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Lubanga Trial: First victim testifies, then recants; outreach to DRC; Defense concerns

29 Jan 2009

Dear all,

Please find below excerpts from news articles regarding recent developments related to the International Criminal Court's first trial in the case of Congolese warlord Thomas Lubanga Dyilo.

Excerpted articles include those reporting on the first testimony at the ICC by a victim that resulted in a closed session of the trial chamber (I); the Court’s public outreach in the Democratic Republic of Congo (II); and issues related to Lubanga’s defense (III).

For more information on this case, see the Coalition’s website at www.coalitionfortheicc.org or join the blog discussion at www.coalitionfortheicc.org/blog.

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.

Regards,

CICC Communications
[email protected]

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I. FIRST WITNESS TAKES THE STAND

i. “Chaos reigns at International Criminal Court trial of Thomas Lubanga” by David Charter (Times-UK), 28 January 2009, http://www.timesonline.co.uk/tol/news/world/africa/article5606892.ece

“A series of mishaps marked a shambolic opening day’s testimony yesterday at the trial of an alleged Congolese warlord which ended with the first witness retracting his claim to have been a child soldier.
The witness, whose name and age were not released, told the International Criminal Court (ICC) that he was approached on his way home from primary school by soldiers who were ultimately under the command of Thomas Lubanga, the defendant.
To the embarrassment of the prosecution, the witness later contradicted his account and suggested that he had been told what to say by an unnamed nongovernmental organisation (NGO).

The case is the first to have come to trial since the ICC was created ten years ago as the world’s only permanent war crimes tribunal.

The proceedings are being closely watched by legal experts and potential defendants, as well as by countries yet to sign up to the court such as the US, Russia, India and China….

The pattern was set for a chaotic day when the microphone link to translators repeatedly failed and the witness had to repeat his oath three times. The start was also delayed while it was explained to the young witness that he might face prosecution in Congo if he incriminated himself. He was then examined by Fatou Bensouda, the deputy prosecutor, rather than the court’s main prosecutor, Luis Moreno-Ocampo, who was said to be at the Davos summit.

Two of the questions that Ms Bensouda asked, including the date of birth of the witness, led the president of the three judges, the British High Court judge Sir Adrian Fulford, to suggest that the court go into closed session to protect the young man’s identity.

Sir Adrian later asked him: “This morning you told the court about a time when some soldiers from the UPC took you and your friends away. Was that true or false?” The witness replied: “That is not true.”

Ms Bensouda said the witness had “concerns for security measures for him and what guarantees he has received regarding after he gives his testimony and returns home”. She added: “We are convinced this has had an effect on the testimony the witness has given.” Congolese observers were shocked that the witness could be seen by the entire courtroom, including Mr Lubanga….”

ii. “First witness recants version in war crimes trial”, AP, 28 January 2009, http://www.google.com/hostednews/ap/articleALeqM5jIIQpLKyj3NrhJa50Xg3Wte4yxJwD96093UG0

“A former Congolese child soldier recanted his testimony against an accused warlord Wednesday, throwing a landmark war crimes trial into confusion in its opening stages.

The International Criminal Court adjourned for consultations after the witness said an account he gave hours earlier was untrue….

After the lunch break, deputy prosecutor Fatou Bensouda tried to pick up the story by repeating the earlier testimony and asking if that were correct.

‘No,’ he replied. ‘That is not what I intended to say.’

In a complete turnaround in his testimony, he said workers of a nonprofit organization had spoken to him and his friends at school. ‘They took our addresses and told us they could help us. After that we went back home,’ he said, speaking through an interpreter.

He was not allowed to continue.

Both prosecutors and the defense also said they believed the transcript of the earlier testimony was marred by faulty or incomplete translation.

The rocky start to witness testimony deepened concerns over issues of fairness….In the morning testimony, the witness said the soldiers who seized him and his friends were fighters from Lubanga's Union of Congolese Patriots.

