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DRC: Media reports on the Lubanga and Katanga/Ngudjolo Trials; The Guardian's Op-Ed on the MONUC and Bosco Ntaganda; US and UN accuse DRC army of war crimes; Other developments and opinions

18 Mar 2010

Dear all,

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

This message includes media updates on the Lubanga trial (I); the Katanga and Ngudjolo Trial (II); The Guardian op-ed on the MONUC regarding the Bosco Ntaganda case and Alan Doss' reply (III); Articles on war crimes accusations by the US and the UN against the DRC army (IV); Opinions/ Analysis (V); and Other related developments (VI).

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
www.coalitionfortheicc.org

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I. LUBANGA TRIAL

i. "Ituri: Lubanga case, his lawyer has just finished her judicial investigations in Bunia" ("Ituri: affaire Lubanga, son avocate vient d'achever son enquête judiciaire à Bunia"), Radio Okapi, 4 March 2010 http://radiookapi.net/regions/province-orientale/2010/03/04/ituri-affaire-thomas-lubanga-son-avocate-vient-d’achever-une-mission-a-bunia/ (in French)

"Ms. Catherine Mabille, the counsel of Thomas Lubanga, alleged leader of the Union of Congolese Patriots (UPC), declared that her mission consisted in judicial investigations in the county town of the district.

On the scene, she says she met with several people who will testify in favor of her client before the judges of the International Criminal Court at The Hague ...."

[Unofficial translation provided by the CICC Secretariat]

ii. "Tenth Defense Witness Testifies Behind Closed Doors," By Wairagala Wakabi, 9 March 2010, http://www.lubangatrial.org/2010/03/16/tenth-defense-witness-testifies-behind-closed-doors/

" The tenth witness called by the defense of war crimes accused Thomas Lubanga today completed giving her testimony - all of it in camera.

This witness started testifying yesterday, but defense lawyers indicated that they would need to get from prosecutors the name of an intermediary of the Office of The Prosecutor (OTP) before they completed examining her.

Judges on Monday ordered prosecutors to reveal to the defense the identity of this intermediary who has been accused by defense witnesses of bribing various people in the Congolese town of Bunia to concoct testimony implicating Mr. Lubanga...."

iii. "Defence tries to neutralise prosecution witness," Lubanga Chronicle #68, Aegis Trust, 11 March 2010 http://www.aegistrust.org/Lubanga-Chronicles/lubanga-chronicle-68-defence-tries-to-neutralise-prosecution-witness.html

"Lubanga´s lawyers call the ninth witness: a school teacher from Bunia in Ituri whose evidence seems to discredit a previous prosecution witness. Although "his friend´s" links to this case were not public it is likely that his schoolmate testified as a former UPC soldier.

In the opening for the defence´s case, the lawyers advanced their intention to demonstrate that all individuals presented as child soldiers deliberately lied before the court. "Six of them were never child soldiers; the seventh lied about his age and the conditions under which he was enrolled and the eighth never belonged to the UPC," said lead counsel Catherine Mabille.

Before the witness enters the court room, Ms. Mabille explains her concerns as regards the personal situation of this "vulnerable" witness. According to the counsel, the witness has lost his job as a result of coming to testify in The Hague. In order to get his visa and passport, the teacher travelled to Kinshasa where he stayed for more than 20 days. The trip was supposed to take place during the Christmas holiday, but this did not happen.

However,the witness returned in Bunia in mid January and nobody had informed the headmaster about the reason for his absence. By the time the witness had returned, somebody had already replaced him. Since that trip, the witness no longer receives a salary. "The Court should do everything possible to get the witness reaccepted in his job. I feel really uncomfortable," said Ms. Mabille during yesterday´s hearing.

The ninth witness comes into the room. He looks decisive, confident. With a hand in his pocket, he struts to the witness box, smiling at the defence team sympathetically. He grins from ear to ear, looking proud to be before the Court.

