NOTE FROM EDITOR: At the sentencing hearing of Thomas Lubanga, on June 13, 2012, his defense reaffirmed the innocence of the first individual to be convicted by the International Criminal Court (ICC) and urged judges to hand him a lenient sentence. Below is an official ICC transcript of the defense statements at the sentencing hearings, which were delivered by three defense lawyers – Marc Desalliers, Catherine Mabille, and Jean‐Marie Biju‐Duval.
Address by Marc Desalliers
Your Honors, before we delve into the crux of the matter which my colleagues will do, let me speak a few words about the unfolding of these proceedings, the trial of Mr. Lubanga, how it unfolded. Defense would like to invite the Chamber, as it comes to its determination of sentence, to determine such a sentence bearing in mind that Mr. Lubangaʹs fundamental rights have been breached mainly because of failures on the part of the OTP [office of the Prosecutor] relating to its statutory obligations.
First of all, about deadlines in this case. At the time of the judgment on 14 May 2012, Mr. Lubanga was in detention and had been in detention for six years. During that time, the Chamber on more than one occasion underscored the fact that the protective measures applied to Prosecution witnesses had been done with significant delays and had therefore affected the commencement of the trial.
The Chamber, in its decision relating to the interview of Madam Le Fraper Du Hellen, that the Prosecutor’s failure to disclose significant volumes of potentially exculpatory evidence had led to inexcusable delays in the trial. That failure to disclose led to the first stay of proceedings on 13 June 2008. The proceedings were stayed for about four months. The Chamber also indicated that the deliberate refusal by the Prosecutor to comply with an order to disclose issues relating to intermediaries led to a second stay of proceedings which lasted another four months, thereby delaying the proceedings for that long.
Such a situation, to the best of our knowledge, is unprecedented in the area of International Criminal Law. A Trial Chamber, being forced to stay proceedings twice because of failures of the Office of the Prosecutor and being in a position to order the release of the accused person, these are unprecedented. There were failures in investigation by the Prosecutor, which led to spending significant time examining evidence relating to individuals whose testimony was, at least to some extent, inaccurate or fraught with dishonesty.
Yet, it is the fundamental right of an accused to be tried fairly and expeditiously. When an individual is accused of serious crimes, such individual should not be held in a situation of extended uncertainty, particularly when such person is held in detention during the trial proper. Against this backdrop, it is therefore clear that Mr. Lubanga has suffered prejudice because the trial, to a very large extent, went beyond what could be considered as a reasonable timeframe.
These two stays in proceedings only go to further aggravate the prejudice against Mr. Lubanga. The Trial Chamber had to order the suspensions or stay of proceedings in order to uphold the principle of the fairness of trial, but this was because of failures by the OTP, and this all led to Mr. Lubanga spending some eight months in detention without even knowing whether the trial against him was going to continue or not.
Those delays in proceedings were not the only result of the failures by the Office of the Prosecutor. Late disclosure of some elements of proof or evidence deprived Defense of certain opportunities to investigate matters for its own case and also in relation to questioning of some Prosecution witnesses. When one cannot cross‐check evidence, when the Prosecutor himself does not cross‐check evidence, then a false picture of the events is painted, particularly regarding Mr. Thomas Lubanga.
In its judgment, the Chamber indicated that the nine individuals who were presented as former child soldiers were identified early in the trial and the Prosecutor frequently referred to their story to demonstrate the manner in which the children were allegedly enrolled and used in the FPLC [Patriotic Force for the Liberation of Congo]. Their story stands at the very center of this trial and was carried in the media extensively over all the years the trial lasted. And although the Chamber in its judgment of 14 March completely set aside the entire testimony of those alleged child soldiers, their lies, however, leave an inextricable mark on public opinion in this matter.
