“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.

Wairagala Wakabi: The appeals court has decided that no new charges could be brought against Mr Lubanga. Do you see a missed opportunity in Lubanga not having been charged with sexual and inhumane treatment crimes?

Luc Walleyn: After the appeal decision there was a new discussion on the consequences of this appeal decision and on Friday (January 8, 2010), a final decision was pronounced by the trial chamber saying that there were no sufficient elements in the decision on the confirmation of charges making it possible to change qualifications.

So indeed it is a missed opportunity. It is basically a failure of the Office of The Prosecutor (OTP). The OTP now also agrees with the importance of sexual crimes committed against female child soldiers and the inhumane treatment of children in training camps. But in the preliminary procedure OTP was only prosecuting the very fact of enlisting and conscription of children without entering into those circumstances.

WW: Would you say then that the efforts of the victims’ representatives in this regard produced some positive results?

LW: I am convinced that our initiative was not useless; we now have opened the debate on those circumstances. For our clients there is a big difference between just being enlisted in a military structure and their situation as many of them were abducted, and submitted to  inhuman treatment, even if [some of them might have] presented themselves for enlistment because of fear of being killed, poverty hunger, and other circumstances.

That’s why it was important to focus on the living conditions of those children in the camps, and particularly those of the girls. The practical consequence of our move is that these elements of the crimes will stay on the agenda and under court’s attention, but legally if Lubanga is convicted it will only be for enlisting and conscription.

WW: Now that the charges were not added, do you feel the issue of sexual crimes and inhumane treatment can still get adequate attention under the current charges?

LW: I think so. The court never said those elements were not present. The appeal chamber doesn’t say aggravating and mitigating circumstances of the crime cannot be taken into account by the trial chamber if they were not addressed by the decision on the confirmation of charges. The court can still consider those elements once it comes to punishment and when it comes to reparations. Only the qualification can not change. It is in fact quite a theoretical distinction because the punishment of conscripting and enlisting children is exactly the same as the one for all other crimes, under the Rome Statute.

WW: So will the victims’ representatives be taking any more steps on this issue or it is closed now?

LW: It is now a closed issue when it comes to qualification. It does not mean at all that we will no longer speak about sexual slavery and inhumane treatment of children during training. Even in the first part of the trial all the questioning by victims’ representatives, the prosecutor, the court and sometimes even the defense, included those elements.

WW: I would now like to draw your attention to criticisms from the defense: they feel victims should mainly play a role in the reparations phase and that so far the victims have wrongly sought to play the role of prosecutor. What’s your comment on that?

LW: The role of the victims before the ICC differs from the one before the ad hoc tribunals where there is no other role for them other than a role of witnesses, but also from the role in some legal systems from the civil law tradition, where civil parties have exactly the same rights as the prosecutor….The chamber was very careful when elaborating on the issue of victims’ participation to stay in the spirit of the Rome Statute. Modalities of victims’ participation were also confirmed and drafted by a decision of the appeal chamber. So we now have a legal framework that becomes more and more clear.

Of course it would be more comfortable for the defense not to have victims participating in the debate on the guilt or innocence of the accused. But it would be much more uncomfortable for them if they were in a civil law system where victims can have much more rights than we have in the present procedure.

WW: So then, are the victims also planning to question defense witnesses?

LW: We will have some questions for the defense witnesses. We can’t question in the same conditions as the prosecutors, and this is very comfortable for the defense. We have to ask for permission to question a witness. We used the possibility during the Prosecutor’s case in the framework the trial chamber decided and it will be the same for the defense case.

WW: And what makes you decide whether or not you would like to question a particular witness?

LW: We have to prove that we have an interest in questioning that witness. For example, if one witness says Mr Lubanga is a very nice man of a high moral standard, that is not our problem, so we will not question such a witness. But if he says that in a particular camp where my client was trained, that training was done in a very civilized way without beatings, without inhumane punishment, then I will want to question him. Because such a statement has an impact on the position of my client and even on the claim of reparation he could make in future.

