The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here.
On 25 and 26 August 2011, Trial Chamber I[i] heard closing statements by the Prosecution, the Legal Representatives of Victims,[ii] and the Defence in the case of The Prosecutor v. Thomas Lubanga Dyilo, the first trial before the International Criminal Court (ICC). Thomas Lubanga Dyilo (Lubanga) is a Congolese national of Hema ethnicity, born in 1960 in the Democratic Republic of Congo (DRC). He is the alleged founder and president of the Union des patriotes congolais (UPC) and is charged with the war crimes consisting of enlisting and conscripting of children under the age of 15 years into the Forces patriotiques pour la libération du Congo (FPLC) and using them to participate actively in hostilities between September 2002 and August 2003. Charges for gender-based crimes were not included in the case against Lubanga, despite the availability of numerous documents, UN and NGO reports, including reports from the Women’s Initiatives for Gender Justice, indicating that such crimes had been committed by the UPC. Since the early stages of the case, Women’s Initiatives has advocated for further investigation and re-examination of the charges, was the first NGO to file before the ICC in respect of these issues, and has monitored and analysed the filings, jurisprudence, and witness testimony in particular regarding girl soldiers and gender-based crimes.[iii] Lubanga was arrested and surrendered to the Court on 16 March 2006 and his trial commenced on January 26, 2009.[iv] The trial has been stayed twice by the Chamber: in 2008, immediately prior to the scheduled start of the trial, due to issues with the Prosecution’s disclosure of evidence to the Defense; and in 2010 due to their failure to comply with orders of the Trial Chamber to disclose the identity of a prosecution intermediary to the Defense.[v] On 20 May 2011, Trial Chamber I ordered the closing of the presentation of evidence stage.[vi]
Closing Statements of the Office of the Prosecutor
Deputy Prosecutor Fatou Bensouda stated that the evidence had proved, ‘not just beyond reasonable doubt but beyond any possible doubt’,[vii] that Lubanga was guilty of the war crimes charged against him by means of having systematically recruited children under the age of 15 as soldiers in his political movement known as the UPC/FPLC and used them in hostilities. Bensouda argued that the Chamber had ensured that the accused had received a fair trial in every respect, and asked the Chamber to convict him for the commission of war crimes in order to send the clear message that there will be no impunity for those who recruit children. She drew the Chamber’s attention to one piece of evidence which is of particular importance for the Prosecution: a video showing Lubanga at Rwampara, a UPC/FPLC training camp, ‘in his role as supreme commander of his militia addressing recruits and inspiring them to fight’.[viii] The video showed Lubanga addressing the recruited soldiers saying ‘It is the second time I come here’.[ix] The Prosecution argued that this statement showed that supervising his troops was a regular and normal activity for Lubanga,[x] and that the video was a voluntary, public and taped confession of Lubanga’s crimes. Bensouda then described the harsh daily training camp life of the child soldiers who were beaten, learned how to fight and kill and lived in constant fear.[xi]
With respect to the harm committed against girls, Bensouda argued that girl soldiers – in addition to the tasks which they performed identically to boy soldiers – were subject to specific abuse such as rape by fellow soldiers, serving as sex slaves to Lubanga’s commanders, and being forced to be ‘wives’ of commanders.[xii] Children were used ‘to kill, rape, and pillage’.[xiii] She maintained that enlistment and conscription of children under the age of 15 ‘is a crime of continuous nature committed as long as the child remains in the armed group or is underage. The crime encompasses all the acts suffered by the child during the training and during the time they were forced to be a soldier. This interpretation is particularly relevant to capture the gender abuse, a crucial part of the recruitment of girls.’[xiv] Bensouda urged the Chamber to make clear that the girls forced into marriage with commanders are not the wives of commanders but victims of recruitment, and should be particularly protected by demobilization programs and by the ICC.[xv]
Trial lawyer for the Prosecution Nicole Samson summarised the testimonies and documents that were presented as evidence in the case. She stated that recruitment took place across a wide region of UPC-controlled territory between September 2002 and August 2003, and was part of a deliberate and clearly conceived plan.[xvi] The Prosecution argued that most child soldiers were victims of coercive recruitment campaigns or their parents were forced to give them up, both of which were presented as evidence of the crime of conscription; children were conscripted, abducted and trained to be ready to participate actively in hostilities.[xvii] Samson explained that according to the Prosecution active participation in hostilities does not only mean direct participation in combat, but also combat-related activities such as scouting, spying, being a messenger, guarding military check-points, military objectives or a military commander, and sending out soldiers to procure girls so that the commander could sleep with them.[xviii] To prove the age of the children, the Prosecution put forward statements of witnesses who were former child soldiers, as well as eye-witness testimony, videos, and forensic scientific assessments of their bone and dental growth. With respect to witness credibility, Samson emphasised that the broad range of witnesses (soldiers, commanders, political officers, and neutral observers such as NGO and UN employees) all described in detail that the UPC/FPLC recruited children under the age of 15, and argued that there is no credible evidence suggesting that the testimonies of all these witnesses was ‘one big, organised plot’.[xix]
