.

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Host: It was Vox Pop on international justice, which gave you an opportunity to listen to your neighbours’ understanding of this issue. At the same time, you could listen to the explanations provided by relevant authorities concerned with your preoccupation. We thank all listeners who answered to our questions as well as the authorities who accepted to contribute to the production of this program. Let me remind you that this program stemmed from the partnership between Tayna Community TV-Radio and Interactive Radio for Justice. You can listen to it on your radio on the frequencies in Kasugho or in Goma, as well as on the internet at www.irfj.org. This program was presented by Jean-Pierre Kasere Kamatumo and produced by Trésor Issé. You can listen to us again, in Swahili, on Thursday 18 March 2010, from 5:10pm until 5:30pm.

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Host: Hello, ladies and gentlemen. Colombe Broadcast Radio, in cooperation with Interactive Radio for Justice, is now presenting you with a new program, Vox Pop, where you can express your opinions and views on international justice. In this program, we are roaming around Goma city with our microphone in order to inform and enlighten you. It is also your opportunity to find out about various opinions on international justice. As you know, some Congolese citizens are currently detained at the International Criminal Court, and others are still wanted. It is imperative and it is your right to understand the rationale behind these arrests and the progress of their trials at the Court.

For the purpose of this program, we have selected two questions presented by the community and presented them to the International Criminal Court to get answers. The two questions we selected for the first program are the following:

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 Journalist: Hello everyone, we are at the Instigo roundabout and continue our program Vox Pop, with our roaming microphone, going through the main points of interest and busy areas of Goma city. Hello sir, have you already heard of Jean Pierre Bemba Gombo, Thomas Lubanga, Matthieu Ngudjolo, or Omar El-Beshir?

 -        1^st interviewee: Hello. Yes I have already heard about them. In any case I know of them.

-        2^nd interviewee: I am not a politician (chuckles). I do not know how to express what I want to say because I am not so interested in politics. I only know of Bemba but do not know what to say about it.

-        3^rd interviewee: I only heard that he was in prison, I do not know more, I do not know what he did.

-        4^th interviewee: I know that he is being detained, really. He wanted to become president, but when he was [sic] taken hostage but we do not know where he is, what he did. We do not know. I went to a seminar where the crimes he did were explained to us, the fact that he conscripted minor children to serve as soldiers. I don’t mean for the crimes committed by Bemba, but concerning Thomas Lubanga I did participate in a seminar.

 -        5^th interviewee: I do not know the others.

-        6^th interviewee: Indeed, I have heard of these people.

Journalist: We are now at the university campus of Goma. Hello sirs. Have you already heard about Thomas Lubanga, Jean-Pierre Bemba Gombo, Matthieu Ngudjolo?

 -        7^th interviewee: Hello Mr. journalist. Yes I have already heard of these people.

-        8^th interviewee: Indeed, I heard of these personalities.

-        9^th interviewee: As far as know, Jean-Pierre Bemba was vice-president of the DRC and was arrested and transferred to The Hague a while ago. Thomas Lubanga is also a former warlord who operated, huh, mostly in North Katanga. He is also detained in The Hague. Germain Katanga also, and Matthieu Ngudjolo, are also former warlords who have been transferred to The Hague.

Journalist: Ladies and gentlemen, we are continuing our program Vox Pop. The first question, which, let me remind you, consists in knowing how many people have already heard of Thomas Lubanga, Jean-Pierre Bemba Gombo or Omar El Beshir.

-        10^th interviewee: Yes I have heard of them. Concerning Thomas Lubanga, I know that he is being prosecuted for crimes committed in Ituri. Concerning Jean-Pierre Bemba, I think he is prosecuted for crimes essentially committed in Central African Republic.

-        11^th interviewee: Of all these names, I only know that of Thomas Lubanga.

-        12^th interviewee: I know Jean-Pierre, but not the others.

-        13^th interviewee: Yes, I have already heard of Thomas Lubanga and El Bashir.

-        14^th interviewee: Yes, we have heard a lot about these people. Jean-Pierre Bemba, Thomas Lubanga. First of all, these people are Congolese. Concerning [sic] Thomas El Beshir, I know that he is a president. He is the Sudanese president. From what we hear, he is also a criminal because he continues to wage war in his country and the victims are his people, his citizens.

