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DRC: ICC Trial Updates; ICC President Song's Visit; Commentary; Other Developments

26 Jan 2010

Dear all,

Please find below information about recent developments related to the Democratic Republic of the Congo (DRC).

This message includes information on the resumed trial of Germain Katanga and Mathieu Ngudjolo Chui (I), updates on the Thomas Lubanga trial (II), ICC President Judge Song's recent visit to the DRC (III), commentary (IV) as well as other developments (V).

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.

Best regards,
CICC Secretariat

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I. ICC’S SECOND TRIAL RESUMES
“The trial against two former rebel leaders from the Democratic Republic of Congo was to resume Tuesday at the International Criminal Court in The Hague.

The trials of Germaine Katanga, 31, and Mathieu Ngudjolo Chui, 39, for war crimes during DR Congo's ethnic conflict were suspended on December 2 when one of the presiding judges was injured in a car accident.

The accused, both from the Lendu ethnic group, are charged with orchestrating the massacre of several hundred civilians from the Hema ethnic group in 2003....The two former army commanders are also accused of using child soldiers.....Both men denied all the charges.

...The case is only the second to make it to trial at the court and the first involving charges of killing. The trial of Thomas Lubanga, another former militia leader from DR Congo charged with using child soldiers, began in January 2009....”
See also:
a. “The trial of Germain Katanga & Mathieu Ngudjolo Chui resumes 26 January, 2010,” ICC Media Advisory, 25 January 2010 ICC, http://www.icc-cpi.int/NR/exeres/954E8F7A-4D56-46A8-9A72-C2D1B6E16772.htm

b. “Katanga and Ngudjolo Chronicles [1-7],”Aegis Trust, http://www.aegistrust.org/Katanga-Trial/

c. "Special program:Trial of Germain Katanga and Mathieu Ngudjolo” (“Numéro spécial procès Germain Katanga et Mathieu Ngudjolo”), Face à la Justice, 6 January 2010, http://www.iwpr.net/?apc_state=hfrpacr&s=p&p=afj&o (in French)

II. LUBANGA TRIAL

i. “Two Victims Called Back At Defense’s Bidding,” by Wairagala Wakabi (Lubangatrial.org blog),
25 January 2010, http://www.lubangatrial.org/2010/01/25/two-victims-called-back-at-defense’s-bidding/

“Two victims participating in the Thomas Lubanga trial who had concluded giving their evidence have been called back to the witness box for more questioning at the bidding of the defense team. The prosecution and the legal representatives of the victims did not object to the request by the defense.

During today’s hearing, Judge Adrian Fulford said that the victims’ representative Joseph Keta and the prosecution’s Olivia Struyven had presented to judges some documents which the chamber found of sufficient substance to necessitate calling back the first two participating victims who had testified in court during the last two weeks.

Fulford said calling back the duo would enable Lubanga’s defense team to ask them about certain issues which had ‘self-evidently arisen’ earlier today, and on which the defense had questioned the third participating victim on Monday. He did not mention what those issues were, and the defense’s questioning of the witness was in closed session.

...A total of 103 victims are participating in the Lubanga trial....”


ii. “Use of child soldiers ‘particularly abusive,’ UN expert testifies”, [Testimony of the Special Representative of the Secretary General of the United Nations for Children and Armed Conflict]
My Joy Online, 8 January 2010, http://news.myjoyonline.com/international/201001/40296.asp

“Children cannot consent to their own exploitation, making the use of children in warfare ‘particularly abusive,’ a top United Nations official has said at the trial of a Congolese warlord accused of enlisting child soldiers.

Children have an ‘underdeveloped notion of death,’ Radhika Coomaraswamy, the Secretary-General’s Special Representative for Children and Armed Conflict, told the International Criminal Court (ICC). ‘The lack of the concept of death makes them fearless in battle.’

She was serving as an expert witness in the case against Thomas Lubanga Dyilo, the first suspect to be arrested by The Hague-based ICC. (…)”

iii. “Envoy: prosecutions spur release of child soldiers”, Seattle PI/AP, by Mike Corder, 7 January 2010, http://www.seattlepi.com/national/1103ap_eu_war_crimes_congo.html

“The U.N.'s special envoy on child soldiers said Thursday the prosecution of rebel leaders for exploiting children in war is persuading some groups to release underage fighters.