WW: in your view, why is it important to have victims participating in a trial such as Lubanga’s?

LW: For the court, it is quite important to also have the voice of the victims in order to have a view of the reality of the situation. Without victims’ participation the trial is a confrontation between on the one hand the international community and the other someone who claims being the representative of his people. When victims can say ‘no Mr Lubanga you were not representing us and your decision to force Hema children to join an armed group was not in the interest of the community and was not in the children’s interest’, then you have a different picture. There is no conflict between African people on one side and international community on the other side, but between one person accused of serious crimes and ordinary African people and victims of those crimes, with the international community in the role of protecting and supporting these victims. This is also the aim of the Rome Statute.

That’s theory of course. But also in practice you can see clearly that the questioning of the Prosecutor is not the same as the one of the representatives of victims. The Prosecutor will be very interested in the chain of command and the individual responsibility of the accused, but much lesser in what the reality on the field was for children in armed groups. Finally it is important for the communities who are following the trial to hear the voices of those victims and to understand that these young people who were in that group are not to be considered as criminals but as victims.

WW: Do you feel you are getting sufficient cooperation from the Office of The Prosecutor (OTP) and the defense team?

LW: At the beginning both the OTP and defense were very reluctant when it came to victims’ participation and we had a lot of debates. Now OTP admits the role of victims was not to disrupt the trial or to abuse procedures, that the victims had a realistic and useful approach to the trial. So we now have a more positive attitude from the side of the Prosecutor than we had at the beginning of the trial.

But there is no cooperation at all from the defense. The defense only gives victims what the court orders them to. They feel there should be no victims’ participation at all unless after a decision on the guilt of the accused when victims take part in discussions on reparations. That is their starting point and the result is that there is no cooperation from their side in disclosing information. Even today we do not know the names of the witnesses the defense will call, or even the issues they will be questioned on, yet for each witness we are supposed to decide a week in advance whether to ask for permission to question that witness or not. During the first part of the trial everything we got from the defense, we had to work for a decision from the court.

WW: The attitude of the defense team is probably understandable…

LW: It is a choice of the defense; I respect that. But a more open cooperation between parties than we have today is not necessary against their interest. Also victims’ counsel are bound by ethics and a duty of confidentiality. But anyway it is a choice and I can only accept it.

WW: The defense team has also spoken out against the frequency of closed sessions during the prosecution case, saying they could have covered up some witnesses who want to tell the court lies. Are the measures for witnesses excessive, or are they just sufficient to protect witnesses?

LW: The very fact that the case is broadcasted in the DRC and watched widely makes protective measures more necessary than in a normal situation. A protected witness can be living in another city in DRC with a new identity; if his face is seen on the internet then this identity is no longer protected.

Also the Defense admits the necessity of closed sessions. I don’t remember even one time the chamber decided to go into private session and the defense protested against that. And when it comes to the defense case I am convinced not all their witnesses will testify in open session.

WW: With regards to the issue of reparations, could you please give us an idea how this will play out?

LW: The issue of reparations is a completely new issue. Also the victims themselves have to debate on the ways that reparations will work. The Rome Statute makes it possible to have individual reparations but also collective reparations; financial compensation but also other forms of reparation. And the Victims Trust Fund will play an important role in that.

Unfortunately, reparations for ex-child soldiers will always come too late. When 20 years old, one cannot return to the primary school. Also collective reparations are less easy than when a village or community was victimized as a whole. Those children belong to the community of the accused. So I think most of them will prefer financial compensation to be in the possibility to survive and to start some business, although also medical and psychological relief is important.

Here’s a brief round-up of the first batch of articles to emerge:

Radio Netherlands picked up the issue of the particular plight of the girl soldier, as discussed by Ms. Coomaraswamy in her testimony today, by focussing on the individual story of one girl soldier – identified by the psuedonym ”Yolande” – in Ituri, DRC. She tells of being raped by a militia soldier and taken as his “wife”. Yolande also said the soldier taught her how to shoot people, or else be killed herself.  The article discussed the ICC’s Trust Fund for Victims projects in the DRC and Yolande’s desire to see punishment for the leaders of the war.  See the story by Hélène Michaud here: http://www.rnw.nl/english/article/lubanga-trial-monster-stole-my-childhood.