"I was about to say don´t feel nervous, but I don't think I need to," says Judge Fulford. His words amuse the participants. The witness moves his microphone closer; he is ready. "Could you tell us your name?" asks Ms. Mabille. "Nobirabo Todabo DienMerci," he replies. The witness is testifying without protective measures. ..."

iv. Interview with Beatrice Le Fraper: "Interview: ICC Prosecutors Will Refute Allegations That Intermediaries Manipulated Evidence in Lubanga Case," By Wairagala Wakabi, 15 March 2010 http://www.lubangatrial.org/2010/03/15/interview-icc-prosecutors-will-refute-allegations-that-intermediaries-manipulated-evidence-in-lubanga-case/

"Béatrice Le Fraper du Hellen is the Head of the Jurisdiction Complementarity and Cooperation Division of the Office of The Prosecutor (OTP) at the International Criminal Court. She spoke to the Lubanga Trial website's Wairagala Wakabi about the role which intermediaries played in the war crimes case against former Congolese leader Thomas Lubanga, the view of the OTP on the gravity of the charges of conscripting and using child soldiers, and why the Prosecution will ask judges to jail Mr. Lubanga for a very long time.

Q. Intermediaries seem to be very much in the news lately. What exactly is the role of the intermediaries?

A. They are in the 'news' in the courtroom because the Defense has chosen this issue of intermediaries as a line of defense. Intermediaries are people in the field who put the OTP in contact with potential sources and witnesses, and describe to the OTP the situation on the ground. They are just intermediaries. They do not investigate. They are not witnesses. They would be like a person who is dealing with child soldiers and who sees so many child soldiers with horrific experiences and they would tell them 'there is a possibility, would you want to be in contact with the OTP of the ICC and may be tell your story and make it evidence in the case against Thomas Lubanga Dyilo?'

They are very committed persons, very supportive of international justice. We are very careful about who we choose as intermediaries and the allegations by the Defense against intermediaries will be absolutely refuted by the deputy prosecutor Fatou Bensouda in court. ...

Q. Does the OTP pay the intermediaries for the work they do on your behalf?
A. We pay for expenses. If they travel for the OTP, if they lose a month's work for the OTP, they absolutely deserve to be compensated for that. For them trying to assist international justice is an additional burden and it also puts them in danger. ..."

SEE ALSO:

1. 'In the Courtroom' programme - Weekly summary of the proceedings (8 - 12 March 2010) in the case of The Prosecutor v. Thomas Lubanga Dyil, Video summary, International Criminal Court, http://www.youtube.com/watch?v=kgThpdSxLtg (French)

2. To read previous summaries of the Lubanga trial, visit the "The Lubanga trial at the International Criminal Court" website at: http://www.lubangatrial.org/ and Aegis Trust's "Lubanga Chronicles" at: http://www.aegistrust.org/Lubanga-Trial/

3. To give your views on the trial, post your comments on the CICC blog "In Situ: See Justice through the Eyes of Civil Society" at: http://www.coalitionfortheicc.org/blog/

II. KATANGA AND NGUDJOLO TRIAL

i. "Trial disrupted by new information from prosecution witness linking the two accused to Bogoro," IWPR, 5 March 2010, http://www.iwpr.net/index.php?apc_state=hen&s=o&o=l=EN&p=acr&s=f&o=360956

"Judges in the Germain Katanga and Mathieu Ngudjolo trial agreed this week that new claims from a prosecution witness, indicating that both of the accused had been present during the Bogoro attack in February 2003, was prejudicial to the defence's case.

The witness, who testified anonymously but without voice or face distortion, made these claims on February 26, but it wasn't until March 4 that the judges reached a decision on how to proceed.

The witness - known only as Witness 161 - said that he saw Katanga personally take women and children, and heard cries during the battle of "Katanga" and "Ngudjolo".

This is a new allegation that the witness did not make in previous statements, and prompted the defence to argue that this new information prejudiced the case against the accused.