Presiding Judge Fulford asked for clarification of the Prosecution’s position in relation to the assertion ‘that if an individual is sent out to select women, young women, for commanders to sleep with, that falls on the side of the dividing line of participating actively in hostilities’.[xx] Samson explained the Prosecution’s position by referring to Witness 0294 who had participated directly in combat, but had also been a bodyguard to a commander, so he ‘was actively participating in hostilities in the sense that he was in a noncombat, sometimes combat, related activity but one that is protected’.[xxi] Chief Prosecutor Luis Moreno-Ocampo, who was observing the closing statements from the back of the courtroom, then requested leave to intervene, prompting Judge Fulford to reply: ‘In a moment, Mr Ocampo. I’m just asking some questions to Ms Samson at the moment’ and ‘Really, I don’t think counsel should be receiving e-mails during the course of closing submissions, Mr Ocampo’.[xxii] Judge Fulford then asked Samson ‘am I right in understanding you are, in fact, not saying that selecting young women by itself constitutes participating in hostilities, but you have to look at the position in the round. Is that right?’, Samson answered that this was correct.[xxiii] In response to Moreno-Ocampo’s second attempt to intervene, Judge Fulford replied: ‘Mr Ocampo, really, can we please have some order to how the submissions are advanced. You have selected six advocates to address the Court. Can we remain with them.’[xxiv] Moreno-Ocampo remarked that the Office of the Prosecutor was represented by him as well and that he would like to answer the question, however Judge Fulford declined to give him the floor.[xxv]
Trial lawyer for the Prosecution Manoj Sachdeva provided an overview of the evidence that was intended to prove the knowledge, intention and individual criminal responsibility of Lubanga. He argued that Lubanga was President and Commander-in-Chief of the UPC, and made the final decisions and dictated the strategy and policy of the hierarchical UPC and its military wing, the FPLC: he had both functional and de facto control over all levels of the organisation[xxvi] and therefore this proved his ‘essential contribution’ to the commission of the crimes charged pursuant to Article 25(3)(a) of the Rome Statute. The Prosecution argued that the crimes were committed with his direct intention and his knowledge: Lubanga was regularly put on notice of the committed crimes and was in a position to order their cessation.[xxvii] He had children in his own personal protection unit; he took charge of recruitment activities; he went to Rwampara training camp where he addressed and encouraged soldiers; he was responsible for military appointments and the planning of military operations; and he had regular military meetings with commanders and his Chief and Deputy Chief of Staff. Furthermore, the Prosecution argued that the supposed demobilisation decrees, which it claimed were intended to provide a cover-up for the crimes being committed, actually proved Lubanga’s knowledge of the presence of child soldiers within his military.[xxviii]
Trial lawyer for the Prosecution Olivia Struyven presented a summary of the video evidence in the case, including the much-cited video of the visit to the Rwampara training camp, arguing that it showed the ultimate authority of Lubanga over the UPC/FPLC, the recruitment and use of children under 15 by Lubanga’s militia and his knowledge, approval and participation in it.[xxix] She highlighted Lubanga’s statement to the children in the training camp while he picked up the Kalashnikov: ‘And that’s why I would like to ask you and all the young people, I ask all our young people, don’t fall asleep, don’t fall asleep.’[xxx] Judge Fulford noted that, during the portion of the Rwampara training camp video shown by the Prosecution, there was no English translation of Lubanga’s statement, and asked the Prosecution to ensure that there was an accurate English transcript already included in the evidence in the case to enable the judges to take the video evidence into consideration.[xxxi]
Professor Tim McCormack, Special Advisor to the Prosecutor on International Humanitarian Law, presented the Prosecution’s position on the nature and legal character of the armed conflict in which the UPC/FPLC was engaged, which the Prosecution argued was most properly described as a non-international armed conflict. The charges which were initially confirmed against Lubanga by the Pre-Trial Chamber in January 2007 included the recruitment and use of child soldiers in both international and non-international armed conflict.[xxxii] He outlined that an international armed conflict only exists where the armed forces of two or more states are engaged in military hostilities against each other.[xxxiii] McCormack urged the Chamber to re-characterise the conflict on the basis of Regulation 55(2), as the Chamber itself had previously suggested.[xxxiv] McCormack argued that the conflict in which the UPC/FPLC was engaged was a non-international armed conflict because:
- The involvement of Rwanda, Uganda and the Congolese government did not render the conflict international, since there is no evidence of either direct or indirect military hostilities between states as is required by Common Article 2[xxxv] of the Geneva Conventions;[xxxvi]
- Uganda’s occupation of territory in Bunia had no consequence for the legal characterisation of the conflict, as the existence of occupation does not automatically determine the legal character of an armed conflict and a military occupation does not ipso facto equal an armed conflict;[xxxvii] and
- Uganda’s occupation was limited to the area of the Bunia airport and parts of Bunia city – one ten-thousandth of the territory of Ituri – and Uganda did not exercise effective authority over Ituri outside the Airport and parts of Bunia city, and its involvement did not and could not have affected the characterisation of a separate armed conflict affecting a much wider geographic area.[xxxviii]
McCormack further maintained that the non-international armed conflict involving the UPC/FPLC did not end in May 2003 when Uganda withdrew its forces from the DRC but continued up to and beyond the end of the period covered by the charges.[xxxix]
Finally, Benjamin Ferencz, a former Nuremberg Prosecutor and Special Counsel to the Office of the Prosecutor, stressed the historical significance of the trial and pointed out the gravity of the harm caused by the recruitment and use of child soldiers. He referenced the special vulnerability of girls, stating that ‘[a]ll of the girls recruited could expect to be sexually violated’.[xl] He cited the drafting of the Rome Statute as authority for the assertion that recruiting children into armed forces and forcing them to participate in hostilities were ‘among the most serious crimes of concern for the international community as a whole’.[xli] He also highlighted how the Court performs a distinctive function in deterring ‘crimes before they take place by letting wrong-doers know in advance that they will be called to account’.[xlii]
