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Latest news on the Lubanga trial; Other articles and opinions

01 July 2010

Dear all,

Please find below information about recent developments related to the International Criminal Court's investigation in the Democratic Republic of the Congo (DRC).

This message includes latest updates on the Lubanga trial (I); Comments and Opinions (II); and Other Related Developments (III).

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.

Also, note that translations are unofficial translations provided by the CICC Secretariat.

Best regards,

CICC Secretariat
www.coalitionfortheicc.org

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I. LUBANGA TRIAL

To read summaries on the Lubanga Trial, please visit the `Lubanga Trial' website at: http://lubangatrial.com and Aegis Trust's website: http://www.aegistrust.org/Lubanga-Trial/

1. LATEST ARTICLES

i. "Interview: Most Victims in Lubanga Trial Are Not After Reparations, They Just Want Their Stories Told", By Wairagala Wakabi, 30 May 2010, http://www.lubangatrial.org/2010/05/30/interview-most-victims-in-lubanga-trial-are-not-after-reparations-they-just-want-their-stories-told/

"Paolina Massidda is the Principal Counsel of the Office of the Public Counsel for Victims at the International Criminal Court (ICC). She has been closely involved with the trial of former Congolese leader Thomas Lubanga Dyilo, the first person ever to be tried at the ICC. ...

Q. Who are the victims and how are they related to the conflict in Ituri?
A. In the Lubanga case, the majority of victims participating are former child soldiers. This is because the charges Mr. Lubanga faces are directly linked to war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities. Some of the victims are parents of former child soldiers who, of course, can have a prejudice from the crimes committed.
These are the only categories of participating victims because according to both the trial chamber and appeals chamber, in order to be recognized as victims in the Lubanga trial, you need to have a direct link with the charges confirmed by the pre-trial chamber and you also need to have suffered from a prejudice derived from such charges.

... Q. Looking back at the experience of the Lubanga trial, what do you say is the importance of victims participating in such trials?
A. First is the chance of telling their stories and have their voices heard before the judges. What is also important is the possibility of challenging evidence brought by the prosecution and the defense, and particularly the possibility to provide evidence not only going to the reparations, but also going to the guilt or innocence of the accused. This is indeed a direct recognition that victims have an interest in the outcome of the trial and in the establishment of the truth.
Another important step was the possibility for victims to appear before the chamber... to provide testimony. ...

... Q. As we understand it, the accused, in this case Mr. Lubanga, as well as the court, would have to provide the reparations?
A. The principle is that reparations shall be paid by the person convicted. If the person convicted has no financial resources, then the court will use the Trust Fund for Victims to provide awards for reparations to victims. The Trust Fund actually has a double mandate: on the one side to implement awards for reparations after the conviction of someone and after the end of the reparations proceedings. On the other side is the possibility of using some of the resources already available for assistance to victims, which is different from reparations.
It means the Trust Fund can put in place projects to help victims of crimes under the jurisdiction of the court, and their families. This is something that the Trust Fund is already doing in Uganda and in Congo. In Congo, there are several projects sponsored by the Trust Fund, including for rehabilitation of former child soldiers, education programmes, or programmes to minimize the psychological impact of the crimes on former child soldiers...."

ii. "Judge Directs Lubanga Prosecutors To Produce Their Investigators", By Wairagala Wakabi, 1 June 2010, http://www.lubangatrial.org/2010/06/01/judge-directs-lubanga-prosecutors-to-produce-their-investigators/

"Adrian Fulford, the presiding judge in the Thomas Lubanga war crimes trial, today directed prosecutors to expeditiously produce two of their investigators who are required to give evidence at the behest of the chamber. The judge rejected explanations by prosecutors that they could not readily locate the investigators...."

iii. « Payments To Intermediaries In Focus At Lubanga Trial," By Wairagala Wakabi, 18 June 2010, http://www.lubangatrial.org/2010/06/18/payments-to-intermediaries-in-focus-at-lubanga-trial/

"War crimes accused Thomas Lubanga's defense this week focused on the payments which a member of staff of the Office of The Prosecutor (OTP) made to four intermediaries who helped to put prosecution investigators in touch with witnesses.
During the testimony of the OTP field liaison coordinator in the Democratic Republic of Congo (DRC), lead defense counsel Catherine Mabille scrutinized several payments which this witness disbursed to intermediaries and witnesses, mainly former child soldiers...."

