Over five years after the arrest of former Congolese warlord Thomas Lubanga Dyilo and two and the half years after the commencement of his trial in The Hague, the International Criminal Court (ICC) reached a significant milestone when on Friday August 26 2011, a three-judge Chamber, presided over by Judge Adrian Fulford officially closed the trial phase of the ICC’s first case after all parties to the proceedings made their closing statements. This takes the trial to its final stages—the judges will now retire to begin deliberations before a final trial judgment is delivered “within a reasonable period of time.”
Prosecutors allege that Mr. Lubanga is guilty of the war crimes of conscripting, enlisting and using children under the age of 15 years for armed purposes in the Ituri region of the Democratic Republic of Congo (DRC). Mr. Lubanga has denied these allegations.
Following submissions from the prosecution and victims’ representatives on Thursday, defense counsel for Mr. Lubanga presented their closing arguments on Friday, telling the judges that Prosecutors had not proved their case against the accused. Mr. Lubanga likewise rendered a concise, unsworn statement before Presiding Judge Fulford declared the proceedings at a close.
Two attorneys for the defense split their allotted two hours evenly, encouraging the Chamber to acquit the accused for evidentiary, legal, and procedural reasons.
Lead Defense Attorney Catherine Mabille rose first, recalling the five and a half years that Mr. Lubanga had been in the custody of the Court and declaring that the “long proceedings” against Mr. Lubanga had been characterized by “serious dysfunction” on the part of the prosecution.
Ms. Mabille maintained that the question before the Court was “whether the evidence matches the charges,” devoting much of her hour to arguing that the prosecution’s evidence was unreliable.
She insisted that prosecution witnesses – nine alleged former child soldiers – had lied to the Court, arguing that eight had never served in the Patriotic Forces for the Liberation of the Congo (FPLC)—the military wing of the Union of Congolese Patriots (UPC) and that the ninth had joined the FPLC only in 2003, and had lied about his age.
Explaining why so many witnesses might have lied to the Court, Ms. Mabille submitted that “in post-conflict situations, some individuals could be seduced by the prospect of gaining some advantage,” like financial assistance, educational opportunities, or even relocation arranged by the Court.
She added that prosecution witnesses lied “because they had been asked to lie,” recalling defense arguments that intermediaries working on behalf of the prosecution had coached witnesses in fabricating testimony.
Ms. Mabille alleged that although “the danger of false testimony is a danger in every court around the world” – and although testimony in this trial had reached a level of falsehood “unparalleled” elsewhere – the greater danger in the trial of Mr. Lubanga had been the Office of the Prosecutor itself. In this fashion, Ms. Mabille recalled the abuse of process motion submitted by the defense and invited the judges to affirm Mr. Lubanga’s right to a fair trial.
She clarified that the defense did not accuse the prosecution of intentionally encouraging witnesses to lie, but insisted that the Congolese government, through various intermediaries—non-ICC staff who helped the prosecution to identify witnesses—had created this problem before the Court. She wondered how an accused could receive a fair trial when Court intermediaries were simultaneously agents of the prosecution and agents of Laurent Kabila’s government, referring to the president of the DRC.
At the same time, the defense accused the prosecution of gross incompetence, observing that Mr. Ocampo himself had admitted that he never confirmed the ages of his witnesses because he had not considered the possibility that they might have lied to him. Scolding the prosecution for its shortsightedness, Ms. Mabille reminded the Court that the prosecutor is charged with investigating inculpatory and exculpatory evidence alike.
Despite the “meager resources” enjoyed by the defense, Ms. Mabille insisted that her team had investigated the ages of prosecution witnesses and learned that they were indeed older than they had claimed. Such a discovery impacted the reliability of the evidence submitted by the prosecution, evidence that in the defense’s view was “tainted” in its entirety.
Ms. Mabille concluded by suggesting that the prosecution “cannot seriously claim to have proven” Mr. Lubanga’s guilt beyond a reasonable doubt.
