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DRC, Part II: Lubanga Trial Delay; Christian Science Monitor, IWPR on Third Case; "ICC: Fast and Better" Op-ed in L'Observateur (Kinshasa)

20 Feb 2008

Dear Colleagues,

Please find below Part II of this two-part digest with information on
recent developments related to the International Criminal Court'sinvestigation in the Democratic Republic of Congo (DRC).

This digest contains news articles on the Court's decision to set a
new start date for the Lubanga trial; continued coverage of the third arrest in DRC by the Christian Science Monitor and IWPR, the former presents a profile of the third suspect, the later explores issues surrounding the admissibility of the case; and finally, an op-ed published in the DRC newspaper L'Observateur "ICC: Fast and Better" in which the author states that "the most ardent wish of the Congolese is to see the ICC do its job quickly and better. The credibility of the international community and the radiation of the values of the universal civilization depend on this."

Please take note of the Coalition's policy on situations before the
ICC (below), which explicitly states that the CICC will not take a
position on potential and current situations before the Court or
situations under analysis. The Coalition, however, will continue to
provide the most up-to-date information about the ICC.

I. LUBANGA'S TRIAL DELAYED

i. "First Trial as Permanent War Crimes Court Delayed," (Reuters), 14
February 2008,
http://africa.reuters.com/top/news/usnBAN456818.html

"Judges have delayed the first trial at the International Criminal
Court after lawyers for a Congolese militia leader accused of using
child soldiers insisted on more time to prepare his defence… Lubanga's
lawyers said prosecutors had not disclosed all the evidence as
stipulated by the court.

A court spokeswoman said on Thursday that judges will now set a new
date by which time prosecutors must disclose all evidence to the
defence, with the trial expected to start three months after that.
During a hearing on Wednesday judges mentioned a tentative start date
of June.

Lubanga, who founded and led a militia in the Democratic Republic of
Congo's Ituri district, was arrested in 2006 and accused of enlisting
and conscripting children under the age of 15 to kill members of the
Lendu ethnic group during the country's 1998-2003 war.Lubanga has denied the charges.

The ICC ruled in January 2006 that there was enough evidence to try
Lubanga, a milestone for the institution that was set up in 2002 and
is now backed by 105 nations.

…The ICC is also in the early stages of prosecuting Germain Katanga…
A third suspect, former Congo warlord Mathieu Ngudjolo, was
surrendered to the court last week, where he faces war crimes charges
of murder, sexual slavery and using child soldiers.

Ngudjolo's arrest comes as the government of President Joseph Kabila
is attempting to bring to an end a decade of violence in Congo that
experts estimate has killed 5.4 million people, mainly through hunger
and disease."

ii. "ICC Judge Says War Crimes Trial of Congo Militia Leader May be
Delayed" by Katerina Ossenova (Jurist), 13 February 2008,
http://jurist.law.pitt.edu/paperchase/2008/02/icc-judge-says-war-crimes-trial-of.php

"A judge for the International Criminal Court (ICC) said Wednesday
that the trial of former Union of Patriotic Congolese militia leader
Thomas Lubanga will likely be postponed for at least two months to
allow defence lawyers sufficient time to prepare their case. In
November 2007, the ICC set Lubanga's trial date for March 31, 2008,
but the judge said Wednesday that issues surrounding the involvement
of victims in the trial and the disclosure of evidence by the
prosecution seem to warrant granting defence lawyers' request for more
time. AP has more.

Lubanga appeared before the ICC in March 2006 after he became the
first war crimes suspect to be taken into ICC custody. Lubanga is
charged with enlisting child soldiers in Congo's violence-plagued
Ituri district. He has denied the charges against him. The ICC has
also taken steps to prosecute Congolese militia leader Germain
Katanga, who has also been accused of using child soldiers, and former
Nationalist and Integrationist Front (FNI) leader Mathieu Ngudjolo
Chui, who is accused of planning and carrying out an attack against
the village of Bogoro in 2003, killing some 200 persons."

II. MATHIEU NGUDJOLO CHUI's ARREST

i. "A Congo Warlord – Arrested for Crimes Against Humanity – Explains
Himself" by Tristan McConnell (Christian Science Monitor), 15 February
2008, http://www.csmonitor.com/2008/0215/p20s01-woaf.html

"Kambutso is a typical African village of stick-framed huts plastered
with mud set on a grass-covered hill in the east of the Democratic
Republic of Congo… I was there to meet a notorious Congolese warlord,
Mathieu Ngudjolo Tchui, a powerful military leader and veteran of
ethnic fighting that had convulsed the region. He claimed to command
10,000 fighters and was head of one of the last rebel militias there.

