In an historic moment — the first day of the first trial at the International Criminal Court — the chief Prosecutor, Luis Moreno Ocampo, introduced his first case. He described the ground-breaking nature of his case, the importance of the charges against Thomas Lubanga – the war crimes of conscription, enlistment and use of child soldiers — and the importance to the international community to hold alleged perpetrators to account for the serious crimes committed against children. He described the terror experienced by child soldiers allegedly recruited by Mr. Lubanga into militia camps, particularly of girl children — the rapes and sexual slavery, the stigmatization, the unwanted pregnancies and in some cases, the turn to prostitution when upon returning home, they were rejected by their families and communities. He detailed the brutality of the conflicts in which child soldiers actively participated — the beatings, the killings, the looting, the rapes.
Mr. Ocampo was followed by his Deputy Prosecutor, Ms. Fatou Bensouda, who outlined background and existence of an armed conflict in Ituri during the period relevant to the charges, the mode of liability, and Thomas Lubanga’s knowledge of the crimes committed. She described the Lubanga case in its context in the Congo – the unfolding of a massive international conflict in which nine states were involved and resulted in the deaths of approximately four million people between 1998 and 2004 – as well as an internal armed conflict from 2002 onwards, as peace negotiations were still ongoing. Mr. Lubanga, she argued, started his own Hema militia and attacked the Lendu ethic group in Ituri, eastern DRC, with the aim of enlarging Hema control over land and its minerals. In the course of that attack, Ms. Bensouda said, Mr. Lubanga acted as a co-perpetrator – allegedly conspiring with others in a common plan to maintain and expand military control over Ituri — the implementation of which included the conscription, enlistment and use of child soldiers to participate actively in hostilities. Mr. Lubanga, she argued, played a critical role in controlling the recruitment and use of child soldiers as the plan was implemented.
Interesting note: As Mr. Ocampo rounded off the prosecution’s opening statement following Ms. Bensouda, he gave warning to the defense: “the Prosecution anticipates to call for a severe punishment, very severe, close to the maximum.” The reason: “the massive crimes litigated in this International Criminal Court, with hundreds or thousands of victims, with entire communities affected, warrant very high penalties,” Mr. Ocampo said. In this case, “Lubanga affected not just one child. Lubanga affected an entire generation, and this must be reflected as a powerful aggravating factor in his sentence, if convicted.”
The entire transcript for the opening day of the trial, of whichMr. Ocampo and Ms. Bensouda’s opening statements were a part, can be found in full here: http://www2.icc-cpi.int/iccdocs/doc/doc623638.pdf.
MR. LUIS MORENO OCAMPO (Chief Prosecutor): Mr. President, your Honours, the Prosecution will present evidence proving beyond any reasonable doubt that Thomas Lubanga Dyilo committed crimes under the Rome Statute. He committed some of the most serious crimes of concern for the international community, crimes against children.
The evidence will prove that between 1st September 2002 and 13 August 2003, Thomas Lubanga systematically recruited children under the age of 15 as soldiers in his political military movement called Union des Patriotes Congolais, UPC, and its armed militia the Forces Patriotiques pour la Liberation du Congo, FPLC. 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 suffered, what they saw, what they did. They were 9, 11, 13 years old. They cannot forget the beating they suffered. They cannot forget the terror they felt and the terror they inflicted. They cannot forget the sounds of their machine-guns, that they killed. They cannot forget that they raped and that they were raped. Some of them are now using drugs to survive. Some of them became prostitutes, and some of them are orphaned and jobless.
However, some of them will come to court to be witnesses. They will come to confront the past crimes and the present prejudice, in particular within their communities. It takes courage. They will tell the Court what happened to them. They will speak for themselves and for all the others, for those who could not overcome the past or face the present.
They will tell you the facts. First, the facts about enlistment and conscription. They will explain how they were abducted and transported to military camps controlled by Thomas Lubanga. You will hear from a boy who just — was just 11 when Lubanga’s militia abducted him as he was walking home from school with his friends. Another boy will tell you how he was abducted while playing football with friends.
You will hear from a girl who was 13 when she was abducted whilst trying to flee from attacks in Bunia. Let me quote her statement to our investigators:
“I fled together with my family … we were with a lot of people and then I got separated from my family and everybody was running away … then some soldiers came out of the forest and they stopped us on … on the road. And they … captured us, me and some other girls and other boys and some other younger boys. And then they took us.”
Hundreds of children, some of them abducted, some of them enlisted, I quote, “voluntarily” were transported by Lubanga’s militia to more than ten different training camps in and around Ituri. There, Lubanga’s men use beating and killings to force the children to follow orders.
As the Pre-Trial Chamber established, the act of conscripting and enlisting continues to be committed as long as the children remain in the armed group.
The Prosecution will present evidence showing the meaning of remaining in an armed group, the environment of terror that Lubanga’s men created in the camps. In the following section, in this section, I will use some quotes to illustrate this environment.
Mr. President, your Honours, the children will tell you the facts, the facts about training. As one of them described:
“During our training, discipline was also very strong. If you were beaten 250 times with a stick, they will say you were beaten only a little.”