‘They said the country was in trouble and that young people must mobilize to save the country,’ he said. ‘I said that we were still very small….’”

iii. “Boy soldiers recruited near school, war crimes trial hears,” AFP, 28 January 2009, http://www.google.com/hostednews/afp/articleALeqM5jlpbGib2AMo1BT8PhVCYyFBlXElQ

“A former child soldier told a war crimes trial Wednesday that he was recruited into a militia led by DR Congo warlord Thomas Lubanga as he was going home from school.

‘Certain school pupils were recruited and taken away,’ he told the International Criminal Court where Lubanga is on trial for recruiting hundreds of children to fight in the Democratic Republic of Congo's civil war.

‘I was one of those taken to the camps. It happened when we were returning home ... I was leaving school.’

Addressed only as ‘Mr. Witness,’ he gave evidence in Swahili from behind a screen to protect him from public view, although Lubanga, as well as the judge, prosecutors and defence lawyers can see him.

Lubanga stared intently at the witness, who described the men who recruited him as ‘Thomas Lubanga's soldiers.’

‘They had UPC uniforms,’ he told the court, referring to Lubanga's Union of Congolese Patriots. ‘There were more of them than my friends and me together. They all had weapons except the chief.

They said that the country was in trouble and young people must mobilise to save the country. I said we were too young.’

He said he had been in the fifth grade of primary school at the time, but could not remember his exact age….”

II. COURT’S PUBLIC OUTREACH IN DRC

“DRC: ICC trial screening turns sour in Bunia”, IRIN News, 28 January 2009, http://www.irinnews.org/Report.aspx?ReportId=82586

“Police deployed extra officers after hundreds more people than expected turned up at a public hall in Bunia, capital of Ituri district, to see the opening of the case of Thomas Lubanga. The former head of the Union of Congolese Patriots (UPC) is charged with the war crime of recruiting children into his armed group and training them to kill, pillage and rape.

Many who came to follow the trial were UPC supporters. Some threatened to throw stones and cause damage if they were not admitted to the already packed hall.

The screening had been organised by the ICC office in Bunia because few people in the town have televisions as well as in an effort to prompt debate among civil society groups as part of reconciliation efforts.

‘We didn't think so many people would show up. There was no real dialogue with the public and some people began to insult us,’ said Caroline Maurel, who works to improve understanding of the ICC in Ituri.

Human rights groups were happy to see it finally get off the ground. ‘The trial has dragged on too much for the victims and everybody [else]. It [the trial] sends a strong signal for the prevention of similar crimes in Ituri and the DRC,’ said Gilbert Tandia, the human rights NGO network coordinator.

‘If Lubanga tells the truth then Ituri will know those behind the horrible crimes,’ Tandia said. Lubanga was arrested on 17 March 2006 in Ituri and later handed over to the ICC.

Jean Baptiste Detsuvi, acting president of the UPC, which is now a bona fide political party, said, ‘All the images and what the court is projecting as child soldiers are a set-up; they are mistaken because in the DRC and especially in Ituri one [mis]takes someone of 20-25 to be a 14-year-old child.’

UPC provincial deputy John Tinanzabo said the ICC court had only selected evidence favourable to the prosecution.

A member of the Lendu ethnic community, traditional foes of the Hema that dominate the UPC, told IRIN, “The blood of the people of Ituri has been spilled. It is time for those who commanded the bloodshed to be known and punished so that justice and real reconciliation can come to Ituri.”

Local radio stations continued to provide coverage of the trial.”

III. DEFENSE CONCERNS
i. “Lawyer: DRC War Crimes Suspect Cannot Get Fair Trial”, VOA News, 27 January 2009, http://www.voanews.com/english/2009-01-27-voa24.cfm

“Defense lawyers for a Congolese militia leader on trial for war crimes have slammed the International Criminal Court in The Hague, saying Thomas Lubanga cannot get a fair trial there.”

Lubanga pleaded not guilty on Monday to charges that he recruited hundreds of child soldiers to kill members of the Lendu ethnic group during the civil war in eastern Democratic Republic of Congo between 1998 and 2003.