The Associated Press focussed on Ms. Coomaraswamy’s statement that court cases like Lubanga’s and those at the Special Court for Sierra Leone (which also prosecuted the recruitment of child soldiers during the West African nation’s conflict which last more than a decade) is having an impact on decisions made by armed groups about releasing child soldiers from their grasp out of fear of prosecution themselves: http://www.seattlepi.com/national/1103ap_eu_war_crimes_congo.html

Meanwhile the AFP discussed Ms. Coomaraswamy’s assertion that the recruiting of child soldiers was “particularly abusive” because “[t]he lack of the concept of death makes them fearless in battle, often thinking of it as a game and rushing straight into the line of fire.” You can read the full article here: http://www.google.com/hostednews/afp/article/ALeqM5gjtGOGph7LouRtPN3u5C2AFg2zoQ

Meanwhile, freeland journalist Sheila Valez wrote an overview piece on the Lubanga trial which was published on AllAfrica.com and was ranked its “most read” article on the DRC today.  She gives life to the feeling of sitting in the courtroom in The Hague and watching the trial unfold.  In providing background to the trial and to Thomas Lubanga himself, she arrives at the conclusion that the trial does matter: “Whatever its outcome for Thomas Lubanga, the message this trial sends is new: Use children as soldiers, even in a war as lawless as that in the Congo, and one day you may forfeit your liberty.  So for anyone who values children, the future of our world, this trial matters.”  The article is available here: http://allafrica.com/stories/201001060050.html

The case with resume again tomorrow with another expert witness, before three victim participants will testify.  The defense case will likely begin in earnest by mid month.

Between January and July last year, we heard horror stories from prosecution witnesses, often former child soldiers, who told of life as a child soldier in the UPC militia camps – the rapes by camp commanders; children abducted on their way to school and forced into the life of soldiers; the physical scars inflicted on them in battle, and the hidden psychological ones which emerged as they returned to their communities, only to be rejected by their families and friends. Prosecutors allege that Mr. Lubanga is responsible for the crime of enlisting, conscripting and using child soldiers in his militia force. Mr. Lubanga has pleaded not guilty.

Mr. Lubanga’s defense will likely not begin for at least another week – but it is worth contemplating: why is his side of the story important?

The first reason is one articulated by his lead defense counsel, Catherine Mabille, in her opening statement last year.  Mr. Lubanga has the right, like all accused persons, to be presumed innocent until and unless he is proven guilty. Mr. Lubanga has pleaded not guilty to the charges against him, and will defend that plea in the coming months.  But Ms. Mabille lamented on the second day of his trial in January 2009 that she feared that her client had already been declared guilty by the media. “In the press he is already convicted, convicted before being tried. And in the eyes of a vast majority, as soon as there is an arrest warrant and as soon as the charges are confirmed and the matter is committed to trial, the presumption of innocence disappears,” said Ms. Mabille.

Other basic rights accorded to Mr. Lubanga under the Rome Statute — the key document setting out the law and operations governing the ICC — include his right to “raise defences and to present other evidence admissible under this Statute.” Mr. Lubanga’s defense team is expected to call around 30 witnesses to testify on his behalf.  Wairangala  Wakabi, an independent  journalist reporting for this site, wrote earlier this week aout some of the themes which may be expected to emerge in the coming months: “Lubanga’s defense team is expected to dwell on discrediting testimony by prosecution witnesses that Lubanga was the overall in-charge of the political and military affairs of UPC, and that he took part in conscripting and using children under the age of 15 years in inter-ethnic fighting. The age of some of the witnesses who were presented as former child soldiers is also likely to be contested, as are the circumstances under which they became members of the UPC militia.”