Radhika Coomaraswamy told the International Criminal Court that courts must extend their protection to children used as cannon fodder or sex slaves in conflicts around the globe, and that such cases already are having an effect.

Coomaraswamy was testifying as an expert witness at the trial of alleged warlord Thomas Lubanga, who has pleaded innocent to charges of using child soldiers in a brutal conflict in the eastern Congo region of Ituri in 2002-2003.

Lubanga's trial, which began nearly a year ago, has been hailed as a legal landmark because it is the first by an international court to focus exclusively on child soldiers. (…)”


iv. “Lubanga Defense To Call ‘Around 30 Witnesses’”, Lubanga Trial blog, by Wairagala Wakabi, 5 January 2010, http://www.lubangatrial.org/2010/01/05/lubanga-defense-to-call-‘around-30-witnesses’/

“Thomas Lubanga’s defense team will call about 30 witnesses once presentation of the defense case begins at the International Criminal Court (ICC) mid this month.

In a departure from what appeared like standard procedure by the prosecution as far as protecting the identity of witnesses was concerned, the defence has so far requested such measures for a minority of their witnesses.

‘The defence team, led by Catherine Mabille, will over several months present exculpatory evidence in its possession. In support of its theses, the Defense will call around 30 witnesses,’ a January 5, 2009 press release from the ICC said. It added: ‘To date, the majority of witnesses have not requested any protective measures from the Court.’

The defence team has been critical of the frequent closed sessions and the extensive protective measures for the greater number of the prosecution witnesses. The defense argued that while they appreciated the need to protect witnesses who could be endangered if their identities were revealed, the measures also gave cover to witnesses who were deliberately intent on telling court lies.

For instance, in an interview with the Lubanga Trial website last August, Mabille: ‘…My idea is that we have to be very careful, [because] you can protect weak people, but not people who want to lie.” (…)’


v. ‘Defense Worried About Availability of its Witnesses’, Lubanga Trial Blog, by Wairagala Wakabi, 8 January 2010, http://www.lubangatrial.org/2010/01/08/defense-worried-about-availability-of-its-witnesses/

“As the much-anticipated start of the Lubanga defence case draws nearer, his team has expressed concern that some of their witnesses might not be available to testify when required, as difficulties in obtaining passports could stop them from travelling to The Hague on time.

‘Our concern is that we have drawn a list of witnesses in the order of appearance that is important with regard to the manner of introducing our evidence,’ Thomas Lubanga’s chief counsel Catherine Mabille told court on Friday. She said the list of when their witnesses would be available for testimony had been amended ‘without us being able to be involved’. The changes were due to difficulties in obtaining passports for witnesses travelling to the ICC, she said. (…)”

vi. “Militias Continue to Press-gang Children”, 12 January 2010, IWPR: http://www.iwpr.net/?p=acr&s=f&o=359007&apc_state=henpacr

“…Experts say Lubanga trial has had only limited impact on child soldier recruitment…
Despite the International Criminal Court, ICC, indictment of Thomas Lubanga for the use of children in his militia, the recruitment of child soldiers continues in the east of the Democratic Republic of Congo, DRC.

Evidence that recruitment is going on comes especially from North Kivu province where a number of armed militias operate, including groups from the Democratic Forces for the Liberation of Rwanda, FDLR.

‘The recruitment carries on, especially in the territories where the [government's] authority is not well established yet,’ said Pascal Badibangua, the director of a reintegration centre, which helps child soldiers adapt to life outside the military. I have just returned from a mission [to the North Kivu towns of] Rutshuru, Masisi and Goma, where I had the opportunity to see that armed groups are still recruiting child soldiers, despite it being illegal.’ ”

See also :
“Lubanga Chronicle [1-49, Aegis Trust: http://www.aegistrust.org/Lubanga-Chronicles


III. ICC PRESIDENT VISITS DRC

“Iturians get to ask direct questions to ICC President”, RNW, 17 December 2009, http://www.rnw.nl/africa/article/iturians-get-ask-direct-questions-icc-president

“It might seem like just another village meeting, but the presence of armed police at the local parish hall suggests something serious is going on. The residents of the village of Fataki have gathered to hear the President of the International Criminal Court, Judge Sang-Hyun Song, who is visiting the Democratic Republic of Congo this week for the first time.