Lawyer claims defense has not had access to all evidence.

Defense counsel Jean-Marie Biju-Duval told the court Tuesday that Congolese President Joseph Kabila turned the case over to the international court to get rid of a political rival.

Lead defense counsel Catherine Mabille argued that the prosecutors have abused the court's rules, making it impossible for Lubanga to get a fair trial. She said the defense team has not had access to all the evidence against its client….”

ii. “War crimes trial criticised for secrecy”, The Australian, 28 January 2009, http://www.theaustralian.news.com.au/story/0,25197,24973642-2703,00.html

“Lawyers for Congolese militia leader Thomas Lubanga last night denounced his war crimes trial as unfair, accusing prosecutors of invoking a secrecy clause to shroud proceedings.

‘How can we have a fair trial under (these) conditions?' defence counsel Catherine Mabille argued on the second day of Mr Lubanga's trial, the first before the International Criminal Court.

Among an array of concerns Ms Mabille listed was the prosecution's use of a secrecy clause, normally reserved for exceptional cases, to obtain most of its evidence. Ninety-one of the 93 alleged victims of Mr Lubanga who were given permission to participate in the trial were anonymous and could be questioned only by their own agreement, Ms Mabille said.

‘They will come and make statements against our client and the defence will not be able to do anything,' she said.

Furthermore, she claimed the defence, as well as the public, had been excluded from more than half of the pre-trial hearings.

‘If we do things this way, international criminal justice will become very secretive,' the lawyer told the three judges presiding over the hearing….’

Defence counsel Jean-Marie Biju-Duval said Mr Lubanga's prosecution was a political move.

He pointed out that the case had been referred to the ICC by Congolese president Joseph Kabila, a political opponent.”

iii. “Lubanga Defense: trial is not fair”, Marnix de Bruyne, De Volkskrant, 28 January 2009, link unavailable

“This in short is the opening statement held by Lubanga’s Defense on Tuesday:

…French lawyer Catherine Mabille, who is leading Lubanga’s defense team, praised the ICC’s ‘courage’ for deciding to postpone the trial in June – and to release Lubanga if the prosecutors did not make all evidence available to the defense. The prosecutors had not done this, because they had promised to keep many of the materials confidential (55% according to Mabille), in order not to endanger the sources, among other reasons.

However, on 18 November of last year the court decided to continue with the trial, because a solution had been found: the prosecutors agreed to hand over a large portion of the material to the defense, albeit redacted. After studying the material, five thousand out of 32 thousand pages appeared to contain material that might be exculpatory for Lubanga; a large amount to study in such a short period of time, according to Mabille. ‘The Defense is suffering for a mistake made by the prosecutors.’ Moreover, so many paragraphs were redacted that according to Mabille there is still not enough material available to the defense.

She also criticized the ‘threats’ made by prosecutor Moreno-Ocampo in his opening statement on Monday that Lubanga might be charged at a later stage with more crimes than just enlisting child soldiers – what he has been accused of in this case. ‘Has five years of research in Eastern Congo, with all means available to the court, not been enough to gather evidence for these other supposed crimes?’

Her colleague Jean-Marie Biju-Duval took over with an attack on the criminal court. If it is supposed to try the most serious criminals, why has it chosen to deal with Lubanga, and not Floriber Kisembo, for example, who at the time was the highest military official in the armed section of Lubanga’s party?

‘If it were true that Uganda and Rwanda helped Lubanga, for example by dropping parachutes with weapons, as Moreno-Ocampo suggested on Monday, why aren’t the persons responsible in those countries tried? And why not Joseph Kabila, the president of Congo, whose army has also used child soldiers?’ He suggested the ICC is ‘being misused’ for other interests, such as those of the DRC government.

‘The defense came with up with such a provocative story. Of course Duval is right if he says that other criminals should be tried, although I had not expected such a remark from the defense’, says Param-Preet Singh of Human Rights Watch, who follows the case from the public gallery. ‘But even if that is true, that in itself is not relevant for the Lubanga case.”

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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 international organization.

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