"[This] totally changes the character of the witness and puts the defence on the back foot," said Andreas O'Shea, a defence lawyer for Katanga.

Jean-Pierre Fofé, a defence lawyer for Ngudjolo, pointed out that the prosecution had interviewed the witness for more than ten hours in 2006, adding that, if these allegations could be substantiated, he would have made them then.

On March 4, Presiding Judge Bruno Cotte said that he recognised the prejudicial nature to the defence teams of the witness's revelation.

"The fact that this information is new has to be evaluated by the defence teams, not only in relation to statements previously made by this witness but also because of the fact that no other prosecution witness statement mentions this very same information," Judge Cotte said.

The presiding judge added that the prosecution had confirmed, by email, that no other prosecution witness had made similar claims.

However, the judge dismissed any notion that the prosecution was at fault for not divulging this information in advance of the witness appearing in court.

"The chamber has noted that the defence teams recognise that the prosecutor complied fully with its disclosure obligations," he said. "Defence teams both recognise having received in due time the witness statement [and] having received from the prosecutor a document which lists the main themes to be dealt with for each witness during the trial."

Judge Cotte said that the defence teams could proceed with their cross-examination of the witness, but that it was up to them to decide whether to address these new revelations or not.

He added that the defence teams could carry out any investigations they deem necessary, based on the new information, with a view to reporting back to the court by May 3. The chamber would then decide whether to recall the witness, Judge Cotte said. ..."

ii. "Prosecution Witness 161 gives a surprising account," Katanga-Ngudjolo #14, Aegis Trust, 2 March 2010, http://www.aegistrust.org/Katanga-and-Ngudjolo-Trial/katanga-ngudjolo-14-prosecution-witness-161-gives-a-surprising-account.html

"The fifth prosecution witness surprises everyone with his account. During the course of his testimony, he claims that German Katanga and Mathieu Ngudjolo were present at the crime scene. This is an allegation which has not appeared in any of his previous statements. The legal debate starts.

The witness' controversial statement was as follows: "The people who were killed were the inhabitants as well as some UPC soldiers. The people who were killing were the Ngiti and the Lendu, as well as the Bira...German Katanga himself, in person, had take possession of women and children. They said: ´German Katanga and Ngudjolo!´ They shouted in this way. I heard these cries with my own ears."

These words provoke a strong reaction from Katanga's Defence Council, who argues that this new information prejudices his client. "In none of the witness statements, in none of the documents provided to the Defence is there any reference to these shouts," said Mr. O´Shea. In his opinion, this is new information that "totally changes the character of this witness and puts the Defence on his back foot." According to the Counsel, a witness who had been defined by the Prosecution as a "crime based witness" - a witness who testifies about events but does not necessarily put harmful allegations against the accused - has turned into "one of the most incriminating witnesses in the case."

Mathieu Ngudlo's Defence challenges the credibility of Witness 161. According to Mr. Fofé, Witness 161 was interviewed by the Office of the Prosecutor for more than ten hours in 2006. "If the witness had had such important information he wouldn´t have omitted it during such long interview," said the Counsel. ...

SEE ALSO:

1. 'In the Courtroom' programme - Weekly summary of the proceedings (08-12 March 2010) in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Video summary, International Criminal Court, http://www.youtube.com/watch?v=udiF5hFjKiU (French)

2. To read pervious summaries of the Katanga and Ngudjolo trial, visit the website "Katanga and Ngudjolo Trial Chronicles" by Aegis Trust at: http://www.aegistrust.org/Katanga-Trial/

3. To give your views on the trial, post your comments on the CICC blog "In Situ: See Justice through the Eyes of Civil Society" at: http://www.coalitionfortheicc.org/blog/

III. BOSCO NTAGANDA CASE

i. "Congo conflict: 'The Terminator' lives in luxury while peacekeepers look on," By David Smith (The Guardian), 11 March 2010 http://www.guardian.co.uk/world/2010/feb/05/congo-child-soldiers-ntaganda-monuc

"At first glance there is nothing disturbing about the man playing tennis on the red clay courts of the Hotel Karibu. Other guests in the grounds of the hotel walk serenely across its manicured lawns, dine in thatched-roofed rondavels, or sip drinks while admiring Lake Kivu.