Co-defense counsel, Mr. Jean-Marie Biju-Duval then sought to re-characterize Mr. Lubanga as a political leader only, and as one who actively opposed including children among the ranks of soldiers.
Challenging the claim that Mr. Lubanga was individually responsible for the crimes with which he was charged as co-perpetrator, Mr. Biju-Duval submitted that FPLC commanders Mr. Floribert Kisembo and Mr. Bosco Ntaganda had already organized armed forces in the Ituri region before Mr. Lubanga had been made president of the UPC in the fall of 2002. Mr. Ntaganda, who is presently at large, is also a subject of an ICC arrest warrant for alleged crimes committed in the Ituri region of DRC.
As such, Mr. Lubanga had not been needed for the role the prosecution accused him of playing. According to Mr. Biju-Duval, Mr. Lubanga had been needed only “to play a role in the political activities taking place at that time,” and that UPC rebel soldiers had needed only “to be represented by a political leader they trusted.”
He then submitted that Mr. Lubanga had been commander-in-chief of the UPC “only pursuant to the [UPC] statute,” alleging that Mr. Lubanga had not exercised “effective control” over the armed forces. The defense asked the Court to believe that Mr. Lubanga lacked the “effective power to impose his will” on the armed forces.
Mr. Biju-Duval emphasized the voluntary enlistment of many young people in the armed forces, suggesting that “in any conflict when people rise up against their oppressors” there is a risk that people younger than fifteen will want to join the ranks.
He then sought to establish that the efforts Mr. Lubanga had made to demobilize the child soldiers had been sincere. Observing that Mr. Lubanga’s orders had been internal communications only, Mr. Biju-Duval dismissed the prosecution’s argument that these orders had been “for public relations purposes only” and lamented that Mr. Lubanga’s wishes had not been implemented due to “certain impractical difficulties and reticence.”
Mr. Biju-Duval concluded by submitting that “no word, no document” could prove that Mr. Lubanga is guilty of the crimes for which he is charged, insisting that “we cannot condemn or convict somebody who has always opposed” the participation of minors in armed conflict.
For the two and a half hour proceedings, Mr. Lubanga maintained the stoic demeanor that has characterized his attendance at these many hearings. When he finally rose to speak on his own behalf, he crossed his wrists at his waist and read, in French, from a short written statement prepared in advance.
Thanking the judges for the opportunity, Mr. Lubanga explained that he wished to “express his feelings” from throughout the proceedings, declaring that it had been “impossible” for him to recognize himself in the characterization submitted by the prosecution.
Although Mr. Lubanga acknowledged having taken leadership in the Ituri province during the period encompassed by the charges against him, he did so, he claimed, “only with a view to protecting what is dearest to every man, namely life.” In this way, Mr. Lubanga echoed the characterization of himself submitted by Mr. Biju-Duval not as a war criminal but as a man who had risen to defend a people wrongly oppressed.
Mr. Lubanga concluded his brief remarks by declaring, “Today I defer to the wisdom of your august court.” In doing so, he manifested the respectful attitude he sustained throughout his trial, a respect in marked contrast to the demeanor and behavior of other international criminal suspects who have stood trial in The Hague.
In concluding the proceedings, Presiding Judge Fulford displayed the gentleman’s touch that has characterized his courtroom leadership. He first thanked the stenographers and interpreters, whose contributions in the last two days he called “heroic,” and then acknowledged the extraordinary efforts of counsel on both teams, including those who never spoke in court but who had worked tirelessly behind the scenes.
Presiding Judge Fulford reminded the assembly that the Rules of the Court require only that the Chamber return their decision “within a reasonable period of time,” adding – with good humor – that he and his colleagues would offer no estimate since “this trial has shown we will surely get it wrong.”
With that, the judges exited through the door behind the bench, and bailiffs escorted Mr. Lubanga out of the courtroom and back to the ICC detention center near the coast in The Hague. There, Mr. Lubanga will await a judgment that, whether he is convicted or acquitted, will no doubt be appealed.
Jeffrey Pierce (Stanford Law School) and Alpha Sesay prepared this report.