In the larger picture, it is important for the ICC’s legitimacy as a fair and independent tribunal that Mr Lubanga be seen to – and does in fact — receive a fair trial.  And that includes the opportunity to put forward a spirited and aggressive defense.  It also requires the media, judges and other observers – to remember that in the eyes of the law, he remains innocent unless the judges decide otherwise at the end of the trial.

Meanwhile as the trial goes ahead in the ICC’s courtroom, on this website we will be providing commentary from the ground in the DRC throughout the defense case.  This will include independent analyses of political and legal issues in the DRC which better place the trial in context.

As of February, this will also include three sets of monthly “voxpops on international justice” thanks to our new partner, Interactive Radio for Justice, that operates radio programming in the DRC and elsewhere in the Great Lakes.  People in the DRC will tell us what they think of the Lubanga trial and the ICC, and the audio files (with English translations) will be posted on this site.  That way, Congolese voices of those in areas most affected by the crimes with which Mr. Lubanga is charged, can be heard simultaneously with the trial going forward.

We also wish to thank the Institute for War and Peace Reporting-Netherlands for their great work reporting on the site last year during the prosecution case.

DRC project coordinator Charles Mukandirwa and office assistant Backar Burubi met with lawyers, NGOs, journalists, students, religious leaders and local chiefs from July 26-August 3 to introduce them to the project and get their views on the trial and the International Criminal Court

It was clear that people had little information on the Lubanga trial but were nonetheless extremely interested in the latest developments in The Hague.

They also had many questions for the project team.

Pascal Munoka of the NGO Action pour le Développement des Communautés Paysannes asked why the ICC has not prosecuted those responsible for mass killings in Makobola and Kasika in 1998. He also wondered why those who worked with Lubanga were not on trial.

We also met with various student organisations to explain the project and the website. They asked whether it is only Lubanga who is responsible for crimes in Congo and whether his trial could be fair since he has been accused of crimes by the DRC government. They also wondered why only Africans are in The Hague.

At Ligue Nationale de la Jeunesse, a youth organization which operates across the country, they said the ICC is having little impact on the ground because of the slowness of its legal proceedings and its failure to communicate with local people about the trial or its investigations. Pablo Muke, Trish Mastaki and Joel Mapatano agreed the IWPR/OSI joint project could help fill that information void.

NGO worker Yvette Kabuo Tsongo from Réseau des Femmes Pour la Défense des Droits et la Paix believes Congolese are losing confidence in the ICC because of its poor visibility.

The meetings were followed by a day of exchange that gave local groups a public forum to share their views on international justice and the Lubanga trial. Attended by 51 people, the discussion was a lively one. Participants said that before the Lubanga trial project they had little access to information about the ICC and the trial and they would use what they had learned in their professional activities.

One topic for discussion was the failure of the United States, Russia and China to ratify the Rome Statute, meaning its citizens are unlikely to stand trial there.

The participants had numerous questions for the project team including:

• Why is it only the Congolese arrest warrants have been executed?
• Can an NGO make a complaint to the ICC or is it only the president who can call in the court?
• Has the court arrested any of Lubanga’s associates?
• Does the ICC not understand that its poor visibility has a negative impact – particularly with regard to the recruitment of children into militia groups?
• Why has the ICC prosecutor decided to charge Lubanga only with recruiting children?

At the end of the day participants evaluated the discussion and made recommendations for IWPR Netherlands and OSI regarding the future of the project which they hoped would continue throughout the trial. They asked it be extended to target more rural areas of South Kivu and expanded to include the upcoming trials of Germain Katanga, Mathieu Ngudjolo and Jean-Pierre Bemba.

They also urged IWPR to continue its radio programme on international justice, Facing Justice, and consider expanding it to television to increase its audience.

Similar events are planned around the country in the coming months as it is clear that Congolese need more information about the ICC and should be given the opportunity to join in the ongoing debate about international justice.

The project team in late June hosted a similar exchange in the North Kivu provincial capital Goma where IWPR-OSI has recently opened its office. As in Bukavu, around 60 participants said they were interested in the ICC but had little information on the hearings in The Hague.