Journalist: In order to get further details and clarifications to enlighten you, we have had the opportunity to talk with Luis Moreno Ocampo who was willing to give us additional details in spite of his very busy schedule. Let’s listen to him:

ICC Prosecutor Luis Moreno Ocampo

-        The people accused by the International Criminal Court are: the President Omar El Beshir, as the head of state of Sudan, who attacked billions of his own citizens. Thomas Lubanga, the leader of the Hema community in Ituri and president of the Congolese Patriotic Union, or UPC. Germain Katanga and Matthieu Ngudjolo, leaders of different groups: the FNI and the FRPI. And Jean-Pierre Bemba, president of the MLC, Movement for the Liberation of Congo and former vice-president of the Democratic Republic of Congo. He is being prosecuted for systematic and widespread rapes committed in Central African Republic. There is also Joseph Kony, leader of the LRA group, or Lord’s Resistance Army. Lubanga, Ngudjolo, Katanga and Bemba have already been arrested by the Court and there are here in The Hague. Their trials have started and the one against Jean-Pierre Bemba will start soon. The charges against Thomas Lubanga concern the use of child soldiers to fight, kill and rape. Matthieu Ngudjolo and Germain Katanga are accused of having destroyed Bogoro village, and of having committed war crimes and crimes against humanity, including murders, rapes and looting. Jean-Pierre Bemba is accused of several counts of war crimes and crimes against humanity, especially rape and looting. President Beshir is on the run. The ICC is accusing him of crimes against humanity and war crimes and we are currently discussing the need to include genocide charges.

Journalist: Ladies and gentlemen, our Vox Pop program continues. After the Instigo roundabout in Goma we reached the Belegel roundabout. You have just heard the response by the Prosecutor of the International Criminal Court, Luis Moreno Ocampo, to the first question. We will now attempt to find out what inhabitants of Goma think about the second question.

According to you, what do they have in common?

-        1^st interviewee: I think that they are opponents.

 -        2^nd interviewee: I think that they all committed war crimes and crimes against humanity. This is why they are currently in The Hague.

-        3^rd interviewee: I think that Thomas Lubanga is being prosecuted in relation to a Uruguayan contingent, or something like that, a contingent of Blue Helmets who were on mission in Congo. Concerning Jean-Pierre Bemba, I think he is being prosecuted for crimes essentially committed in Central African Republic.

-        4^th interviewee: What they have in common? I don’t know.

-        5^th interviewee: They committed a crime.

-        6^th interviewee: I do not know but I do consider Jean-Pierre Bemba first and foremost as a dictator. It is a man who wants to impose [his rule], and do everything by force. I do not know if this is the case for all the others. I only know about Jean-Pierre Bemba.

 -        7^th interviewee: Yes, we hear that they have committed a lot of crimes against humanity.

 -        8^th interviewee: Huh, these people are criminals, huh, they deserve to be punished.

-        9^th interviewee: These people are heroes.

 -        10^th interviewee: They are opponents. I like Jean-Pierre Bemba for what he did because, first of all, he was first vice-president of the DRC. Second, he was also national deputy. So, I do not know how he ended up being arrested whereas he wasn’t the main person committing crimes.

Journalist: Ladies and gentlemen, Vox Pop continues its path and, for the second question of Vox Pop, we will ask other Goma inhabitants what they think Jean-Pierre Bemba Gombo, Omar El Beshir, Matthieu Ngudjolo and Thomas Lubanga have in common.

 -          11^th interviewee: I do not know, because politics does not interest me. I am less interested.

-          12^th interviewee: What I know concerning Jean-Pierre Bemba, we have heard it everywhere across our country. He was a great rebel leader; he participated in the elections and of course failed. He targeted high institutions, notably the Supreme Court of Justice. Even Germain Katanga, who committed crimes in Katan- huh, in Orientale Province, was arrested by the Supreme Court of International Justice in The Hague. This is what I have to say with regard to these men.

-          13^th interviewee: What these men have in common? They are politicians who deserve punishment because of what they did.

           14^th interviewee: They have in common that they committed crimes against humanity, such as forced conscription of children into armed forces.

 -          15^th interviewee: All I know about Thomas Lubanga is that he committed war crimes and crimes against humanity. This is all I know.

 -          16^th interviewee: I am not a politician but I know that Thomas Lubanga is a Congolese, like me, and he was arrested one day. I know that much.

-          17^th interviewee: I’d say that they are genocidaire.

-          18^th interviewee: What they have in common is that they are all arrested. I know that they committed crimes and are at the International Criminal Court, awaiting their judgment. These are personalities who committed crimes, and acts that the International Criminal Court considered to be grave.