After the closing statements of the Prosecution, Judge Odio-Benito noted that, despite submissions on sexual violence being included in the Prosecution’s final brief and closing arguments, charges of sexual violence had not been included in the document containing the charges or included within the charges confirmed by the Pre-Trial Chamber.[xliii] Making reference to Article 74,[xliv] Judge Odio-Benito asked ‘How is sexual violence relevant to this case, and how does the Prosecution expect the Trial Chamber to refer to the sexual violence allegedly suffered by girls if this was not in the facts and circumstances described in the charges against Mr Lubanga Dyilo?’[xlv] Chief Prosecutor Moreno-Ocampo requested and was granted permission by the Chamber to answer this question. He stated:
We believe the facts are that the girls were abused, used as sexual slaves and raped. We believe this suffering is part of the suffering of the conscription. We did not allege and will not present evidence linking Thomas Lubanga with rapes. We allege that he linked it with the conscription and he knows the harsh conditions. So what we believe in this case is a different way to present the gender crimes. It presents the gender crimes not specific as rapes. Gender crimes were committed as part of the conscription of girls in — in the militias. And it is important to have the charge as confined to the inscription, because if not – and that’s the point that Ms Coomaraswamy[xlvi] did here – if not, the girls are considered wife and ignored as people to be protected and demobilised and cared. That is why the Prosecutor decided to confine the charges — to present the suffering and the sexual abuse and the gender crime suffered by the girls in the camps just as conscription, showing this gender aspect of the crime.[xlvii]
The Prosecutor went on to explain that the Prosecution believed a commander’s order to abduct girls to use them as sexual slaves or rape them was an order to use the children in hostilities.[xlviii]
Closing Statements of the Legal Representatives of Victims
Paolina Massidda, Principal Counsel of the Office of Public Counsel for Victims, stated that the trial was historical for thousands of victims hoping for justice and praised the extensive participatory rights which had been granted to victims by the Chamber. She emphasised that victims were not the assistants but the allies of the Prosecution, and had expressed themselves independently.[xlix] She noted that the victims in this case, through their legal representatives, had taken a number of initiatives which went beyond what the Prosecution requested, including taking initiatives regarding the modification of the legal characterisation of facts in the case against Lubanga,[l] and requesting the Chamber to find Lubanga guilty as a direct perpetrator in addition to the co-perpetrator liability proposed by the Prosecution.[li] Massidda stressed that, although the harm caused to victims could never be fully repaired by a conviction or reparations,[lii] the main concern of the victims participating in this trial was the establishment of the truth and the punishment of the individuals who were the cause of their victimisation.[liii] She also acknowledged that protective measures can sometimes impose restrictions on victims and their families, and that despite the protective measures applied by the Chamber, some victims were still subject to threats or persecution for having testified against the accused.[liv]
Legal Representative of Victims Carine Bapita Buyangandu outlined the historical context of the conflict and described the ill-treatment of children in the training camps. She noted that children in training camps were beaten and sometimes killed, were given poor food, inadequate training and no access to medical care, and that ‘they raped and they were raped’.[lv] Bapita also explained the specific abuse of girl child soldiers in the training camps, who – in addition to receiving the same training and treatment as boy child soldiers – were also used as sexual slaves, became pregnant, had unwanted children, performed household chores and were used to actively participate in hostilities by means of scouting, looting, killing and fighting.[lvi] She suggested to the Chamber that these criminal acts against girls should be considered as aggravating circumstances to the crime of enlistment and conscription of child soldiers under the age of 15 and using them to participate actively in hostilities.[lvii]
Legal Representative of Victims Paul Kabongo Tshibangu focused on the recruitment of children and ‘their participation in combat as cannon fodder’.[lviii] He discussed the material legal elements of the war crimes of recruitment and use of child soldiers.[lix] He cited a Human Rights Watch report which quoted a school headmaster who said that at the end of November 2002 half of his pupils had disappeared.[lx] Kabongo further stressed that active participation in combat not only relates to direct participation in fighting but also covers other aspects related to combat such as reconnaissance, espionage, sabotage, body-guarding, transporting ammunition, etc.[lxi]
Legal Representative of Victims Joseph Keta Orwinyo spoke about victim participation in the trial proceedings. He also discussed the Defence allegations of identity theft against three of the victims he represents in proceedings, and noted that, contrary to Defence allegations, their identities had since been proven by means of finger-print analysis.[lxii]
Legal Representative of Victims Franck Mulenda commented on the problems related to civil status registration in the DRC, which he noted was in an advanced stage of degradation.[lxiii] Mulenda noted previous jurisprudence from the Court which established that, although civil status records are the best way of proving the age of an individual, they are not the only possible means of proof.[lxiv] He also discussed protective measures, and noted that, although some victims had been relocated by the Court, they missed their homes in Ituri.[lxv]