The impressions so far in North Kivu province from both civil society and the legal community is that there is little knowledge about the workings of the ICC in The Hague but a great interest in finding out more.

A representative from the sexual violence NGO Synergie des Femmes pour les Victimes des Violences Sexuelles, SFVS, in Goma said she needs more information about the court in order to properly inform the victims with whom she works.

“Sometimes the victims want to understand if the ICC can provide justice to them and how. The problem is that we do not know a lot about the ICC.”

When asked if other NGOs were better informed, another SFVS representative said no. “We are all in the same situation. They don’t get access to the right information about the ICC and the Lubanga trial,” she said.

SFVS and others told us they are concerned at the slow pace of the Lubanga trial and questioned why victims are still waiting for justice and reparation more than three years after Lubanga was taken to The Hague.

“If there were a judgement it would be better for the victims but also for Lubanga, because there is a need for him to know his situation. It is too slow the way the ICC is dealing with crimes in DRC,” said an SFVS member.

CRONGD, a network of development NGOs that promote peace and justice, also has concerns. We met the executive secretary of CRONGD at his office. He was happy to talk about the ICC and the Lubanga trial but also believes the court is not moving fast enough, particularly in the Kivu provinces.

“We have heard that the ICC has also started investigation in the Kivus, but why is it slow? And why does it not execute the previous arrest warrants against some people?”

A representative of the Justice and Peace Commission praised the lubangatrial.org project and expressed the need for more information on the ICC in general, the Lubanga trial and Congo’s own justice system.

“We appreciate the ICC’s work,” he said. “The ICC can reach very powerful people our justice could not reach, but the work is slow.

“I don’t know the development of the Lubanga trial because I have no documentation on it. 

“I participated in an exchange day on the ICC two years ago. It was interesting but since then, I have not gotten another opportunity to learn on the ICC and the different trials there. Could you provide some information that can help us understanding how we can contribute to the prosecution of the other criminals?”

Another member of the civil society added, “There is lack of information not only of Lubanga’s trial but also on the ICC activities. We would like to have information, but we don’t get any.

After such meetings we can conclude that the need of information on the ICC and the Lubanga trial is great.

The 20 NGOs and media groups we have met agree on the fact that there is a lack of information on the Lubanga’s trial that Congolese people don’t know much about what is going on at the ICC, despite the fact that most of the detainees in The Hague are Congolese. This is also the case for people who should be more interested in the trial, like lawyers and leaders of NGOs.

We also understand that the local actors support the IWPR and OSI project to disseminate information on the Lubanga trial as but would like it extended to include the Congolese justice system. “Why only speak about the Lubanga trial? Why not speak about the Congolese justice system?” asked Immaculée Biraheka from the Programme d’Appui aux Initiatives des Femmes, PAIF.

When asked about the IWPR and OSI joint project on the Lubanga trial, one civil society activist answered, “It is a good project. We support the idea. We would like you to help us accessing information on the trial and on the ICC’s activities. If you have some material to give to us, it would be wonderful.”

Charles Mukandirwa Wetemwami is the www.lubangatrial.org liaison officer based in Goma, DRC.

Lubanga’s trial began on January 26 with the opening statements of seven victims’ representatives. The victims are mostly former child soldiers, but others also include family members, a school which former child soldiers attended and the headmaster of that school. Under court rules private entities including schools can participate as victims and are classed as “legal persons”.

For the most part, their opening statements focused on the harm suffered by the victims, on the victims’ rights to truth, justice, compensation, recognition of the harm they suffered, rehabilitation and protection. Lawyer Carine Bapita stressed the importance of giving victims a voice “to tell what they have been through, the distressing situation in which they found themselves, how they were mistreated, and how they were rejected by their community”.

While the opening statements would have been a perfect opportunity to tell individual victims’ stories, few representatives actually did this, with some opting instead to talk about the conflict in the DRC in general, issues of criminal liability and the reasons why child soldiers were used.