-          19^th interviewee: I know that they are all arrested and at the International Criminal Court, the ICC. They have been accused of war crimes or crimes against humanity, or something to that effect.

-        20^th interviewee: I think that they have a dark story. We lived with these people here in Congo. First of all, I think they are criminals, I can call them criminals because they committed many crimes in Congo and everyone knows them, even new-borns know what these people did, which crimes they committed. They raped women, they killed many people here in Congo. They caused a lot of damage.

-        21^st interviewee: It is because the conscripted young boys to serve as soldiers.

Journalist: For this second question, we will continue with Luis Moreno Ocampo, who is the Prosecutor of the International Criminal Court:

 -        All of them are suspects of massive international crimes against civilians, in Darfur, in the Democratic Republic of Congo, in Central African Republic and in northern Uganda. In addition to these five arrest warrants that I just listed, there are eight other arrest warrants that have been issued by the Court. These are: Bosco Ntaganda, for crimes committed in Ituri; Joseph Kony and four other leaders of the LRA for the massive crimes committed in Uganda. In Darfur, in addition to our warrant against president El Beshir, we are prosecuting the former minister Ahmed Harun and the leader of the Janjaweed militia, Ali Kushayb, who are also accused of crimes against humanity and war crimes. The international community mandated us to render justice to those who are not protected, justice for those who cannot present their testimonies in other courts and tribunals, justice for victims of crimes in the Democratic Republic of Congo, justice for the victims of crimes in the Central African Republic, justice for the victims in Darfur and for the victims of northern Uganda. Our message is that we are listening to victims, we work for victims. Criminals, and all those who think they are above the law, will have to be held accountable. There will be justice for those victims.

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Host: It was Vox Pop, a program of Colombe Radio, in cooperation with Interactive Radio for Justice. Thank you for your reactions as well as to all the personalities of the International Criminal Court who were willing to bring their contribution to enlighten you on matters of international justice. You can follow this program on the internet at www.irfj.org and can also send us your views and suggestions by email at rtccolombe@yahoo.fr. You can also send us your views by phone at 081 019 92 76 or 085 31 11 945.

Q. Intermediaries seem to be very much in the news lately. What exactly is the role of the intermediaries?

A. They are in the ‘news’ in the courtroom because the Defense has chosen this issue of intermediaries as a line of defense. Intermediaries are people in the field who put the OTP in contact with potential sources and witnesses, and describe to the OTP the situation on the ground. They are just intermediaries. They do not investigate. They are not witnesses. They would be like a person who is dealing with child soldiers and who sees so many child soldiers with horrific experiences and they would tell them ‘there is a possibility, would you want to be in contact with the OTP of the ICC and may be tell your story and make it evidence in the case against Thomas Lubanga Dyilo?’

They are very committed persons, very supportive of international justice. We are very careful about who we choose as intermediaries and the allegations by the Defense against intermediaries will be absolutely refuted by the deputy prosecutor Fatou Bensouda in court. And she is adamant that we shouldn’t think that just because the Defense is saying that some intermediaries might have influenced the child soldiers, it happened.

We have to emphasize the risks which intermediaries take. It is not easy to be in Ituri [province in Congo], telling an [ethnic] Hema child who has been recruited and enlisted and forced to rape and kill by a Hema leader, that he might want to go to the ICC and be a witness. And so their situation is difficult in terms of protection and for that we the OTP admire them very much. But it should be very clear that they do not investigate on our behalf; we investigate ourselves.

Q. Does the OTP pay the intermediaries for the work they do on your behalf?

A. We pay for expenses. If they travel for the OTP, if they lose a month’s work for the OTP, they absolutely deserve to be compensated for that. For them trying to assist international justice is an additional burden and it also puts them in danger.

Q. We have heard it said that the Prosecution has probably relied too much on intermediaries in gathering evidence, and in getting witnesses; that there should have been more supervision of their activities, or less roles played by the intermediaries than they actually did.

A. Those saying that don’t know what our investigators are doing. They hear about intermediaries from the [Lubanga] Defense and they buy whatever the Defense is saying. I am saying the opposite: intermediaries are just what they are – intermediaries. They are fantastic and committed people mentioning to the OTP that those children’s stories may be deserve attention. And that’s great. I do not think that we should try to affect the reputation of those intermediaries. For our investigators, I don’t usually comment on what they do.