Lastly, Legal Representative of Victims Luc Walleyn stressed the central issue of the individual criminal responsibility of Lubanga. He rejected the Defense portrayal of Lubanga as someone who took up arms only to resist oppression, noting that his clients had ‘never known Thomas Lubanga as a human rights activist’.[lxvi] He argued that the UPC militia had done nothing to provide order or protect civilians, but rather had committed crimes of increasing cruelty against the civilian population.[lxvii] Walleyn noted the leadership role played by Lubanga, his authority within the military and his powerful charisma, which caused him to be seen as a ‘semi-god’[lxviii] by some child soldiers and had contributed to some conflicts of loyalty among certain witnesses.[lxix] Walleyn urged the Chamber to convict Lubanga as co-perpetrator and not simply as accomplice as requested by the Defense and added that if the Chamber followed the argument of the Defense, then the Chamber would have to re-characterise the facts pursuant to Regulation 55 of the Regulations of the Court.[lxx]
Closing Statements of the Defense
Catherine Mabille, Lead Counsel for the Defense, began the closing arguments for the Defense by challenging the reliability of the evidence against Lubanga, arguing that the existence of the crimes charged against him had not been proven beyond a reasonable doubt.[lxxi] She also noted that Lubanga had been in detention at the Court for five and a half years, and that the proceedings against him had been very long and ‘characterised… by serious dysfunction’, including the ‘exceptional circumstance’ of the imposition of two stays of proceedings which were imposed as a result of violations or shortcomings occasioned by the Office of the Prosecutor.[lxxii]
Mabille argued that all of the Prosecution witnesses who had testified as former child soldiers, without exception, had lied to the Chamber,[lxxiii] as evidenced by inconsistencies between their testimony and Defense investigations into their school records, ages and family situations. The Defense maintained that there must have been ‘certain individuals protected by the seal of anonymity’ who had organised this false testimony.[lxxiv] She argued that certain intermediaries[lxxv] working for the Office of the Prosecutor had prepared witnesses to give false testimony before the Court, which constituted manipulation of evidence.[lxxvi] She highlighted the evidence from both Prosecution and Defense witnesses regarding false testimony and their interactions with Prosecution Intermediaries 316, 321 and 143, which the Defense argued suggests that the intermediaries had offered financial inducement to individuals to encourage them to testify about certain facts which they had not experienced. Mabille noted that the Chamber had called Intermediaries 316 and 321 as witnesses in light of the Defense allegations, and that the Prosecutor’s refusal to obey an order from the Chamber to disclose the identity of Intermediary 143 had led to the second stay of proceedings in the trial.[lxxvii] Mabille pointed out that Intermediary 143 and Intermediary 321, in addition to working as intermediaries for the Office of the Prosecutor, had also worked on behalf of the Legal Representatives of Victims.[lxxviii] She argued that, although it had been proven that intermediaries had encouraged witnesses to lie before the Court, the Prosecutor had completely denied their involvement, as exemplified by the press interview given by Beatrice le Fraper du Hellen, at the time Head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.[lxxix]
Mabille alleged that the Office of the Prosecutor had been ‘instrumentalised’ by certain state powers, specifically the Congolese Government; she clarified ‘We do not allege that the Prosecutor intentionally served the interests of one of these powers, but it has been shown that the Congolese government in many ways intervened, directly or indirectly, in the investigations as well as in the judiciary process [sic]’.[lxxx] She noted that Intermediary 316 ‘was a person in a high level of authority in a governmental agency… directly related to President Kabila’, and further that he was not the only Prosecution intermediary to have worked for that agency simultaneously to his work for the Office of the Prosecutor.[lxxxi] She went on to argue that the Prosecutor was aware of both the sensitive role played by Intermediary 316 on behalf of the Congolese government and the allegations that he had behaved in a ‘suspicious way’ with certain witnesses.[lxxxii] Mabille argued that the reason that clearly falsified evidence had been presented to the Court lay with the Prosecutor’s failure to carry out proper investigations.[lxxxiii] She pointed out the Prosecutor’s statutory obligation to investigate incriminating and exculpatory evidence equally, and contrasted this with the statement of Bernard Lavigne, the head of investigations at the Office of the Prosecutor until 2007, who testified in closed session in November 2010, that the verification of Prosecution evidence had been entrusted to intermediaries due to security concerns and that Prosecution investigators had never contacted the families of alleged child soldiers, local schools or chiefs of collectivities to verify the information they had provided.[lxxxiv] Mabille questioned how the Chamber could consider criminal proceedings requiring proof beyond a reasonable doubt when there had been no investigations to verify the statements made by the individuals called to testify, despite the assertion by the Prosecutor in the Prosecution response to the Defense abuse of process application in early 2011 that he considered there was no reason to doubt their testimony.[lxxxv] Mabille argued that the entirety of the evidence in the case had been tainted by the methods used in the Prosecutor’s investigations.[lxxxvi]
In the absence of credible witness testimony, Mabille argued that visual evidence alone was not sufficient to prove the age of an individual beyond a reasonable doubt.[lxxxvii] NGO and UN documentation regarding child soldiers had not been independently verified by the Prosecution, leaving Mabille to conclude that ‘[a]gain, the Prosecution is rolling the dice but not very lucky’.[lxxxviii] As a result, the Defense argued, the Prosecutor had not provided adequate evidence to prove beyond a reasonable doubt that children under the age of fifteen years were recruited into the UPC/FPLC.[lxxxix]