In its decision relating to an interview granted by a representative of the Office of the Prosecutor, Madam Le Fraper Du Hellen, the Chamber severely criticised the statements made by that person relating to this trial. The Chamber deplored the fact that testimonies had been distorted and an improper picture of the trial had been painted. The Chamber availed itself of that opportunity to recall that it was necessary for all parties and participants to be exact and to show reserve in their statements relating to evidence and to the procedures. Yet the very day after the judgment of 14 May ‐‐ of 14 March rather, the Office of the Prosecutor granted a press conference at which a special homage was paid to all child soldiers who had overcome their suffering and who had come to testify about their painful experiences during this trial without mentioning that the entire content of those testimonies had been thrown out by the Chamber.
I must also refer to some of the points that have been raised by the Prosecutor today. Today the Prosecutor has called on you to take into consideration many aggravating circumstances because men, women and children were to be killed regardless of their origins. Where do we find such material in the evidence? It is being argued today that Mr. Lubanga is being accused today of crimes which deny the children of Ituri their right to education. The argument is made before this Court today that the children of Ituri refused to go to school because they were afraid of being enrolled by Mr. Lubanga. That at the very least is a surprising allegation because, your Honors, the Defense clearly brought evidence to show that those stories by those alleged child soldiers were inaccurate and this was substantiated by documentary evidence that those children were still attending school.
What else can I say when the Prosecutor claims that all the girls were raped? Where can we find that in the evidence? Under such circumstances, your Honors, how then can the public understand that these horrible stories that were told by these child soldiers before this Court were not entertained by the Chamber?
Let me say a word on the publicity of trials, the open nature of our trials. It is true that much of this trial took place in closed session because many witnesses asked for protective measures. Defense does not today attempt to argue that these requests were baseless, or unreasonable. No, we cannot say so. However, the child soldiers, or those individuals who were presented before you as child soldiers, who argued that their lives were in danger if they testified in open session because of their past, clearly, when the Chamber is placed in such a situation it has no choice but to grant protective measures.
But upon full examination of the evidence, once it became clear that at least those witnesses were not sincere, or were part of a fraudulent undertaking, then we can only say that the protective measures were not necessary and that a very significant part of the trial was held in closed session for reasons that cannot be justified.
I therefore conclude by stating that the International Criminal Tribunals have established that where the fundamental rights of an accused person have been breached, such a person’s rights must be restored and that such restoration can be done by a reduction of the sentence. Such a restoration must be effective and not symbolic. It must be real and concrete. For this reason, Defense prays the Chamber to take into consideration the breach of the fundamental rights of the Mr. Lubanga as it comes to its determination.
Presiding Judge Adrian Fulford: Just before you sit down, Mr. Desalliers, and thank you for your submissions, the Chamber would not accept one element of what you’ve submitted. It may be that this is possibly something that’s come out incorrectly as a result of translation, excuse me, but in the English [transcript], don’t look it up now, but I’ll just cite what was said at page 55, line 12, you advanced a submission that the Prosecution’s late disclosure had led to a deprival of an opportunity for the Defense to investigate matters for its own case.
Now, should that submission ever be repeated elsewhere for the purposes of other proceedings, there would need to be very careful investigation of all the applications that were made by the Defense in relation to opportunities to prepare its case as a result of late disclosure by the Prosecution. And unless my memory fails me, Mr. Desalliers, I don’t think any of your applications for time were ever refused and the Chamber, to the contrary, took steps to ensure that all the requests that ‐‐ all the reasonable requests that you made for time to investigate for your case were granted. And so I want to make it clear that that particular submission is not accepted by the Chamber.
Desalliers: Mr. President, we as Defense are ready to agree with you because indeed we did make a number of applications for the purposes of conducting investigations and those requests were granted by the Chamber. Yes, indeed, the Chamber assisted the Defense in these matters of investigations and we do acknowledge and recognise that fact. I was not in any way reproaching the Chamber for anything but, Mr. President, there comes a time ‐‐ you see, when I started my statement I talked about the delays that this trial had suffered. Well, it could be argued that maybe Defense opted not to ask for an extension. That was a choice. Proceedings must come to an end at some point.