But the casual sportsman in this oasis of luxury amid the poverty of Goma, in the Democratic Republic of the Congo, is a man the United Nations would prefer did not exist at all.

Bosco Ntaganda is wanted by the international criminal court (ICC) in The Hague for allegedly conscripting and sending into battle children under the age of 15. He is also accused of commanding troops responsible for the massacres of ¬civilians, earning him the nickname, The Terminator.

Yet Ntaganda, believed to be 36, not only remains at liberty but serves as a general in an army that has the full backing of the UN's peacekeeping mission in Congo, known as Monuc. He is the personification of what critics say is a "pact with the devil". While the eyes of the world are distracted by wars in Afghanistan and elsewhere, many believe the thickly forested hills of eastern Congo are witnessing another shameful chapter in UN peacekeeping that ranks alongside the impotent displays in Srebrenica and Rwanda. ...

Yet still Ntaganda, wanted for war crimes, is active in an army that is supported by a UN peacekeeping force. "We've made it clear that we will not have anything to do with him and we haven't," said Doss. "Ideally all the people who were involved in human rights ¬violations will be handed over but remember where this country is ¬coming from. You can't deal with everything immediately. We have to be realistic here. The integration process is still a work in progress."

Some would characterise this as pragmatism in a country wracked by war for generations, while others regard it as a very dirty compromise.

Kabila, however, does not try to finesse the situation in his country. The Congolese president has admitted, bluntly: "Why do we choose to work with Mr Bosco, a person sought by the ICC? Because we want peace now. In Congo, peace must come before justice."

ii. "The UN mission in Congo has not signed a 'pact with the devil'," by Alan Doss (The Guardian), 24 February 2010 http://www.guardian.co.uk/commentisfree/2010/feb/24/un-mission-congo-monuc-drc

"Your report on conflict in the Democratic Republic of Congo (DRC) seems to assume that when peacekeepers are invited into a troubled country, all shortcomings and responsibilities for law and order default to the United Nations ('The Terminator' lives in luxury while peacekeepers look on, 6 February). They do not.

Governments remain responsible for their security forces, civilian protection and the integrity of borders, natural resources and public institutions. We assist the DRC in many of these areas, but we cannot impose our will on the government.

Having sighted Bosco Ntaganda - a rebel leader wanted by the international criminal court - on a tennis court in Goma, you state that Bosco "not only remains at liberty, but serves as a general in an army that has the full backing of the UN's peacekeeping mission in Congo".

The support which our mission, Monuc, gives to the national army is unrelated to Bosco's freedom. It is unfair to colour Monuc's assistance to the army, which is mandated by the UN security council, as a "pact with the devil". We have stated many times that if the Congolese authorities ask Monuc to help deliver Ntaganda to the international criminal court, we will do so. But President Kabila has chosen to set aside action against Bosco for now. While many might wish otherwise, UN peacekeepers in the DRC have no more jurisdiction to pluck someone from a tennis court in Goma than they would have in Wimbledon.

... We have concentrated more than 95% of our troops in the eastern provinces which cover an area almost three times the size of France. The terrain is heavily forested. There are few roads and communities are isolated. Because of these conditions quick access is not always possible when reports of violence reach us.

Your headline suggests we are standing on the sidelines. We are not. Our peacekeepers patrol from more than 90 bases and protect humanitarian convoys supplying about 1.2 million people. In North Kivu they conduct about 1,800 day and night patrols, on foot or in vehicles, every month. However, with one peacekeeper for every 110,000 people, we cannot be everywhere at all times. ..."