….This is Thomas Lubanga territory. The ICC highest official has come to explain why the ex-militia leader, born in a nearby village and considered a native son, is now standing trial for war crimes and crimes against humanity 6000 kilometers away in The Hague. The 250 residents, local leaders and representatives of local associations listen attentively as he outlines why the ICC was set up and how it works.

...[ICC President Song] I would like to stress that all of the accused persons are innocent until proven guilty. I am a judge. I have no opinion on the question of guilt or innocence at this time.” (…)

What is being done about rumors that false testimonies and pictures have been sent to The Hague?

[Answer] I have full trust in the trial judges’ watchful legal eyes to detect the truth or falsity of all these testimonies…

The man asking the question represents a local civil society. Initially he declined the invitation to attend the meeting, fearing he might be arrested.

We see massive destruction in Israel on television: why is this not also addressed by the ICC?

[Answer] The ICC has never, never targeted only Africans. The Prosecutor is now making preliminary analysis on the situations for example in Afghanistan, Gaza, Columbia, and Georgia.

Why are the (Western) countries that shipped arms to our region not being prosecuted? (Spontaneous applause in the audience)

[Answer] I’m not in any position of making any comment on this because it is exclusively the job of the Prosecutor to investigate or prosecute arms suppliers or not… (…)”


IV. COMMENTARY

i. “Why should we care about the first man on trial at the ICC?” by Sheila Velez (Global Post), 3 January 2010, http://www.globalpost.com/dispatch/worldview/091116/thomas-lubanga-trial-icc

“The silence of the public gallery is interrupted only by the slow rise of the blinds. We are about to watch history in the making. Behind bulletproof glass a courtroom appears; the heart of the International Criminal Court. On the right, the prosecution. On the left, the defense, their somber robes contrasting starkly with the courtroom’s pale wood furnishings.

In their midst — dapper, calm, attentive — sits the eye of this storm: Thomas Lubanga Dyilo, defendant in the ICC's first trial, which began nearly one year ago in January 2009 and is due to resume early this year after a more than five-month hiatus.

Who is this man, and what has he done to earn his dubious distinction and face a potential 30-year jail sentence? Now quietly jotting notes, now leaning over to consult with one of his lawyers, take away the setting and he could be a businessman as unremarkable as any you encounter on the streets of London, Brussels or New York every day of the week. Hardly a Radovan Karadzic or a Pol Pot. Hardly a Josef Mengele, whose experiments on children left the few survivors scarred for life.


...Because in the course of this landmark trial, not just experts but children who became the victims of this war are taking the stand to speak to the charges that as President of the Union des Patriots Congolais (UPC), between September 2002 and August 2003, Thomas Lubanga recruited, trained and used hundreds of young children to pillage, rape and kill.

....Figures in green military fatigues, clapping and singing, fill the video screens in the public gallery. In their midst is a slightly slimmer version of the man now in the dock, who looks on at his younger self indifferently, arms folded. The frame freezes. The Deputy Prosecutor’s voice cuts in. ‘Witness, do you know the person who is on the screen?’ Witness 10, the girl in the witness stand, can barely be out of her teens even now. ‘It’s Thomas Lubanga,’ she confirms (...).


ii. "The International Criminal Court: justice and politics: A key institution of modern justice must learn how to speak to the world it inhabits," James A. Goldston (Open Society Justice Initiative Executive Director), 13 January 2010, http://www.opendemocracy.net/james-goldston/international-criminal-court-justice-and-politics