Now, if the Defense gets information about links between a witness of 2009 and an intermediary which evidence becomes available in 2012, it might be necessary for additional investigations to be conducted for the witnesses of 2009 to be called back and so on and so forth, and this would put us in a vicious, unending cycle. That is exactly what I meant to say, Mr. President. I did not at all intend to criticise the assistance granted to the Defense by the Chamber in conducting its investigations. Thank you.
Presiding Judge Fulford: Thank you for your explanation. I wanted to ensure there was no misunderstanding, Mr. Desalliers.
Address by Lead Defense Counsel Catherine Mabille
Your Honors, your Chamber found Mr. Lubanga guilty of enlistment, conscription and use of child soldiers in hostilities. That is in your judgment of 14 March 2012. You will hand down a sentence taking into account considerations such as the gravity or seriousness of the crime, and the personal situation of the convicted person, and I would like to talk about the gravity and scope of the crime. Defense has never disputed the fact that the crimes charged against Mr. Lubanga [are] very serious.
At the time of handing down its sentence, the Chamber will need to take into account the scope of the crime but the question that arises today and which is very crucial is the following: Do we actually know the number of children under 15 years old who were enlisted in the FPLC? What do we know about the number of children that were forcibly enlisted or the number of children who actually took part in hostilities? I would say at the very least that we are certain of only one thing, which is a major uncertainty, on which evidence can the Chamber rely on today to assess the scope of the crime?
This is not the least of the paradoxes in these proceedings, because we are at the heart of a crime which is enlistment, conscription and use in hostilities of child soldiers, that all the children who came and testified here, their testimonies have been set aside. In its judgment, the Chamber stated that the crimes of conscription and enlistment are committed when a child less than 15 years old is forcibly enlisted into a group, armed group, or he joins the group voluntarily, and the Chamber pointed out that the crime ceases when the child reaches the age of 15 years or leaves the armed group.
But this criterion set out by the Chamber, that is, if we had elements to assess the degree of gravity of the crime, would have allowed us to make a determination but, yet again, we do not have all the information that would indicate when a particular child was enlisted, when he was forced to join an armed group, an armed group, did that child leave the armed group after two months or after a longer time? We have no certainty about that.
Your Chamber excluded the testimonies of the child soldiers that were called here, the so‐called child soldiers, and used or relied on other evidence; video footage, the testimonies of other Prosecution witnesses who based their information on visual assessments and documentation. I would like to draw the attention of the Chamber to the degree of uncertainty of that evidence. The Defense submits that very frequently appearances can be deceptive. We would like to point out that the assessment of age through video footage, and a determination of the age of the persons in question, is a particularly delicate exercise.
We called a witness to testify that physical appearance is deceptive, and when it comes to analysing video footage ‐ and I will go even further and include other elements ‐ this physical appearance can constitute a real concern and it seems to us crucial to draw the attention of the Chamber to the margin of error involved which can be significant. What I would refer to as this optical illusion or deceptive appearances can be explained in several ways. There are physical specificities linked to community affiliation and these appearances can also be explained by the fact that those young people suffered from dietary deficiencies which would have an impact on their development and physical appearance leading to these children looking younger than they really are.
We would like to submit that the Chamber cannot make a determination simply by looking at video footage to assess the number of children that would have been recruited while under 15 years old. The margin of error could be considerable, and it could also be significant, even for the witnesses who came to testify in this courtroom, in your courtroom, about the presence of young people under the age of 15 in the armed groups. Even if they were speaking based on real good faith, they could have been mistaken, so we are saying that there is great uncertainty about the number of young people recruited into the FPLC.
We also have the same concerns regarding the number of children under 15 who actually were used in hostilities. We have no clear and precise evidence. Those who came to this Chamber and testified about their use in hostilities have been excluded from the evidence. There is even greater uncertainty regarding the number of children under 15 who were victims of conscription, and I would like to point out that all the testimonies of the witnesses who claim to have been abducted have been set aside by the Chamber.