I wanted to ask him about the recent elections in Congo, about an
amnesty agreement that he'd signed with the government, and about the
atrocities attributed to him and his fighters.

Human rights activists had told me of attacks on villages by Mr.
Ngudjolo's ethnic Lendu militia in which scores were killed (bodies
mutilated and dumped in latrines), girls raped, children abducted into
rebel ranks, churches burned, and hospitals turned into
slaughterhouses. And, in Ituri, it was alleged that Lendu and other
fighters used cannibalism to terrorize civilians who'd become inured
to violent death during the war.

Some of these accusations would become the basis of International
Criminal Court (ICC) charges for which Ngudjolo was arrested last week.

…Ngudjolo talked enthusiastically of the recent amnesty deal he'd
signed and how, as a result, he looked forward to being integrated
into the national army as a colonel. …As we talked, I grew
increasingly nervous. It's one thing to ask a man about his upbringing
or politics, it's another to come to a rebel's stronghold and question
him about massacres he is accused of.

Ngudjolo leaned back in his chair and listened, hands clasped in his
lap, head cocked to one side. Then, with palms upturned in a universal
sign of innocence, he said that when there is fighting, of course
civilians die and are displaced from their homes. He said that he
simply defended his people, Lendu farmers, from attacks by
cattleherding Hema militias. He denied having child soldiers, despite
the hairless faces and slight shoulders of those standing guard
outside the hut. Rape is so prevalent in Congo that he didn't bother
to address the issue.

He showed no fear of either local or international justice. `I cannot
fear international justice because for what can I be arrested? I have
created a political movement,' he said recasting his ethnic militia as
a political force protecting his people's rights. An aide dressed like
a Hollywood bad guy in a shiny tracksuit and dark glasses added with a
smile: `In Congo we have so many criminals, we can't just talk about
the militia leaders. If [the world wants] justice they must arrest the
whole of the Congo!'

Ngudjolo's confidence was misplaced: the Congolese government has
acted on an arrest warrant issued by the ICC. He was seized in the
capital, Kinshasa, on Feb. 6 and transferred to The Hague, where he'll
be tried on six counts of war crimes and three of crimes against
humanity. He joins his comrade Germain `Simba' Katanga and their
archenemy Thomas Lubanga Dyilo in the holding cells.

…He is being tried for an attack on the village of Bogoro in February
2003. …The attack was swift and brutal, according to United Nations
investigators. … As the village burned around them, Ngudjolo and Mr.
Katanga celebrated their victory…"

ii. "Ngudjolo Trial Faces Double Jeopardy Claim," Katy Glassborow and
Marie Delbot (IWPR), 19 February 2008,
http://www.iwpr.net/?p=acr&s=f&o=342800&apc_state=henpacr

"Mathieu Ngudjolo says he has already been acquitted in DRC on same
charges bought against him by ICC.
The third Congolese in custody at the International Criminal Court,
ICC, Mathieu Ngudjolo Chui, has questioned the admissibility of his
case by claiming he has already been tried and acquitted for similar
charges in his native Democratic Republic of Congo, DRC. His lawyer
Jean-Pierre Kilenda Kakengi Basila has asked ICC judges for more time
to gather proof of national procedures against Ngudjolo. He has also
requested that prosecutors pass over information they uncovered during
investigations in the DRC relating to trials there. Basila said he is
also contacting Ngudjolo's lawyers in Bunia and Kinshasa for their
documents and files.

…During his first court appearance on February 11, Basila read out a
letter from Ngudjolo saying he had already been tried and acquitted in
the DRC on similar charges.
`I do not understand why I was arrested anew by the International
Criminal Court,' said Basila, citing the letter.

…Back in the DRC, Ngudjolo was arrested in October 2003 for the murder
of a Hema businessman, and stood trial at the civilian Tribunal de
Grande Instance in Bunia.
He was acquitted in June 2004 due to an apparent lack of evidence,
although human rights groups say this was because witnesses were
scared to testify.

While in custody for the murder charge, the DRC government charged
Ngudjolo with war crimes committed in the town of Tchomia in May 2003.
He was later transferred to Kinshasa for trial at a military tribunal,
and was detained in a Makala prison from where he escaped before a
verdict was reached.