Q. The other day, Judge Adrian Fulford raised the issue of whether the intermediaries needed to remain anonymous anymore, given the central role they seem to have played. Do you think the anonymity should be lifted?

A. The intermediaries are the ultimate line of defense for the [Lubanga] Defense [team] because they have no other argument so they are fishing for arguments. And so their ultimate argument is that ‘maybe the intermediaries are the problem’. They haven’t proven that. They have made allegations about committed people who really care about international justice and child soldiers.

As I said, the Defense have used that as their ultimate line of defense. They don’t like what the child soldiers are saying and so they are telling us that may be those child soldiers were influenced. And I am saying that we have very courageous, very brave child soldiers who have managed to make a life after what they suffered. Not all of them managed – we have a lot of them who are absolutely lost to society, abusing drugs… We have girls that haven’t been able to come and testify because they are prostitutes living on drugs and we couldn’t have them accepted as credible witnesses in this trial. And I think our witnesses were very credible witnesses because they showed exactly the effect of recruitment of child soldiers on those children. So the Defense is talking about intermediaries, I am talking about child soldiers and what they suffered.

Q. About two weeks ago, Judge Fulford asked whether the Prosecution planned to call some intermediaries to testify given that there is so much being said about the role they allegedly played in corrupting evidence. Is this something you are considering?

A. At this stage no, since we try and prove to the judges that intermediaries did not corrupt anything and that those are all inaccurate allegations.

Q. So, we come to the Defense. They have accused you – the Prosecution – a couple of times of not honoring your disclosure obligations. They say you give them too little information, too late, and that this is not fair.

A. That’s very interesting because, in fact, in this ICC there is a very specific role of the Prosecutor which is new to them and to the world of international justice. We investigate both incriminating and exonerating evidence. That’s absolutely new. This is what the Statute says – the prosecutor has to do the whole investigation with incriminating and exonerating circumstances. That’s what we did and the Defense evidence is largely based on the exonerating evidence that we found and that we gave to the Defense. And the Defense’s case is largely based on those elements that we disclosed to them.

Prosecutor Moreno-Ocampo is an experienced prosecutor. He has disclosed all his exonerating evidence to the Defense and in a very timely manner. Of course the Defense has not done the same but as I said, we are very good prosecutors, we are very good investigators. We will survive the fact that the Defense has not respected its disclosure obligations entirely. We recognize that it is a weakness but we’ll survive that, we still have a strong case.

Q. We now would like to ask something related to that. The Defense have said they will ask judges to look at the possibility of stopping the case on the basis of abuse of process. Do you see them succeeding?

A. No way.

Q. Is it because there was no abuse of process or because that wouldn’t be sufficient grounds to dismiss the case?

A. There was absolutely no abuse of process. Prosecutor Moreno-Ocampo is a very accurate and fair prosecutor. And as I said, whatever case the Defense has, it was built by Prosecutor Moreno-Ocampo based on exonerating evidence. So this is just talk. I understand the Defense entirely, it’s their last chance but nothing is going to happen. Mr. Lubanga is going away for a long time.

Q. How long do you reckon he will be going away for?

A. It is very interesting because we are going to ask for severe punishment; remember the maximum sentence provided by the Rome Statute is 30 years.

Q. That is a long time…

A. It’s a long time because the responsibility is immense. A lot of people have asked us ‘why recruitment of child soldiers?’ ‘Why this particular charge’? Because it’s huge! Recruitment of a child soldier means you force children of 11 and 12 to kill, to rape and that’s all they know how to do. So what does it mean? It means a whole lost generation. You [could] have a generation of Congolese whose way of life is to rape and kill and maim and torture. That is a huge crime. And this is what he is going down for – for having driven this whole generation to violence – not only now, not only in the past, but if we don’t rehabilitate them and reintegrate them, for the future.

Q. There was an attempt to have a re-qualification of charges against Mr. Lubanga to include sexual crimes and inhumane treatment charges. Going forward, does the Prosecution think that there is a way in which these crimes can be put into consideration?

A. But they are in there. Recruiting child soldiers is a crime whose content has to be redefined. If you recruit a girl as a soldier, you are going to use her to cook for you, to provide sexual services to you and to go fight during the day. So in the recruitment charges, you include the inhumane treatment, you include the slavery, you include the sexual charges. It is time that we all recognized that.