In addition, six of the seven victims’ representatives also mentioned the rape or sexual abuse of girl soldiers, even though Lubanga is charged solely with the recruitment of child soldiers.

Presiding judge Adrian Fulford did not seem to take issue with the reference to these additional crimes. However, defence lawyer Catherine Mabille, did not take kindly to the “oratory” of the victims’ representatives, saying in her opening statement the next day that their words amounted to anonymous accusations against her client for charges he isn’t supposed to be facing in the present proceedings.

Recognised victims are allowed to present their “views and concerns” at stages of the proceedings which the court deems appropriate, provided that participation doesn’t interfere with the rights of the accused to a fair and impartial trial. It is worrying, however, that many representatives used their opening statements to make reference to crimes not included in the charges against Lubanga, thus raising concerns on his right to a fair trial.

On the plus side, while perhaps not exactly providing a voice to victims to tell their personal stories, the questions of their representatives to witnesses have not been unduly burdensome or invasive on the accused’s fair trial rights.

To date, victims’ representatives have posed questions to five witnesses -three former child soldiers, a father of a former child soldier, and most recently, a psychologist who testified on post-traumatic stress disorder.

Some of these questions have been rather obscure, and it is occasionally unclear as to how they fall within the remits of presenting the “views and concerns” of the victims represented.

For example, one witness, a female former child soldier, was asked a rather specific question as to whether she was given the opportunity to change her clothes during the four weeks of her training. She replied that she stayed in the same unwashed clothes she was abducted in for the entire time.

Moreover, the expert witness was asked whether the onslaught of post-traumatic stress disorder would be affected by the belief that those who one is killing have specific magical or spiritual attributes, or that those who had given the orders to kill possessed such powers or attributes. Aside from raising a point of interest, it is difficult to see how this question illustrates the represented victims’ personal suffering in any way, but perhaps some light will be shed on the matter if and when victims introduce their evidence in the coming stages of the trial.

More controversial and of concern to the defence is the introduction of evidence by victims. While this means of participation was confirmed in January 2008, and re-confirmed in the appeals chamber decision of July 2008, it is clear that counsel for the accused finds it highly disagreeable.

Mabille told the trial chamber that the evidence which the victims are to introduce after the prosecutor is “something we [defence counsel] know nothing about”. How it will work out in practice remains to be seen.

However, access to documents has possibly been the most contentious issue with regard to victim participation throughout the trial to date.

On January 18, 2008, pre-trial chamber one ruled that victims could have access to confidential filings in the case, provided that they could show a personal interest in gaining such access, and that access would “not breach other protective measures that needed to remain in place”. Victims would also get advance notice of the list of documents which are expected to be referred to during witness testimony.

The victims’ lawyers went on to request notification of all filings except those that are ex-parte – known only to the chamber and one of the parties. This was denied in an April 8, 2009 decision, as was the request for access to all documents which either party intends to rely upon in the trial. Judges reconfirmed that victims lawyers must make advance requests for specific documents.

The April 8 decision appears to restore victims to their true position as participants, and not full parties to proceedings, and retains the balance between victims’ rights and the rights of the accused.

However, should victims be allowed introduce evidence after the prosecution concludes its presentation of evidence, this will raise serious concern for defence counsel and fair trial advocates alike, particularly if continued mention is made to sexual violence crimes.

One can only hope that the trial chamber strives to ensure that the participation of victims for the remainder of the trial does not prove unduly burdensome on the right of the accused to a fair and impartial trial.  

Yvonne McDermott is currently undertaking a Ph.D. in international criminal law at the Irish Centre for Human Rights. The views and opinions presented here represent the personal views of the author and do not necessarily reflect the views and opinions of either the Open Society Justice Initiative or IWPR-Netherlands.

Indeed, it is becoming increasingly possible that Ugandans could eventually appear at The Hague-if not as defendants, then as witnesses-over their country’s well documented involvement in the Ituri region of DRC.

