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1 Submission of the Prosecution's Updated Summary of Presentation of Evidence (ICC-01/04-01/06-1363)

[…]

No.: ICC‐01/04‐01/06

Date: 30 May 2008

TRIAL CHAMBER I

Before: Judge Adrian Fulford, President

Judge Elizabeth Odio Benito, Judge

Judge René Blattmann, Judge

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF

THE PROSECUTOR

v. THOMAS LUBANGA DYILO

Public Document

Submission of the Prosecution's Updated Summary of Presentation of Evidence

Source: Office of the Prosecutor

[…]

2 I. Introduction

  1. 1.

    In or about 2000, Thomas LUBANGA assumed control of a Hema militia operating in the Ituri district of the Democratic Republic of the Congo (DRC). The group, which had no name at the time, pursued a policy of using child soldiers, among others, to further its principal objective of securing political domination over the Ituri region through armed force. Once he became leader, Thomas LUBANGA recast the militia in his own vision as a hybrid political-military structure, composed, over time, of the Union des Patriotes Congolais (UPC) and the Forces Patriotiques pour la Libération du Congo (FPLC), and commonly referred to jointly as the UPC. As leader of the UPC/FPLC political-military structure, Thomas LUBANGA used his political skills, and his contacts in the DRC, Rwanda and Uganda, to secure increased financing and heightened legitimacy for the UPC/FPLC; to obtain power over lucrative gold mines located in the town of Mongbwalu; and to continue the organizational policy of enlisting and conscripting children, including under the age of 15 years, and using them to take part in the armed conflict in Ituri.

  2. 2.

    As a result of his conduct, on 28 August, 2006, Thomas LUBANGA was charged with three war crimes: conscripting children into armed groups, enlisting children into armed groups, and using children to participate actively in hostilities, in the context of a conflict of a noninternational character, pursuant to Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute. On 29 January, 2007, the Pre-Trial Chamber confirmed the above charges against Thomas LUBANGA and also ordered him to stand trial on three additional war crimes, based on identical conduct, in the context of a conflict of an international character, pursuant to Articles 8(2)(b)(xxvi) and 25(3)(a) of the Rome Statute.

  3. 3.

    This document summarizes the main points of the Prosecution's case and the principal evidence the Prosecution presently intends to offer at trial in support of these charges. Section II addresses various issues relating to the armed conflict in Ituri during the relevant time periods determined by the Pre-Trial Chamber (hereafter “the relevant time periods”): the existence of the conflict, Thomas LUBANGA's awareness of the armed conflict, the nexus between the armed conflict and the charged crimes, and the character (international or noninternational) of the conflict. Section III sets forth the Prosecution's theory of co-perpetration as the mode of liability applicable to Thomas LUBANGA's role in the crimes charged in the Document Containing the Charges. Section IV describes the common plan charged in the Document Containing the Charges, details how the plan was applied in practice, and places Thomas LUBANGA at the core of the common plan. Section V describes six individual cases of children, all under the age of 15 years, whom the UPC/FPLC recruited, enlisted, and/or used to participate actively in hostilities. Section VI concludes.

3 II. The Armed Conflict

3.1 A. The District of Ituri

  1. 4.

    Ituri is a district of the Province Orientale of the DRC, bordering Uganda to the East, and Sudan to the North. Its population has been estimated between 3.5 and 5.5 million people from about 18 ethnic groups. Among the bigger groups are, alongside the Alur and Bira communities, the Hema, the Lendu and the Ngiti. The district's capital is the city of Bunia, regularly inhabited by about 100,000 inhabitants. In 2002 and 2003, Bunia hosted tens of thousands of refugees.

  2. 5.

    Ituri is an area rich in valuable natural resources, including gold, diamonds, Colombo tantalite (coltan), timber and oil. Mongbwalu, a town located about 45 km northwest of Bunia, contains one of the most important gold mines in the world. Ituri's resources have always attracted great interest and, at times, great strife. The struggle to control these resources has been at the heart of the armed conflict and has deepened the mistrust between ethnic communities, subject to the manipulation by internal and external actors.

3.2 B. Existence of the Armed Conflict

  1. 6.

    Since early 1996, the district of Ituri, and the DRC Eastern Provinces in general, have been at the forefront of two successive regional wars, which involved armed forces from several African countries. What is commonly referred to as the “First Congo War”, which took place between 1996 and 1997, led to the overthrow of long-time DRC President Mobutu Sésé Seko by the Alliance des forces démocratique pour la liberation du Congo (AFDL) of Laurent-Désiré Kabila. The “Second Congo War” lasted at least from 1998 to 2003, when the DRC Transitional Government was installed pursuant to the Accord Global et Inclusif. This period of sustained and widespread violence – which fragmented the country, heightened ethnic divisions, caused enormous loss of life and physical dislocation, and weakened or destroyed many of the structures of governance in the Eastern Provinces – underlay and helped exacerbate long-standing political and social tensions in Ituri.

  2. 7.

    In 1998, the Ituri district was taken over by the rebel movement Rassemblement Congolais pour la Démocratie (RCD), at the time supported by the Ugandan army – the Ugandan People's Defence Forces (UPDF) – and the Rwandan army – then called the Rwandan Patriotic Army (RPA). The RCD soon split into the RCD-Goma, a faction of the RCD based in Goma, North-Kivu and backed by Rwanda; and the RCD/ML, backed by Uganda.

  3. 8.

    Starting in mid-1999, disagreements in Ituri escalated and crystallized into a broader violent conflict among an array of armed militia aligned largely along ethnic lines. In early 2002, Ituri came under the control of the RCD/ML. Fighting between Hema and Lendu militia intensified. From, at the latest, mid-2002 onwards, a sustained and extensive armed conflict existed among the organizations purporting to represent these and other ethnic groups.

  4. 9.

    Amidst a web of constantly changing alliances and successive platforms, the following armed groups, among others, planned and/or carried out military operations in Ituri at different times in 2002 and/or 2003: the UPC/FPLC, the Front des Nationalistes et Intégrationnistes (FNI), the Parti pour l'Unité et la Sauvegarde de l'Intégrité du Congo (PUSIC), the Forces Populaires pour la Démocratie au Congo (FPDC), the Forces Armées du Peuple Congolais (FAPC), and the Front de Résistance Patriotique de l'Ituri (FRPI).

  5. 10.

    The fighting was aggravated by the involvement of both national and international actors, predominately from Uganda and Rwanda, who supported one or the other of the various Ituribased militia at different times.

  6. 11.

    Thus, Ugandan Government Officials from 2000 to the end of October 2002, and Rwanda Government Officials, from mid-2002 to about June 2003, aided the Hema militia and, once it existed, the FPLC. Among other assistance, these external governments provided, inter alia, military training, equipment such as weapons and ammunition, and military expertise.

  7. 12.

    Inter-governmental bodies have repeatedly and consistently concluded that an armed conflict existed in Ituri during the relevant time periods. In May 2003, in light of the unabated conflict, the United Nations Security Council determined “that the situation in the Ituri region and in Bunia in particular constitutes a threat to the peace process in the Democratic Republic of the Congo and to the peace and security in the Great Lakes region” and, acting pursuant to Chapter VII of the United Nations Charter, authorised “the deployment … of an Interim Emergency Multinational Force [IMEF] in Bunia in close coordination with MONUC …”, which was empowered “… to take all necessary measures to fulfil its mandate.” From 12 June, 2003 onwards, as part of Operation Artemis, several member states of the European Union (EU) and a number of other states contributed troops to an EU force that deployed in Bunia as part of the IMEF and in accordance with the Security Council mandate.

  8. 13.

    On 28 July, 2003, the Security Council pronounced itself “[d]eeply concerned by the continuation of hostilities in the eastern part of the Democratic Republic of the Congo, particularly … and in Ituri, and by the grave violations of human rights and of international humanitarian law that accompany them,” [author's note: amongst the grave violations of international humanitarian law the Security Council explicitly listed at para. 13 of the UNSC Resolution 1493 (2003) of 28 July, 2003, DRC-OTP-0131-0167: “the continued recruitment and use of children in the hostilities in the Democratic Republic of the Congo, especially […] in Ituri”] and reiterated “the request addressed to all parties […] to provide the Special Representative of the Secretary-General with information on the measures that they have taken to put an end to the recruitment and use of children in their armed components […]” and [author's note: the Security Council] requested the Secretary-General “to deploy in the Ituri district, as soon as possible” a “tactical brigade-size force.” As a consequence, in September 2003, the UN deployed the MONUC Ituri Brigade, significantly adding to the limited number of previously-deployed UN troops in the region.

  9. 14.

    Notwithstanding these efforts, the combat persisted. [Author's note: Fourteenth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, of 17 November, 2003, DRC-OTP-0074-0215, at para. 3: “The situation in Ituri has been particularly serious. Approximately 420 civilians have been killed in Bunia in fighting between Lendu and Hema militias […] Widespread rape and looting also occurred. A significant number of the victims of the abuses have been minors […]”.] In sum, from August 2002 up until December 2007, armed violence in Ituri has resulted in the killing of approximately 5,000 civilians and the internal displacement of hundreds of thousands.

3.3 C. Thomas Lubanga's Awareness of the Armed Conflict

  1. 15.

    During the relevant time periods, Thomas LUBANGA was aware of the existence of an armed conflict in Ituri. [Author's note: here follows references to various public statements made by Lubanga (in French) regarding the conflict in Ituria, the atrocities being committed and the plans to restore order.]

  2. 16.

    In a declaration of 13 August, 2002, Thomas LUBANGA stated that “[D]e grands forfaits ont été commis, notamment l'entretien et l'armememt des combattants de guerres tribales, l'insémination de la haine et de la division dans les différentes communautés Ituriennes” and continues to say that “[L]es Ituriens, ne voulant pas demeurer dans le cycle infernal de violence, ont signé plusieurs accords de cessation des hostilités.” In the same document, Thomas LUBANGA recommended, inter alia, to the Iturian people the following: “Le FRP demande à tous les fils et filles de l'Ituri d'arrêter les massacres et tous les actes de destructions et chacun en ce qui le concerne doit oeuvrer pour la paix. De cesser de cultiver et de manifester tout acte de violence et de haine. De soutenir les actions de pacification du gouvernement”. [Author's note: in the foregoing Lubanga urges Ituri boys and girls to stop the massacres and all acts of violence and work for peace.]

  3. 17.

    On 15 November, 2002, Thomas LUBANGA signed, on behalf of the UPC, “The Kampala Understanding between RCD-ML and UPC”, which contained the following statements: “After a review of the security situation in Eastern-Congo and intensive discussions on the need for peace in Ituri in accordance with Lusaka and Luanda Agreements and, in order to put an end to the senseless killings and forestall a humanitarian crisis in Ituri, the Congolese leaders of RCD-ML and UPC agree as follows: “1. RCD-ML and UPC shall cease hostilities at all fronts in Ituri immediately”.

  4. 18.

    On 4 January, 2003, as UPC President, Thomas LUBANGA, sent a message to the Congolese people in Ituri, in which he made numerous references to the armed conflict, including, inter alia, the following statement: “L'année 2002 qui vient de s'achever, a connu des événements tels qu'ils auront marqué à jamais l'histoire et la vie socio-politique de l'Ituri, cette région du Nord-Est de la République Démocratique du Congo caractérisée depuis quatre ans par une rébellion doublée d'une guerre ethnique des plus atroces et de plus inhumaines.” Thomas LUBANGA also stated that “[L]a détermination de nos éléments des Forces Patriotiques pour la Libération du Congo, FPLC en abrégé (auxquels nous rendons un vibrant hommage) a permis de maîtriser la situation sécuritaire à plus ou moins 80%.” [Author's note: in the aforementioned Lubanga acknowledged that acts of atrocity had taken place but claimed that his forces had achieved some considerable success in restoring security.]

  5. 19.

    On 14 August, 2003, in a draft “Déclaration politique des responsables politiques et militaries de l'Ituri, réunis en concertation du 16 au 17 Août à Kinshasa”, amongst others, Thomas LUBANGA for the UPC/RP (Reconciliation et Paix) and NDJABU NGABU for the FNI declared the following: “Vu les drames et atrocités indescriptibles vécus par la population congolaise de l'Ituri depuis bientôt cinq longues années;” leading the signatories to undertake that “… nous nous engageons fermement à mettre fin aux massacres, pillages, exactions et toute autre forme de violation des Droits de l'Homme dont nous sommes accusés”. [Author's note: the aforementioned Lubanga and others pledged to put an end to the violence and atrocities occurring in the Ituri region.]

  6. 20.

    Finally, on 14 May, 2004, the parties to the armed conflict, amongst them again the FNI and the UPC, signed a treaty that indicated the following: “Désireux de participer à la pacification et à la restauration de l'autorité de L'Etat sur l'ensemble du territoire national; considérant le caractère urgent et prioritaire de la mise en oeuvre du programme de désarmement et réinsertion communautaire pour L'Ituri élaboré par le Gouvernement de Transition; … Exprimons en outre nos remerciements à l'endroit de la Communauté Internationale pour son soutien au processus de pacification de l'Ituri et formulons le souhait que cette implication demeure constante dans toutes les phases de l'exécution du programme de Désarmement et de Réinsertion Communautaire en Itur.” [Author's note: the aforementioned refers to a treaty agreement between the FNI and the UPC to end the violence in the DRC.]

3.4 D. Nexus Between the Armed Conflict and the Alleged Crimes

  1. 21.

    The criminal conduct with which Thomas LUBANGA is charged took place in the context of and was associated with the armed conflict in Ituri: Children under the age of 15 years were enlisted and conscripted in order to undergo military training; the purpose of the training was to use them in hostilities [author's note: MONUC Special report, DRC-OTP-0074-0422 at 0463; see also further, Section V, Individual Cases].

3.5 E. Characterisation of the Armed Conflict

  1. 22.

    As the summary of evidence contained in Section II.B (“Existence of the Armed Conflict”), supra, indicates, the Prosecution maintains that, during the relevant time periods, there existed in Ituri, at a minimum, an armed conflict of a non-international character.

  2. 23.

    In the Decision on the confirmation of the charges, the Pre-Trial Chamber found that “there is sufficient evidence to establish substantial grounds to believe that, as a result of the presence of the Republic of Uganda as an occupying power, the armed conflict which occurred in the Ituri region can be characterised as an armed conflict of an international character from July 2002 to 2 June, 2003.” Consistent with this decision, and with the decision of the Trial Chamber of 13 December, 2007, the Prosecution is prepared to present all evidence in its possession pertaining to both the international and the national aspects of the armed conflict, so that the Trial Chamber can determine the appropriate legal characterization applicable to the present case.