Q. Will the Prosecution be advising the judges on that?

Q. We are. And not only us, but Radhika Coomaraswamy, the special representative of the UN secretary general on child in armed conflict, has told the judges very clearly her definition and conception of what a child soldier is. A child soldier is not only a child you use to fight; it is also a child used to service the commanders and soldiers in a number of unspeakable ways.

It seems to be very difficult to envision what the fate of a girl soldier is when she is enlisted. I remember a story told that when a commander wanted to punish a young boy for not having performed his military duties, he had to cook for a whole week for the group. So a punishment for a boy is to cook. For a girl soldier, that is not a punishment; that is her usual life in the camp. She has to cook for all the soldiers in addition to all the fighting she does during the day and to the sexual services she provides during the night. So, do not tell me that sexual charges are not included.

Q. Lastly, the Defence witnesses are mostly appearing in closed session yet the Defence had promised to have most of their witnesses testify in public. The defense were also quite critical of the Prosecution witnesses who testified with protection measures, saying many of these witnesses were just intent on telling court lies. Any thoughts on that?

A. I have thoughts for all witnesses. Of course our witnesses, a lot of them, were Hema children. It is a pity but they are still considered by most components of Hema society in Ituri as traitors. I regret it, you regret it, we all regret it, but that’s the way it is. So they had to be protected, their identity had to be protected, we had to move them. They are fantastic children, most of them had passed their exams, but we had to move them from Ituri region to other regions to protect them. To continue this protection we had to hide their identity.

But Lubanga knows who they are, and frankly I am amazed at the courage of the children. They actually were in the courtroom with Lubanga and you know, Mr. Lubanga, he is making signs to the audience, he is smiling, he is doing a lot of body language – it is very terrifying for the children to testify in front of him. So they have been very courageous but we definitely cannot show their identities to the public.

“First of all, the defense intend to prove to the chamber that many of the prosecution’s witnesses came before the court and testified knowing that they would be giving inaccurate information to the court. The defense also intend to show that some of this false testimony was fabricated with the assistance of intermediaries who collaborated with the Office of The Prosecutor.

With leave I will remind you that this trial begun a year ago and the statements made by the first witness were as follows: “The statements that I made before did not come of my own free will; they are statements from another person. I was taught these statements for three and a half years. I don’t like this. I would like to tell my version as I swore I would before everyone”.

In response to the extremely specific question from the presiding judge, and I will remind you of this question, I quote, “This morning you told the court that you had gone home after school and some soldiers from UPC abducted you and your friends. This story that you have told us, is it true or false?” The witness answered: “It is false”.

Even though this witness recanted, this initial statement by the first witness confirmed the investigations done by defense regarding the possibility that certain prosecution witnesses had been manipulated so that they would give false testimony. And I would even go so far as to say that the hearings in which we heard from prosecution witnesses and also thanks to the investigations done by the defense, this assumption has been confirmed even more.

Today the defence intend to provide the chamber with results of our inquiries. In particular we intend to demonstrate that all the individuals who were presented as child soldiers as well as their parents in some cases deliberately lied before this court. The defense intend to show that six of them were never child soldiers, the seventh lied about his age and the conditions in which he enrolled, and the eighth never belonged to the UPC.

Furthermore, the defense intends to show that the witnesses were encouraged to lie on a number of very specific points, in particular their name, the name of their parents, the schools that they said that they had attended, and this was done so that it would be more difficult to verify the information relating to them. They were encouraged to lie about their age and the fact that the allegedly belonged to an armed group so as to qualify for the charges against Mr Lubanga. The fact that their parents were dead when in actual fact apparently they are still alive. The fact that they were subjected to cruel treatment and that they were abducted, and this was done to make their accounts more dramatic.

They were also asked to claim that they could not read and that they did not remember specific details so as to make any possible verifications or comparisons extremely sensitive and extremely difficult to carry out. In our view the situation is of the most grave concern, the defense intend to begin its case by hearing from witnesses who will show that this false testimony was indeed fabricated. In particular, the defense will call the parents and friends of these so-called child soldiers, representatives of various schools as well as people who themselves took part at a particular point in this process of fabricating false testimony.

And for the defense I would say that the demonstration of this fraudulent process of preparing false testimony affects not just the evidence relating to child soldiers but also this demonstration will lead us to ask significant questions about the credibility of all the testimony that has been heard before this court.