“Soldiers will often give you an order for you to assault your friend. If you refuse, they will say that you refused to follow orders and they will beat you.”
Finally he said:
“I was beaten twice during my stay at Bule. The first time was when I informed them I was sick and needed some medication. The soldiers got some sticks and beat me saying, ‘Here is your medication.’ The other time was when we had to present our weapon for inspection. I did not have some bullets as they were stolen from me. The commanders then ordered that I was beaten.”
You will hear how a child soldier younger than 10 was shot by one of Lubanga’s men because he lost his weapon.
You will hear another boy telling what happened to those who tried to escape. I quote:
“They caught him on the road, and they brought him back, and in front of everybody they killed him … they said, ‘In the army you are not supposed to run away, so he’s here as an example.'”
The children were terrorised. One child said to our investigators:
“Many times during my training I thought about escaping, but I was scared as those who were caught were often beaten to death.”
He saw three young boys and one girl who were beaten to death with sticks in front of everyone.
In order to ensure obedience to any instruction, Lubanga’s commanders ordered the children to beat and kill fellow child soldiers. As one witness said:
“I remember on one occasion … we found a former soldier about my age who had escaped. We arrested him, and a commander … instructed to us take him back to the camp and beat him … we beat him all over his body and head. We did it without control or aiming at a particular part of the body. It was well known that if you escaped and were caught you were beaten. I was just following an order.”
You will hear former child soldiers describing how the first thing they were taught was that their gun will be their “father and mother” and could feed and clothe them. A child witness said to our investigators:
“As I did not understand how a gun could do so many things, a boy explained to me that the instructors were using this expression to mean that we had to kill the enemy with our gun and then pillage what they had, so taking their food and clothes.”
As soon as they arrived at the camps, the commanders informed them that if they did not — if they did not pillage, they will not eat properly. A boy will explain:
“Hunger would start to bother you. And then you will go inside somebody’s house, and then you will threaten those people and ask for money … and take their goods.”
The Prosecutor will follow a map, a map showing places in Ituri where Thomas Lubanga’s group trained the children who will testify. The map show first the entire Congo, and then will focus in where is Ituri and the camps. And now I will show the list of the camps. The source of this map are just the testimony of the children. They are in Centrale, Mandro, Rwampara, Irumu, Sota, Barriere, Lopa, and Bule. But the office — I’m sorry, you missed the map.
The office will present further evidence suggesting the existence of additional training camps under Thomas Lubanga’s control. Important, whenever the children were recruited, they ended up in these places. Such complex operations moving hundreds of children around all these camps reflect the sophisticated organisation that Thomas Lubanga managed.
Mr. President, your Honours, let me explain the meaning of participating in hostilities using again the voice of the children. Once the training had ended, the child soldiers were issued a uniform and a weapon of their own. They were ready to participate in military operations or to become bodyguards of senior officials or be employed in any other military duty that was deemed fit.
The children’s testimony and other evidence will show that Lubanga used child soldiers to actively participate in hostilities. 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 Lendu because the Lendu were the enemy.
One former child soldier explained to us:
“The first time I shot the gun it hurt. It hurt my ears a lot. The more I shot, the more my ears would hurt.”
“They also taught us to kill the person so they will die on the spot. We should shoot them in the middle of the forehead.”
Another child described being ordered to kill:
“Well, on that first time, I was very scared. But then they told us that we should go on doing it, so then I … came to see that’s something normal, but I still got scared all the time. It was just the commanders who kept pushing us forward … pushing us to go on and fight.”
A child soldier explained:
“You did not really have a choice. If they told you, ‘You have to go,’ you would go, because if you tried to refuse … they will kill you there.”
Another child told us how during fighting at Lipri the commanders:
“… Really encouraged us to rape women, and the commanders will send to look for women. So we took them and brought them to the camp, and then we did those bad things.”
Pillaging also occurred during combat operations as commanders would give orders to kill and loot during the attack. Child soldiers who were present in Lipri indicate that before the attack the recruits were clearly instructed to take all the goods they found in the village. After, the looted goods were gathered for the commanders. Sometimes they were instructed to burn everything.
Let me show another map. The following map shows you some of the places where the children fought.
Children participated — in the period between 1st September 2002, August 13 2003, children participated in the attacks on Nyankunde, Libi, Mbau, Kpandroma, Songolo, Zumbe, Kasenyi, Lonio, Mandro, Centrale, Lipri, Solenyama, Katoto, Lopa, Largu, Marabu, Iga-Barriere, Bogoro, Chai, Lenga, Fataki, Bunia twice, Djugu, and Mongbwalu. Children were also used to provide security. Children were used as bodyguards.
The Prosecution will show your Honours as a visual aid few excerpts of a video. They present clearly the scenes where the crimes occurred. It will allow this Court to see the extent to which the children were part of the military operation when protecting Lubanga as he moved around Bunia.
The Prosecution will play a few scenes showing Thomas Lubanga leaving a reception and you will see his bodyguards in a truck.
MR. MORENO-OCAMPO: This is Thomas Lubanga leaving the meeting. There’s a car with some bodyguards, but then after the car this truck is coming. You see the meaning of bodyguards. They are bodyguards in a war zone. That’s why it’s a military operation. But important also to see the weapons, the number of people in the truck, but I like you pay attention. We did in slow motion this visual aid. Then you can pay attention to the two kids in the back. At least these two are manifestly under 15 years old.