  3. 24.

    From late 1998 to early June 2003, the UPDF was present in the Ituri region. During this time, UPDF military operations [sic] were had an important role in shaping local political dynamics. The UPDF's influence over the Congolese rebel groups during its presence in the Ituri region is sometimes characterized as that of a “king-maker.”

  4. 25.

    The UPDF helped the UPC to capture Bunia in August 2002. When the UPC/FPLC allied with the RCD-Goma backed by Rwanda in late 2002, Uganda then helped create the PUSIC as an opposing Congolese rebel group and also attempted to forge an alliance, the Front pour L'Intégration et Paix en Ituri (FIPI), among opposing Congolese militias in February 2003. Eventually, in March 2003, the UPDF and the FNI/FRPI drove the UPC/FPLC out of Bunia. The UPDF began to withdraw from the Ituri region in late April 2003. The UPDF withdrew completely from Bunia around 6 May, 2003 and continued its withdrawal from other areas of the Ituri region until early June 2003.

  5. 26.

    Successive DRC governments repeatedly tried to reassert their authority in Ituri by securing the withdrawal of the UPDF. The Lusaka Ceasefire Agreement signed by, inter alia, the DRC and Uganda in July 1999 and the Luanda Agreement, signed by the DRC and Uganda in September 2002, called for the withdrawal of the UPDF from the territories of the DRC. The UN Security Council denounced Uganda for violating the sovereignty and territorial integrity of the DRC and repeatedly demanded withdrawal of the UPDF from the territories of the DRC.

  6. 27.

    During the period the UPDF was present, the DRC government was incapable of exercising its sovereign duties in Ituri, and the UPDF substituted its own authority. The UPDF widely intervened in local administration and shaped political developments: The UPDF's firm grasp of local administration further assisted it to exploit natural resources in Ituri. The international community viewed the level of authority the UPDF exercised as sufficient to make Uganda responsible for the security of the Ituri region.

  7. 28.

    Having taken over key areas of the Ituri region, UPDF General James KAZINI created the new province of “Kabili-Ituri” and appointed Adèle LOTSOVE as governor of the Ituri District in June 1999. Uganda remained a prominent party to the political and diplomatic framework designed to establish transitional administrative structures in Ituri. In the Luanda Agreement signed in September 2002, Uganda and the DRC agreed to jointly establish the Ituri Pacification Committee (IPC) in return for Uganda's promise to withdraw its troops.

  8. 29.

    In September 2002, the UN Secretary General recommended to the Security Council that, given the prevailing volatile environment, the UPDF should continue to discharge security responsibilities until a suitable Congolese alternative emerged. In March 2003, the Accord de cessation des hostilités en Ituri signed by Congolese rebel groups and witnessed by, inter alia, the DRC and Uganda explicitly gave Uganda the responsibility to secure the Ituri region.

  9. 30.

    The UPDF's withdrawal from Bunia and surrounding areas in May 2003 created a power vacuum. UPDF General Kale KAYIHURA warned of the dangers produced by a UPDF departure without an effective peacekeeping force and administration. After the rapid withdrawal of the UPDF, conflicts among Congolese militia erupted as they battled for control of Bunia. With the DRC Government still lacking the capacity to fill the gap, the UN Security Council authorized the deployment of the Interim Emergency Multinational Force in Bunia in May 2003 and further authorized MONUC forces to use all necessary means to protect civilians in Ituri region.

  10. 31.

    UPC/FPLC military operations, and, in particular, military attacks specifically cited under the “Individual cases” section of the Document Containing the Charges, took place within that context and were closely linked to the UPDF's presence in Ituri.

4 III. Co-perpetration Liability

  1. 32.

    One of the modes of liability established by the Rome Statute is co-perpetration. Pursuant to Article 25(3)(a), “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime … jointly with another… . ”

  2. 33.

    The concept of co-perpetration incorporates two objective elements. First, there must exist a common plan or agreement between two or more persons, which amounts to or involves the commission of a crime. Second, the accused must have exercised functional control over the implementation of the common plan by reason of the central task or role assigned to him, and provided a substantial contribution to the implementation of the common plan. Functional control exists, not only where the accused has actually made an essential contribution to the commission of the crime, but also where (i) the role assigned to the accused ex ante was central to the implementation of the plan, and (ii) it appears in retrospect that his contribution was substantial, though not essential.

  3. 34.

    The concept of co-perpetration incorporates two subjective elements. First, the Prosecution must show that the objective elements of the crimes alleged were committed with both “intent and knowledge”. To this end, the Prosecution will prove that the accused was both aware of the existence of the facts relevant to the objective elements of the crimes and accepted the substantial likelihood that his acts or omissions would result in the realization of these objective elements. Second, the Prosecution must establish that the accused was aware of the factual circumstances establishing his liability as a co-perpetrator. To this end, the Prosecution will show that i) the accused was aware of the substantial likelihood that implementing the Common Plan would amount to or involve the commission of the crime(s); and ii) the accused was aware of the factual circumstances that enabled him to exercise functional control over the crime(s); namely, that he was aware of the centrality or importance of his role in the Common Plan.

5 IV. The Common Plan and the Role of the Accused

  1. 35.

    Thomas LUBANGA 's criminal responsibility for the conscription, enlistment and use of children under the age of 15 years to participate in hostilities was manifested through a common plan (hereafter the “common plan”) among himself, Chief Kahwa Panga Mandro (UPC Deputy National Secretary for Defence), Rafiki Saba (UPC Chief of Security), Floribert Kisembo (FPLC Chief of Staff), Bosco Ntaganda (FPLC Deputy Chief of Staff for Military Operations), and other senior FPLC commanders, including Commander Tchalingonza (in charge of the South East sector). The goal of the common plan, which existed from early September 2000 to 13 August, 2003, was to further the UPC/FPLC war effort by all means, including (i) recruiting and enlisting young people, including young people under the age of 15, into the UPC/FPLC, (ii) subjecting them to military training, and (iii) using them to participate actively in military operations and as bodyguards.

5.1 A. The Existence of the Common Plan

  1. 36.

    The existence of the common plan can be inferred from the following:

5.1.1 The Policy of Broad Recruitment

  1. 37.

    The military wing of the UPC, eventually named the FPLC, required the recruitment – through conscription and enlistment – of a constant supply of soldiers to fill the ranks of the UPC military apparatus. To meet this need, the UPC established an even more structured policy and implemented a widespread campaign of conscription and enlistment of soldiers in large number, including men, women and youth without regard to their age. The UPC enlisted whoever was available. In some instances, the UPC even re-recruited previously demobilised child soldiers.

5.1.2 Pattern of large scale enlistment and conscription of child soldiers

  1. 38.

    The UPC/FPLC recruitment campaign shows a consistent pattern of repeated and large scale enlistment and conscription of children, including those under the age of 15 years, into the UPC/FPLC. Forcible conscription of children by the UPC/FPLC included individual cases of abductions, large scale abductions and other forms of forced recruitment drives, which were directly or indirectly targeted at youths, including those under the age of 15. In some circumstances, the very children under 15 years who were themselves abducted were forced by their commanders to arrest and abduct children, including girls under the age of 15, into the UPC.

  2. 39.

    As part of its broad child recruitment policy, the UPC/FPLC leadership systematically pressured Hema families in UPC/FPLC-controlled territories to provide children for military service. Emissaries and propaganda were employed to encourage Hema youth to join the UPC/FPLC military.

  3. 40.

    In addition to forced conscription, the UPC/FPLC also increased its military capacity by enlisting youth voluntarily, including youth under the age of 15 years, into its ranks. The UPC/FPLC accepted for enlistment as children soldiers who joined following the loss of family members, some of whom were pursuing a desire for revenge for such loss. The UPC/FPLC enlisted other youth who joined as a result of social pressure brought to bear on them by family, peers or the community as a whole. Other motivations for voluntary enlistment were the benefits proffered by the UPC/FPLC to child soldier recruits such as the promise of opportunity to protect family from a perceived threat, the allure of a military role, or the simple prospect of being fed.

  4. 41.

    The number of youths, including children under the age of 15 years, in ranks of the UPC/FPLC was significant. One witness states that during the time the UPC/FPLC controlled Bunia, he rarely saw adult military; rather, he mostly saw children of a young age, between 12–14 years old. A battalion commander within the UPC/FPLC states that the FPLC had up to seven hundred child soldiers, He also states that the battalion he commanded had up to 50 child soldiers from the ages of 14 to 16 years old.

5.1.3 Establishment of training camps

  1. 42.

    In order to prepare child recruits for combat, including those under 15 years of age, the UPC/FPLC established several military training camps, in Centrale, Rwampara, Mandro, Irumu, Bule, Bogoro, Sota, Mongbwalu and Bunia. The child soldiers spent, on average, two months at these locations where they learned basic military concepts and skills, such as discipline and morale, saluting, drill, and weaponry training and rudimentary combat tactics. At the conclusion of training, the child soldiers were usually issued with a uniform and weapon, signifying their readiness to participate in UPC/FPLC military operations.

5.1.4 Regular visits to training camps by Senior UPC/FPLC commanders

  1. 43.

    As discussed more fully in section 3(b), infra, high ranking UPC/FPLC commanders, including Thomas LUBANGA, inspected the training camps while child soldiers were visibly present.

5.1.5 Deployment of recruits without regard to age

  1. 44.

    Following the completion of training, child soldiers were deployed by the UPC/FPLC in military operations no differently from any other soldier, with complete disregard for their age. The UPC/FPLC used child soldiers in front line combat roles, where they inflicted and suffered casualties. Examples of combat operations in the time period September 2002 to September 2003 in which child soldiers were used by the UPC/FPLC are Libi and Mbau (October 2002), Lenga and Fataki, Lipri (February/March 2003), Kobu (February/March 2003), Bogoro (February/March 2003), Bunia (August 2002 and May 2003), Songolo and Djugu and Mongbwalu (late 2002 and June 2003).

5.1.6 Use of child soldiers as bodyguards

  1. 45.

    Child soldiers were also regularly used as escorts/bodyguards for National Secretaries, Command Staff and UPC/FPLC members, informants and as guards for UPC/FPLC facilities.

5.2 B. The Role of the Accused

  1. 46.

    During the time he was in power, Thomas LUBANGA was the chief architect and enforcer of UPC/FPLC policies, including the common plan. The principal indicia of Thomas LUBANGA's central role in the articulation and execution of the common plan are highlighted below.

5.2.1 1. From September 2000 to September 2002, Thomas Lubanga Created the UPC/FPLC as a Means to Secire and Maintain Political and Military Domination of the Ituri Region

  1. 47.

    Thomas LUBANGA, a citizen of the Democratic Republic of the Congo (DRC), was born of Hema ethnicity in Djiba, in the then Republic of Congo, on 29 December, 1960. In late 1999/early 2000, following an advanced course of education which led to his professional appointment at the University of Cepromad, Thomas LUBANGA established himself on the political scene in the region, eventually as the Member of the Assembly of the Province of Ituri.

  2. 48.

    In 2000, Thomas LUBANGA decided to create his own organization, in order to secure and maintain political and military control over the Ituri region. On 15 September, 2000, together with others, he launched the UPC in Bunia and was unanimously acclaimed President. Thereafter, he remained the indispensable element of UPC policy and practice. Keenly aware of the centrality of armed force to political power in Ituri, Thomas LUBANGA and his supporters saw the UPC as the umbrella name for a political-military movement, to be composed predominantly of Hema people.

  3. 49.

    Even as he moulded the UPC into a powerful organisation in its own right, Thomas LUBANGA held senior positions in other groups that struggled for dominance of Ituri politics in 2000 and 2001. In the summer of 2000, Thomas LUBANGA joined the Rassemblement Congolais pour la Démocratie – Mouvement de Libération (RCD-ML), which formed part of the Front de Libération du Congo (FLC). At the end of 2000, Thomas LUBANGA spent some months in Uganda, where he received military training. In 2001, he was briefly the FLC's Deputy National Secretary for Youth and Sports, before serving as Commissioner for Transport and Communication, then as Minister of Defence, of the alliance between the UPC and the Rassemblement Congolais pour la Démocratie – Kisangani/Mouvement de Libération (RCD-K-ML).

  4. 50.

    In April 2000, Thomas LUBANGA rallied mutinous Hema officers and soldiers from within the Armée du Peuple Congolais (APC, the military wing of the RCD-K-ML) and arranged to send them for training in Uganda.

  5. 51.

    On 17 April, 2002, the UPC issued a public declaration, breaking away from RCD-K-ML and launching itself as a distinct political-military movement. Both the political and military wings of the UPC were thereafter collectively known as the UPC with Thomas LUBANGA serving as both President and Commander-in-Chief.

  6. 52.

    Over the following months, Thomas LUBANGA and other UPC leaders planned and prepared the consolidation of UPC political and military controlover Ituri. Even while he was in detention in Kinshasa from June to end-August 2002, Thomas LUBANGA appointed Richard LONEMA as interim UPC leader with instructions to continue to develop the military wing of the UPC and to recruit soldiers. During Thomas LUBANGA's detention in Kinshasa, Floribert KISEMBO was stationed in Bunia and oversaw UPC troops in the town, while KAHWA and NTAGANDA were leading UPC units as operational commanders. LONEMA coordinated all three of them. When Thomas LUBANGA returned on or about 25 August, 2002 he imposed a formal structure on this growing organization.

  7. 53.

    In September 2002, Thomas LUBANGA formally named the UPC's military wing the FPLC. He immediately became FPLC Commander-in-Chief and held this position throughout the relevant time periods. At Thomas LUBANGA's direction, the pre-existing Hema militias were incorporated into the FPLC as soldiers and officers in a hierarchically-organized army which included a Chief of General Staff and two deputies (in charge of, respectively, operations and administration/logistics). Staff officers for personnel, intelligence, logistics and civilian and military operations reported to the Chief of General Staff. Thomas LUBANGA and the UPC set up the military structure of the FPLC with a conventional military structure, and from its inception, the FPLC received financial support and arms from supporters of the UPC.

  8. 54.

    Thomas LUBANGA was instrumental in obtaining political, financial and social support for the UPC/FPLC, both within Ituri and beyond. He led the delegation that went to Kampala in June 2002 to secure Ugandan government backing. He used his contacts and other assets to win and retain the allegiance of local Hema community leaders.

  9. 55.