Of course the defense are aware that they themselves could have been manipulated. It would appear that some witnesses may have come and given us false information for all kinds of reasons. The defense have endeavoured with the means at their disposal to collaborate the various sources of information. We have endeavoured to verify all the extrinsic and objective aspects of the testimony. We have done systematic verifications by visiting the schools where the alleged child soldiers said they had been educated. Our evidence will be subject to judicial scrutiny and the defense hopes in so far as possible that the scrutiny will be done in public.

After hearing the 16 initial witnesses, the defense intends to ask the chamber to draw the relevant legal conclusions of the situation, and they can be summed up as follows:

There can be no true justice if the very substance of the judicial process  [… ] if it is gangrenous in its most fundamental aspects. How can one ensure a fair trial when such a significant part of the trial is based on fabricated evidence? How can judges carry out their roles, that is to say seeking out and establishing the truth, if the testimony that they have heard are the result of concerted efforts to deceive them? Is this not a fundamental attack on the integrity of the judicial system?

Did the prosecution fail to carry out their duty to provide proper control and oversight over its intermediaries? And in particular did the prosecutor fulfil his statutory obligation to investigate   exculpatory evidence particularly from his own witnesses? Was the prosecutor not reckless by creating a situation whereby giving testimony before the court would mean receiving substantial material advantages? What are we to think of a judicial process in which a witness giving false testimony receives assurances that his identity will not be revealed to the public right from the very beginning of his cooperation with the prosecution?

At the appropriate time after hearing the first 16 witnesses the defence shall examine the possibility of bringing these serious matters before the chamber and will strive to determine whether the proceedings should continue. Are these proceedings in keeping with the fundamental objectives of criminal justice or are they not?

If the judicial process continues, the defense intends to indicate that we will not endeavour to show that there were no minors amongst the ranks of the FPLC. But the realities of that time must not be distorted outrageously as they were by the prosecution at the very outset when the prosecution made its opening remarks. One of the objectives of our defense will be to examine the causes and circumstances of the situation in a precise manner. We shall hear from the defense witnesses and thus it will be possible to review the various aspects of these matters and take stock of this phenomenon. The defence witnesses shall also shed light on these issues for the chamber particularly the role and the place of Thomas Lubanga with regard to the presence of minors amongst the soldiers of his organisation.

At this stage the defense will endeavour to answer two fundamental questions: First, Did Thomas Lubanga initiate the recruitment of minors into the UPC forces? Did he help recruit minors in one way or another? The defense witnesses will tender evidence to the effect that Thomas Lubanga the political leader played no active role in the creation of the UPC military forces and in no way did he take part deliberately in a common plan to recruit minors.

And our second question is as follows: what was the attitude that Thomas Lubanga took to the presence of minor children amongst the UPC troops? The defense witnesses shall provide evidence to the effect that Thomas Lubanga during the few months where he did have responsibilities did all he could to demobilize the minors who were present amongst the ranks of the FPLC. The witnesses shall also speak of the difficulties in implementing this policy of demobilization.

These are, your honours, the major thrusts of the defense of Thomas Lubanga.”

Just as background, here’s some basics on the Katanga and Ngudjolo trial:

On September 30, 2008, the ICC’s Pre-Trial Chamber I issued its decision on the confirmation of charges against Germain Katanga and Mathieu Ngudjolo Chui. Both are from the Lendu ethnic group, and both were charged with crimes against humanity and war crimes for their alleged role as co-perpetrators in the conflict in the DRC’s east.  The Chamber stated, “The purpose of the confirmation hearing is to ensure that no case proceeds to trial without sufficient evidence to establish substantial grounds to believe that the person committed the crime or crimes with which he has been charged. This mechanism is designed to protect the rights of the Defence against wrongful and wholly unfounded charges.”

The Pre-Trial Chamber confirmed that there was enough evidence to establish substantial grounds to believe that Germain Katanga and Mathieu Ngudjolo Chui were criminally responsible for:

1. Murder as a crime against humanity
2. The war crime of wilful killing
3. The war crime of using children to participate actively in hostilities
4. Intentionally directing attacks against the civilian population of Bogoro village, constituting a war crime
5. The war crime of pillaging
6. The war crime of destruction of property
7. Sexual slavery as a crime against humanity
8. Sexual slavery as a war crime
9. Rape as a crime against humanity
10. Rape as a war crime

The Chamber declined to confirm the charges of inhuman treatment as a war crime, outrages upon personal dignity as a war crime, and other inhuman acts as a crime against humanity. 

The trial started in November 24, 2009 and continues on Monday and shares a courtroom with the Lubanga trial.  Check the Aegis site for up-to-date information each day.