SEE ALSO:

iv. "Judges Order Prosecutors To Disclose Details Of Intermediaries", By Wairagala Wakabi, 2 June 2010, http://www.lubangatrial.org/2010/06/02/judges-order-prosecutors-to-disclose-details-of-intermediaries/

v. "Overview Of The Lubanga Case: What Witnesses Have Said And The Arguments Made By Prosecutors And The Defense", By Wairagala Wakabi, 27 May 2010, http://www.lubangatrial.org/2010/05/27/overview-of-the-lubanga-case-what-witnesses-have-said-and-the-arguments-made-by-prosecutors-and-the-defense/

vi. "Lubanga Trial: Identities Of Child Soldiers Queried", By Wairagala Wakabi, 28 May 2010, http://www.lubangatrial.org/2010/05/28/lubanga-trial-identities-of-child-soldiers-queried/

vii. "Former Suspect Now Declines Interview with Lubanga Prosecutors", By Wairagala Wakabi, 31 May 2010, http://www.lubangatrial.org/2010/05/31/former-suspect-now-declines-interview-with-lubanga-prosecutors/

viii. "Lubanga Defense To Question OTP's Rebuttal Witnesses About Abuse Of Process", By Wairagala Wakabi, 11 June 2010, http://www.lubangatrial.org/2010/06/11/lubanga-defense-to-question-otp’s-rebuttal-witnesses-about-abuse-of-process/

ix. "Investigator: How We Gathered Evidence Against Lubanga", By Wairagala Wakabi, 14 June 2010, http://www.lubangatrial.org/2010/06/14/investigator-how-we-gathered-evidence-against-lubanga/

2. RADIO PROGRAMMES

i. "Voices from the ground (Goma)", Wanda Hall, 24 May 2010, http://www.lubangatrial.org/2010/05/24/voices-from-the-ground-goma-drc-second-program/

ii. "Voices from the ground (Goma)", Wanda Hall, 3 June 2010, http://www.lubangatrial.org/2010/06/03/voices-from-the-ground-kasugho-drc-second-program/

II. OTHER NEWS, COMMENTS AND OPINIONS

i. "State cooperation: the weak link of the ICC", By Eugène Bakama Bope, President of the Congolese NGO Club des Amis du droit du Congo (CICC blog), 14 June 2010, http://www.coalitionfortheicc.org/blog/?p=588&langswitch_lang=en

"There is no doubt that the success of the ICC is closely linked to the level of cooperation it secures from States Parties and intergovernmental organizations. We have seen that arrest warrants cannot be enforced and requests of provisional release - as in the case of Jean-Pierre Bemba - cannot be accepted because of the lack of cooperation from the States that could be host states for the defendant. States can also cooperate by implementing the Agreement on Privileges and Immunities of the Court in their national legislation, by signing agreements for the relocation of victims and witnesses or by enforcing sentences.

The Review Conference of the ICC Rome Statute in Kampala was a unique opportunity for states to reaffirm their commitments and obligations towards the Court under the Statute. In Kampala, the stocktaking exercise on cooperation showed that beyond capacity or resources, a number of states simply lack political will to cooperate with the Court, especially when it comes to enforcing the arrest warrants issued by the Court.

In the speech he made at the opening of the Review Conference, former UN Secretary General Kofi Annan, referred to the opposition of some African leaders to the arrest warrant issued against Al Bashir and said, "It is not `Africa' that is hostile to the Court. … In all these cases, it is impunity, not the African countries, that is being targeted." If impunity is actually the problem that has to be eradicated, why are not all arrest warrants against all suspects wanted by the Court enforced and why cannot justice be achieved?