Counsel for the Defense Jean-Marie Biju-Duval addressed the individual criminal responsibility of Lubanga alleged by the Prosecution, including the alleged common plan, the alleged role of Lubanga in that common plan, and his alleged contribution to the recruitment policy of the UPC/FPLC. Biju-Duval questioned the foundation of the accusations against Lubanga – namely, the theory of criminal co-perpetration – and the choices made by the Prosecutor in exercising his power to prosecute.[xc] He noted the ‘judicial paradox’ of a case charged as co-perpetration, which by definition requires several perpetrators, but with only one accused.[xci] Biju-Duval noted that one of Lubanga’s alleged co-perpetrators, Floribert Kisembo, Chief of Staff of the FPLC, had never been the subject of criminal proceedings before the ICC, and suggested that this may have been due to Kisembo’s loyalty to President Kabila and the Congolese Government.[xcii]
Biju-Duval claimed that the absence of Lubanga’s involvement in the military activities of the armed force which would become the UPC/FPLC prior to September 2002 proved that his contribution was not necessary to establish the armed force, recruit military personnel, or carry out military operations. Instead, Biju-Duval argued that Lubanga’s only essential contribution was to act as a political leader.[xciii] Biju-Duval claimed that no orders were issued by Lubanga relating to the recruitment or training of soldiers because he did not intervene in military affairs on recruitment or military operations,[xciv] and that the only instructions issued by Lubanga related to the prohibition of child soldier recruitment and provisions for demobilisation.[xcv] He went on to argue that Lubanga did not issue orders to the civilian population regarding the recruitment of child soldiers, and that any public statements made by Lubanga were political in nature and designed only to encourage support for his movement among the civilian population.[xcvi] Biju-Duval dismissed the Prosecutor’s argument that the responsibility of Lubanga was based on the fact that he exercised effective control over the FPLC commanders responsible for recruitment, as this mode of criminal responsibility had been dismissed by the Pre-Trial Chamber and had not been charged in the case.[xcvii] Biju-Duval claimed that Lubanga ‘did not have the effective power to impose his will on the military leadership’, and that this was proven by the establishment of breakaway military movements by former commanders and the defection of Floribert Kisembo as Chief of Staff in December 2003.[xcviii]
Biju-Duval acknowledged that there was a risk that children under the age of fifteen would attempt to enlist in the FPLC,[xcix] but argued that the mode of criminal responsibility charged required awareness on the part of the accused that his conduct would lead to the commission of the crimes charged ‘in the normal course of events’.[c] Biju-Duval referenced existing ICC jurisprudence from the Bemba and Katanga cases and interpreted this requirement to mean that ‘the crime has to appear to be the virtually certain consequence of the conduct of the accused’, rather than a possible risk.[ci] The Defense argued that, rather than accepting or encouraging the recruitment of minors, the evidence showed that Lubanga had done everything possible to prevent the commission of such crimes.[cii] He had issued orders prohibiting the recruitment of children under the age of eighteen and had attempted to ensure these orders were enforced.[ciii]
Biju-Duval then addressed the video of Lubanga visiting the Rwampara training camp. Biju-Duval rejected the Prosecution argument that Lubanga’s uniform reflected his absolute military authority over the FPLC, pointing out that Bosco Ntaganda, assistant Chief of Staff and commander of operations in the FPLC, was wearing civilian clothes.[civ] Biju-Duval also disagreed with the Prosecution’s interpretation of Lubanga’s statement in the video. According to the Defense, his statement ‘This is the second time I am coming here’ is not evidence that he regularly visited and supervised his troops. The Defence argued that the full quote in the video actually indicated that Lubanga said he had been detained in the Rwampara camp by the Ugandans in September 2000, and that his mention of the ‘second time’ he had visited the camp was in reference to his previous visit as a detainee several years previously.[cv] Biju-Duval criticized the ‘deliberate misrepresentation’ of this evidence by the Prosecutor in order to secure the conviction of Lubanga at all costs and questioned whether this behaviour fulfilled the Prosecutor’s obligations of impartiality in pursuit of the truth.[cvi] Biju-Duval listed the various orders and communications from Lubanga which appeared to prohibit the recruitment or use of child soldiers and rejected the Prosecution argument that these documents had been made solely for public relations purposes.[cvii] He concluded that nothing could be attributed to Lubanga which proved he was responsible for the crimes charged, and therefore urged the Chamber to acquit.[cviii]
The accused Thomas Lubanga Dyilo concluded the Defense statements by making a short, unsworn statement. He stated that he had not been able to recognize himself on the basis of the actions ascribed to him or the intentions attributed to him in the course of the trial.[cix] Lubanga claimed that he had only assumed certain responsibilities in Ituri with the consent of other citizens and with the purpose of combating the inhumane treatment[cx] of Congolese citizens in Ituri and saving lives.[cxi] Lubanga stated that the convictions and values he had received through his education guided him in all his actions, particularly the actions he had taken against the recruitment of minors, and he did not feel that he had failed or acted inconsistently with those values.[cxii]
Judge Fulford closed the proceedings by thanking the interpreters, stenographers and counsel for their efforts in the course of the hearing. He noted that the Chamber would now deliberate, pursuant to Rule 142(1),[cxiii] and would return a verdict under Article 74 ‘within a reasonable period of time’.[cxiv]
Read the article byBrigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, reflecting on some of the gender issues in the Lubanga case
Read the Legal Filings submitted by the Women’s Initiatives for Gender Justice to the International Criminal Court
[i] Trial Chamber I is composed of Presiding Judge Sir Adrian Fulford (United Kingdom), Judge Elizabeth Odio-Benito (Costa Rica), and Judge René Blattman (Bolivia).