I would like to draw the attention of the Chamber to another element that might have been taken into consideration to establish the scope of the crime. This is a phenomenon, the phenomenon of fraud within the framework of the demobilization activities. Witness 0023 told us not that these were fraudsters but that the misery brought about by the war prompted many civilians to pass themselves off as former soldiers when they went to CONADER [the Congolese National Commission for Disarmament, Demobilization and Reintegration of ex-combatants] in order to receive financial benefits.
Similarly, Witness 0031 admitted that some of the children who went to the demobilization centers declared a lower age in order to be able to benefit from certain advantages that were made available to children of a younger age, and that some children even tried to register themselves in more than one demobilization center sometimes using a different name. So Ituri was devastated, and the children declared themselves as child soldiers in the demobilization centers so as to receive certain benefits.
The conclusion that the Defense can take is that the proceedings led to less than reliable statistics on the real number of child soldiers. I would like to conclude this point by stating the following: Your Chamber concluded that the UPC/FPLC carried out a large‐scale campaign aimed at recruiting young people including children younger than 15 years old forcibly or voluntarily. At the time of handing down the sentence, the question that arises is the following: What is the proportion of the children less than 15 years old? And that question remains unanswered. I believe it is reasonable for me to conclude that the evidence adduced during the trial does not make it possible to have any certainty about the scope.
Very briefly, I would like to touch on the aggravating factors that were raised in the Prosecution’s submissions. I would also like to refer the Chamber to our written submissions on the other aggravating factors. Mr. President, your Honors, in his submission the Prosecutor set out five aggravating circumstances. I would like to refer you to our own submissions on that, but I also would like to make some clarification about the aggravating circumstance that is supposed to be sexual violence.
But before that I would like to say that I am surprised, flabbergasted and even alarmed that a short while ago the Prosecutor stated things that are not established in the evidence at all, at least the way I have read it. And I would like to read out the sentence of the Prosecutor: ʺAll the girls who were recruited were raped.ʺ I know that sensationalism can be used to aggravate a situation that is sufficiently serious, but I believe that it is scandalous for such a statement to be made, that all the girls who were recruited were raped; whereas, we have a record of the proceedings so far. What evidence is there in that record to prove such a statement? I’m simply quoting that statement to indicate that it is absolutely abnormal and unusual to make such a statement that has not been established on the record.
The Prosecutor should be ethical enough to stick to the evidence. He also wishes to consider as aggravating circumstances the allegations of certain witnesses according to which some members of the FPLC allegedly perpetrated sexual violence against certain recruits. Let me point out that the Prosecutor has never tried Thomas Lubanga for sexual violence, which is a specific crime provided for in the Statute. He has never applied for a variation of the charges, and at that time he himself indicated that it would be unfair for to the accused to be prosecuted on the basis of that charge.
In the notification of charges document of August 2006, as well as in the confirmation of charges decision, there is no allegation about sexual violence. So it would be totally unfair today, using the pretext of aggravating circumstances, to introduce new charges which could not have been effectively challenged by the Defense, given that the Chamber knows that the Defense did not carry out any investigation, they did not cross‐examine witnesses on those charges and did not call any witnesses because the charges were not included in the accusations made against Mr. Thomas Lubanga.
And even if sexual violence was admitted to have been perpetrated, there is nothing to attribute the responsibility for this to Thomas Lubanga under 23(3)(a) as a co‐perpetrator. No evidence shows that the accused persons ordered, encouraged such violence or that he was personally aware of it. It goes without saying that the sexual crimes cannot be considered as inevitable consequences in the normal order of events related to enlistment and conscription, which are the charges against the accused. It is not because those procedures were carried out that inevitably there would be rapes. The Prosecutor can therefore not request the Chamber today to take into consideration allegations relating to crimes for which Mr. Lubanga was neither tried nor convicted. The Chamber, therefore, cannot take these aggravating circumstances into account with regard to Mr Lubanga. And I would like to finish there, your Honor.