Before I conclude my presentation on the facts, let me address the particular issue of sexual violence in the context of child recruitment and the fate of girl soldiers enlisted, conscripted, and used in combat by Thomas Lubanga’s militia.
In the camps child soldiers were exposed to the sexual violence perpetrated by Thomas Lubanga’s men in unspeakable ways. As I said before, young boys were instructed to rape. In the training camps, girl soldiers were the daily victims of rape by the commanders.
Girl soldiers, some aged 12 years, were used as cooks and fighters, cleaners and spies, scouts and sexual slaves. One minute they will carry a gun, the next minute they will serve meals to the commanders, the next minute the commanders will rape them. They were killed if they refused to be raped. One child soldier became severely traumatised after killing a girl who refused to have sex with the commander.
There were very little girls. You will hear that as soon as the girl’s breasts started to grow, Thomas Lubanga’s commanders could select them as their forced wife. “Wife” is the wrong word. And they were sexual slaves, and transformed them into sexual slaves.
One of our witnesses will describe how he observed daily examples of his commanders raping girl soldiers. You can still meet many of them in the Democratic Republic of Congo. Some of them kept as so-called wives by the commanders, some of them in the streets of Kinshasa and Bunia, rejected by their community and struggling to make a living as prostitutes. These girl combatants are left on the margins of many disarmament, demobilisation and reintegration project. As emphasised by the special representative of the United Nations Secretary-General Ms. Radhika Coomaraswamy in her amicus brief to this court, girl combatants are too often invisible, because they’re also wives and domestic aids and slip away or are not brought forward for demobilization programmes.
Mr. President, your Honours, it is a responsibility of the Office of the Prosecutor of the International Criminal Court to prove the crimes committed against the most vulnerable, and during the course of this trial my office will make it its mission to ensure that Thomas Lubanga is held criminally responsible for the atrocities committed against those little girl soldiers when he enlisted and conscripted them to be used as sexual prey when he used them in combat.
Your ruling in this case can change the life of these girls.
Never again should they be left out of the assistance provided by the demobilisation programmes. In this International Criminal Court, the girl soldiers will not be invisible.
Mr. President, your Honours, these are the facts. Let me now turn to the law to be applied.
In 2004, in a landmark decision, the Special Court for Sierra Leone concluded that recruiting children under the age of 15 was a crime under customary international law at least since 1996.
“Recruiting” is a term used by the Geneva Convention and the Convention on the Rights of the Child. After careful analysis, the drafters of the Rome Statute more precisely defined the way children are obtained as soldiers by replacing recruiting with “conscripting or enlisting.”
Under the Rome Statute, crimes related to children in armed groups can be committed in three ways without making any distinction as to gravity, by conscripting children or by enlisting them or by using them to participate actively in hostilities.
Conscripting, forced recruitment as described by the Pre-Trial Chamber, implies compulsion, albeit sometimes in the form of general rules. It could apply to abductions but also to Thomas Lubanga’s decree that all Hema families had to contribute a child to his armed group. It is a crime.
Enlisting, voluntary recruitment as described by the Pre-Trial Chamber, means accepting and enrolling children when they volunteer or when they are volunteered by family. Enlisting, it is also a crime.
The Rome Statute renders irrelevant that children joined “voluntarily,” or that parents entrusted them “voluntarily” to the Lubanga militia. Accepting for military service so-called volunteers under the age of 15 constitutes criminal conduct.
In reality, there was no free will for those children and their parents in the violent context of Ituri. Power belonged not to the law but to those bearing weapons. The oppressive environment deprived freedom of choice of its meaning in the same manner as it would — as it would deprive consent of a woman to sexual intercourse with a militiaman of any meaning. There were repercussions, including death threats, to the refusal to give a child to be a soldier. In some cases family members were killed or their goods looted.
But the Prosecution will not need to argue in this regard. As decided by the Pre-Trial Chamber, consent is not a valid defence for recruitment of children under 15. There is no such thing as lawful, voluntary enlistment of children under 15 in the Rome Statute. There is no such thing as lawful conscription of children under 15 in the Rome Statute. The prohibition is absolute and suffers no exception.
This issue, Mr. President, your Honours, has been argued and settled legally by the drafter of the Rome Statute nearly 11 years ago. With this provision, the Rome Statute has exhaustively defined the crime. The Court can now affirm, once and for all, that voluntariness, also called consent, is not a valid defence and such a ruling must be a cornerstone of protection for children in war zones.
Mr. President, your Honours, let me now turn to the meaning of active participation in hostilities.
Originally, the Geneva Conventions and commentary addressed the issue by establishing a causal link between the active or direct participation in hostilities and the consequences on the opponent, the harm done to the enemy. They were concerned with defining the obligations of adverse parties in a conflict. Indirect participation, such as a war effort of an entire nation through its war industry, was not included.
In more recent years, and especially since the 1996 report of Graca Machel to the United Nations on the impact of wars on children, the international community’s concern has turned back to the right of those principally affected, the children.