[ii] As of 25 July 2011, 123 victims had been granted leave to participate in the proceedings.
[iii] See, Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, ‘Reflection: Gender Issues and Child Soldiers in the case of Prosecutor v Thomas Lubanga Dyilo’ available at <http://www.iccwomen.org/documents/Gender-Issues-and-Child-Soldiers.pdf>.
[v] For more information about these issues, see the Gender Report Card 2008, p 42, 46 and the Gender Report Card 2010, p 139-159.
[vi] ‘Trial of Thomas Lubanga Dyilo: The presentation of evidence stage is closed’, ICC Press Release, 20 May 2011, available at <http://www.icc-cpi.int/NR/exeres/90F8E443-D740-4932-99F1-37A05A11088F.htm>, last visited on 21 September 2011.
[vii] ICC-01/04-01/06-T-356-ENG, p 3 line 25; p 4 line 1.
[viii] ICC-01/04-01/06-T-356-ENG, p 7 lines 8-9.
[ix] ICC-01/04-01/06-T-356-ENG, p 7 line 16.
[x] ICC-01/04-01/06-T-356-ENG, p 7 lines 15-18.
[xi] ICC-01/04-01/06-T-356-ENG, p 9 lines 14-21.
[xii] ICC-01/04-01/06-T-356-ENG, p 9 lines 22-25.
[xiii] ICC-01/04-01/06-T-356-ENG, p 4 lines 5-6.
[xiv] ICC-01/04-01/06-T-356-ENG, p 10 lines 1-7.
[xv] ICC-01/04-01/06-T-356-ENG, p 10 lines 8-11.
[xvi] ICC-01/04-01/06-T-356-ENG, p 11 lines 11-12; 19-24.
[xvii] ICC-01/04-01/06-T-356-ENG, p 12 lines 19-22; p 13 lines 2-5.
[xviii] ICC-01/04-01/06-T-356-ENG, p 15 lines 17-20; p 16 lines 1-4.
[xix] ICC-01/04-01/06-T-356-ENG, p 21 lines 23-24.
[xx] ICC-01/04-01/06-T-356-ENG, p 22 lines 16-19.
[xxi] ICC-01/04-01/06-T-356-ENG, p 22 lines 20-25; p 23 lines 1-3.
[xxii] ICC-01/04-01/06-T-356-ENG, p 23 lines 8-9.
[xxiii] ICC-01/04-01/06-T-356-ENG, p 23 lines 13-18.
[xxiv] ICC-01/04-01/06-T-356-ENG, p 23 lines 21-23.
[xxv] ICC-01/04-01/06-T-356-ENG, p 23 lines 20-25; p 24 lines 1-11.
[xxvi] ICC-01/04-01/06-T-356-ENG, p 27 lines 8-14.
[xxvii] ICC-01/04-01/06-T-356-ENG, p 27 lines 19-25.
[xxviii] ICC-01/04-01/06-T-356-ENG, p 32 lines 6-16.
[xxix] ICC-01/04-01/06-T-356-ENG, p 38 lines 11-16.
[xxx] ICC-01/04-01/06-T-356-ENG, p 40 lines 18-20.
[xxxi] ICC-01/04-01/06-T-356-ENG, p 42 lines 11-20.
[xxxii] Lubanga was charged under Article 8(2)(b)(xxvi) – which relates to war crimes committed in international armed conflict – and Article 8(2)(e)(vii) , which contains an almost identical provision relating to the same crime committed during non-international armed conflict. If the Chamber were to recharacterise the facts to hold that the conflict in which the UPC/FPLC was engaged at the time relevant to the indictment was a non-international armed conflict, it would only be possible to convict Lubanga for the crimes charged under Article 8(2)(e)(vii).