Address by Jean-Marie Biju-Duval
Your Honor, your Honors. Maître Mabille has just pointed out the major uncertainty that there has to be which should give rise to the greatest prudence. Now I would like to highlight certain certainties that there are which in our opinion the Chamber should take into consideration in order to come to a just and fair sentence. Firstly, Rule 145 invites the Judges to take into consideration the circumstances with regards to exonerating circumstances under Article 31 of the Statute, and we consider on this subject that the responsibility of Thomas Lubanga within the UPC cannot be fairly sanctioned unless, in the light of the massacres, they are examined in light of the matters which were threatening the population of Ituri and in particular the Hema community during the period covered by the charges.
Thomas Lubanga was at the head of the UPC/FPLC at a time when certain communities within Ituri, and in particular the Hema community, were quite simply threatened, threatened with extermination. And there is no doubt that the armed forces which were organized on the initiative of Hema military leaders had as the raison dʹêtre to cope with this threat of extermination that there was. That is to say that this armed force of which Thomas Lubanga was responsible constituted, in exceptional circumstances, legitimate defense, and this exceptional circumstances are attenuing (sic) circumstances ‐‐ attenuated circumstances.
We are talking about mass crimes here. They were committed before the eyes of United Nations observers, Blue Helmets of the United Nations, and it was ‐‐ it’s a Srebrenica, a Congolese Srebrenica. Like ten Srebrenicas, not just one. And it’s not only the men of the fighting age who were killed, there were women, there were children. There were old persons as well. Massacred without the United Nations soldiers being able to intervene in order to protect them. And it was in this context that the armed forces was constituted which would become the FPLC. There was massive and voluntary enlisting because there was a threat, there was a threat of extermination, mass extermination, and the constitution of this armed group which Thomas Lubanga is accused of is ‐‐ came out of the imperative need that there was to deal with crimes of extreme gravity.
So with regards to fairness, the fairness of the sentence, when it comes to making the sentence for sanctioning the enlistment of child soldiers, well, the Chamber takes into account exceptional circumstances which determined this enlistment.
Presiding Judge Fulford: Mr. Biju‐Duval, forgive me interrupting just for a moment. Maître Mabille has just very fairly made the submission that the sentence that we impose ought to be based carefully on the evidence that has been introduced during the trial. Extending that to the submission that you have just made in relation to the threat of extermination or mass extermination leading to the creation of the force, are you able in a convenient way to refer us to the evidence in the trial which supports that general proposition? It may be it’s already set out in your written submissions, but I want to ensure that the factors of this kind, which are clearly important to your submissions, are properly made out and referenced in relation to the evidence that we’ve heard during the course of the trial.
Biju Duval: Yes, your Honor, of course these elements are detailed in our submissions, and some examples that I have to my memory now, I still remember the issue or the question that I put and the answers that were made by the expert [witness Gerard] Prunier. We also went over all the massacres which I’m speaking about today. I also remember the testimony of Witness 17 who was speaking about massacres in his neighborhood in Marambutebela (phon) neighborhood and others are also mentioned in our submissions.
Presiding Judge Fulford: These were very general powerful and obviously important submissions. I just wanted to ensure that the evidential basis for them has been properly identified. It clearly has, so please carry on.
Biju-Duval: Thank you very much, your Honor. It is this requirement of fairness, which in our mind should make the Chamber take into account this threat of extermination, this criminal chaos that there was, makes it necessary all the more that this situation, where there were systematic and wide‐spread massacres during this period, that this situation ‐‐ or which was created by the Ugandan and Rwandan and Congolese governments, governments which were deliberately spared by the Prosecutor.
We consider that today, the Prosecutor has lost all credibility, all legitimacy to have a sentence, and what sentence, 30 years? For having a sentence against Thomas Lubanga. The warrant of the Prosecutor, or the mandate of the Prosecutor, is inviting impunity for the most high‐ranking people, the people really behind the crimes that were committed. The Prosecutor recognizes that the Ugandan and Rwandan governments are directly or indirectly involved in the crimes which took place in Ituri, and the greatest international human rights organization denounced the active and direct role which was played by the Kinshasa government, and I won’t go back over that point, we’ve already raised it on multiple occasions during which the Prosecutor has never responded.