The crux of the matter is to both ensure that those children, whatever the function they perform, are recognised as child soldiers and benefit from all the protection afforded to child soldiers under human rights law, while ensuring at the same time that they keep the widest protection afforded to civilians under international humanitarian law. It is, for this Court, a challenging mission.
Hostilities can include the use of children to guard military objectives or the safety of military commanders. The Prosecution will follow the jurisprudence established by the Pre-Trial Chamber on the meaning of active participation.
Mr. President, your Honours, let me now move to the age requirement. Different witnesses will express that the presence of child soldiers in the Thomas Lubanga militia was massive. The Lubanga militia was an army of children. Estimations fluctuate, but around 30 per cent of soldiers in the Lubanga militia were child soldiers. The commanders themselves called the child soldiers “kadogo.” According to the Swahili-French dictionary, “kadogo” means “tres petit, minime.” The Swahili-English dictionary defines “kadogo” as “a small child; microscopic; midget; miniature.”
Establishing the specific and conclusive dates of birth for most of the kadaogos is not needed by the law. What is required is to prove that they were under 15. As a result of the conflict, most of them never had a birth certificate or lost any identity document. They were displaced, their homes burned, their families lost. State and school records in the Ituri region were largely destroyed. To prove they were under the age of 15, the Prosecution has relied on different sources including testimonies, videos, documents, and scientific analysis.
Videos filmed between September 2002 and August 2003 will show the presence of child soldiers manifestly under the age of 15 in Lubanga’s military compounds or their use as bodyguards. The Trial Chamber will also hear the evidence of nine former child soldier witnesses who were under 15 when they were taken by Lubanga’s men. The Prosecution will present documents, testimony, and forensic analysis based on an X-ray of their bones and teeth. They will consistently, with the inevitable difference of a variety of authentic sources prove that the children were between 11 and 15 years old at the time of their recruitment. For instance, one of the children stated he was 12 at the time and the X-ray indicates he was between 11 and 12. In another case, a child said he was 11, his birth certificate said 12, his cousin and the forensic study says 14. The range demonstrate that the threshold established by the law is met.
To conclude this section, the Prosecution will show your Honours a few brief video excerpts showing Thomas Lubanga visiting the Rwampara military training camp on 12 February 2003. The video shows a training camp that is isolated from the village population. All of the children seen in this video are soldiers. Those who have weapons, those who carry sticks, and those who carry nothing, all of them are soldiers. Those with uniforms and those without, all of them are soldiers. They are assembled to receive their Commander-in-Chief, Mr. Thomas Lubanga. You will see Thomas Lubanga there.
You will also see Bosko Ntaganda, one of the co-perpetrators, still at large, wearing purple. Let me show the video.
MR. MORENO-OCAMPO: This is Thomas Lubanga addressing them. He is in his uniform and all around are the soldiers. This is Bosco Ntaganda in purple. You see behind him there’s no house. The camp is isolated from the village. You see these two are girls. These two are under 15. The Prosecutor will prove that. And this is — this now is the boy. You started to see the others. You start to see who are under 15. These ones. This one, way under 15, way below. This one, this one, this one. We go like this because he is behind. This one, this one, this one. This one, this one, this one. This one, who like this other, because he is so small you cannot see him.
Let me play now a few scenes of Thomas Lubanga leaving this — leaving the Rwampara camp followed by his bodyguard. Watch the child while he tries to put his weapon in the back of the truck. He’s so short that his chin does not even reach the edge of the truck. See the video.
MR. MORENO-OCAMPO: Thomas Lubanga leaving, taking his car. The bodyguards are in the other car. See the children. He cannot see the other side of the truck. Under 15.
In sum, the Prosecution will prove beyond a reasonable doubt that between 1 September 2002 and 13 August 2003, children under the age of 15 years old were enlisted, conscripted, and used to participate actively in the hostilities by the armed group led by Thomas Lubanga.
Mr. President, your Honours, with your permission, Deputy Prosecutor Fatou Bensouda will now present the background and existence of an armed conflict in Ituri during the period relevant to the charges, the mode of liability, and Thomas Lubanga’s knowledge of the crimes committed.
MS. FATOU BENSOUDA (Deputy Prosecutor): Thank you, Mr. President. Mr. President, your Honours, the Prosecution will now address the existence of an armed conflict in Ituri between September of 2002 and August of 2003.
The armed conflict in Ituri is connected with the 1994 genocide in Rwanda and the two Congo wars. All of them are rooted in history and colonisation. Let me summarise, Mr. President, some key aspects.
After the genocide, hundreds of thousands of persons, including some leaders and perpetrators of mass killings, fled to Rwanda to the two Kivu provinces in the eastern part of the country then called Zaire. Some started to plan attacks against Rwanda, triggering the First Congo War, and this was in 1996. Uganda and Rwanda supported a Congolese rebel group led by Laurent-Desire Kabila against Zaire’s ruler Mobutu Sese Seko. They reached Kinshasa and ousted Mobutu in May of 1997.