[xxxiii] ICC-01/04-01/06-T-356-ENG, p 43 lines 22-23.
[xxxiv] ICC-01/04-01/06-T-356-ENG, p 43 lines 9-14.
[xxxv] Article 2 common to the Geneva Conventions of 1949 provides that ‘the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them’.
[xxxvi] ICC-01/04-01/06-T-356-ENG, p 43 lines 20-25; p 44 lines 1-6.
[xxxvii] ICC-01/04-01/06-T-356-ENG, p 45 lines 22-25.
[xxxviii] ICC-01/04-01/06-T-356-ENG, p 46 lines 20-24; p 48 lines 8-21.
[xxxix] ICC-01/04-01/06-T-356-ENG, p 49 lines 10-14, 24-25; p 50 lines 1-5.
[xl] ICC-01/04-01/06-T-356-ENG, p 52 line 16.
[xli] ICC-01/04-01/06-T-356-ENG, p 51 lines 15-16.
[xlii] ICC-01/04-01/06-T-356-ENG, p 51 lines 18-20.
[xliii] For more information on the gender issues in the case of The Prosecutor v. Thomas Lubanga Dyilo and Women’s Initiatives for Gender Justice’s advocacy to include gender-based crimes in the charges, see the article by Brigid Inder, Executive Director, ‘Reflection: Gender Issues and Child Soldiers in the case of Prosecutor v Thomas Lubanga Dyilo’, available at <http://www.iccwomen.org/documents/Gender-Issues-and-Child-Soldiers.pdf>. See also the Legal Filings submitted by the Women’s Initiatives for Gender Justice to the International Criminal Court, available at <http://www.iccwomen.org/publications/articles/docs/LegalFilings-web-2-10.pdf>.
[xliv] Article 74 provides that the decision shall not exceed the facts and circumstances described in the charges and any amendment to the charges.
[xlv] ICC-01/04-01/06-T-356-ENG, p 53 lines 23-25; p 54 line 1.
[xlvi] UN Under-Secretary General and Special Representative of the Secretary General of the UN for Children and Armed Conflict Radhika Coomaraswamy acted as both amicus curiae and expert witness in the case. See the Gender Report Card 2008, p 87-89 and Gender Report Card 2010, p 135-136.
[xlvii] ICC-01/04-01/06-T-356-ENG, p 54 lines 8-22.
[xlviii] ICC-01/04-01/06-T-356-ENG, p 55 lines 15-17.
[xlix] ICC-01/04-01/06-T-356-ENG, p 58 lines 8-10; p 59 lines 3-5.
[l] In May 2009, the Legal Representatives of Victims requested the Trial Chamber to consider modifying the legal characterisation of facts in the Lubanga case to include cruel and inhuman treatment and sexual slavery. In July 2009, the Trial Chamber issued a majority decision (with Judge Fulford dissenting) giving notice to the parties that the legal characterisation of facts in the case may be subject to change, but this decision was overturned by the Appeals Chamber in December 2009. For more information, see the Gender Report Card 2009, p 86-90, and Gender Report Card 2010, p 129-132.
[li] ICC-01/04-01/06-T-356-ENG, p 58 lines 18-25; p 59 lines 1-2.
[lii] ICC-01/04-01/06-T-356-ENG, p 61 lines 14-21.
[liii] ICC-01/04-01/06-T-356-ENG, p 62 lines 2-8.
[liv] ICC-01/04-01/06-T-356-ENG, p 64 lines 5-15.
[lv] ICC-01/04-01/06-T-356-ENG, p 70 lines 3-18.
[lvi] ICC-01/04-01/06-T-356-ENG, p 70 lines 22-25; p 71 lines 1-6.
[lvii] ICC-01/04-01/06-T-356-ENG, p 71 lines 7-10.
[lviii] ICC-01/04-01/06-T-356-ENG, p 72 lines 12-13.
[lix] ICC-01/04-01/06-T-356-ENG, p 73 lines 2-15; p 76 lines 9-20.
[lx] ICC-01/04-01/06-T-356-ENG, p 74 lines 15-17.
[lxi] ICC-01/04-01/06-T-356-ENG, p 76 lines 9-14.
[lxii] ICC-01/04-01/06-T-356-ENG, p 80 lines 2-20.
[lxiii] ICC-01/04-01/06-T-356-ENG, p 82 lines 2-5.
[lxiv] ICC-01/04-01/06-T-356-ENG, p 84 lines 4-11.
[lxv] ICC-01/04-01/06-T-356-ENG, p 85 lines 2-11.
[lxvi] ICC-01/04-01/06-T-356-ENG, p 86 lines 23-24.
[lxvii] ICC-01/04-01/06-T-356-ENG, p 87 lines 13-21.
[lxviii] ICC-01/04-01/06-T-356-ENG, p 88 line 6.
[lxix] ICC-01/04-01/06-T-356-ENG, p 88 lines 1-15.
[lxx] ICC-01/04-01/06-T-356-ENG, p 89 lines 8-23.
[lxxi] ICC-01/04-01/06-T-357-ENG, p 3 lines 1-6.
[lxxii] ICC-01/04-01/06-T-357-ENG, p 2 lines 1-15.