Since the trial of accused Congolese militia leader Thomas Lubanga began in late January, Uganda has been mentioned as having sponsored, trained, and armed his militia, and in so doing made it possible for Lubanga to commit the crimes for which he stands accused.

Uganda’s involvement in the DRC from 1996 to 2003, which has been detailed in various United Nations reports and condemned by the International Court of Justice, has been highlighted during the ongoing trial of Lubanga.

When they entered Congo in the mid-1990s, Ugandan troops occupied much of the Ituri region, controlling it through proxy militias such as those associated with Lubanga.

Early on, Uganda and Rwanda teamed up to back former DRC president Laurent Kabila, who overthrew Mobutu Sese Seko’s regime.

Uganda then proceeded to help itself to resources in Ituri, which is well documented in UN and Human Rights Watch reports, systematically removing some of the region’s gold, diamonds and timber.

A UN panel implicated several Ugandan military commanders, many of whom have very close ties to the upper echelons of the Ugandan government.

Accused of plunder, Uganda has been ordered by the International Court of Justice to pay compensation, which remains undetermined and unpaid.

Perhaps the Office of the Prosecutor at the ICC should take a keener interest in Uganda’s past activities in Ituri.

According to testimony given in Lubanga’s trial, Ugandan commanders helped Lubanga establish his group, train his fighters, and obtain arms.

Now the Ugandan protégé is at The Hague facing war crimes accusations related to the conscription and use of child soldiers.

While the Ugandan army has been mentioned by a number of witnesses in Lubanga’s trial, the most explicit connections are found in a video recorded in 2003 and screened at the trial in February.

It showed Lubanga accusing Ugandan troops of arming child soldiers in various Congolese militia groups. In the video, Lubanga said Ugandans had plundered Congo’s resources and encouraged conflict between different Congolese ethnic groups.

Lubanga is not the only former protégé of Ugandan commanders currently facing international justice.

Jean-Pierre Bemba, whose rebel forces at one time held nearly one third of Congolese territory, is another. Uganda worked closely with Bemba as an ally, arming his Movement for Congolese Liberation (MLC) training his fighters, and providing troops to fight alongside his group.

Bemba now stands accused of war crimes and crimes against humanity, including rape, torture, murder, and pillaging.

These alleged crimes were not committed in the DRC or during actions that involved Ugandans, however. Rather, they were in the Central African Republic in late 2002 and early 2003.

While much of the Ugandan connection to the events in Ituri occurred before the ICC’s mandate took effect in July 2002, Uganda did not formally withdraw from Ituri until a year later in 2003. And, its involvement continued through more subtle means.

Though Uganda’s presence in Ituri is well documented, there has been a reluctance by the ICC, in particular the prosecutor’s office, to explore and expose what appears to be Uganda’s critical role there.

Despite that reluctance, however, it is conceivable that based on existing UN reports and the accumulating weight of testimony at the ICC, some Ugandans in the army could be investigated, charged, or called as witnesses at the ICC over their earlier involvements with Bemba and Lubanga.

As Lubanga’s attorney, Jean-Marie Biju-Duval, argued at the start of his client’s trial, government leaders in Uganda and Rwanda who provided weapons and support to disparate Congolese militia groups are culpable in the crimes committed in that country.

But would Uganda be prepared to hand over officials indicted by the ICC?

Some African countries have been hesitant to transfer suspects to The Hague, based on the idea that peace and reconciliation should be promoted, rather than a blind commitment to the principles of justice.

This line of thinking is what Congolese authorities offer for their reluctance to hand over indicted militia leader Bosco Ntaganda, Lubanga’s former confidante, who has been charged with crimes similar to those Lubanga is accused of. It is also the position taken by some African leaders who oppose the ICC arrest warrant for Sudanese president Omar al-Bashir. They say it complicates the delicate peace process in southern Sudan and Darfur.

That pressure is steadily increasing as the testimony of former child soldiers continues to point to Ntaganda’s key role in the militia of Thomas Lubanga, who is currently being tried by the International Criminal Court in The Hague.