    Under Thomas LUBANGA's direction, the UPC/FPLC sought, and for a time achieved, military control over the Kilo Moto gold mines in Mongbwalu, a significant source of financial revenue for the organization. Control of gold in Mongbwalu helped make the UPC/FPLC and Thomas LUBANGA particularly, an attractive interlocutor for outside supporters interested in exploiting Ituri's rich resources. Access to gold was sufficiently important for the UPC/FPLC to establish its Etat-Major in Mongbwalu from December 2002 to February 2003.

5.2.2 2. From September 2000 Until 13 August, 2003, Thomas Lubanga Assumed Leadership and Command of the UPC/FPLC

  1. 56.

    As President and Commander-in-Chief of the UPC/FPLC, Thomas LUBANGA established a system of government which conducted its affairs through the presidency and the Secretariat General. He appointed ministers, held regular meetings with them and developed an organised system of communication, record keeping, accounting, and revenue collection. Thomas LUBANGA's staff would regularly update him on the activities of their departments within the UPC.

  2. 57.

    Thus, Thomas LUBANGA convened regular meetings with UPC/FPLC commanders at his headquarters in Bunia to whom he gave instructions; regularly received reports from UPC Ministries, armed units of the FPLC and their respective commanders. In fact prior to military operations, Thomas LUBANGA would meet with his Chief of Staff of the FPLC in order to plan the operations. Thomas LUBANGA also established Presidential commissions; appointed and dismissed members of the UPC executive and officers in the FPLC; made policy decisions and gave orders to military commanders; and presided over military committees. The Statute of the UPC formally endowed the Secretariat General, the executive organ of the movement, with the power to execute the President's orders. There was nothing the FPLC could undertake that was not known to the UPC and Thomas LUBANGA, no matter how trivial.

  3. 58.

    Notwithstanding the extensive formal structures he established, in practice, Thomas LUBANGA enjoyed and often exercised the undisputed power to make decisions. Thomas LUBANGA only received technical advice from the UPC/FPLC movement's National Secretaries. Thomas LUBANGA “used to take most of the decisions himself without consulting with the members of the movement's executive.”

  4. 59.

    Thomas LUBANGA dominated the UPC/FPLC to the extent that he was variously described by those who knew and worked with him as a “dictator”, and “Supreme Commander”. There was little space for debate in most UPC/FPLC executive meetings. Rather, Thomas LUBANGA often simply gave orders to executive members and “yelled at them as if they were children”.

5.2.3 3. From Early September 2002 Until 13 August, 2003, Thomas Lubanga Oversaw and Ensured Effective Implementation of UPC/FPLC Policies, Including the Common Plan of Furthering the UPC/FPLC War Effort by Conscripting, Enlisting and Using Children, Including Children Under the Age of 15 Years, to Participate Actively in Hostilities

  1. 60.

    Thomas LUBANGA had de facto and de jure ultimate authority to ensure effective implementation of UPC/FPLC policies, including the common plan of furthering UPC/FPLC war effort by conscripting, enlisting and using children including, children under the age of 15 years, to participate actively in hostilities.

  2. 61.

    Given the human resource needs of the UPC/FPLC's military objectives, Thomas LUBANGA and co-perpetrators set in place and enforced policies to conscript, enlist and use whoever could be deployed into combat, including children under the age of 15 years.

  3. 62.

    The most compelling evidence of Thomas LUBANGA's central role in the coordination and implementation of the common plan can be derived from his own statements. During an inspection to the Rwampara camp on 12 February 2003, Thomas LUBANGA gave following address to soldiers, including children visibly under age 15 years:

  4. 63.

    “I am Thomas LUBANGA the president of our party, the UPC…. You are used to … talking with our commanders … who are … helping with this … work … of training … who are building the army … everyday. I am with them all the time but there is a lot of work… . And … sometimes my work requires me to go abroad or I have meetings all the time … So it is difficult for me to meet with you all the time…. The Chief of Staff, Commander Bosco, comes to see you. Does he come here? … Does he come here regularly? … If he does not come, you tell me …. Continue your training. We are keeping an eye on you all the time. So that we can know your problems … and solve them. You said a while ago that the Operations Commander … Commander Bosco comes to see you regularly. If you have difficulties, tell him. And they will get to a higher level … of our leadership. Because he is a senior leader of our army, the FPLC.”

  5. 64.

    DRC-OTP-WWWW-0010, one of the individual former girl child soldiers, can be seen on this video and was present when Thomas LUBANGA addressed the recruits at Rwampara on 12 February, 2003.

  6. 65.

    Thomas LUBANGA's visit to Rwampara is evidence of his actions to further and implement the plan to recruit children under the age of 15. Equally compelling is the fact that in early February 2003, DRC-OTP-WWWW-0187, a UPC/FPLC battalion commander states that during a meeting where, amongst others, Floribert KISEMBO and Bosco NTAGANDA were present, Thomas LUBANGA gave orders for children to be recruited from Hema families in the villages. Several days later, Thomas LUBANGA visits the Rwampara military training camp and addresses the recruits. Both these events demonstrate Thomas LUBANGA's direct actions to further and implement the plan to recruit and use children under the age of 15.

  7. 66.

    Thomas LUBANGA's key overall co-ordinating and supervisory role in the development, furtherance and implementation of the common plan was manifested in the following ways:

    a. Thomas LUBANGA had direct and ongoing contacts with the other joint co-perpetrators in the common plan, including with those subordinate UPC/FPLC commanders known as being active in recruiting, training and using children in hostilities, such as NTAGANDA, TCHALIGONZA and Chief KAHWA.

These contacts included the following:

5.2.3.1 (i) Telephonic/Radio Communications
  1. 67.

    UPC/FPLC officers employed sophisticated communications devices to maintain close and frequent contact with each other and with Thomas LUBANGA. These facilities – which included satellite and mobile phones, and Motorola and other hand-held radios -enabled Thomas LUBANGA to exercise command and control over UPC/FPLC troops and to remain informed about military operations, the political situation in Ituri, and developments in UPC/FPLC training camps. By late 2002, nearly all of the officers had radios. Thus, for significant portions of time when he was not in Bunia, including in August 2002 and August 2003 when he was in Kinshasa, Thomas LUBANGA nonetheless maintained regular contact with NTAGANDA, KISEMBO and other senior UPC/FPLC members. Thomas LUBANGA expected to be informed of what was happening in UPC/FPLC-held territory and radio communication was established with high level commanders, including Thomas LUBANGA, each time the troops moved a few kilometres. The UPC/FPLC kept a logbook of radio communications which includes records of operational orders, operation situation reports and deployment instruction. By August 2002, the information-sharing system was sufficiently well-developed that the UPC/FPLC leadership, including Thomas LUBANGA, received information of military operations and other significant events all over Ituri, including in Mongwalu, Aru, Mahagi.

5.2.3.2 (ii) Correspondence
  1. 68.

    In practice, UPC/FPLC commanders regularly copied Thomas LUBANGA in name, and/or in his position as Commander-in-Chief, on correspondence and reporting concerning core topics that were essential to the fulfilment of the common plan, including, inter alia, military logistics and supplies, military command posts and areas of operation, and means of communication.

5.2.3.3 (iii) Meetings
  1. 69.

    Thomas LUBANGA, NTAGANA, KISEMBO, Aimable RAFIKI, NEMBE, Prince MUGABO, Ali MBUYI and Eric MBABAZI regularly convened security and related meetings at Thomas LUBANGA's home.

  2. 70.

    During the UPC/FPLC delegation's visit to Aru, in September/October 2002, two separate meetings were held, military and civilian. At the meetings' conclusion, the leading members of the UPC/FPLC delegation – Adele Lotsove MUGISA, KISEMBO, and Chief KAHWA – all reported to LUBANGA via INMARSAT and Thuraya satellite telephone.

    b. Thomas LUBANGA inspected UPC/FPLC military training camps where young recruits including those under the age of 15 years, were being trained for armed combat. He spoke to them and encouraged them to fight.

  3. 71.

    The statements of DRC-OTP-WWWW-0007, DRC-OTP-WWWW-0010, and DRC-OTPWWWW-0297 describe Thomas LUBANGA's visits to the training camps at Centrale, Rwampara, Irumu and Largu, sometime between early September 2002 and 13 August, 2003, those under the age of 15 years, were beginning their military training.

  4. 72.

    The regularity and formality of Thomas LUBANGA's visits to the military training camps are demonstrated by the existence of a particular “protocol” at the camps, requiring the soldiers, including the children under the age of 15 to lift their rifles, rest them on their shoulders and march past Thomas LUBANGA with legs straight, when Thomas LUBANGA visited.

    c. Thomas LUBANGA oversaw the conduct of military affairs and appointed the senior ranks within the UPC/FPLC, thus ensuring the existence and coherence of the military structure into which the children were incorporated.

  5. 73.

    From early September 2002 military matters were handled by Thomas LUBANGA and Chief KAHWA (UPC/FPLC Deputy National Secretary for Defence), until, after the departure of Chief KAHWA from the UPC, such matters came under the exclusive remit of Thomas LUBANGA. On 3 September 2002, Thomas LUBANGA officially appointed Bosco NTAGANDA UPC/FPLC Deputy Chief of the General Staff, in charge of military operations. Bosco NTAGANDA served in this capacity until December 2003, when Thomas LUBANGA promoted him to FPLC Chief of the General Staff.

    d. Thomas LUBANGA secured financing for the UPC/FPLC and negotiated the provision of weapons and other military equipment, including such as would be used by children in hostilities.

  6. 74.

    Thomas LUBANGA secured financing for the UPC/FPLC227 including from businessmen. In a TV interview Thomas LUBANGA stated that the UPC/FPLC army was well-equipped “because there are people who have understood the value of our revindications, or our objectives, and they give us a hand so that we can improve the state of the army.” As Thomas LUBANGA made clear, Uganda was a primary source of weapons purchases for the UPC/FPLC. Thomas LUBANGA's involvement in the financing of the UPC/FPLC is evidenced by his frequently being copied on documents addressing financial matters.

5.2.4 4. From Early September 2002 Until 13 AUGUST, 2003, Thomas Lubanga Had Knowledge That, as Applied, UPC/FPLC Policies - And in Particular, the Common Plan of Furthering [author's note: the] UPC/FPLC War Effort by Conscripting, Enlisting and Using Children, Including Children Under the Age of 15 – Systematically Resulted in the Conscription, Enlistment and Use of Children, Including Children Under the Age of 15, to Participate Actively in Hostilities

  1. 75.

    Thomas LUBANGA's knowledge that the application of the common plan systematically resulted in the conscription, enlistment and use of children, including children under the age of 15 years, to participate actively in hostilities, is shown in three principal ways:

5.2.4.1 a. Knowledge Shown by Attempts to Deflect Responsibility through Sham Demobilization and/or Sham Prohibition of Child Soldiers
  1. 76.

    Throughout his tenure as president and commander-in-chief, Thomas LUBANGA engaged repeatedly in sham efforts to prohibit the use of, and/or to demobilise, child soldiers. Never intended to be enforced, these purported bans and/or demobilisation orders had one aim – to deflect and ward off public criticism of the UPC/FPLC's child recruitment practices. Two of his military subordinates within the UPC/FPLC will testify that they never saw or implemented such demobilisation orders. They show that Thomas LUBANGA was well aware of the UPC/FPLC's systematic conscription, enlistment and use of child soldiers.

  2. 77.

    A letter dated 21 October, 2002, on UPC letterhead, signed by Thomas LUBANGA as President of the UPC and bearing the seal of the Presidency of the Commandant Chef d'Etat Major General of the FPLC, acknowledges the developing FPLC practice of recruiting children (both girls and boys) into the FPLC, and purports to prohibit any further child enrolment.

  3. 78.

    On 27 January, 2003, Thomas LUBANGA signed a Letter Suivi Dossier Demobilisation enfants soldats de la FPLC as President of the UPC and Commander in Chief of FPLC.

  4. 79.

    By decree dated 1 June, 2003, Thomas LUBANGA, in his capacity as President of the UPC/FPLC, ordered the demobilisation from the UPC/FPLC of any individual under the age of 18 years. The decree makes clear, not only that persons under 18 years were serving in the ranks of the UPC/FPLC in numbers large enough to warrant an order to demobilise them, but also that Thomas LUBANGA was aware of this fact. In practice, this order, like others, was never executed. It was never intended to be, particularly insofar as systematic UPC/FPLC recruitment, enlistment and use of soldiers under the age of 15 years proceeded continuously during and after the period in which the decree was issued. Rather, the decree was an elaborate “masquerade” – a “public relations operation” – designed to give the appearance of ending the practice of unlawfully enlisting child soldiers while adamantly refusing to do so. The Chief of Intelligence of the FPLC and one of the battalion commanders with the UPC/FPLC did not see nor was [he] appraised of either the 21 October, 2002 demobilisation order or 27 January, 2003 order.

  5. 80.

    In a meeting with Save the Children in January 2003, Thomas LUBANGA acknowledged what he said were isolated cases of children in the UPC. In June 2003, Thomas LUBANGA said that the FPLC would demobilise 68 children as a gesture of cooperation with Save the Children. However, only ten children were finally demobilised.

  6. 81.

    In late 2002 the Mothers' Forum of Ituri complained to Thomas LUBANGA about the recruitment of children. Although the UPC/FPLC opened a small demobilization centre, recruitment of children continued.

  7. 82.

    Further, Irin, the UN humanitarian news and information service reported on the recruitment of child soldiers by Thomas LUBANGA's UPC.

5.2.4.2 b. Knowledge Attributable to Thomas LUBANGA's Role
  1. 83.

    By virtue of his unique role as leader of the UPC/FPLC, Thomas LUBANGA was apprised on numerous occasions of the extent to which the organisation's military force relied upon child soldiers, including those under 15 years of age.

  2. 84.

    In his position as UPC/FPLC commander in chief, Thomas LUBANGA was regularly briefed – including by other co-perpetrators – about the general situation in Ituri and, in particular, about UPC/FPLC military operations and the situation in the UPC/FPLC military training camps, where many children were sent. In fact Thomas LUBANGA was communicating every day with his Chief of Staff of the FPLC, Floribert KISEMBO.

  3. 85.

    Thomas LUBANGA knew about the pervasive use of child soldiers in the UPC/FPLC because:

    1. a.

      He had given children their uniforms and seen them during parades. Thomas LUBANGA repeatedly visited UPC/FPLC military training camps where he addressed young recruits, including those under the age of 15 years. In the course of such visits, and more generally, Thomas LUBANGA saw children in military uniforms. Additionally, he presided over public meetings and rallies in Bunia at which child soldiers were present.