Uganda, which is a State Party to the Court and was the host country of the Review Conference, has been unable to arrest the leaders of the LRA so much that this rebel group continues to commit atrocities in the Democratic Republic of Congo, in Central African Republic and in South Sudan. Nevertheless, it will host the next African Union summit in July. What would prevent Uganda from arresting Sudanese President, Al Bashir if he was to show up on the Ugandan territory? It is interesting to note that Uganda, after declaring that Al Bashir was not invited to the summit, immediately retracted its statement when the Sudanese government protested.

The DRC, which is a State Party to the Court and set an example in terms of cooperation regarding enforcement in dealing with the arrest warrants issued against Lubanga, Katanga and Ngudjolo Chui, decided not to cooperate to arrest Bosco Ntaganda, claiming `peace' was more important. The Congolese minister of Justice recognized that there is no peace without justice but that `the need for peace sometimes prevails over justice'.

States tend to cooperate only when they want to or when it does not hinder their interests or goals. Cooperation should not be partial or depend on the moods of decision-makers. Cooperation should be firm and consistent in order for the Court to be able to fully complete its mandate to end impunity. It is the commitment states should have made back in Kampala."

ii. "How to conciliate justice and peace while cooperating with the ICC?", By Emmanuel Chaco (IPS), 10 June 2010, http://www.ipsinternational.org/fr/_note.asp?idnews=5901 (in French)

"The Democratic Republic of the Congo (DRC) expressed there is the `need for an involvement of the International Criminal Court (ICC) in the research of justice, of protection of the victims of serious crimes and of peace', at the international conference on the review of the ICC Rome Statute.

Geroges Kazadi, of the Congolese coalition for the ICC and member of the DRC delegation, who is participating in this meeting which is taking place from 31 May to 11 June in Kampala, the capital of Uganda, declared: `the government came to plead for peace when we came to ask more commitment from the ICC in the protection of victims and communities affected by the crimes and the serious violations of human rights that have been committed in the DRC for many years'.

André Kito, President of the DRC coalition for the ICC, told IPS that `there are disagreements between the specifications of the civil society and the government. The latter seems to choose impunity to benefit peace.'

… According to Kito `the delegation managed to show the relevance for the ICC to get involved more actively in the protection of victims, witnesses and its informers'. …"

iii. "To be healed, brutalised Congolese need to see justice being done," by Stephanie Wolters & Charles Ntiricya (Mai & Guardian) 18 June 2010, http://www.mg.co.za/article/2010-06-18-to-be-healed-brutalised-congolese-need-see-justice-being-done

"... In 2009 half of all victims of sexual violence in the DRC were children, according to the United Nations Population Fund (UNFPA).

... There is little doubt that the prevalence and persistence of sexual abuse and sexual violence is closely linked to the decay of the Congolese state and its institutions.

... A further problem is that there are relatively few functioning courts, which means that victims of sexual violence often have to travel long distances to major towns to seek legal action. This requires money and time away from work or family, both of which are major hurdles for the average person living in eastern DRC.

But seeking justice is an important part of the healing process, said Isidore Kalimira, the president of the International Movement for Children and Women's Rights in DRC.

'We provide the victim with psychosocial counselling but we also accompany them to the youth court so that they can be heard and justice can be done. When there are reparations [paid], that is when the family -- and the child -- starts to heal psychologically, because it is then that that child understands that the perpetrator has been punished.'

For victims of sexual violence, there are also issues of shame and stigmatisation.

... Another key challenge facing children in the DRC is the widespread recruitment of children by armed groups. ... This phenomenon continues despite the promulgation of a January 2009 law on child protection that specifically outlaws the recruitment and use of children under the age of 18 by the armed forces and the police and calls for the creation of special tribunals and police units for the protection of children. There is also a UN-led action plan to end the recruitment of child soldiers and to secure the release of children from armed groups.