[lxxiii] ICC-01/04-01/06-T-357-ENG, p 3 lines 15-18.
[lxxiv] ICC-01/04-01/06-T-357-ENG, p 6 lines 8-13.
[lxxv] An intermediary is a person who facilitates the Prosecution’s contact with witnesses and the identification of incriminating material and exculpatory evidence. See ICC-01/04-01/06-2434-Red2, para 3.
[lxxvi] ICC-01/04-01/06-T-357-ENG, p 7 lines 9-16.
[lxxvii] ICC-01/04-01/06-T-357-ENG, p 10 lines 19-25; p 11 line 1.
[lxxviii] ICC-01/04-01/06-T-357-ENG, p 12 lines 6-8.
[lxxix] ICC-01/04-01/06-T-357-ENG, p 12 lines 9-17. In March 2010, Beatrice le Fraper du Hellen gave an interview to the lubangatrial.org website, which included a number of statements defending the use of intermediaries by the Prosecution. In May 2010, the Trial Chamber issued a decision criticising the statements of Beatrice le Fraper du Hellen. The Chamber found her comments inappropriate, as the role of Prosecution intermediaries had become a ‘live issue’ in the case. See ICC-01/04-01/06-2433. For a detailed discussion of this issue, see Gender Report Card 2010, p 151-152.
[lxxx] ICC-01/04-01/06-T-357-ENG, p 12 lines 22-25; p 13 lines 1-4.
[lxxxi] ICC-01/04-01/06-T-357-ENG, p 13 lines 7-14.
[lxxxii] ICC-01/04-01/06-T-357-ENG, p 13 lines 15-20.
[lxxxiii] ICC-01/04-01/06-T-357-ENG, p 15 lines 18-22.
[lxxxiv] ICC-01/04-01/06-T-357-ENG, p 16 lines 3-7, p 17 lines 7-23; p 18 lines 1-9.
[lxxxv] ICC-01/04-01/06-T-357-ENG, p 18 lines 11-13; 17-22.
[lxxxvi] ICC-01/04-01/06-T-357-ENG, p 19 lines 7-24.
[lxxxvii] ICC-01/04-01/06-T-357-ENG, p 20 lines 5-8; 18-21.
[lxxxviii] ICC-01/04-01/06-T-357-ENG, p 21 lines 2-13.
[lxxxix] ICC-01/04-01/06-T-357-ENG, p 22, lines 3-8.
[xc] ICC-01/04-01/06-T-357-ENG, p 25 lines 5-10.
[xci] ICC-01/04-01/06-T-357-ENG, p 25 lines 11-13.
[xcii] ICC-01/04-01/06-T-357-ENG, p 25 lines 11-25; p 26, lines 1-18.
[xciii] ICC-01/04-01/06-T-357-ENG, p 29 line 14-25.
[xciv] ICC-01/04-01/06-T-357-ENG, p 31 lines 1-4.
[xcv] ICC-01/04-01/06-T-357-ENG, p 31 lines 5-18.
[xcvi] ICC-01/04-01/06-T-357-ENG, p 32 lines 1-8.
[xcvii] ICC-01/04-01/06-T-357-ENG, p 32 lines 13-20.
[xcviii] ICC-01/04-01/06-T-357-ENG, p 33 lines 1-22.
[xcix] ICC-01/04-01/06-T-357-ENG, p 35 lines 2-10.
[c] ICC-01/04-01/06-T-357-ENG, p 36 lines 10-13.
[ci] ICC-01/04-01/06-T-357-ENG, p 36 lines 13-22.
[cii] ICC-01/04-01/06-T-357-ENG, p 37 lines 1-6.
[ciii] ICC-01/04-01/06-T-357-ENG, p 39 lines 13-24.
[civ] ICC-01/04-01/06-T-357-ENG, p 41 lines 12-17.
[cv] ICC-01/04-01/06-T-357-ENG, p 41 lines 18-25; p 42, lines 1-16.
[cvi] ICC-01/04-01/06-T-357-ENG, p 42 lines 17-24.
[cvii] ICC-01/04-01/06-T-357-ENG, p 47 lines 15-22.
[cviii] ICC-01/04-01/06-T-357-ENG, p 47 lines 23-25; p 48, lines 1-9.
[cix] ICC-01/04-01/06-T-357-ENG, p 48 lines 23-25.
[cx] In French, Lubanga said the following: ‘Je l’ai fait juste dans le but de lutter contre l’humanité… l’inhumanité dévastatrice dont souffraient à cette époque toutes les communautés congolaises de Ituri’. ICC-01/04-01/06-T-357-FRA, p 42 line 28; p 43 line 1.
[cxi] ICC-01/04-01/06-T-357-ENG, p 49 lines 2-7.
[cxii] ICC-01/04-01/06-T-357-ENG, p 49 lines 8-18.
[cxiii] Rule 142(1) of the Rules of Procedure and Evidence states: ‘After the closing statements, the Trial Chamber shall retire to deliberate, in camera. The Trial Chamber shall inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision. The pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate.’
[cxiv] ICC-01/04-01/06-T-357-ENG, p 50 lines 9-19.