    2. b.

      There were 20 to 30 children in the unit, comprised of about 400 soldiers, dedicated to his protection, the Unite de Protection Presidentielle. Amongst them were children of 12, 13 and 14 years.

    3. c.

      Of his direct dealing with many UPC/FPLC commanders with whom he was in regular contact. In one encounter around 15 August, 2002, Richard LONEMA – whom Thomas LUBANGA appointed to the role of coordinator and interim UPC/FPLC leader while he was in detention in Kinshasa – told DRCOTP-WWWW-0014 to [REDACTED], and added that the UPC had everything that was needed to train them. Many UPC leaders and FPLC commanders used children under the age of 15 years as personal bodyguards. Escorts, many 12 and 13 years of age, were provided to the UPC National-Secretaries, as well as to Adele Lotsove MUGISA, first appointed UPC Finance Minister in 2002 and several months later re-appointed UPC Social Affairs Minister, and Melanie LUMBULUMBA, the wife of KISEMBO.

    4. d.

      He had long experience with using children, including children under 15 years of age, in armed militias that supported his objectives. During a visit to Rwampara military training camp in mid-2002, Thomas LUBANGA, speaking to an audience which included many young recruits, including under 15 years of age, “encouraged us to withstand the difficulties of the training until the end because it was to free our country from the Ugandans and the Lendu…. He added that it was not the responsibility of others to make the Congo free, but our own.”

5.2.4.3 c. Knowledge Attributable to the Scale of Recruitment and Use of Children Under 15 Years Old
  1. 86.

    Children under the age of 15 years were voluntarily and forcibly recruited into the UPC/FPLC and actively participated in UPC/FPLC military operations and as bodyguards to protect military objectives, on such a scale, and to such an extent, that, in view of his central role in coordinating UPC/FPLC activities, Thomas LUBANGA was clearly aware of (and indeed actively endorsed and sought to encourage) these practices.

  2. 87.

    A number of observers and/or visitors to Bunia have noted that, during the relevant time period, children under the age of 15 years were visibly present among FPLC soldiers guarding UPC buildings in Bunia. [Author's note: evidence of Kristine Peduto, ICC-04-01-01-06-T-37-EN, November 15, 2006, edited, at pp. 29–32; statement of DRC-OTP-WWWW-0111, DRC-OTP-0152-0072, para. 47 (during the time that the UPC controlled Bunia, he rarely saw adult military; rather, he saw mostly children between 12 and 14 years of age); statement of DRCOTP-WWWW-0024, DRC-OTP-0126-0189 at para. 41 (the recruitment of children in the UPC army was a systematic and widespread practice which was indicated by the large number of children, between 7 and 18 years of age, walking in the streets of Bunia in military uniforms and with arms, or having integrated UPC commander groups).] No one who came to UPC headquarters could have avoided seeing the young recruits [author's note: statement of DRC-OTP-WWWW-0014, DRC-OTP-0165-0999 at paras. 164 and 168; transcript of DRC-OTPWWWW-0055, DRC-OTP-0191-0598 at 0615–0618 where children were guarding roadblocks leading to the President's house].

  3. 88.

    In December 2002 staff at the NGO, Save-the-Children, drafted a “texte d'alarme” decrying the widespread use of child soldiers. Although the document did not specify a particular armed group, it was drafted with the UPC in mind.

  4. 89.

    UPC/FPLC military training camps Centrale (12 km north of Bunia), Rwampara (15 km Southeast of Bunia), and Mandro (15 km east of Bunia), in all of which young recruits under 15 were receiving military training, were all located close to Thomas LUBANGA's residence in Bunia.

  5. 90.

    LUBANGA knew of the use of child soldiers because this was brought to the attention of UPC/FPC secretaries by notables. The UPC/FPLC secretaries did not dispute the existence of child soldiers; rather, they justified it by underscoring the UPC/FPLC's need for troops.

  6. 91.

    In sum, the inference is compelling that the failure to act for a period of approximately 13 months by the Thomas LUBANGA, who had substantial knowledge of crimes of enlistment, conscription and use of child soldiers, yet refused to act upon that knowledge given his material ability to do so as overall commander/leader of the UPC/FPLC, bespeaks a deliberate intent to recruit child soldiers in furtherance of the common plan.

5.2.5 5. From Early September 2002 Until 13 August, 2003, Thomas Lubanga Directly Took Part in the Conscription, Enlistment and Use of Children, Including Children Under the Age of 15 Years, to Participate Actively in Hostilities

5.2.5.1 a. Thomas LUBANGA Used Children under 15 Years as Bodyguards
  1. 92.

    Thomas LUBANGA, like other most senior UPC/FPLC commanders such as Floribert KISEMBO and Bosco NTAGANDA, personally used young recruits, including those under the age of 15 years, as bodyguards.

  2. 93.

    On 30 May 2003, when Thomas LUBANGA was present inside his residence in Mudzi-Pela, a neighbourhood of Bunia, he was guarded by children wearing uniforms and armed with Kalashnikovs, including at least one whose physical appearance clearly showed that he was under the age of 15 years. Further, generally in Thomas LUBANGA's compound there were at times 15 to 17 children, armed and in military uniform.

  3. 94.

    Video images played at the Aru residence of Jerome KAKWAVU depicted Thomas LUBANGA together with bodyguards who appeared to be under 15 years of age.

  4. 95.

    During a meeting in January 2003 between representatives of a non-governmental monitoring organization and Thomas LUBANGA at the UPC/FPLC Etat-Major, Thomas LUBANGA was wearing a military uniform, and the residence was guarded by a number of child soldiers between 12 and 14 years of age.

5.2.5.2 b. Thomas LUBANGA Actively Recruited Children under 15 years to Join the UPC/FPLC and to Participate in Armed Combat
  1. 96.

    Thomas LUBANGA and other UPC/FPLC co-founders organized recruitment campaigns and used emissaries in Bunia and surrounding areas to persuade or compel Hema families to send their children to join the UPC/FPLC. Orders were sent to UPC/FPLC officials to ensure that recruitments took place, including that the Hema community families give up one of their children. Thomas LUBANGA himself also decreed that each Hema family must contribute to the war efforts by providing a child.

  2. 97.

    Thomas LUBANGA also took part in forcibly recruiting individual child soldiers. In February 2003, on the road to the Mongbwalu market where he was visiting his family, a 14 year old boy was taken in a vehicle in which Thomas LUBANGA was traveling with six soldiers. Three other children were also caught. Thomas LUBANGA told the boys that they would go as far as Beni and that they would become rich. The boys were all taken to the UPC/FPLC camp at Mandro where there were a lot of soldiers and where they received one week of training in handling GPMG weapons, rocket launchers and “rapides”. Afterward, the young boy was sent to a small village to provide security with about 30 other persons.

  3. 98.

    During numerous visits to UPC/FPLC training camps, LUBANGA encouraged young recruits, including those under age 15, to participate in hostilities. Particularly telling was a visit by LUBANGA to the Rwampara camp on 12 February 2003, captured on videotape:

    “What we are doing, and we are doing it together with you, is to build an army … . I wish you … good training, do it, persevere, and tomorrow you will stand with a weapon and a uniform… This army that we are protecting here is not a joke. It is an important army… . And already the work that our army is doing now is of value to us all…. When you finish, others will come behind you … we are forming this army and every body feels … ‘I am a useful soldier.’ … You stand facing the … history of the country and you know you are a useful soldier. We, as leaders, are doing everything so that you can get that benefit and meaning…. Therefore … continue to suffer for a few days … so that … you finish the training, and then … after the training … they will give you work…. It is for our benefit, it is for the benefit of … our country… it is for the benefit of our party”.

  4. 99.

    The video recording of this visit makes clear that:

    1. (i)

      LUBANGA considers the children at the camp as soldiers in his speech when he says: “Soldiers … Even those who have weapons … Even those who have pieces of wood … even those with empty … hands…”

    2. (ii)

      There is no difference between the conduct of the children and that of the uniformed soldiers. The children act and behave as soldiers and obey orders.

    3. (iii)

      There is no difference as far as the weapons are concerned: uniformed soldiers also have sticks. These sticks are used as genuine weapons, even in the military parade.

    4. (iv)

      Thomas LUBANGA states that “[w]e are making that effort… For you to finish the training, for you to get a weapon … .”

6 V. Individual Cases of UPC/FPLC Conscription, Enlistment and/or Use of Children, Including Children under the Age of 15, to Participate Actively in Hostilities

  1. 100.

    Consistent with the common plan, DRC-OTP-WWWW-0011, DRC-OTP-WWWW-0007, DRC-OTP-WWWW-0008, DRC-OTP-WWWW-0010, DRC-OTP-WWWW-0297, DRCOTP-WWWW-0298, DRC-OTP-WWWW-0294 and DRC-OTP-WWWW-0213 (“the child witnesses”), together with many other children under 15 years of age, were conscripted, enlisted, and/or used to participate actively in hostilities by the UPC/FPLC between the beginning of September 2002 and 13 August, 2003. The individual cases of the child witnesses – including what they experienced, saw and/or were told by others – are characterised by a number of common features:

6.1 Forced Recruitment by UPC/FPLC

  1. 101.

    The recruitment of the children was typically undertaken through coercion by UPC/FPLC soldiers, on occasion through physical violence. UPC/FPLC soldiers would abduct children from schools and force them onto trucks, and in some circumstances threaten them with death and beatings should they refuse to board the trucks.

6.1.1 Training Camps

  1. 102.

    After recruitment by UPC/FPLC soldiers and commanders, each child was brought to UPC/FPLC military training camps together with other children, including children under 15 years of age. In the camps, they were divided into different groups and placed under the orders of a UPC/FPLC commander.

  2. 103.

    The training, usually over a two-month period, included exercises such as, inter alia, running, climbing and crawling, military drills, assembling and disassembling of weapons. The child witnesses were trained in the use of weapons: first by using a stick, afterwards by using firearms. In addition to this standard training, the girls were tasked to prepare food.

6.1.2 Strict Camp Discipline

  1. 104.

    The child witnesses were subjected to strict military discipline, which ranged from (in the case of others) corporal punishment and detention to execution. They were taught to sing military songs. They never received a salary or medical care.

  2. 105.

    Senior UPC/FPLC commanders, including Thomas LUBANGA, Bosco NTAGANDA and Floribert KISEMBO, saw the child witnesses during inspections of the training camps or during combat.

  3. 106.

    At the camps, the child witnesses were taught that Thomas LUBANGA was the head of the organisation and the Supreme Chief. The other commanders in the camp always referred to him as such. The child witnesses were told that, under Thomas LUBANGA, Bosco NTAGANDA and Floribert KISEMBO were the next two most important commanders.

  4. 107.

    At the conclusion of their training, each of the child witnesses was given a military uniform and a weapon.

6.1.3 Use as Bodyguards

  1. 108.

    They were then used as bodyguards together with other children, including children under the age of 15. It was widely known that UPC/FPLC commanders – including Thomas LUBANGA, Bosco NTAGANDA and Floribert KISEMBO – commonly used children, including those under 15 years of age, as bodyguards. The tasks of bodyguards included accompanying the commanders in their daily activities and carrying their weapons, Motorola radio and other military and/or communications equipment

6.1.4 Participation in Hostilities

  1. 109.

    The child witnesses were ordered to participate actively with the commanders in hostilities against the Lendu, and to kill all Lendu. Often, they were forced to fight at the frontlines under threat of death.

  2. 110.

    Typically before and after battle, the child witnesses would be counted by their commanders and their names would be called out.

  3. 111.

    As a result of the fighting, some of the child witnesses sustained injuries; and some saw other children die in battle. Following a victory, the battle dead would be buried in mass graves. Following a defeat, they were left behind.

  4. 112.

    After the battles, some of the commanders would address the soldiers, including the children, telling them to not be tired of fighting and defeating the enemy.

6.1.5 Drc-otp-wwww-0011

  1. 113.

    In 2002, DRC-OTP-WWWW-0011, born on [REDACTED] and was living with [REDACTED] following the death of his mother. While in [REDACTED], FPLC soldiers told DRC-OTP-WWWW-0011 that his mother had been killed by the Lendus.

  2. 114.

    By the end of 2002 DRC-OTP-WWWW-0011 met FPLC soldiers in [REDACTED] who offered to permit him to join their army in order to get military training and fight the Lendu enemies. Motivated by his fury against the Lendu, DRC-OTP-WWWW-0011 immediately accepted the offer thinking that this would be his chance to avenge the murder of his mother.

  3. 115.

    The same day, without returning to [REDACTED] to inform DRC-OTP-WWWW-0011's grandmother, the UPC/FPLC soldiers drove DRC-OTP-WWWW-0011 somewhere close to the village of [REDACTED]. After arriving in the village, DRC-OTP-WWWW-0011 joined a group of new recruits, composed of some adults and around sixty children of DRC-OTPWWWW-0011's age, who were brought to the UPC/FPLC military camp in [REDACTED].

  4. 116.

    Upon their arrival, all new recruits were provided with a military uniform and a rifle. The next day, military training commenced. DRC-OTP-WWWW-0011 and other boys of his age were trained by Commander TSHITSHA. The training consisted of physical exercises and exercises on the use of weapons. They trained three days a week and stood guard the other days. There was discipline in the camp and DRC-OTP-WWWW-0011 himself was beaten in the beginning.

  5. 117.

    During the training, which lasted approximately two months, the camp was visited by Bosco NTAGANDA and Floribert KISEMBO, who were permanently accompanied by bodyguards: both adults and children of the age of the DRC-OTP-WWWW-0011.

  6. 118.

    After the training had concluded, DRC-OTP-WWWW-0011 and four other young recruits were made the bodyguards of Commander [REDACTED]. In this capacity DRC-OTPWWWW-0011 accompanied the Commander during his daily activities and assured his close protection during battle. Commander [REDACTED] said that if he refused to fight he would be killed or put into prison.

  7. 119.

    In February 2003, DRC-OTP-WWWW-0011 fought alongside Commander TSHITSHA at the frontlines in Lipri a place where he fought twice. He also fought in the village of BARIE. DRC-OTP-WWWW-0011 and other young recruits of his age were ordered to perform reconnaissance. During the battle, DRC-OTP-WWWW-0011 killed a person for the first time in his life, leaving him traumatized. Fearing the reaction of his Commander, who had threatened to kill recruits who hesitated to fight, DRC-OTP-WWWW-0011 continued shooting his weapon. That day DRC-OTP-WWWW-0011 saw many of his friends killed. Commander TSHITSHA was also killed.