The second war started in 1998 after relations between Laurent-Desire Kabila, the new president, and his former allies deteriorated. Rwanda and Uganda withdrew to eastern Democratic Republic of the Congo, an area that is rich in natural resources such as gold, diamonds, coltan, timber and oil. Rwanda consolidated its presence throughout the two Kivus, and Uganda did so in large parts of Province Orientale, including Ituri.
At least nine African countries and many local militias involved in those wars. From 1991 onwards, the Kivus and Ituri were under the control of a political/military movement, the Rassemblement Congolais pour la Démocratie – Mouvement pour la Libération. This is supported by Uganda and Rwanda.
Close to 4 million are estimated to have died in the DRC between 1998 and 2004, in particular due to starvation and disease resulting from war. This, your Honours, is considered the highest number of civilians killed as a consequence of war since the Second World War.
In April of 2002, the States involved in the conflicts and some of the main Congolese armed groups started discussions in Sun City in South Africa. Ituri was represented by a leader of the Rassemblement Congolais, Mbusa Nyamwisi. He became a member of the new government of national unity under the leadership of Joseph Kabila. Lubanga and his groups were excluded.
Under the Sun City agreement, the Ugandan army withdrew from the DRC in June of 2003 and the second Congo war ended. However, your Honours, from 2002 onwards, and despite the ongoing peace negotiations, a sustained and extensive armed conflict persisted in the Province Orientale, including in the District of Ituri. Lubanga had organised his own group, the UPC, in September of 2002 — excuse me, your Honours. In September of 2000. And he received support from Uganda. In January of 2001, he joined the Rassemblement Congolais government as the minister for youth and sport, and later was appointed defence commissioner. He deliberately used his position to incorporate hundreds of Hemas into the army of the Rassemblement Congolais.
In April of 2002, when he was excluded from the Sun City deal, Lubanga was ready to move. He broke away from the Rassemblement Congolais, taking with him its loyal Hema soldiers. Integrating other small militias, Lubanga built his own army. Lubanga, supported by the Ugandan army, then turned against the Rassemblement Congolais, and in August of 2002 chased them out of Bunia.
Mr. President, your Honours, the evidence will show that from the 1st of September onwards, Lubanga and his co-perpetrators, with the goal of maintaining and enlarging their control over the area, launched attacks against the Lendu, the other large community living in Ituri, who had also formed militias.
Massive violence then developed in a context characterized by the lack of national government — national government control over the territory, the involvement of foreign troops, and the struggle to control the natural resources.
The Prosecution will tender evidence showing that more than 8.000 civilians were deliberately killed or were victims of indiscriminate use of force in Ituri from January 2002 to December of 2003.
Mr. President, your Honours, in order to demonstrate the existence of an armed conflict, the Prosecution will tender documents into evidence, including the United Nations Security Council Resolutions confirming the existence of the armed conflict in Ituri during the relevant period.
Consistent with the Trial Chamber’s decision of 13 December 2007 and the amended document containing the charges, the Prosecution will present the totality of its evidence relating to both international and non-international aspects of the conflict. The evidence will enable the Chamber to determine whether the Ugandan occupation of Ituri between the 1st of September, 2002, and early June 2003 transformed the character of the conflict into an international armed conflict.
The Prosecution will lead evidence proving that the Ugandan army has been an occupying force, substituting its own authority for the authority of the Democratic Republic of Congo government.
The Prosecution will also show, your Honours, that Uganda and Rwanda officials supported different armed groups involved in the conflicts in Ituri. They provided military training and expertise, weapons and ammunition, uniforms and financial support.
You will hear, your Honours, of the training received by Lubanga’s officers in camps in
Ituri, in Uganda, and in Rwanda. You will hear Prosecution witnesses describe the parachuting of weapons and ammunition from Rwanda planes around the military training camp at Mandro and explain the connection between Bosco Ntaganda and the Rwandan authorities.
The Prosecution, your Honours, will also tender evidence to show that Ugandan officials supported Lubanga, and this they did from 2000 to at least the end of October 2002 and that Rwandan officials provided support between mid-2002 and mid-2003.
The evidence will show the operational support provided by Uganda. It will also show the support provided by the army, as well as the break up of this relation, a relation, your Honours, full of manoeuvres. The Uganda government arrested Lubanga in June of 2002 and sent him to Kinshasa with nine of his supporters at the time of the Sun City discussions.
At the same time, your Honours, on the ground the Ugandan officials continued to support Lubanga’s group. At least from January 2003, Lubanga, now supported by Rwanda, started to publicly request that Uganda withdraw its forces. The Ugandan army then changed sides, started supporting Lendu militias, and in March of 2003 Lubanga’s group was ousted from Bunia.
Two months later, in May of 2003, the Ugandan army left Bunia in the context of its withdrawal from the DRC. Immediately, Lubanga’s group chased Lendu militias and recovered the town.
Mr. President, your Honours, as I just described, the evidence will show that until the 2nd of June, 2003, Ituri was under Ugandan army occupation. However, the evidence in the Prosecution’s possession does not prove that Ugandan officials had overall control of Lubanga’s group. The issue of the classification of the conflict as an international one relates primarily to the tests to be applied by this Chamber, occupation or overall control.
Mr. President, your Honours, let me now turn to the individual criminal responsibility of the accused.