IV. UN AND US ACCUSE DRC ARMY OF WAR CRIMES

i. "US slams rights abuses in Sudan, Congo, Nigeria," AFP, 15 March 2010 - http://www.google.com/hostednews/afp/article/ALeqM5gy3GMurftkaFUx9oa4Jrn66FcNgQ

"The United States highlighted flagrant human rights abuses in 2009 in the Democratic Republic of Congo (DRC), Nigeria and Sudan, three conflict-ridden African countries.

... The [Congolese] government also failed to protect and help hundreds of thousands displaced in the conflict, said the report, which covered 194 countries.

The Congolese military and various armed groups unlawfully recruited thousands of children as soldiers and thousands of women, children and men were raped while many others were abducted for forced labor and sexual exploitation, both domestically and internationally, it said.

... "Violence in the form of killings, kidnappings, and forced disappearances; mass rape; and displacement of civilians attributed to both government and non government actors continued in the Niger Delta," the report added.

... In Sudan, conflict and human rights abuses in the western Darfur region "continued despite the 2006 Darfur Peace Agreement between the government and a faction of the Sudan Liberation Movement/Army."

"Government-sponsored forces bombed villages, killed civilians, and supported Chadian rebel groups. Women and children continued to experience gender-based violence," it said."

ii. "DRC: US, UN accuse forces of "crimes against humanity", IRIN, 12 March 2010 http://www.irinnews.org/Report.aspx?ReportId=88410

"Government troops - the FARDC - in the Democratic Republic of Congo (DRC) are to blame for much of the epidemic of sexual violence in the east of the country, according to US and UN reports detailing war crimes and possible crimes against humanity by various groups there.

FARDC is trying to rout the Forces démocratiques de libération du Rwanda (FDLR) and the Ugandan Lord's Resistance Army (LRA) from the Kivu region and Oriental province in eastern Congo, but operations have been criticized for their impact on civilians.

"Armed groups such as the LRA and FDLR commit atrocities that amount to grave breaches of international humanitarian law and, in some instances, may also constitute crimes against humanity," according to the UN experts.

"In North Kivu, an assistance provider for victims of sexual violence recorded 3,106 cases between January and July 2009; half of these cases were perpetrated by FARDC members," a group of seven UN experts said in their second report on the situation in DRC, submitted to the Security Council on 8 March. ...

In 2009, groups still under arms "continued to commit numerous, serious abuses - some of which may have constituted war crimes - including unlawful killings, disappearances, and torture", according to the US government's annual global human rights report, released on 11 March. ..."

V. OPINIONS/ ANALYSIS

i. "First Person: Life as a Child Soldier," By Erick Kenzo in Goma (IWPR), 12 March 2010, http://www.iwpr.net/?p=acr&s=f&o=361096&apc_state=henh

"The traumatic events of our lives always remain in our memories, however hard we try to forget them.

These memories shape how we think and take decisions. They can encourage us to reclaim our rights or retaliate for the wrongs that have been done to us. But, often, we have difficulties relating our story, because of the fear that we will scare people away.

I have tried to find the courage to tell my story so that other young people can learn from what I went through.

I was forcibly conscripted into the Rwandan armed forces when I was just 15, at an age when I was not equipped for the harsh realities of life as a soldier.

This was at the end of 1996, when forces under the control of Laurent-Désiré Kabila - backed by Rwanda and other neighbouring countries - began a march on Kinshasa, which ultimately resulted in the overthrow of then president Mobuto Sésé Seko.

I was kidnapped during the Christmas holidays, after I had left my house in Goma to go and play football with my friends.

Our team was incomplete that day, since some of our football companions had disappeared. Rumours were circulating that they had been locked in a room at the local police station for almost a week, so we decided to see if we could find them.

We discovered them exactly where we thought they would be. We broke into their cell to rescue them, but when we tried to leave, we found our way blocked by a Rwandan soldier.