How the war crimes case against Ngudjolo progressed before his escape
has been somewhat shrouded in mystery.

Federico Borello from the Transitional Justice and Fight Against
Impunity Unit at MONUC, the UN peacekeeping mission in DRC, said his
team has approached the judicial authorities to clarify what happened
after Ngudjolo escaped.

`No-one seems to have any records. We only know Ngudjolo was
transferred for the massacre of Tchomia, but then he escaped. What
happened in between we don't know - even whether there were hearings.
But there was never a judgment against him,' explained Borello.

IWPR managed to get hold of John Penza Ishayi, a magistrate at the
Auditorat militaire de garnison de l'Ituri in Bunia, who confirmed
that Ngodjolo was acquitted by the District Court of Bunia. `The
prosecution appealed the verdict. While Ngudjolo was in detention at
the Makala prison in Kinshasa, a second case was filed against him for
systematic attacks launched against the civilian population of Tchomia
and Bogoro.'

However, according to the prosecution judge, Ngudjolo was never put on
trial for the second case. `The file was transferred to the national
prosecution office but Ngudjolo was never interrogated. In the end,
Ngudjolo has never been prosecuted or sentenced for any of the
offences that the ICC is prosecuting him for.'

Anneke Van Woudenberg from Human Rights Watch, HRW, confirmed that two
national cases had been brought against Ngudjolo. However, she told
IWPR that there could be no double jeopardy claims in relation to the
ICC case as a result of these.

…The ICC's Beatrice Le Fraper Du Hellen, who works on admissibility
issues and court relations with national institutions, said that
before deciding whether to intervene in a country, ICC lawyers
carefully check national trials to ensure that there are no
proceedings underway already. `If we see there are no such
proceedings, we may decide to open an investigation and focus on very
specific incidents, and then do a more specific admissibility test on
the incidents we are investigating to see whether there have been any
proceedings,' she said.

… Despite the presence of MONUC peacekeepers, witnesses pulled out of
testifying against militia leaders because of threats from armed
groups, which HRW says could explain the murder charge acquittal of
Ngudjolo before the Bunia court in June 2004.

…Commentators say that even if Ngudjolo had not escaped and had stood
trial for war crimes in his own country, the trial would not have
passed muster with the international community. "

III. OPINION

"ICC: Fast and Better," by Xavier Mirindi Kiriza, (L'Observateur), 13
February 2008,
http://www.lobservateur.cd/index.php?option=com_content&task=view&id=1281&Itemid=1
(in French)

"Honestly, it is good to salute and encourage the effort of
International Justice, who, through the International Criminal Court
(ICC), responds to the cries of the victims, dead and alive, of the
bloodbath that our country, the Democratic Republic of Congo, has
known [for decades] and continues to experience daily.

… The calling in for questioning of these three fellow countrymen can
only cause the whole of Congolese national opinion to rejoice. It sees
this questioning as proof of the determination of the ICC to lead the
fight against impunity that [we] have been demanding for so long...
That impunity in DRC eventually gave all those it protects the nerve
to taunt their victims…

However, this Congolese opinion is under the impression, be it right
or wrong, that the International Community does not provide the ICC
with the support, or with enough of the support, that it requires in
order to do its job correctly and quickly. The following three reasons
are what makes us think so.

…The second reason is this kind of double talk that the very same
Congolese have identified on the part of the international community,
since it seems to attack only the executing criminals, and visibly
leaves alone their mentors and commanders. The declarations by which
[the international community] affirms its firm resolution to settle
the accounts of all purveyors of death and desolation in DRC are
really far from convincing at the present time.

…To say it all, the most ardent wish of the Congolese is to see the
ICC do its job quickly and better. The credibility of the
international community and the radiation of the values of the
universal civilization depend on this."

To view the original version of this release in French, please visit:
http://www.lobservateur.cd/index.php?option=com_content&task=view&id=1281&Itemid=1

Translation is unofficial and provided by the CICC Secretariat.

**********************************
CICC's policy on the referral and prosecution of situations before the
ICC:

The Coalition for the ICC is not an organ of the Court. The CICC is an
independent NGO movement dedicated to the establishment of the
International Criminal Court as a fair, effective, and independent
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most up-to-date information about the ICC and to help coordinate
global action to effectively implement the Rome Statute of the ICC.

The Coalition will also endeavor to respond to basic queries and to
raise awareness about the ICC's trigger mechanisms and procedures, as
they develop. The Coalition as a whole, and its secretariat, do not
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