But this is ‐‐ there’s an additional obstacle which the Chamber meets with regards to a fair sentence, and also in finding the right sentence. When you hand down a sentence, naturally this is acting against impunity, but in this case the fight against impunity is not taking place here. Instead of making from ‐‐ President [Yoweri] Museveni, [Paul] Kagame and [Joseph] Kabila, making them first‐ranking accused, the Prosecutor has made them privileged partners.
How can the Prosecutor call for such a sentence against Thomas Lubanga while everything that happens thus so as if the Prosecutor himself guaranteed impunity to the highest people responsible for the massacres committed in Ituri? How can justice find its place in that regard? How, under these conditions, can a sentence be handed down which is recognized by all as just and fair? How, under these conditions, with regards to the sentence pronounced against Thomas Lubanga, how can the victim communities, who have suffered these atrocities, they can say it’s not fair, it’s not fair, those who organized the chaos and profited from it, they’ve been spared. And those who have suffered amongst us is sentenced. And in order to try to approach the right sentence, the fair sentence, you necessarily have to have a situation whereby the Chamber takes into account this major injustice.
The sentence should be proportional to the guilt, and that’s what Rule 145 tells us, and it would seem to us that having assessed the culpability or guilt of Thomas Lubanga, you can legitimately consider that amongst the leaders involved in the events in Ituri it was ‐‐ he is the least guilty of all.
We also wish for the Chamber to examine the mobile ‐‐ the motives that led Thomas Lubanga, his motives at the time, taking into account the profound reasons that guided him in his behavior and in his decisions at the head of the UPC during the 18 months when he exercised power. And it is not to personally enjoy power that Thomas Lubanga took control over the revolt.
When the revolt broke out in April 2002 he was Minister of Defense of the RCD [Rally for Congolese Democracy,] Mbusa Nyamwisiʹs RCD, he had that position; Mbusa Nyamwisi who became a minister for President Kabila, having been defeated in Bunia. And Thomas Lubanga could have followed, he could have followed this path. He would have been able to follow Mbusa Nyamwisi in Kinshasa and also play the role of benefiting from power. And he could have left Ituri as prey to massacres and that is not the path that he chose. He believes in and denounces the crimes that are taking place, and he was immediately imprisoned for that on the orders of President Kabila in Kinshasa, in the political jail of Kinshasa, and it wasn’t there, the behavior, that wasn’t the behavior of a person who wanted power and money.
And what we would like to highlight here is that behind the responsibility of Thomas Lubanga, the source of that, there is not a criminal will behind that. On the other hand, there is a moral requirement. Behind the moral responsibility of Thomas Lubanga there was not the will to commit a crime on the ‐‐ quite the opposite. He wanted to put an end to the crimes that had hit Ituri and were affecting Ituri.
And we have to finish with the caricatures. We have to finish with the stereotypes, the media stereotypes, the false stereotypes of a warlord. We ask you, when you are going to sanction, when you shall hand down the sentence, to try with prudence and fairness the requirements of a leader, a political leader, who was in a historic situation where there was extreme confusion and one of extreme gravity, and in a period which is characterized by a complexity which is extremely contradictory. The period of charges is full of fighting, but what the trial has shown is that the evidence, and the evidence has shown, and this is something that we’ve also mentioned in our submissions, it’s detailed in footnotes, the evidence shows that Thomas Lubanga in his residence in Bunia, or in the villages, that he gave much of his time to pacification efforts intending to bring communities together, and the witness from this morning came once again to highlight this aspect. Thomas Lubanga firstly brought together all the communities of Ituri in the institutions, political institutions and the administrative institution, which he set up.
