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Prosecutors and Victims' Representatives Make Closing Statements in Lubanga Trial

Prosecutors and victims’ advocates presented their closing arguments today in the landmark trial of former Congolese warlord Mr. Thomas Lubanga at the International Criminal Court inThe Hague.  More than a dozen lawyers and advocates stood in turn and urged the judges to convict Mr. Lubanga of the war crimes of conscripting, enlisting, and using child soldiers during the ethnic conflict in the Ituri region of northeastern Democratic Republic of Congo (DRC) during 2002 and 2003.

The very first case before the ICC, the trial comes to a close more than five years after the Court issued its arrest warrant for Mr. Lubanga and some two and a half years after the trial began.  Judges are expected to issue their decision sometime early next year, by which time Mr. Lubanga will have been in the custody of the ICC for six years.

Irrespective of Mr. Lubanga’s guilt or innocence, the trial has highlighted the plight of child soldiers in armed conflict.  Among the viewers in the Court’s capacity-filled public galleries today were actress Angelina Jolie, Goodwill Ambassador for the UN’s High Commissioner for Refugees, and Radhika Coomaraswamy, the UN Secretary-General’s Special Representative for Children and Armed Conflict.

Over the course of the four and a half hour proceedings, lawyers and advocates reminded the judges of the brutality of the conflict between the Hema and Lendu peoples in that Ituri region in the DRC and sought to establish Mr. Lubanga’s individual responsibility for building an army of the young.  That there were children under fifteen in that army “was no accident,” prosecutors insisted.

Deputy Prosecutor Fatou Bensouda, the first to address the judges, insisted that the evidence proved Mr. Lubanga’s guilt not merely beyond a reasonable doubt “but beyond any possible doubt.”  She submitted that the prosecution had given voice to the children whom Mr. Lubanga had “transformed into killers,” children whom the world had resolved to protect by enshrining in the Rome Statute – the treaty that created the ICC – a definition of war crimes that included the charges against Mr. Lubanga.

Ms. Bensouada also recalled certain video evidence against Mr. Lubanga – in which he visited a training camp in Rwampara in February 2003 and allegedly addressed the child soldiers gathered there – calling it Mr. Lubanga’s “voluntary and public confession.”

Prosecutor Nicole Samson went on to suggest that a major theory of the defense – that each of the prosecution’s witnesses either lied or had been egregiously mistaken – was simply too baroque to believe.

Prosecutor Manoj Sachdeva dismissed Mr. Lubanga’s three attempts to demobilize child soldiers as mere “cover-ups,” arguing that these efforts had, conversely, proven both Mr. Lubanga’s knowledge that it was wrong to use child soldiers and his intention to use them anyway.

The tension between the bench and the prosecution that has characterized this entire trial was manifest in the courtroom today.  Chief Prosecutor Luis Moreno Ocampo – whose refusal to implement judge’s orders nearly twice halted the trial and nearly resulted in the release of the accused – tried to intervene when Presiding Judge Adrian Fulford sought a point of clarification from Ms. Samson.  In a cryptic remark, Judge Fulford scolded Mr. Ocampo for using email in the courtroom and observed that Mr. Ocampo had already appointed six people to speak for the prosecution.

When Mr. Ocampo tried a second time, Judge Fulford said, with detectable impatience, “Mr. Ocampo, not at the moment,” departing from a demeanor otherwise marked by extraordinary politeness.

Later in the proceedings Mr. Ocampo was granted permission to field a question that Judge Elizabeth Odio Benito directed to Ms. Bensouda.  Judge Benito wished to know how sexual violence against female child soldiers was relevant, since it was not included in the charges against Mr. Lubanga.  Mr. Ocampo explained that sexual violence was a “gendered aspect” of conscription.

When Judge Fulford observed that Mr. Ocampo’s submission differed from Ms. Samson’s argument – who had reasoned that sexual violence against female child soldiers was an aspect of their direct participation in hostilities – Mr. Ocampo instructed the bench to accept his argument over Ms. Samson’s, since he is the Chief Prosecutor.  Notably disturbed, Judge Fulford promised to “ignore” Mr. Ocampo’s remark.

In an especially symbolic moment in the proceedings, Mr. Benjamin Ferencz recounted how, at the age of twenty-seven, he had been a prosecutor during the Nuremberg Tribunals in the wake of World War Two.  Now aged ninety-two, Mr. Ferencz celebrated the development of human rights in the intervening years and urged the Court to take seriously the deterrent effect that a conviction might have.

Upholding the unique place the Rome Statute affords to victims during criminal proceedings, legal representatives of the victims were likewise granted two hours, during which they expounded on the trauma suffered by the victims and urged the bench not to rule in favor of impunity.

Six victims’ representatives testified in turn, commending the Court for its careful adherence to victims’ rights and submitting that the essential concern of the victims had been to establish the truth, which Ms. Paolina Massidda, Principal Counsel in the Office of Public Counsel for Victims characterized as the identification, conviction, and punishment of those who harmed them.

Another victims’ representative, Ms. Carine Bapita Buyangandu proposed that the sexual abuse of female child soldiers, even though not among the charges against Mr. Lubanga, should nevertheless be considered an “aggravating circumstance.”  That is to say, should the judges convict Mr. Lubanga of the war crimes charged against him, the judges may weigh the abuse of girls in determining how to sentence him.

Mr. Lubanga, who had sat stone-faced throughout the proceedings, reserved his most expressive moments for the testimony from victims’ advocates.  When Mr. Joseph Keta Orwinyo, also representing a set of victims submitted that the defense had fabricated the claim that two prosecution witnesses had utilized “stolen identities” in testifying against the accused, Mr. Lubanga looked across the courtroom and shook his head.

Similarly, when victims’ representative Mr. Paul Kabongo Tshibangu presented reports detailing that the schools in Ituri had been half-emptied by the conscription and enlistment of child soldiers, Mr. Lubanga shook his head and smiled incredulously.  He later placed his head in his hands.

Defense lawyers, who will submit their closing arguments on Friday, are expected to argue that Mr. Lubanga was merely a political leader, that the prosecution’s case is undermined by fabricated witness testimony, and that Mr. Lubanga sought not to recruit but to demobilize child soldiers.

Jeffrey Pierce (Stanford Law School) and Alpha Sesay prepared this report.