Lubanga has been on trial since late January, accused of conscripting and using child soldiers in his militia in 2002 and 2003.

Ntaganda, who was indicted by the ICC in August 2008 for similar crimes, has repeatedly been named by child soldiers testifying in the Lubanga trial. Yet Ntaganda remains free in the eastern DRC.

The Congolese government is currently in the process of incorporating Ntaganda’s militia into the national army and appears reluctant to hand him over to the ICC, despite his arrest warrant and testimony implicating him in war crimes.

At least three witnesses in the Lubanga trial have described Ntaganda as playing a pivotal role in Lubanga’s Patriotic Forces for the Liberation of Congo (FPLC) militia. Witnesses in The Hague have said that Ntaganda arranged weapons for fighters, gave orders for attacks on Lendu villages, and used child soldiers as bodyguards.

These testimonies come as calls are growing locally and internationally for Ntaganda’s arrest and hand-over to the ICC.

Last week a group of Congolese human rights organizations opposed plans to integrate Ntaganda and his fighters into the national army. They said there could be no peace in the country unless justice was done regarding Ntaganda his troops.

At The Hague, one former child testified that it was Ntaganda who gave orders to the soldiers who kidnapped him and several other children, and that Ntaganda regularly inspected their training camp.

And when the soldiers fought at a village called Lipri in which their junior commander was killed, Ntaganda sent them more arms.

Also last week, a witness who told court she was conscripted at the age of 13 said that when she and others finished training, Ntaganda appeared at their camp and took them to attack Lipi, which she described as a Lendu community where the villagers were only armed with bows and arrows.

The witness also said Ntaganda commanded the battle of Mongbwalu, a gold mining town where she described the fighting as fierce.

According to the witness, her unit stayed in Mongbwalu for some time after capturing it. “There was lots of money and gold mining, so we had to stay in Mongbwalu for a long time,” she said.

Another witness whose role in the militia was not given, but who seemed to have been senior because he testified that he visited Lubanga’s residence an average of three times a week, also implicated Ntaganda.

Ntaganda had direct access to Lubanga’s quarters, the witness said, and was escorted by bodyguards, some of whom were 13 and 15 years old.

Although Ntaganda broke from his former commander, militia leader Laurent Nkunda, who is currently in custody in Rwanda, Ntaganda’s role as one of the two top commanders of Nkunda’s militia should also not be forgotten.

Nkunda’s militia has been accused of using sexual violence as a weapon of war, as well as kidnapping pupils from schools and conscripting them into its ranks.

In addition, in November 2008, Nkunda’s fighters were accused killing more than 100 civilians in the village of Kiwanja. The militia has denied the charge, saying the dead were Mai-Mai militia fighters.

Failure to capture Ntaganda and deliver him to The Hague would be a travesty of international justice.

It could bolster opposition to the ICC that already exists in Uganda and Sudan, regarding the arrest warrants for leaders of the Lord’s Resistance Army in Uganda and Sudanese president Omar al-Bashir.

Ironically, President Kabila’s government has in the past cooperated with ICC requests, handing over people such as Lubanga, who had abandoned fighting to join the government, just as Ntaganda is negotiating to do.

Congo also handed over Germain Katanga and Matthieu Ngudjolo Chui to the ICC, both of whom are accused of war crimes and crimes against humanity.

But Kabila, struggling to pacify his country after a decade of debilitating conflict, is waffling on Ntaganda.

His regime has indicated that the need for peace in eastern Congo-the unfortunate theatre of Lubanga and Ntaganda’s deadly enterprise-is more important than the capture and delivery of Ntaganda.

Kabila’s seeming reluctance to arrest Ntaganda, who is often seen in the town of Goma and regularly meets with Kabila’s ministers, points to a president who appears willing to sleep with the enemy, if that is that is the price for peace.

Unfortunately, impunity in Congo will not end and peace cannot be secured if Ntaganda-the perpetrator of gross human rights violations-is allowed to go free after making a deal with the government.