At the time, there was a large Rwandan presence in the east of the country, since many thousands of Rwandan refugees had fled over the border to escape the 1994 genocide. ..."

ii. "No More Parole for Rapists," By Heritier Maila in Lubumbashi (IWPR), 26 February 2010 http://www.iwpr.net/?p=acr&s=f&o=360563&apc_state=henpacr

"In response to concerns raised by womens' groups, prosecutors in the Katanga province of the Democratic Republic of Congo, DRC, have pledged to end the early release of convicted rapists.

Pierre Essabe Kamulete, the general prosecutor at the appeals court of Katanga province, told IWPR that offenders will no longer be able to buy their way out of jail, as they can do at the moment once they have served at least a quarter of their sentence.
"When the perpetrator of a rape is arrested and jailed, but then let out early, people worry that the rapist has not been restrained," Kamulete said. "The general impression, which is widespread, is that justice is not doing its job properly or that justice is only applied to the [those who cannot to pay for early release]. We must follow the voice of the majority who want to see these crimes severely punished."

Women's associations have been particularly vocal in accusing the prosecution service of being too willing to set perpetrators of sexual violence free.

"People who are arrested and charged for crimes involving sexual violence are often seen again after only a short time [in prison] and sometimes they repeat their deeds," Consolate Ngalula, from the Centre for Social Integration of Women, an NGO, said. "We hope that the measure that has now been introduced will be respected."

It is up to the appeals courts to decide whether a prisoner is eligible for early release or not. The prisoner has to persuade the court that he is no longer a danger to society and that he will not run away. He must also pay a fee for early release, currently set at 50-500 US dollars for regional courts and 500-1000 dollars for the High Court.

Officially, only those that have served at least a quarter of their sentence can apply for parole, but the rampant corruption in the country's judicial system means that prisoners with money and the right connections can often get out much earlier. ..."

SEE ALSO:

1. "The role of the judges in the DRC and at the ICC" ("Le rôle des juges en RDC et a la CPI"), Facing Justice Radio Programme (IWPR), 9 March 2010, http://www.iwpr.net/?p=afj&s=f&o=360991&apc_state=henh
(French, Swahili and Lingala)

2. "Obtain justice for victims of sexual violence" ("Obtenir justice pour les victimes de violence sexuelles"), Facing Justice Radio Programme (IWPR), 26 February 2010, http://www.iwpr.net/?p=afj&s=f&o=360581&apc_state=hfrpafj
(French, Swahili and Lingala)

VI. OTHER DEVELOPMENTS

i. "The Mai Mai militia still recruits child soldiers" ("Les Mai Mai continuent à recruter des enfants"), Radio Okapi, 12 March 2010, http://radiookapi.net/actualite/2010/03/12/les-mai-mai-continuent-a-recruter-des-enfants/ (French)

"This declaration was made in the report of the organization "Coalition to stop the use of child soldiers". These declarations were made by Bonny Mushayuma, Regional adviser for the Great Lakes region at this organization.

Bonny Mushayuma declared that at the end of an investigation on child soldiers on the Mai Mai groups of North and South Kivu. The investigation took place in both regions in May 2009 and was made public in February 2010.

Bonny Mushayuma mentions, among other reasons for this massive enrolment, said to be 'voluntary' by children themselves, the fact that they don't have any other choice than to join these groups. ..."

[Unofficial translation provided by the CICC Secretariat]

ii. "A 'Competent Army' will take over from MONUC, says DRC Official", Voice of America, 11 March 2010, http://www1.voanews.com/english/news/africa/A-Competent-Army-Will-Take-Over-from-MONUC-Says-DRC-Official--87394997.html

"In the Democratic Republic of Congo, a cabinet minister says the administration is forming a competent national army to take over after the United Nations Peacekeeping Mission (MONUC) withdraws by the end of next year. Lambert Mende says President Joseph Kabila's government is determined not to surrender the country's sovereignty. ..."

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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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