These are witnesses ‐‐ the Prosecutor who confirmed that. Witness 41, for example, and he multiples the meetings throughout the territory and it was the videos that were transmitted by the Office of the Prosecutor which demonstrate that, too. In his residence in Bunia, he received prominent figures from all the communities. We’ve come ‐‐ we’ve heard about that in the testimony from this morning. Who will say that this approach, the steps taken for the pacification, that this work, constant work that he carried out, is not sincere? Who is coming to say that this is a masquerade? Nobody. And how can’t we take it into account when the time comes to judge fairly, the responsibility and guilt of Thomas Lubanga? And what about the ideology that he proposes and that he puts forward, is that what a warlord would do, bring ethnic groups together to mobilize them around him, a community?
Wanted revenge? Is this ‐‐ is he a politician without scruples, who uses hate to be able to gain power, to take hold of power? In Ituri 2002/2003 it would have been extremely easy all over the Africa Great Lakes Region, all that area, for years it was almost the rule, the normal rule in order to gain power, but that is not the case for Mr Thomas Lubanga.
And there too, it was the ‐‐ it was the evidence that’s in the case file, the case record, that shows that. We’ve got in the case record the speeches, the speeches in Bunia, the speeches in the villages. They are in the case record, and in 2002/2003 Thomas Lubanga, he does not miss an opportunity to address the populations, and the Chamber knows that. In his speeches, he didn’t call for violence, he didn’t speak a word against a rival community. The Chamber knows that in his speeches he unceasingly denounced the ethnic rivalries that there were. He does not flinch from calling for reconciliation. He calls for peace, and there too, all his speeches, which are in the case record, were they just a masquerade?
And the numerous documents from the UPC archives on this pacification policy, which are in the case record, are they all ‐‐ all these documents, are they just propaganda instruments? Are they hypocritical, insincere, misleading? The massacres, interethnic massacres which took place during the same period, do they take from these documents any credibility, any sincerity? Of course not. You can’t say that, we don’t have the right to say that, because it’s false.
We ‐‐ he was ‐‐ people wanted to present him as a Hema warlord calling for mobilization against the Lendu enemy. A few moments ago Prosecutor stated the following: ʺThomas Lubanga did not stop saying to the population and the soldiers of the FPLC, and here I quote, ʺThat they are all enemy, that the children were ‐‐ had the instruction to kill everybody without consideration for women and children. Everybody was an enemy, that is the education that Thomas Lubanga gives to the population and to the FPLC recruits.ʺ
Mr Prosecutor, this way of ‐‐ and here I go back to what was said with a lot of moderation, Catherine Mabille, what she said, this is inadmissible, inadmissible, and why? Because this is a travesty, what we’ve heard for these years during the trial. And I would quite simply propose to the Chamber and to the Prosecutor to listen for a last time to what Thomas Lubanga says to the recruits in Rwampara camp on 12 February 2003, and this is evidence, evidence that was discussed, re-discussed, which is known by everyone.
And here I quote ‐‐ itʹs Thomas Lubanga who is speaking here, and here I quote: ʺWhat we are trying to do and what we are trying to do with you is to set up an army which is capable of avoiding killings, preventing killings, with all ethnic groups, all the tribes present here in Ituri. Our army does not have an enemy on the basis of an ethnic group. It is not the Bira who are our enemies. Itʹs not the Lendu. It’s not the Hema who are our enemies. No, our enemy is anyone who doesn’t want peace, who doesn’t want peace to be re‐established here at ‐‐ in our homes. Our enemy is the enemy of peace. Yes, we’ve all suffered a lot, we’ve all suffered, and this is the feeling that should guide us all here.ʺ End of quote.
That is really what Thomas Lubanga says. That is the conviction that is behind Thomas Lubanga on 12 February 2003, and that’s the conviction that he wants to share with the recruits. From this visit to Rwampara it was made even the foundation of the conviction of Thomas Lubanga. While we consider that fairness requires that the Chamber takes into account this speech, the sincerity has never been discussed. The fairness requires that we must not forget that if such too young recruits listen to this speech, Thomas Lubanga, he himself was preaching to them reconciliation, ethnic reconciliation, and was giving them the message ‐‐ the mission not to bring war, but peace to Ituri.