The Prosecution will prove that Thomas Lubanga Dyilo is criminally responsible as a co-perpetrator, and this we’ll prove, your Honours, in accordance with Article 25(3)(a) of the Rome Statute.
At least from September of 2002 until 13 August 2003, a common plan existed between Thomas Lubanga Dyilo, Boscko Ntaganda, and other co-perpetrators. The goal was to maintain and expand political and military control over the Ituri region. The plan’s implementation included the enlistment, conscription and use of children under the age of 15 to actively participate in hostilities.
The evidence will show, your Honours, the critical role of Lubanga himself in pursuing the common goal and in controlling its execution, in particular in the recruitment and the use of child soldiers.
Thomas Lubanga was born on the 29th of December, 1960, of a Hema family from the Gegere subgroup. By 2002, the Gegere community recognised him as their political leader. They called him Raisi, a Swahili word that means “President” or “highest authority.”
Lubanga is an educated man. In 1985 he graduated in psychology from the University of Kisangani, although he never worked as such. He obtained a job in a warehouse in Bunia’s market selling beans and other goods to the armed forces present in Bunia at the time, and worked in various small business ventures, including gold. In parallel, he became involved in political activities. In 1990, he joined a political party, the Union pour la Democratie et le Progres Social. In 1999, he was elected as a member of the provincial assembly in Ituri.
Thomas Lubanga Dyilo had ambition. He wanted political power and army to build his power upon. The evidence will show how he combined his talents as an educated man, as a trader, how he used his connections, the loyalty of the Gegere elite while harming the Gegere families at the same time, how he carefully selected the most opportunistic methods to build his power, recruiting children, recruiting children as soldiers, shifting alliances whenever necessary, trying to play with the international community.He pretended that he was loyal to the Rassemblement Congolais when they were in power and he was conspiring against them at the same time. He announced programmes of pacification, and he was sending his troops to kill all the Lendus at the same time. He promised to demobilise the child soldiers, and he was recruiting them at the same time. The evidence will show that at all times relevant to the charges he had total control of his group. Those who opposed his will had to leave.
Mr. President, your Honours, let me briefly tell you how it all really came together and why Thomas Lubanga Dyilo, his political and military career, is built on the use of child soldiers.
During the summer of 2000, the Rassemblement Congolais, which was then controlling Ituri and the Kivus, started excluding Hema commanders from its army. The Hema commanders, including most of Lubanga’s co-perpetrators, then organised a mutiny. Most of the soldiers under the lead of the Hema mutineers were children. The Rassemblement Congolais called upon the support of the Ugandan army. The children’s parents sent a letter dated the 27th of July, 2000, complaining to the Ugandan authorities.
Lubanga, an educated Hema leader, at the time a minor member of the Ituri Assembly, saw his chance, his opportunity. He volunteered to go to Kampala to deal with the problem. He impressed the Ugandan officials and started to develop the idea to create a political party. Ugandan officials offered to provide him and his followers with training.
Lubanga took advantage of this situation. He set off to send for training to Kyankwanzi in Uganda, not only the child mutineers, but any soldier he could get his hands on.
Lubanga’s house became a clearing centre through which the recruitment and transport of soldiers, of children, Hema, in particular Gegere, to different training camps in Uganda and the DRC was organised. In sum, Lubanga used the opportunity of the Hema mutiny to establish a political alliance with Ugandan officials and to build within the Rassemblement Congolais an army that is loyal to him and him alone.
Lubanga was soon to use them as the basis of his own army. As I described before, your Honours, in April of 2002, Lubanga severed all links with the Rassemblement Congolais and they trained Hema soldiers and others to build the UPC army. Immediately, they entered into violent confrontations against the Rassemblement Congolais.
Even after his arrest in Kampala and his detention in Kinshasa from June to late August of 2002, he retained the ability to manage his movement, including the recruitments. On the 9th of August, 2002, Lubanga’s militia launched an offensive against the Rassemblement Congolais, and from this moment on, the UPC controlled Bunia. On the 13th of August, 2002, Lubanga, from his cell in Kinshasa, issued a declaration explaining that his group, and I quote, “controlled the situation there perfectly,” that they would pursue a programme pacification in Ituri and call for the establishment of an international criminal tribunal to investigate massacres in Ituri.
With the authorisation of the DRC government, Lubanga allowed to provisionally return to Bunia by the 28th of August and reassume leadership of the UPC. He was accompanied by the DRC minister for human rights, but his detained followers had to stay back in Kinshasa in detention. As is his custom, Lubanga dealt with the situation violently and deftly. His commanders took the minister as hostage. They demanded that Lubanga be allowed to remain in Ituri and that his nine associates be freed in exchange for the minister. By 1st September 2002, this deal was made.
On the 3rd of September, 2002, Lubanga was appointed president of the UPC. His first written decrees as president specifically stated that defence and security matters would derive from him, the UPC presidency. From then on, Lubanga had a total hold on power and did not tolerate “the least contestation of his authority.” This, Mr. President, your Honours, is what happened to Chief Kahwa, Minister of Defence. He was demoted, downgraded for challenging Lubanga, and he then left the UPC and created his own movement, the PUSIC. On the 13th of August, 2003, the last day within the period relevant to these charges, Lubanga was still the president of the UPC.