  8. 120.

    After the attack, DRC-OTP-WWWW-0011 and the other recruits retreated to Mongbwalu, where they met with Floribert KISEMBO and Bosco NTAGANDA. The next day, DRCOTP-WWWW-0011, who was now placed under the command of Bosco NTAGANDA, was ordered by the latter to re-attack Lipri. In complying with the order, DRC-OTP-WWWW-0011 emptied five magazines of ammunition during the fighting.

  9. 121.

    Upon his return to the UPC/FPLC military camp of [REDACTED], DRC-OTP-WWWW-0011 was asked by Bosco NTAGANDA to fight again in another village. As DRC-OTP-WWWW-0011 was profoundly affected by what had happened, and as he disapproved of what he had done, he asked for permission to stay in the camp, which was granted.

  10. 122.

    Approximately one month later, DRC-OTP-WWWW-0011 fled from the UPC/FPLC and was admitted into a demobilisation program. As a result of his experience fighting for the UPC/FPLC, DRC-OTP-WWWW-0011 has severe psychological deficits and suffers from Nightmares.

6.1.6 DRC-OTP-WWWW-0007andDRC-OTP-WWWW-0008

  1. 123.

    In early 2003, witness DRC-OTP-WWWW-0007, who was born on [REDACTED], was at his parents' house in the village of [REDACTED], when UPC/FPLC soldiers entered and, without explanation, ordered him to follow them to obtain military training. A few hours later, the UPC/FPLC soldiers returned to the same house to abduct [REDACTED], DRC-OTPWWWW-0008, born on [REDACTED].

  2. 124.

    The practice of UPC/FPLC soldiers of abducting children by force was well known by the civilian population. Knowing that they would be killed if they objected to the abductions, family members of these two witnesses did nothing.

  3. 125.

    After his abduction, DRC-OTP-WWWW-0007 was ordered to enter into a truck in which there were other abducted children, including school-mates. He was brought to the UPC/FPLC military camp of [REDACTED]. On the way, the truck repeatedly stopped to allow UPC/FPLC soldiers to capture additional children from the road. During the transport, UPC/FPLC soldiers made sure the children could not flee. On that day children aged between 10 and 17 were abducted and driven to [REDACTED] camp.

  4. 126.

    DRC-OTP-WWWW-0008 was brought to the centre of [REDACTED] where the UPC/FPLC soldiers had grouped many other children of his age as well as adolescents and adults. The group was forced to walk to the FPLC military camp of [REDACTED]. Along the way, the UPC/FPLC soldiers beat them at the slightest hint of fear or despair, telling them that they should not cry because during the war it would be worse.

  5. 127.

    At [REDACTED] camp, the new recruits were divided into groups and the cousins were separated. The groups were composed of around fifty recruits, and included both adult soldiers and children of the age of the witnesses, including boys and girls.

  6. 128.

    The next day, military training started. DRC-OTP-WWWW-0007 was instructed by Commander KARWAKARWA and DRC-OTP-WWWW-0008 by Commander PITCHEN. The training was mainly of a practical nature, and included, inter alia, saluting, marching and climbing. In addition, the recruits were taught how to shoot firearms.

  7. 129.

    During the training DRC-OTP-WWWW-0008 was told that the UPC/FPLC was going to fight all the way to Kinshasa to chase out the President and replace him with Thomas LUBANGA.

  8. 130.

    DRC-OTP-WWWW-0007 received special training in the Protocol to be used during the regular visit of Thomas LUBANGA to the camp. This Protocol differed from the one used for other visitors.

  9. 131.

    After about two months, once the military training was completed, the children were supplied with military uniforms and a rifle. DRC-OTP-WWWW-0007 was made the bodyguard of Commander [REDACTED] together with another three children of his age. DRC-OTPWWWW-0008 was made the bodyguard of Commander [REDACTED].

  10. 132.

    In their capacity as bodyguards, the witnesses accompanied the commanders during their daily activities and provided them with close protection during combat.

  11. 133.

    DRC-OTP-WWWW-0007 together with other children and adult soldiers participated in the UPC/FPLC attacks on Lipri in February 2003.

  12. 134.

    Before the attack, DRC-OTP-WWWW-0007 and the other recruits were visited by Bosco NTAGANDA who addressed the troops to bolster their morale. During battle Commander [REDACTED] instructed DRC-OTP-WWWW-0007 to form a single front with the other recruits, and said that the recruits that stayed behind the front should be killed, as they were probably trying to escape.

  13. 135.

    During the fight, DRC-OTP-WWWW-0007 was wounded in his foot. Fearing being killed by his Commander, DRC-OTP-WWWW-0007 for the first time in his life shot a person. He emptied two magazines.

  14. 136.

    After his wound had healed, DRC-OTP-WWWW-0007 was ordered by Commander KASANGAKI to participate in the FPLC attack on Bogoro in February 2003. Following this order, the witness again fought on the frontline in Bogoro. DRC-OTP-WWWW-0007 was taken to Mandro camp where he saw Thomas LUBANGA speaking to the young recruits.

  15. 137.

    In February 2003 DRC-OTP-WWWW-0008 was ordered to accompany Commander PITCHEN to participate in the attack on Lipri, during which he was wounded in his left foot. Following the orders of his Commander, DRC-OTP-WWWW-0008 emptied four magazines of ammunition and killed a number of persons. While shooting, the witness was terrified and regretted his actions since he felt that they were not right, but his Commander urged him to continue.

  16. 138.

    After the military campaign in Lipri, DRC-OTP-WWWW-0008 was [REDACTED] at the UPC/FPLC military camp in [REDACTED]. [REDACTED], the witness was also tasked to recruit new children of his age, which he did. He falsely told the family members of children he took that the children would receive military training and return afterwards. This was a lie since, as he knew, the children were sent to the battlefield immediately after being trained.

  17. 139.

    At the end of 2003, following the order of KAKWAVU, the Commander of the then UPC/FPLC Sector North, both DRC-OTP-WWWW-0007 and DRC-OTP-WWWW-0008 were admitted into a demobilisation program.

  18. 140.

    As a result of their recruitment, both children lost all contact with their parents. In addition, as a result of fighting for the UPC/FPLC, DRC-OTP-WWWW-0007 suffers severe psychological deficits, manifested in his fear of loud noise or people crying.

6.1.7 DRC-OTP-WWWW-0010

  1. 141.

    DRC-OTP-WWWW-0010, was born on [REDACTED] and was on the road from [REDACTED] in August 2002, when she was abducted by UPC/FPLC soldiers.

  2. 142.

    That day, people fled the UPC attacks on [REDACTED] en masse, including DRC-OTPWWWW-0010 and her family. In the general confusion, the witness lost sight of her family. She then saw armed soldiers advancing in the opposite direction, towards [REDACTED]. DRC-OTP-WWWW-0010 didn't pay much attention until she realised that the armed soldiers were stopping young girls and boys. By then it was too late. A group of armed UPC/FPLC soldiers blocked her path and forced her and another girl of the same age, to come with them. The soldiers pointed their rifles at the two children. DRC-OTP-WWWW-0010, fearing being killed, did not dare to disobey.

  3. 143.

    Before leaving the area, DRC-OTP-WWWW-0010 was assembled with many boys and girls between 10 and 18 years of age who had also been captured under the same circumstances. They numbered up to 150. The prisoners were forced to walk to the UPC/FPLC military camp in [REDACTED], led by Commander PEPE. Upon arrival, DRC-OTP-WWWW-0010 saw that other groups of prisoners had been brought to the camp as well.

  4. 144.

    The next day, DRC-OTP-WWWW-0010 and the other recruits were divided into three groups of approximately 45 persons each. DRC-OTP-WWWW-0010's group was composed of boys and girls, all more or less her age and all abducted in a similar way.

  5. 145.

    That same day, the heads of the children were shaved, and military training commenced. First the training was mainly of practical nature, and included a wide variety of physical exercises. Later on, the training was expanded to also cover the use of firearms.

  6. 146.

    During the training, the camp was visited once by Thomas LUBANGA, and twice by Bosco NTAGANDA. Both addressed the recruits to encourage them. In addition BOSCO threatened to kill the recruits if they would escape from the camp. While she was at the camp she saw new recruits arriving in four trucks, some of the boys aged 11 and some of the girls from 12 to 15 years old.

  7. 147.

    The military training lasted almost two months. In about October 2002, after the completion of training, Bosco NTAGANDA returned to the camp with three trucks and distributed a uniform and a rifle to each of the recruits. NTAGANDA then ordered the recruits to get into the lorries. The recruits were driven to the village of Libi, where they would participate in their first attack.

  8. 148.

    Prior to the attack, the recruits were ordered by Bosco NTAGANDA to kill all Lendu. Following this order, DRC-OTP-WWWW-0010 killed at least one person, and emptied two magazines of ammunition. During the attack, ten young FPLC recruits were killed: four girls and six boys.

  9. 149.

    After the attack on Libi, DRC-OTP-WWWW-0010 was ordered by Bosco NTAGANDA to participate in the FPLC attack on Mbau in about October 2002. Prior to this attack, Bosco NTAGANDA repeated the same order to kill all Lendu. In the course of the attack many UPC/FPLC soldiers of the age of DRC-OTP-WWWW-0010 were killed. DRC-OTPWWWW-0010 herself sustained an injury in her leg.

  10. 150.

    Once she recovered, DRC-OTP-WWWW-0010, together with two other girls of her age and six adult soldiers, was made the bodyguard of [REDACTED]. In this capacity, DRC-OTPWWWW-0010 accompanied [REDACTED] during his daily activities. In addition, DRCOTP-WWWW-0010 was ordered by [REDACTED] to participate in several attacks including attacks in which other commanders also participated.

  11. 151.

    As such, DRC-OTP-WWWW-0010 was ordered to participate in the UPC/FPLC attacks on Bunia in May 2003 together with Commander CLAUDE, as well as in the UPC/FPLC attacks on Djugu and Mongbwalu in June 2003 together with Floribert KISEMBO and SALUMU MULENDA.

  12. 152.

    After the Artemis force had pushed the FPLC out of Bunia, [REDACTED] allowed DRCOTP-WWWW-0010 to leave the FPLC. Since her abduction, DRC-OTP-WWWW-0010 has not seen her mother or other family again. After DRC-OTP-WWWW-0010 for the first time killed a person, she had nightmares for several months.

6.1.8 DRC-OTP-WWWW-0297

  1. 153.

    This former child soldier was not older than twelve years at the time of his recruitment into the UPC/FPLC. He was abducted by soldiers who came to the quarters where he was living, and threatened with death unless he boarded the truck with the others. He was told by the soldiers that he and the others were being taken on the trucks so that they could fight against the Lendu.

  2. 154.

    DRC-OTP-WWWW-0297 was forcibly taken to [REDACTED], to a training camp in [REDACTED] and immediately as the witness describes, put into military service. Upon arrival he was surrounded by soldiers, along with their leader Bosco NTAGANDA. DRCOTP-WWWW-0297 was put into training for three weeks before his first battle and forced to take part in military drills, assembling and disassembling weapons. New recruits were coming to the camp daily and there was no system of registration or verification of age of the new recruits. Co-perpetrator Floribert KISEMBO oversaw the training of the recruits. There was no possibility for escape from [REDACTED] as people who attempted were caught and beaten, upon the instructions of KISEMBO.

  3. 155.

    Upon completion of his training, DRC-OTP-WWWW-0297 was given a weapon and uniform – green and a dark, mixed camouflage by KISEMBO. He was subsequently taken to participate in battle at Mandro to fight against the Lendu. The weapons the Lendu were using included G2, SMG's and RPG. He was in a group that was advancing and following KISEMBO. DRC-OTP-WWWW-0297 shot at four people during the battle. During the battle some eleven persons were wounded on the UPC side; some of the soldiers were younger than fifteen years of age. DRC-OTP-WWWW-0297 participated in another battle at Lonio. KISEMBO was commanding the fighters at Lonio and DRC-OTP-WWWW-0297 was in his group. In this battle DRC-OTP-WWWW-0297 shot at Lendu soldiers and civilians. KISEMBO lead DRC-OTP-WWWW-0297 and others into another battle at Lopa where they surprised the Lendu killing civilians and soldiers that started to fight them. During all this time DRC-OTP-WWWW-0297 was used as the personal bodyguard to coperpetrator Floribert KISEMBO.

  4. 156.

    On one particular occasion DRC-OTP-WWWW-0297 saw Thomas LUBANGA at Largu when he and his fellow soldiers went to guard his house. Outside Thomas LUBANGA's house there were soldiers and bodyguards, some were younger than DRC-OTP-WWWW-0297 and some were older or the same age. At his house Thomas LUBANGA was convening a meeting where KISEMBO was present along with other high commanders.

  5. 157.

    DRC-OTP-WWWW-0297 participated in further combat at MARABU where he shot at the Lendus and Ngitis after reinforcement arrived for the battle. These reinforcements were brought by the Operations Commander Bosco NTAGANDA and they included child soldiers. His last main battle was in CHAI, where again he was with KISEMBO.

  6. 158.

    While a soldier with the UPC/FPLC, DRC-OTP-WWWW-0297 saw or knew of UPC/FPLC soldiers who abducted “young people”. Some of the children were ten years old, younger than him. DRC-OTP-WWWW-0297 himself arrested child soldiers; most of the soldiers he arrested were ten years old and some were girls. These arrests were also carried out by his fellow soldiers and took place daily.

  7. 159.

    Eventually, DRC-OTP-WWWW-0297 had to make up a story to the commander [REDACTED] to be able to escape the camp and UPC/FPLC. He wanted to leave in particular because he learned that his mother had been killed.

6.1.9 DRC-OTP-WWWW-0298

  1. 160.

    DRC-OTP-WWWW-0298 was born on [REDACTED]. Just before Christmas of 2002, as he was walking home from school with his friends, UPC/FPLC soldiers with a commander called [REDACTED] who was the head of training at [REDACTED], physically beat him and abducted DRC-OTP-WWWW-0298 into the army.

  2. 161.

    He was taken to the training camp at [REDACTED] where he was placed into one of the six groups that contained some 47 people, including many young boys and three girls. He was placed into military training where he had to learned, [sic] inter alia, how to salute, march, carry and assemble weapons, military tactics and how to instantaneously kill people. He recalls that Bosco NTAGANDA visited the camp with bodyguards, some of them children.

  3. 162.

    Discipline was tight at the camp and soldiers were regularly beaten by the commanders. DRCOTP-WWWW-0298 was himself beaten. He thought about escaping but was afraid as he witnessed the beating of those who tried to escape, including the beating to death of some children.

