On the last day of the appeals hearing for Thomas Lubanga, the age of the young soldiers who served in the militia he led remained at the center of submissions by his defense and by prosecutors.
Mr. Lubanga himself made an unsworn statement at the end of the hearing, stating that it was “incomprehensible” that International Criminal Court (ICC) judges convicted him of recruiting and using child soldiers in armed conflict.
“I have spent nine years in preventative detention. It is long and terrible for a human being,” he said. “It is all the more terrible to do so thousands of kilometers from my native environment, my family, and my children.”
Mr. Lubanga said what made him despair in the proceedings was “the incomprehension, a massive lack of understanding” of his sincerity and good faith in trying to return peace to Congo’s Ituri province and demobilize child soldiers.
Yesterday, two former bodyguards to Mr. Lubanga testified that they were 18 and 19 years respectively when they joined his Union of Congolese Patriots (UPC) militia. Today, the defense aimed to punch holes in the prosecution’s evidence that led judges to convict the accused after determining that his personal security detail contained child soldiers.
Defense lawyer Catherine Mabille said the trial chamber “erred gravely” by relying on the physical appearance of soldiers portrayed in a video tendered by prosecutors to determine that the fighters shown were child soldiers. “Physical appearance cannot determine beyond reasonable doubt the age of the individual,” she stated.
She also said although the Office of the Prosecutor (OTP) had exculpatory evidence, namely lists and photographs of Mr. Lubanga’s presidential guard members since 2004, it did not disclose those documents to the defense until November 2013.
However, the prosecution countered that evidence provided yesterday by the two witnesses was insufficient to alter the verdict of the trial chamber.
“Both witnesses of yesterday had serious credibility problems,” prosecuting lawyer Fabricio Guariglia stated. There were queries on their dates of birth, and they did not have student cards to support the ages stated on their voters’ cards.
The prosecution also said United Nations officials who worked on demobilization of former fighters, as well as former UPC insiders, testified during the trial about the presence of child soldiers in the UPC.
Jean-Marie Biju-Duval, another defense lawyer, said the trial chamber’s verdict was based largely on the prosecution’s claim that Mr. Lubanga had child soldiers among his personal guard. The testimony heard yesterday, he contended, “destroys any foundation to the claim of the trial chamber that Thomas Lubanga knew about children under age of 15 in his presidential guard.”
Mr. Biju-Duval added, however, that the defense was not challenging that minors under 18 could have been enlisted in UPC’s armed wing.
Meanwhile, prosecutors rejected defense claims that Mr. Lubanga’s rights were prejudiced by the prosecution’s failure to disclose to him documents containing a list of names and photographs of UPC’s presidential guard members.
They explained that these documents were received from an unnamed source around 2004, and they were assessed as incriminatory. However, when the source failed to provide consent for the documents to be disclosed to the defense, the OTP decided “not to move with the documents” in its case.
Regarding the potential usefulness of the documents, prosecutors stated that although they may have been helpful for the accused to track down former fighters in UPC’s armed wing, as the group’s former commander-in-chief, Mr. Lubanga had the means to know who these soldiers were.
Luc Walleyn, a victims’ lawyer, said a fair trial does not depend on work conducted by parties but by the chamber. He added that the Lubanga trial chamber was “scrupulously respectful” of the rights of all parties “and decided to halt proceedings twice, and the defense received disclosure.”
Similarly, prosecutors explained that during the trial, the trial chamber remedied any fair trial prejudices the defense may have suffered, such as through ordering disclosures by the OTP. At the end of the trial, argued prosecutors, trial judges had evaluated the evidence and rejected a significant portion of it, including the evidence of all the nine child soldier witnesses.
Mr. Lubanga’s appeals hearing is before judges Erkki Kourula (Presiding), Sang-Hyun Song, Sanji Mmasenono Monageng, Anita Ušacka, and Ekaterina Trendafilova. A date for the ruling will be announced in due course.