"...Much unease about the court boils down to one issue: how should its prosecutor decide, among thousands of crimes and perpetrators within his jurisdiction, which ones to charge? Prosecutorial discretion is a common method of triage in overcrowded legal systems. But it is unusually contentious at the ICC, given the epic scale of the crimes at issue (including genocide and crimes against humanity), and the court’s limited capacity (three courtrooms and no police force) to address them.
...The ICC’s first trial - of a former warlord in the Democratic Republic of Congo (DRC), Thomas Lubanga - can illustrate the point. The friends of the court have been at pains to explain why a case arising from a war in which millions were killed and countless numbers raped should focus on the (comparatively) narrow matter of child-soldiers. Why not acknowledge that both the target and the nature of the indictment were convenient, even attractive, not only because conscripting child-soldiers is a heinous act worthy of sanction, but also because Lubanga was already in detention in the DRC, thus enabling the ICC to secure custody over its first defendant.
...It is essential to be guided by “the law” and “the evidence”. But in many situations doing so may not sufficiently narrow the range of possible charges or perpetrators. The prosecutor may have to consider other factors as well in deciding how to proceed.
These might include the need to demonstrate the court’s viability (for example, by charging at a level or in a manner that prevents states from simply ignoring the court’s orders); its efficacy (by charging persons who may readily be apprehended); its efficiency (by limiting the number of charges, and thereby the length of trials); or its independence (in appropriate circumstances, by charging officials of governments which have referred situations to the court).
It would be wise and valuable in itself for the International Criminal Court to take such issues into account at this stage of its evolution..."


iii. "This monster stole my childhood", RNW, by Hélène Michaud, 7 January 2010, http://www.rnw.nl/africa/article/monster-stole-my-childhood

“The trial of ex-congolese warlord Thomas Lubanga resumes today at the ICC in the Hague. The founder and leader of the Union of Congolese Patriots (UPC) who was a key player in the Ituri conflict is accused of enroling children in his militia and making them take part in combat.

Here's the story of Yolande, an ex-child soldier in the DRC's Ituri District, told by RNW's Hélène Michaud. "This monster who stole my life should be jailed" (…)”

iv. “Conflicting views: War and conflict have long been among the greatest threats to global sustainability and harmony,”by Giles Crosse (Our Future Planet), 25 January 2010, http://www.ourfutureplanet.org/news/338-conflicting-views
“...The International Criminal Court (ICC) continues to pursue international war offenders, but so often the length of time required for successful prosecutions and the vast numbers who seem to evade the net makes ICC work harder.
But steps are being taken. From 26 January, the trial of Germain Katanga and Mathieu Ngudjolo Chui resumes, says an ICC release.
..There’s no doubt that such work is worthy, but it’s tough to judge whether the trials have any real world effects in diminishing global violence. It remains among the hardest challenges facing our planet to limit war and conflict and establish more peaceful methods for dispute resolution.
Realistically, unless developed countries can show more robust procedure in holding to account their own military actions, it will be difficult to ask developing countries to show a similar willingness for peace and transparency. As such the work of agencies like Amnesty or International Alert may yet be required for some time.”

V. OTHER DEVELOPMENTS

i. “The Fight Against Impunity in DRC”, IWPR, by Charles Ntiricya, 11 January 2010, http://www.iwpr.net/?p=acr&s=f&o=358883&apc_state=henpacr


ii. “DRC judges request training in The Hague”, RNW, by Hélène Michaud, 21 December 2009, http://www.rnw.nl/int-justice/article/drc-judges-request-training-hague


iii. “UN expert on extrajudicial executions calls on UN to end support to Congolese military operations commanded by known war criminals”, Relief Web, 16 December 2009, http://www.reliefweb.int/rw/rwb.nsf/db900SID/AZHU-7YT5CW?OpenDocument


iv. “Refugee Return Heightens North Kivu Tensions”, IWPR, by Jacques Kahorha, 22 December 2009, http://www.iwpr.net/?p=acr&s=f&o=358608&apc_state=henh

v. "Two rebels before justice : Abu Garda vs. Bosco Ntaganda" (« Deux rebelles face à la justice Abu Garda versus Bosco Ntaganda »), Face à la Justice, 17 November 2010, http://www.iwpr.net/?apc_state=hfrpacr&s=p&p=afj&o

vi. "At the ICC, the complex procedures seem long” (“A la CPI, des procédures complexes qui paraissent longues",) Face à la Justice, 16 December 2010 http://www.iwpr.net/?apc_state=hfrpacr&s=p&p=afj&o (in French)

vii. “Justice in the Democratic Republic of Congo: A background, 17 December 2009, Hague Justice Portal, http://www.haguejusticeportal.net/smartsite.html?id=11284”



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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 international organization. The Coalition will continue to provide the 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 endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts.

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