Mr. President, your Honours, Thomas Lubanga had knowledge of the crimes committed. Thomas Lubanga had control of his group. He ordered and supervised the recruitment of child soldiers in his militia. Bosko Ntaganda and other co-perpetrators shared his intentions.
One piece of evidence, Mr. President, your Honours, is going to stand out. The Court will hear Lubanga himself talking to child soldiers, explaining the role of Bosko Ntaganda, confirming the chain of command. In the video of his visit to the Rwampara training camp, he said, and I want to quote him with your permission:
“I am Thomas Lubanga, the president of our party, the UPC. You are used to talking to … our commanders who are helping with this work of training, who are building the army every day. I am with them all the time, but there is a lot of work. Continue your training. We are keeping an eye on you all the time. You said a while ago that the operations commander, Bosko, comes to see you regularly. If you have difficulties, tell him and they will get to a higher level of our leadership because he is a senior leader of our army, the FPLC. What we are doing, we are doing it together with you. It’s to build an army. I wish you good training. Do it, persevere, and tomorrow you will stand with a weapon and a uniform.”
This is quoting from Thomas Lubanga Dyilo.
The evidence will show that the massive campaign of recruitment carried out by Lubanga’s group could not have been implemented without the direction and approval of Lubanga. All the evidence that the Prosecution will submit to you will show that Lubanga was in full control of his group and that recruitment was a key activity for him. The evidence will show that he organised recruitment campaigns and he sent emissaries to Bunia and surrounding areas to persuade or compel the Hema families to send their children to join his group.
Documentary evidence that we will tender will show that in December 2002, peace committees from the Ituri area liaised with Lubanga’s group to campaign amongst youngsters for massive integration into its militia. The Prosecution will tender documents, your Honours, showing that Lubanga himself publicly decreed that each Hema family must support his military efforts by providing a child. A witness will explain that Lubanga gave an order to recruit, I quote, “everyone they could find.”
The evidence will show that Lubanga’s orders to recruit children did not establish any minimum age. The criterion was the ability to carry a weapon. The commanders instructed children to recruit other children, even if they were small, as long as they could carry a weapon.
The evidence will also show that many of those recruited were under the age of 15 and that Lubanga knew this. Lubanga established and visited military training camps to prepare those child recruits for use in combat. Lubanga saw child soldiers every day in his organisation. He was regularly in the presence of soldiers under his command who were obviously under the age of 15. Lubanga and his senior commanders used child soldiers under the age of 15 to provide security to buildings and to themselves. You will see, your Honours, during the Prosecution’s case, complete videos showing how children, some of these — how young some of these children were as bodyguards. You will hear evidence that Lubanga used soldiers to guard his own residence, as well as the check-points leading to his house.
Compelling evidence of his knowledge, his knowledge of the recruitment and the use of child soldiers within the ranks are his orders to demobilise child soldiers. The Prosecution will tender documents, and these documents, at least three of them, signed — were signed by Lubanga, purporting to demobilise child soldiers from his group. These orders alone, your Honours, demonstrate that Lubanga knew these children were soldiers in his army and that he knew that recruitment and use of child soldiers was prohibited.
The Prosecution will tender a decree dated the 21st of October, 2002, and addressed to the Chef d’Etat Major of the FPLC, where Lubanga states that contrary to the official ideology of the movement, the practice of enlisting minors of both sexes has been developing within the movement’s ranks. He adds that he formally prohibits this practice in agreement with his previous agreement with the NGO SOS Grand Lacs.
On the 1st of June, 2003, Lubanga issued a decree ordering demobilisation of all persons under 18 years old from his group. The decree indicates that this is done taking into consideration the will of the international community to continue its programme of demobilization and reintegration of child soldiers, a programme supported by NGOs such as Save the Children and SOS Grand Lacs. However, the Prosecution will tender evidence showing that these orders were never, in fact, implemented.
The Prosecution will tender evidence showing that these orders to demobilise child soldiers were issued merely to appease the international community while Lubanga continued to recruit children. The orders reflect his attempt to mislead the international community. Two weeks after his second alleged demobilisation order, he is visiting one of his training camps, encouraging children to train, to learn to fight. Only two weeks after.
Lubanga knew that international organisations were aware of and monitoring his recruitment efforts. In 2001, UNICEF and the local NGO SOS Grand Lacs found the child soldiers that Lubanga had sent to be trained in Uganda. The international and the local community supported an initiative to repatriate them. One hundred and sixty-three children were demobilised and reintegrated into their families. As a result of this initiative, Lubanga’s plans could have been severely undermined.
However, your Honours, the Prosecution will tender evidence showing that in 2003, Lubanga re-recruited 130 of these 160 children who had been demobilised by UNICEF and SOS Grand Lacs and sent them into fighting units.
The Prosecution will also show that Lubanga was personally informed by various officials that there were child soldiers in his militia and made admissions to these officials regarding his practice of utilising child soldiers.