And this takes me to my last point. Rule 145 invites us to take into consideration what is called the degree of intention, the issue of the degree of intention. Otherwise said, what is the situation with regards to the criminal intent of Thomas Lubanga? The Chamber has stated that Thomas Lubanga was aware that recruitment operations of the FPLC rest leading to the enlistment, enlisting of children under the age of 15, and the Chamber also considered that these orders, aiming to ban this practice and to demobilize minors, seemed insincere, they weren’t credible, because they denied the reality of enlisting. That is something that was judged, but the Defense wishes ‐‐ or the Defense would ask the Chamber, however, to rule once again on this aspect of the case record at this stage, the issue is not debating the existence of the psychological element of the crime; it is quite simply a matter at the sentencing stage to put the weight and to look at the scope of criminal intent and the extent of criminal intent.
Put in other words, Thomas Lubanga, was he this ogre, children‐eating monster that the Prosecutor describes, this warlord who was only concerned with pressure from MONUC [the UN Military Observer Mission in Congo] or, on the contrary, was he sincerely and personally convinced that the presence of child soldiers was something bad which had to be fought? And your decision, your decision on sentencing should, it would seem to us, take into account the fact that all the facts in all their complexity, take into account facts in all their complexity, even when these facts might seem to be contradictory.
The Chamber has also mentioned the persistence there was in enlisting in its ruling. You also mentioned the conscience that Thomas Lubanga had. But we would once again ask here today to take into account also other facts which have incontestably been established by evidence and which can appear in contradiction with the first points you’ve noted.
And I’ll just take one example here, just one exhibit. The report on the meeting of military leaders of 16 June 2003. This report remained absolutely confidential right up to the trial. Nothing that ‐‐ for no reason could it be suspected to be an instrument of disinformation or one of the pieces of a masquerade. The Chamber knows that ‐‐ you can read in this report the ‐‐ the report on it or the transcript produced of this meeting, and you can read there that the child soldiers also have to be demobilized where you find them ‐‐ ʺwherever you find them, bring them to the NGOs,ʺ end of quote. And a bit further in the same transcript on this subject of the demobilization of child soldiers, you can also read there, and here I quote, ʺBefore the evil, we have to ‐‐ before evil we have to act in the favor of the whole society, and this is the argument presented by the president which we have adopted.ʺ End of quote.
This is what you find in this confidential report on the personal position, the personal position of Thomas Lubanga regarding the child soldiers. Before this evil, we must act in favor or on behalf of the entire society. These are Thomas Lubanga’s words in June 2003. He was not saying that to journalists, he was not talking to you and staff, or to humanitarian staff of NGOs. He was talking privately at a meeting with military officials. That unquestionably is established in the evidence and reflects his deep feelings and his true desires. That conviction, that conviction for demobilizing minors is as sincere as the conviction that is expressed in his statements on peace, his speeches on peace and reconciliation.
Does that stand at variance with enlisting? Yes, it is possible. That does not mean that the sincere conviction did not exist; it simply underscores the very extreme complex nature of the situation, a situation on which Thomas Lubanga has only very limited control.
Fairness, therefore, requires that your decision take into consideration the complex nature of the situations and man’s weaknesses. Even when he is referred to a “presidentʺ and ʺcommander‐in‐chief,ʺ the truth be told, the truth of the events and the truth about the man, the truth about the facts, the truth about reality is that there are contradictions and, therefore, it would be unfair and unjust to only take into consideration the reality of the accuser and not the reality of the one who may be absolved.
Mr. President, your Honors, we may be far away from the Ituri, we may be far away from those sufferings and those mysteries and those distances, but time, culture, history and what have you call for the greatest caution on your part, caution and fairness, which must take into account the fair share of ignorance that we may have. It also calls on us not to forget what we already know, not to forget the facts, not to forget the actions, not to forget the speeches which point to the fact that during that difficult time Thomas Lubanga attempted as best he could to protect, to pacify and to reconcile. I know that you will not forget these things when you come to your determination on the sentence.