  4. 163.

    After DRC-OTP-WWWW-0298 completed the training, he was given a uniform and weapons and put on security detail at the perimeter of the camp. From December 2002 through to September 2003, DRC-OTP-WWWW-0298 participated in hostilities, fighting against the Lendu in several places. He fought battles at Lenga, Fataki and Bule. In all places he shot and fired his weapons at the Lendu upon the orders of UPC commanders, notably Commander Alpha and Christian.

  5. 164.

    DRC-OTP-WWWW-0298 was initially rescued from [REDACTED] military camp, where he had been moved to, [REDACTED], who was also a member of the UPC, however he was again abducted by the UPC and as punishment placed in [REDACTED] for two days after being beaten. He was eventually demobilised some three months after his arrival in Bunia by Save the Children.

6.1.10 DRC-OTP-WWWW-0294

  1. 165.

    DRC-OTP-WWWW-0294 was born on [REDACTED]. He joined the military in June 2000, when he was about 10 years old. During the war between the APC and the Ugandan soldiers in Nyakunde, DRC-OTP-WWWW-0294 went to the military camp of the [REDACTED] to look for protection. The military camp was then placed under the authority of second-in-command, [REDACTED] with whom DRC-OTP-WWWW-0294 was already in contact. DRC-OTP-WWWW-0294 fled with the [REDACTED] soldiers to Sota where [REDACTED] provided him with a weapon.

  2. 166.

    He decided to leave Sota for Bunia to join [REDACTED]. He stayed in Bunia with two soldiers placed under the authority of Commandant [REDACTED]. He followed them to [REDACTED], where Commandant [REDACTED] requested families to give one of their children to the army. Children under the age of 15 were recruited and DRC-OTPWWWW-0294 was responsible for teaching the children how to utilise the weapons as he was already considered a soldier. He was still forced to undergo training at the [REDACTED] military camp where he was forced to sing aggressive military songs against the Lendus. He was forced by the trainers to smoke hemp in order not to fear war. He was also beaten when he was tired.

  3. 167.

    DRC-OTP-WWWW-0294 took part in the Sangolo and Zumbe battles and in the Battle of Bunia. During this combat, he fled to Kasenyi and joined the PUSIC. He fought in the Kasenyi battle and got injured. Once again, DRC-OTP-WWWW-0294 escaped during the war and went to Bunia where he was re-mobilised in Floribert KISEMBO's militia. He took part in the fight against the Artemis forces and the Congolese police officers of the Police d'Intervention Rapide near the village of Centrale. During this war, DRC-OTP-WWWW-0294 escaped and returned to Bunia.

  4. 168.

    DRC-OTP-WWWW-0294 went directly to the MONUC and was sent to a Caritas Center. He went to [REDACTED] to start his secondary studies. He returned to live with his mother in [REDACTED] in July 2007 after passing his exams.

6.1.11 DRC-OTP-WWWW-0213

  1. 169.

    DRC-OTP-WWWW-0213 was born in [REDACTED]. He was [sic] abducted by UPC/FPLC soldiers in [REDACTED] who had come to take people to carry weapons and ammunition. Their chief was KASANGAKI. He was forcibly abducted by UPC/FPLC soldiers. He was taken to a training camp near [REDACTED]. When he arrived at the camp he saw numerous children training. There he stayed a week, unable to leave until he was able to eventually escape when the opportunity arose and returned to his family.

  2. 170.

    This respite did not last long, as soon thereafter he was abducted a second time into the UPC/FPLC while he was [REDACTED]. The UPC/FPLC soldier arrived in a truck and forcibly took them to the training camp in [REDACTED]. He could not resist as the UPC soldiers were all armed. Upon arrival at [REDACTED], DRC-OTP-WWWW-0213 received military training for two weeks. There were three groups of recruits all of which included children. At the end of the training, the chief of the camp, Maki, gave the recruits weapons and cartridges and a uniform.

  3. 171.

    DRC-OTP-WWWW-0213 became the bodyguard of commander [REDACTED]. He was one of 15 who protected the commander, most of them children. [REDACTED]'s superior was Bosco NTAGANDA. Both Bosco NTAGANDA and Thomas LUBANGA came to Bule training centre; the day Thomas LUBANGA came he was wearing military uniform.

  4. 172.

    DRC-OTP-WWWW-0213 actively participated in hostilities. He was in battle at Bunia, where he was wounded in the leg, and at Katoto, where he fought against the Lendus. He also was used as a bodyguard at the house of Thomas LUBANGA. After his wound he convalesced at home; during this time the UPC/FPLC attempted to abduct him again but he was able to avoid them.

7 VI. Conclusion

  1. 173.

    This summary of evidence that the Prosecution intends to present at trial reveals that Thomas LUBANGA is individually responsible as a co-perpetrator for the conscription, enlistment and use of children under age 15 to participate in hostilities, as manifested through his participation in a common plan – among himself, Chief Kahwa PANGA MANDRO (UPC Deputy National Secretary for Defence), Rafiki SABA (UPC Chief of Security), Floribert KISEMBO (FPLC Chief of Staff), Bosco NTAGANDA (FPLC Deputy Chief of Staff for Military Operations), and other senior FPLC commanders - to further the UPC/RP and FPLC war effort.

Luis Moreno-Ocampo, Prosecutor

Dated this 30th Day of May 2008

At The Hague, The Netherlands

8 Amicus Brief: “Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict” (ICC-01/04-01/06-1229-AnxA)

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF

THE PROSECUTOR v. THOMAS LUBANGA DYILO

Written Submissions of the United Nations Special Representative of the

Secretary-General on Children and Armed Conflict

Submitted in application of Rule 103 of the Rules of Procedure and Evidence

9 I. Introduction

  1. 1.

    Radhika Coomaraswamy, United Nations Special Representative of the Secretary-General on Children and Armed Conflict (hereinafter “the Special Representative”) respectfully submits this amicus curiae brief pursuant to Decision Inviting Observations from the Special Representative of the Secretary-General of the United Nations for Children and Armed Conflict, of Trial Chamber I of the International Criminal Court (hereinafter “the ICC” or “the Court”) dated 18 February, 2008, which granted her leave to submit written observations on “a) the definition of ‘conscripting or enlisting’ children, and, bearing in mind a child's potential vulnerability, the manner in which any distinction between the two formulations (i.e. conscription or enlistment) should be approached; and b) the interpretation, focusing specifically on the role of girls in armed forces, of the term ‘using them to participate actively in hostilities.’” That decision was made in response to the Special Representative's application for leave to submit written observations in the form of an amicus curiae brief, contained in Submission by the Registrar of correspondence received within the context of Rule 103 of the Rules of Procedure and Evidence and submitted to the Court on 4 January, 2008.

  2. 2.

    The mandate of the Special Representative originates in General Assembly resolution 51/77 of 12 December 1996. According to this mandate, the role of the Special Representative encompasses advocacy to raise awareness about the plight of children in armed conflict. The mandate also specifies that the Special Representative will work closely with competent international bodies to ensure protection of children in situations of armed conflict. This original mandate has been extended by the General Assembly in several subsequent resolutions. In three of these, resolutions 54/149, 57/190 and 60/231, the General Assembly recognizes the role of the International Criminal Court in ending impunity for perpetrators of crimes against children. The mandate of the Special Representative therefore authorizes and compels her to assist the Court as amicus curiae in cases such as the one brought against Thomas Lubanga, given the nature of the charges against him, both as an independent representative of the children banned in armed conflict, and through the presentation of relevant expertise gained through the performance of her mandate.

  3. 3.

    In relation to the charges laid against Thomas Lubanga, the Special Representative offers observations on the following issues in this amicus curiae brief: a) the definition of “conscripting or enlisting” children, and, bearing in mind a child's potential vulnerability, the manner in which any distinction between the two formulations (i.e. conscription or enlistment) should be approached; and b) the interpretation, focusing specifically on the role of girls in armed forces, of the term “using them to participate actively in hostilities.”

10 II. Definition of “Conscripting” or “Enlisting”

  1. 4.

    The war crimes established by the Rome Statute are limited to the conscription and enlistment of children under the age of fifteen years. The conscription and enlistment acts are two forms of recruitment. According to written commentary following the Rome Conference, the terms may be defined by their “ordinary signification]”: “Conscription refers to the compulsory entry into the armed forces. Enlistment … refers to the generally voluntary act of joining armed forces by enrolment, typically on the ‘list’ of a military body or by engagement indicating membership and incorporation in the forces.”

10.1 A. There Is a High Likelihood That Children Under the Age Of 15 Will Be Conscripted Or Enlisted When Minors Are Recruited In Modern Conflict

  1. 5.

    In the interest of ensuring the greatest protection to conflict-affected children, the Court should recognize that enlistment, recruitment and use of children under the age of 15 is a highly predictable consequence of a purpose or plan to recruit minors, but not necessarily children under 15 years of age.

  2. 6.

    The Special Representative is of the view that the risk or likelihood of the realization of the crimes of conscripting or enlisting children under the age of 15 years into the national armed forces, is inevitably high due to the nature of some contemporary armed conflicts. In this permissible environment, children are extremely vulnerable to military recruitment and being manipulated or enticed into joining armed groups.

  3. 7.

    The risk of conscripting or enlisting children under the age of 15 is never low. In armed conflict zones, the impunity of the perpetrators, the need for more numbers in the ranks, and the vulnerability of children who are often orphaned, displaced, without family and community protection and fighting for survival, are amongst the aggravating factors that increase this risk.

10.2 B. Conscription and Enlistment are Forms of Recruitment

  1. 8.

    In the Confirmation of Charges Decision, the Pre-Trial Chamber distinguished the terms simply as forced recruitment (conscription) versus voluntary recruitment (enlistment). The Special Court for Sierra Leone (“SCSL”) Trial Chamber II offered additional guidance in its June 2007 judgment of guilt against the AFRC Accused for child soldiering crimes: “The Trial Chamber adopts an interpretation of ‘conscription’ which encompasses acts of coercion, such as abductions and forced recruitment, by an armed group against children, committed for the purpose of using them to participate actively in hostilities. ‘Enlistment’ entails accepting and enrolling individuals when they volunteer to join an armed force or group.”

  2. 9.

    The SCSL Trial Chamber's definition of conscription reflects its recognition of the changed nature of modem warfare. “While previously wars were primarily between well-established States, contemporaneous armed conflicts typically involve armed factions which may not be associated with, or acting on behalf of, a State. To give the protection against crimes relating to child soldiers its intended effect, it is justified not to restrict ‘conscription’ to the prerogative of States and their legitimate Governments, as international humanitarian law is not grounded on formalistic postulations.” Similarly, the Trial Chamber's definition of enlistment reaches beyond the traditional implication that enlistment involves an actual list of new recruits but also encompasses children enrolled by more informal means.

  3. 10.

    Consent of the child is not a valid defense to any of the three child soldiering war crimes. The line between lawful recruitment and unlawful recruitment is drawn based solely on age, under the Rome Statute as elaborated upon by the Elements of the Crimes, not on any act of the child. All ‘Voluntary’ acts or statements or other indications or interpretations of consent by children under the legal age for recruitment are legally irrelevant [author's note: emphasis added]. The fieldwork of our office makes apparent the invalidity of a child's consent to any of the three crimes of child soldiering. Abou was a child soldier demobilized in Sierra Leone. When he returned home, he had difficulty with his parents and was ostracized by the community. He then disappeared only to reappear as a child soldier in Côte d'Ivoire. Soldiering is all he knew. Though he “voluntarily” joined the rebels in Côte d'Ivoire, to accept consent as a defense would be to negate the whole policy behind such prohibitions.

  4. 11.

    There is no best interest of the child defense. Recruitment is per se against the best interest of the child. The Rome Statute codifies this understanding in its prohibition without exception of conscripting, enlisting, and using child soldiers [author's note: emphasis added].

10.3 C. The Court Should Approach the Distinction Between Conscription And Enlistment On a Case-By-Case Basis

  1. 12.

    Children recruited into armed forces are broadly covered by the conscription and enlistment crimes. The determination of which crime applies will require a case-by-case inquiry into the way the child was made a soldier.

  2. 13.

    The recruitment of individual child soldiers by armed groups may often be characterized by elements of compulsion and voluntariness, rendering the task of categorizing child soldiers under one or the other recruiting crime difficult. Based on a recent visit to the DRC, the Special Representative has stated: “The recruitment and enlisting of children in DRC is not always based on abduction and the brute use of force. It also takes place in the context of poverty, ethnic rivalry and ideological motivation. Many children, especially orphans, join armed groups for survival to put food in their stomach. Others do so to defend their ethnic group or tribe and still others because armed militia leaders are the only seemingly glamorous role models they know. They are sometimes encouraged by parents and elders and are seen as defenders of their family and community.”

  3. 14.

    In most conditions of child recruitment even the most “voluntary” of acts are taken in a desperate attempt to survive by children with a limited number of options. Children who “Voluntarily” join armed groups mostly come from families who were victims of killing and have lost some or all of their family or community protection during the armed conflict. Many “volunteer” recruits soon become disillusioned, but are not able to leave due to fear of being killed. Many children who try to escape are executed in order to serve as an example to the other children. The line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict. In the DRC, coercion of children by varying elements are so pervasive and children become associated with armed forces in so many informal ways that evidence of voluntariness will commonly be outweighed by evidence of compulsion. The Special Representative met Laurent from a Tutsi tribe. His parents felt it was a matter of duty for him to join a Tutsi militia leader, even though he was still a child. They convinced him that he was doing the right thing. He was going to protect the tribe.

  4. 15.

    Notably, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, ratified by the DRC on 14 February 2004, does not make this distinction in its proscription of recruitment [author's note: emphasis added]. Article 4 states: “Armed groups … should not, under any circumstances, recruit … persons under the age of 18 years (emphasis added).” The phrase “under any circumstances” signals the common understanding that whether recruitment was a matter of (forced) conscription or of (voluntary) enlistment is irrelevant to the prohibition. The Special Representative urges the Court to keep this in mind as it parses facts into one category of recruitment or the other and ultimately determines sentences proportionate to these crimes [author's note: emphasis added].

  5. 16.

    The case-by-case determination of which kind of recruitment will be relevant in a particular case will require evidence that focuses on the acts children are required to perform, the circumstances on how the child was enrolled and the circumstances surrounding the child's separation from family and community. In the DRC, the Special Representative met Mary, who had been on her way to school when she was waylaid by an armed group and forced to return with them to the camp. In the beginning she was a domestic aide and sexually abused, but she soon became familiar with how a gun works and soon thereafter she was joining the others in their attacks on villages. Whatever may have been her initial activities – in the end it is clear that she had been conscripted.