While the Congolese government is discussing the plan, there are political concerns due to delicate negotiations with various armed groups, Radhika Coomaraswamy, the UN special representative for children in armed conflict, said.

'The plan is still not finalised, although discussions continue… The delay is to some extent due to the complexity of the process. There is an understanding that it has to be addressed in the long run but with the [military integration] process ongoing, the government is not ready to sign an action plan,' she said.

When it comes to pursuing those who recruit children for armed groups, impunity is again an issue. Very few cases have been brought in Congolese courts against military commanders for recruiting children. In fact, some have been elevated to senior ranks in the army despite facing charges of forcibly recruiting child¬ren.

This is the case of Jean-Pierre Biyoyo, a leader of a Mai Mai militia faction, who was made a colonel in the Congolese army although he had been found guilty of abducting 40 children to fight in his militia.

In the DRC it is the International Criminal Court (ICC) that has taken action on the recruitment of children. In March 2006 Thomas Lubanga, a former leader of a Congolese militia was arrested by the ICC and transferred to its headquarters in The Hague.

Lubanga is now on trial on three charges of war crimes related to the conscription of children under 15 years of age, enlisting children into armed groups and using children to participate actively in armed conflict.

Two other Congolese militia leaders have been arrested by the ICC on charges relating in part to the forcible recruitment of children: Mathieu Ngudjolo and Germain Katanga were arrested in 2008 and 2007 and are standing trial on charges of war crimes and crimes against humanity.

Coomaraswamy hopes that these high-profile trials will act as a deterrent in the DRC.

'I think there is some deterrent effect of the Lubanga case and it has been shown on screen in DRC and those effects you cannot measure. There are also lots of victims who will be supported as a result of the trial. This will also have a positive effect … [The ICC] has a deterrent effect, but it is hard to measure.'

While these trials are taking place many thousands of kilometres away, on the ground the case of another former militia leader sends an entirely different message: Bosco Ntaganda, Lubanga's military commander, also stands accused of committing war crimes relating to the forcible recruitment of children and the ICC has issued an international warrant for his arrest.

But, although the Congolese government is a signatory to the ICC and, as such, is required to arrest Ntaganda, political considerations have led to his unofficial elevation to a senior commander in military operations in eastern DRC.

Coomaraswamy acknowledges the importance of justice for children who have been forcibly recruited.

'Health and psychosocial help is important, as is access to justice interventions. If the justice system does not work, alternative frameworks have to be developed so that people can feel that justice is done.' ..."

iv. "Investigation on the murder of Chebeya: Steve Mbikayi wants the ICC to get involved" (« Enquête sur l'assassinat de Chebeya: Steve Mbikayi exige l'implication de la CPI ! »), La Prospérité, 8 June 2010, http://www.laprosperiteonline.net/show.php?id=4636&rubrique=La Une (in French)

"… The national president, Steve Mbikayi Mabuluki, modified the agenda of his trip to Europe and America to convene in Paris an extraordinary meeting of the representation of the labor party abroad. Only one issue was on the agenda: the worrying situation of human rights in the DRC in the light of the murder of the executive director of the 'Voix des sans voix pour les droits de l'homme' and executive secretary of the national network of NGOs for human rights in the DRC, Floribert Chebeya in the night of 2-3 June 2010 in Kinshasa. At the end of the meeting, the president said he was chocked and felt concerned. He called for an international investigation to be opened to make light in this heinous crime. He insisted for the ICC to get involved in this investigation. …"

SEE ALSO:

v. "ICC States Parties delegates travel to the Democratic Republic of Congo" ("Des représentants des Etats parties à la CPI en République Démocratique du Congo," ) UN News Service, 7 June 2010, http://www.un.org/apps/newsFr/storyF.asp?NewsID=22115&Cr=CPI&Cr1= (In French)

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