In particular, your Honours, you will hear evidence about what happened with a pastor and human rights activist in Ituri. The pastor approached Lubanga different times to express his concerns over the use of children under 18 years old. He did it in January 2002, in October of 2002, and in November of 2002. The first time, Lubanga replied that he had to discuss this issue “with his hierarchy,” adding that it was a way to occupy children who hung around in the streets. The second time, Lubanga said he would discuss this issue with his “collaborateurs,” but that it would be a difficult task, he says, because the children had come to like their work. These are his words.
The third time, Lubanga accused him, this pastor, of trying to demobilise the children “needed to defend the Hema community from Lendu attacks,” and further threatened him by saying that “this time, he would let him go, but he should consider himself warned.” A few days later, the pastor was told by a Lubanga assistant that he must stop his attempts to demobilise child soldiers or run the risk of being killed.
In sum, Mr. President, your Honours, both the recruitment orders and the sham orders issued by Lubanga to demobilise child soldiers are conclusive evidence of Lubanga’s knowledge of the practice of recruiting and of using children as soldiers.
Mr. President, your Honours, let me now, with your permission, pass the floor on to the Prosecutor, who will address the nature of the Prosecution evidence and will conclude his statement.
PRESIDING JUDGE FULFORD: Thank you, Ms. Bensouda. Yes, Mr. Moreno-Ocampo.
MR. MORENO-OCAMPO: Mr. President, your Honours. The Prosecution will present evidence from over 30 viva voce — and three expert witnesses. Those — those witnesses will include witnesses who met on regular basis with Thomas Lubanga, who were involved in high-level meetings with him and other co-perpetrators, and who were in positions of sufficient importance to be informed of the daily activities of the Lubanga group.
The Prosecution will also present some of the 1.671 documents of incriminatory evidence that we have disclosed for this case. Many of these documents were written contemporaneously and stem from the Lubanga group. Many of these documents are either signed by or copied to Lubanga himself. We will present videos.
In addition, we will — we will be calling nine former child soldiers to take the stand. With respect to these children, to these witnesses, children, I would like to make a couple of remarks.
The nine former child soldiers you will see in this courtroom are remarkable individuals. We are impressed for the way they have, and continue to, overcome the adversity they have faced. Many of them have recently completed the high school exams, and yet even these nine still find it painful to recount what happened to them. Even these nine would prefer not to speak about the details of what they saw and what they did. Testifying will force them to relive traumatic experience they are deeply ashamed of and wish to forget or ignore entirely.
These witnesses are vulnerable witnesses, your Honours. I need say no more. The Court is calling two expert witnesses who will explain the difficulties that the witnesses will experience as they testify, how these child witnesses are always at risk of re-victimisation. For each of them, it is the first time in a courtroom, and the first time in a different country, away from their communities. These unfamiliar surroundings, the weather, everything, the formality of the process, when combined with the trauma they have already experienced in their short life make the prospect of testifying in court daunting.
All of these factors place a particular challenge to the parties, the legal representatives, and the Chamber to ensure that the process of testifying is not re-traumatising them. The Prosecution is ready to request special measures pursuant to Rule 88 of the Rules of Procedure and Evidence whenever appropriate, and we are confident that the Court will implement such measures whenever necessary.
Mr. President, your Honours, in the sentencing phase, should the Chamber find that the charges are proved, the Prosecution will analyse the individual circumstances of the accused. However, I want to put the Defence on notice that the Prosecution anticipates to call for a severe punishment, very severe, close to the maximum.
The Prosecution believes that the massive crimes litigated in this International Criminal Court, with hundreds or thousands of victims, with entire communities affected, warrant very high penalties. In this case, the defendant stole the childhood of the victims by forcing them to kill and rape. Lubanga victimised children before they ever had the chance to grow up into full human beings who could make their own decisions.
As the Prosecutor, I have the mandate to pay particular attention to the suffering of the victims, to what happened with child – with children. I will listen to the children to evaluate the appropriate penalty to be requested for Lubanga. I remember the statement provided by one of the children to our investigators during the investigation a few years ago:
“I was dreaming all the time and thinking about all the work, all the things that I had done. I was thinking about killing people all the time. Thoughts are coming to me now.”
The children’s feelings of complicity and shame will haunt them for the rest of their life. The past suffering, the present suffering, and the continued suffering that Lubanga inflicted will be a factor.
Lubanga affected not just one child. Lubanga affected an entire generation, and this must be reflected as a powerful aggravating factor in his sentence, if convicted.
The Rome Statute ratified by 108 States and supported by citizens and institutions across the globe have given me a mandate. I have to investigate and prosecute the perpetrators of the most serious crimes of concern to the international community as a whole. The aim is to end impunity and contribute to the prevention of future crimes. Crimes like Thomas Lubanga’s crimes.
Thomas Lubanga knew what he was doing so clearly that he consciously tried to mislead and appease the international community by issuing demobilisation orders on paper even as he kept recruiting child soldiers in practice. He knew he was committing a crime not just against his own Gegere and Hema community, not just against national law. He knew he was breaking the basic rules that the world established to protect those with the least power among us: Little children.
Thomas Lubanga has to learn that the Rome Statute could not be circumvented. Children are not soldiers. If convicted, Thomas Lubanga’s sentence will send a clear message: The era of impunity is ending. Thanks.