11 III. Interpretation of “Using Them to Participate in Hostilities”

  1. 17.

    The “using” crime creates a broad category for criminal liability. It proscribes the acceptance of a child's participation to support conflict. Children's participation takes numerous and varied forms and includes tasks and roles that are typically fulfilled by girls.

11.1 A. The “Participate Actively” Standard Covers Combatant And Non-combatant Children And the Court Should Interpret the Standard Broadly

  1. 18.

    Participation by combatant and non-combatant children are covered equally. The “participate actively” language of the Rome Statute is broader than the “take a direct part in hostilities” language used in international humanitarian law (“IHL”) [author's note: emphasis added]. This interpretation is supported in the Pre-Trial Chamber's Confirmation of Charges Decision. It is also consistent with United Nations policy for disarmament, demobilization, and reintegration (“DDR”): “No distinction should be made between combatants and non-combatants when [DDR] eligibility criteria are determined, as these roles are blurred in armed forces and groups, where children, and girls in particular, perform numerous combat support and non-combat roles that are essential to the functioning of the armed force or group.”

  2. 19.

    In the Confirmation of Charges Decision, the Pre-Trial Chamber placed an outer limit on the “participate actively” standard, stating that it does not apply when the contribution in question is “manifestly without connection to the hostilities.” The Chamber provided the examples of food delivery and domestic help in an officer's married accommodation as activities without connection, in contrast to related activities such as guarding military objects or acting as a bodyguard. The Pre-Trial Chamber's examples are reminiscent of the oft-cited footnote in the Zutphen draft of the Rome Statute (“Zutphen text”): “The words ‘using’ and ‘participate’ have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer's married accommodation. However, use of children in a direct support function such as acting as porters to take supplies to the front line, or activities at the front line itself would be included within the terminology.”

  3. 20.

    The Zutphen text and the Confirmation of Charges Decision purport to establish a bright-line rule to determine which activities qualify under the “participate actively” standard. The Special Representative submits that this effort is ill-conceived and threatens to exclude a great number of child soldiers - particularly girl soldiers - from coverage under the using crime [author's note: emphasis added].

  4. 21.

    The “participate actively” inquiry requires a case-by-case approach. The relevant question for the Court in each case is whether the child's participation served an essential support function to the armed force or armed group during the period of conflict. This standard is developed from the UN Integrated Disarmament, Demobilization, and Reintegration Standards (“IDDRS”) regarding women's and girls' eligibility for reintegration assistance. Much like the Rome Statute and Zutphen text, this standard deliberately moves away from a rigid definition of child soldiers as exclusively armed combatants and recognizes all children “participating in and associated with armed groups and forces” as victims of these crimes. It also comports with the definition used by the SCSL Trial Chamber in its June 2007 decision in the AFRC case: “‘Using’ children to ‘participate actively in the hostilities’ encompasses putting their lives directly at risk in combat … any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.”

  5. 22.

    A case-by-case approach is particularly apt and critical in the context of modern conflicts in which the nature of warfare differs from group to group and the children used in hostilities play multiple and changing roles. When the Special Representative spoke to girl combatants in the eastern DRC, they spoke of being fighters one minute, a “wife” or “sex slave” the next, and domestic aides and food providers at another time. Children are forced to play multiple roles, asked to kill and defend, carry heavy burdens, spy on villages and transmit messages. They are asked to perform many other functions and their use differs from group to group. Eva was a young girl whom the Special Representative met in the DRC. She was only twelve when she was abducted on her way to school. Initially, Eva was kept in a situation of forced nudity and subject to sexual abuse. She worked in the camp cooking, cleaning and being a sexual slave, and was often taken along for armed attacks on the villages to be a “porter” to carry the looted goods.

  6. 23.

    As a matter of guidance, children who serve essential support functions for armed forces and armed groups during the period of hostilities may function in any of the following roles over the course of their use, including but not limited to: cooks, porters, nurses, spies, messengers, administrators, translators, radio operators, medical assistants, public information workers, youth camp leaders, and girls or boys used for sexual exploitation.

11.2 B. The Court Must Reject Any Interpretation Of the “Participate Actively” Standard That Excludes Girls

  1. 24.

    The exclusion of girls from the definition of child soldiers would represent an insupportable break from well-established international consensus. The definition of child soldier auxiliary to the Cape Town Principles recognized that “child soldier” includes “girls recruited for sexual purposes and for forced marriage.” The Special Representative notes that African regional human rights instruments also recognize and interpret, consistent with the Cape Town Principles, that girls are included within the meaning of child soldiers. Notably, the African Union's Protocol to the Charter on Human and Peoples' Rights on the Rights of Women in Africa pronounces that “State Parties shall take all necessary measures to ensure that no child, especially girls under 18 years of age … is recruited as a soldier.” The recent Paris Principles, reviewing the Cape Town Principles memorialized nearly ten years prior, renewed the status of child soldier for all children used for sexual purposes.

  2. 25.

    The Court should deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” crime. The Special Representative underscores that during war, the use of girl children in particular includes sexual violence. In this regard the Special Representative refers to the African Union's Solemn Declaration on Gender Equality, wherein it was “hereby agree[d] to: (3) [l]aunch, within the next one year, a campaign for systematic prohibition of the recruitment of child soldiers and abuse of girl children as wives and sex slaves.” The AU thus reiterated its disdain of the illicit sexual abuse conduct inflicted upon girl children when they are child soldiers.

  3. 26.

    The Special Representative explains that girl combatants are often invisible: “Because they are also wives and domestic aides, they either slip away or are not brought forward for DDR programs. Commanders prefer to ‘keep their women,’ who often father their children, and even if the girls are combatants, they are not released with the rest. Their complicated status makes them particularly vulnerable. They are recruited as child soldiers and sex slaves but are invisible when it comes to the counting.” As the above case illustrates, the actual experience of children in the DRC conflicts requires a more inclusive interpretation.

Dated this 17th day of March, 2008

Radhika Coomaraswamy

United Nations Special Representative of the Secretary-General for Children and Armed Conflict

12 Redacted Version of “Decision on the Prosecution's Application to Lift the Stay of Proceedings” (ICC-01/04-01/06-1467)

[…]

No.: ICC-01/04-01/06

Date: 3 September 2008

TRIAL CHAMBER I

Before:Judge Adrian Fulford, Presiding Judge

Judge Elizabeth Odio Benito

Judge René Blattmann

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. THOMAS LUBANGA DYILO

Public

Redacted Version of “Decision on the Prosecution's Application to Lift the Stay of Proceedings”

[…]

Trial Chamber I (“Trial Chamber” or “Chamber”) of the International Criminal Court (“Court” or “ICC”) in the case of The Prosecutor v. Thomas Lubanga Dyilo, issues the following decision on the application of the Office of the Prosecutor (“prosecution”) to lift the stay of the proceedings:

13 I. Procedural History

  1. 1.

    On 13 June, 2008, the Chamber rendered its “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008” (“Decision”). In its Decision the Chamber indefinitely stayed the proceedings against Mr Thomas Lubanga Dyilo as a result of the prosecution's failure to disclose to the defence or make available to the Chamber certain potentially exculpatory materials which had been obtained pursuant to confidentiality agreements made under Article 54(3)(e) of the Rome Statute (“Statute”) (“Documents”). In its Decision, the Trial Chamber specified that the stay had the effect of halting the proceedings unless and until such time as the stay is lifted by a decision either of the Appeals Chamber or the Trial Chamber itself.

  2. 2.

    On 23 June, 2008, the Prosecution sought leave to appeal the Decision. The Legal Representatives for Victims a/0001/06 to a/0003/06 filed their response to the prosecution's application for leave to appeal on 24 June 2008, stating that they supported the application. On 27 June, 2008, the defence filed its response to the prosecution's application for leave to appeal, which it did not oppose. On 2 July, 2008, the Trial Chamber granted the prosecution's application for leave to appeal. The decision with regard to this appeal is currently pending before the Appeals Chamber.

  3. 3.

    The prosecution filed on a confidential ex parte basis a “Prosecution's application to lift the stay of proceedings” on 10 July, 2008, and a public redacted version of the application, which was notified to the defence and the legal representatives of the victims the next day (“Application”). The prosecution provided supplementary information to the Application on 30 July, 2008, August 8, 2008, and 22 August, 2008 by way, respectively, of the “Prosecution's provision of information supplementing the ‘Prosecution's application to lift the stay of proceedings’” the “Prosecution's provision of further information supplementing the ‘Prosecution's application to lift the stay of proceedings’” and the “Prosecution's additional provision of further information supplementing the ‘Prosecution's application to lift the stay of proceedings’” (collectively “Supplementary Information”). The legal representatives of the victims did not respond to the Application or Supplementary Information. On 26 August, 2008, the Chamber ordered the defence to file a consolidated response, which was received on 1 September, 2008.

  4. 4.

    Without prejudice to the position on any future applications (for which hearings may be necessary), the issues were sufficiently clear on this application to obviate the need for a Status Conference.

14 II. Submissions of the Parties

14.1 A. Prosecution

  1. 5.

    The prosecution indicated in its Application and Supplementary Information that there are currently 204 items that appear to be potentially exculpatory and are subject to Article 54(3)(e) agreements. Of these, 152 Documents were obtained by the prosecution from the United Nations, and the remainder were provided by six Non-Governmental Organisations (“NGOs”).

14.1.1 Documents obtained from the United Nations

  1. 6.

    According to the prosecution's Application and Supplementary Information, to date the United Nations has agreed to the following:

    1. a.

      A total of 53 Documents may be disclosed in full to the defence without any conditions;

    2. b.

      A total of 83 Documents may be disclosed to the defence with redactions;

    3. c.

      One Document may be disclosed to the defence with redactions, subject to a defence undertaking not to disclose the information to any third party;

    4. d.

      16 Documents are still under review by the United Nations and may not be disclosed to the defence (“Outstanding Documents”).

  2. 7.

    As regards the 16 Outstanding Documents (paragraph 6(d) above), the Application sets out a proposal whereby the United Nations would make available to the Chamber the Documents provided by it to the prosecution, subject to the Chamber undertaking not to disclose them to the defence without its consent. The Chamber notes that while it expressly gave this undertaking in court on 6 May, 2008, the United Nations has requested that the undertaking is repeated in writing by the Chamber. The Chamber notes additionally that it is a necessary inference that these conditions apply equally to the parts of the 83 Documents (paragraph 6(b) above) which are the subject of proposed redactions, along with the single Document (paragraph 6(c) above) (unless and until the defence accepts the proposed condition suggested for that latter item).

  3. 8.

    It would appear that the United Nations' proposal would allow the Chamber to review the 16 United Nations' Outstanding Documents which, in their entirety, cannot currently be disclosed and the portions of the 83 Documents which are the subject of proposed redactions, along with the single Document, and to make notes thereupon. Upon completion of the review, the Chamber would be required to return the Documents or the redacted sections to the United Nations and the judges would be required to redact any portion of their individual notes insofar as they quote from or paraphrase the 16 United Nations' Outstanding Documents, the redacted parts of the 83 Documents or the single Document, until such time as the Appeals Chamber agrees to be bound in its review of the Documents by an undertaking similar to that provided by the Chamber. If the Trial Chamber rules that any of the 16 United Nations' Outstanding Documents, the redacted sections of the 83 Documents or the single Document (absent defence consent to the conditions) should be disclosed to the defence in order to secure a fair trial, the United Nations would consent only to the disclosure of summaries of the relevant Document in the first instance, although the prosecution submitted that “the United Nations envisages the possibility of making such items or information contained therein available to the accused and his defence by other means, including subject to such protective measures that may be permissible under the Rome Statute …”.

  4. 9.

    [sic] In light of this proposed procedure from the United Nations, the prosecution submitted that the Trial Chamber can be immediately provided with the 152 items of undisclosed evidence that originate from the United Nations. The prosecution confirmed that all Documents provided by the United Nations can be submitted to the Chamber in non-redacted form. It further submitted that the procedure proposed by the United Nations accommodates the concerns of the Chamber and will enable it to explain, by reference to the detail of the evidence it has seen, the reasons for any relevant decisions.

14.1.2 Documents obtained from non-governmental organisations

  1. 10.

    The Chamber notes that there appears to be some inconsistencies in the figures provided by the prosecution. In relation to the Documents obtained by NGOs, disclosure (albeit redacted) is currently contemplated in respect of only 3 Documents, with no undertaking in respect of disclosure of the remainder having been provided.

  2. 11.

    The first information provider is the NGO [REDACTED]. The 22 Documents provided by [REDACTED] were provided in non-redacted form to the Trial Chamber as annexes to the Application. However, [REDACTED] has declined to consent to the disclosure of its identity to the defence and the accused. The Application indicates that the prosecution will recommend to [REDACTED] the provision of summaries to the defence, including redactions of [REDACTED]. No indication has been given as to whether [REDACTED] will agree to this recommendation and, if not, whether other potential disclosure alternatives are available.

  3. 12.

    The second information provider is the NGO [REDACTED]. The one Document that originates from [REDACTED] was provided in non-redacted form to the Chamber as an annex to the Application. The prosecution submitted that [REDACTED] and indicated that [REDACTED] has declined to consent to the disclosure of its identity to the defence, the accused and the public. The Application does not indicate whether [REDACTED] will agree to any of the suggested disclosure “alternatives” and, if not, whether further disclosure possibilities are available.

  4. 13.

    The third information provider is the NGO [REDACTED]. The prosecution, on 3 June 2008, provided the Chamber with redacted versions of 3 Documents which, it informed the Chamber, had originated from [REDACTED]. These Documents were re-submitted as annexes to the Application, without redactions. It was submitted by the prosecution that [REDACTED] is prepared to agree to the disclosure of summaries or redacted versions of the Documents to the defence and the accused, if necessary. The NGO has declined to consent to the disclosure of its identity to the defence, the accused, and the public.

  5. 14.

    The fourth information provider is the NGO [REDACTED]. The prosecution submitted that [REDACTED] has agreed to the disclosure of its identity and the 22 Documents (in non-redacted form) which originated from this NGO, to the Trial Chamber. However [REDACTED], it was submitted that [REDACTED] is not currently in a position to agree to the disclosure of summaries or redacted versions of the Documents to the defence and to the accused. Potential methods for alternative disclosure are, however, apparently being explored by [REDACTED] but these are not detailed in the Application. The NGO has declined to consent to the disclosure of its identity to the defence, the accused, and the public.

  6. 15.

    The fifth information provider is the NGO [REDACTED]. The prosecution re-submitted the 6 Documents originating from this NGO in non-redacted form to the Trial Chamber. It was submitted that, if necessary, [REDACTED] will explore means of alternative disclosure through summaries or redacted versions of the Documents to the defence and the accused. The Application does not clarify either the form or likely duration of this exercise. This NGO has declined to consent to the disclosure of its identity to the defence, the accused, and the public.

  7. 16.

    The sixth and last information provider is the NGO [REDACTED]. The prosecution re-submitted the one Document originating from this NGO in non-redacted form to the Trial Chamber. It was further submitted that [REDACTED] is currently [REDACTED] in order to seek [REDACTED] view on potential disclosure through alternative arrangements to the defence and the accused but the Application is silent as to which disclosure alternatives, if any, are available. This NGO has declined to consent to the disclosure of its identity to the defence, the accused, and the public.

  8. 17.

    Therefore, of the non-United Nations information providers, only one of the six ([REDACTED], with 3 items) has indicated that, if the Trial Chamber deems it necessary, it will provide summaries or redacted versions of its Documents to the defence and the accused. Three others have submitted that they are not currently in a position to facilitate disclosure. More specifically, one is “[REDACTED] to what extent, if at all, the Document concerned can be disclosed to the defence and the accused” ([REDACTED], with 1 item); another will “explore alternative arrangements” for partial disclosure to the defence ([REDACTED], with 6 items); and the other “continues [REDACTED] to provide for summaries or redacted versions of the Documents concerned to the Defence and the accused” ([REDACTED], with 22 items). For a fifth non-United Nations information provider ([REDACTED], with 22 items), the Application is ambiguous as to whether the NGO [REDACTED] will agree to the provision of (potentially redacted) summaries to the defence: the prosecution states that if the Chamber deems disclosure of those Documents to be necessary, it “will recommend the provision of summaries, where applicable in redacted form” without revealing what the position of the NGO will be in these circumstances. Finally, for a sixth non-United Nations information provider ([REDACTED], with 1 item), the Application does not address the question of eventual disclosure to the defence at all.

14.2 B. Defence

  1. 18.

    In its observations, the defence contended that the Application did not meet the conditions established by the Trial Chamber in its 13 June, 2008 Decision. The defence observed that, contrary to the Chamber's orders, the prosecution has filed four separate documents, each portraying a developing situation, and each subject to future, hypothetical situations. The defence further highlighted the prosecution's suggestion that summaries could be provided to the defence, and that alternatively the United Nations is ready to explore “other means” (which would entail further negotiations with the United Nations), submitting that they may both prove to be unacceptable to the Chamber. The defence submitted that like objections apply to the other information providers. Additionally, it observed that the latter, seemingly, refuse to disclose their identities to the defence. Therefore, the defence contended that far from providing the Chamber with a precise and effective solution, the prosecution has demonstrated its inability to guarantee the implementation of an acceptable outcome following, in part, from its dependence on the principal information providers. The defence emphasised that such uncertainty regarding possible solutions and the intentions of the information providers fails to provide any kind of acceptable remedy, and that it remains currently impossible for the defendant to receive a fair trial.

  2. 19.

    The defence also submitted that the nature of the Documents and the identity of the information providers are imprecise, since the prosecution has not provided the defence with the annexes to its Application (wherein the evidence is set out). The defence contended that this is a manifestly unjustified use of ex parte proceedings, which, furthermore, is not required by any of the agreements concluded with the information providers. In the submission of the defence, a reference to the nature of a document does not materially affect the confidentiality of the title of the document or its contents. The defence highlighted that the prosecution has refused to identify the NGO providers, and that no justification has been offered for the proposed redactions; the defence highlighted, however, that the approach appears to afford general protection to the information providers. Whatever the reasons, this has had the effect of limiting the scope and the utility of the defence response.

  3. 20.

    The defence further argued that the options advanced by the prosecution do not fulfil the requirements of a fair trial, since confidentiality should never prevail over the rights of the accused in this regard, and non-disclosure should only be authorised by the Chamber in exceptional circumstances. The defence argued that the options proposed by the prosecution run counter to the principle of public, adversarial justice since disclosure of potentially exculpatory material is a pre-condition of a fair trial. The defence submitted that although the Chamber may examine potentially exculpatory evidence when its nature is uncertain, this evaluation should be undertaken as part of a public, adversarial debate. Moreover, the defence submitted that it is only the defence – as opposed to the Trial Chamber – who can properly determine what material is likely to assist the accused. In the circumstances, the defence argued that all the potentially exculpatory documents in the prosecution's possession, without exception, should be disclosed to the defence before the proceedings resume.

  4. 21.

    The defence submitted that the prosecution's proposals do not guarantee full disclosure of exculpatory material, in accordance with the Statute, since most of the information providers refuse to lift the confidentiality restrictions, and the alternative solutions they propose do not guarantee the rights of the accused. The defence noted that only 3 of the 52 Documents provided by the NGOs can be disclosed to the defence and, as set out above, they each refuse to disclose their identities to the defence.

  5. 22.

    As regards the alternative solutions advanced by the prosecution, the defence suggested that the provision of summaries or redacted Documents fail to satisfy the requirements for a fair trial. The defence resisted the suggestion that the defence could review certain Documents in camera and ex parte: it was argued that this would not assist the defence since it would not be able to keep copies of the Documents or to use them in preparation of the accused's defence.

  6. 23.

    The defence submitted that:

    1. a)

      the prosecution has failed to provide the Chamber with reasons, and including any suggested exceptional circumstances, justifying the non-disclosure of potentially exculpatory material to the defence, or its abusive use of Article 54(3)(e);

    2. b)

      the prosecution has not advanced any remedy for the nondisclosure of exculpatory evidence to the defence; and

    3. c)

      under these circumstances, the obstacles to the continuation of the proceedings (as described by the Chamber in its 13 June, 2008 Decision) remain in place.

  7. 24.

    The defence also observed that the prosecution's proposals impose conditions on the Chamber that are unacceptable and contravene the independence of the judiciary. The defence argued that it is unacceptable for an information provider such as the United Nations to dictate to a Chamber how it should proceed, or to attempt to supplant the judges in the exercise of their judicial role.

  8. 25.

    Finally, the defence argued that the violations to the integrity of the trial that currently exist are of such gravity that the judicial process is compromised, and the trial should not be resumed, because:

    1. a)

      the Prosecutor has compromised his own independence on a permanent basis;

    2. b)

      the Prosecutor, by his abuse of Article 54(3)(e), has prevented the investigation and production of exculpatory materials, and their use during the proceedings, in accordance with Article 64(6)(d) of the Statute; and

    3. c)

      the conduct of the Prosecutor has led to a serious violation of the right of the accused to be prosecuted without undue delay.

  9. 26.

    In conclusion, the defence requested the Chamber to order the permanent cessation of the proceedings against the accused, and to confirm his immediate release.

15 III. Relevant Provisions

  1. 27.

    The following provisions from the Statute and Rules of Procedure and Evidence (“Rules”) are relevant to a consideration of the Application:

    Article 40 of the Statute:

    Independence of the judges

    1. The judges shall be independent in the performance of their functions.

    […]

    Article 54 of the Statute:

    Duties and powers of the Prosecutor with respect to investigations

    3. The Prosecutor may:

    […]

    (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and

    […]

    Article 64 of the Statute:

    Functions and powers of the Trial Chamber

    2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

    3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall:

    […]

    (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.

    Article 67 of the Statute:

    Rights of the accused

    1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

    […]

    (b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

    […]

    2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide

    Rule 82 of the Rules:

    Restrictions on disclosure of material and information protected under article 54, paragraph 3(e)

    1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3(e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused.

    2. If the Prosecutor introduces material or information protected under article 54, paragraph 3(e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance.

    Rule 83 of the Rules:

    Ruling on exculpatory evidence under article 67, paragraph 2

    The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2.

16 IV. Analysis

  1. 28.

    At the outset, the Chamber stresses its keen awareness of the importance of this Decision to the peoples of the Democratic Republic of Congo, the victims and the accused, and in the result it has scrutinised the proposals and the various submissions with particular care. Furthermore, the Chamber underlines that on the information available, responsibility for the continuing problems, as analysed below, does not rest with the information-providers, who have sought to discharge their respective mandates. As the Trial Chamber has previously observed, the United Nations and the NGOs entered into the relevant agreements in good faith, and thereafter have sought to assist the court to the extent that is consistent with their individual responsibilities. The Chamber is grateful for the attempts they have made to resolve these difficulties. The Trial Chamber also notes that there have been some real developments in the position of the United Nations as a result of discussion between itself and the prosecution.

  2. 29.

    During the Status Conference of 24 June 2008, the Trial Chamber gave the following guidance should the prosecution apply for an order to lift the stay of proceedings. First, “the matter should be addressed comprehensively as part of a single application once the Prosecution's overall submissions regarding the relevant material have been formulated to the extent that that is possible.” Second, “the Chamber is unlikely to approve a system that depends on its ability to memorise large quantities of information which it is unable to retain and study and which, furthermore, it is unable to compare with the other evidence in the case so as to assess its relevance for Article 67(2) and Rule 77.” Third, as this issue potentially is an appealable decision, “any proposal that the Trial Chamber should view the 54(3)(e) material will need to include conditions which enable it to explain in a written decision by reference to the detail of the evidence it has seen, an analysis of why it has reached any relevant conclusions. Furthermore, any material shown to the Trial Chamber must be available, if necessary, for review by the Appeals Chamber.” The Trial Chamber will not read any documentation which is to be withheld from the Appeals Chamber or which will be provided to the Appeals Chamber only on the basis of proposed conditions which have not yet been agreed by that Chamber. Fourth, “it should not be assumed that the Chamber will approve summaries. It all depends on the nature of the information and a detailed analysis of each piece of evidence against the background of the requirements of Article 67(2) and Rule 77”.

  3. 30.

    Therefore, before lifting the stay in the proceedings, the Trial Chamber must be satisfied, first, that it can adequately review – on a continuing basis – the Documents in question, in a way which is susceptible to a meaningful appeal, and, second, that there is some real prospect that the accused will be given sufficient access to any Documents which the Chamber considers to be exculpatory.

16.1 The United Nations Documents

  1. 31.

    The prosecution submitted that the Trial Chamber will be immediately provided with copies of the Documents from the United Nations which cannot be disclosed in order to review them, either in chambers or in an ex parte session. Additionally, the Trial Chamber may make notes as necessary during its review. These conditions meet the requirements of the Trial Chamber in respect of its own initial access to the Documents. However, the Chamber has an obligation to keep all potentially exculpatory, undisclosed Documents under review as the evidence and the issues in the case unfold, and it will, therefore, be necessary for the documentation to remain with the Chamber for the entirety of the trial (emphasis added). The prosecution's proposals do not appear to facilitate this requirement.

  2. 32.

    Furthermore, as rehearsed above, the Trial Chamber set out the following in relation to the Appeals Chamber's access to the Documents and to the Trial Chamber's notes:

    […] any material shown to the Trial Chamber must be available, if necessary, for review by the Appeals Chamber. And it follows, therefore, that the Trial Chamber is likely to refuse to read any documentation which is to be withheld from the Appeals Chamber or which will only be provided to the Appeals Chamber on the basis of proposed conditions which have not yet been agreed by that Chamber.

  3. 33.

    Despite the Chamber's explicit directions in this regard, on the prosecution's proposal the Trial Chamber will be required to return all copies of the Documents, as well as to redact any notes which it may have taken with regard to the review of Documents insofar as such notes quote from or paraphrase the United Nations' Documents. By clear implication this stipulation will apply to any review of the Documents that may be set out in the decisions of the Chamber on this issue, with the consequence that the Trial Chamber will only be able to retain a redacted copy of its own decisions. The Trial Chamber will be obliged to comply with these conditions until such time as the Appeals Chamber consents to the same conditions of confidentiality imposed upon the Trial Chamber. Thus there remains the real possibility that decisions of the Trial Chamber on the Documents and their non-disclosure or partial disclosure may not be fully reviewable by the Appeals Chamber (who may be allowed to consider only a redacted version of decisions on this issue by the Trial Chamber). The prosecution's proposal, therefore, continues to infringe the fundamental principle that first instance decisions of this kind should be susceptible to appellate review.

  4. 34.

    As regards the Documents to be disclosed to the defence with redactions, the Application and Supplementary Information neither set out the nature and the extent of, and the suggested bases for, the proposed redactions, nor do they explain how the redactions may be authorised and kept under review by the Chamber. As set out above (paragraph 7), it seems likely that the redacted sections of Documents that will otherwise be disclosed are to be subject to the same conditions as the 16 Outstanding Documents that are currently to be withheld in their entirety. However, the Chamber stresses that if the core proposals had been acceptable, it would have investigated the circumstances of the suggested redactions.

  5. 35.

    With respect to the possible disclosure to the defence of currently undisclosed, potentially exculpatory materials provided by the United Nations, the Application proposes providing the defence with summaries of the Documents as its principal solution. In the alternative, the United Nations envisages ‘other means’ as provided for under the Statute and Rules. However, a clear indication as to what ‘means’ the United Nations would agree to has not been provided. This ambiguity wholly precludes the Trial Chamber from ascertaining the precise meaning and scope of the prosecution's suggestions, although if the core proposals were acceptable, the Chamber would have investigated the detail of the options.

16.2 NGO Documents

  1. 36.

    In relation to the other information providers, the prosecution's Application does not reveal any real prospect that some of them, such as [REDACTED] and [REDACTED], will agree to any form of disclosure of their Documents to the defence. This affects 21 Documents. [REDACTED] and [REDACTED] are currently exploring certain alternative measures of disclosure internally, according to the prosecution's Application, leaving disclosure uncertain for a further 23 Documents. The prosecution submits that [REDACTED] and [REDACTED] have indicated a willingness to explore alternative measures of disclosure to the defence; however, the measures that may be acceptable are not specified in the Application, leaving uncertainty with respect to an additional 9 documents. However, as with the United Nations' Documents, if the core proposals were acceptable, the Chamber would have investigated the detail of the options.

  2. 37.

    Furthermore, as regards the Documents to be disclosed to the defence with redactions, the prosecution's Application neither sets out the nature and the extent of the proposed redactions nor do they explain how the redactions may be authorised and kept under review by the Chamber. However, as with the United Nations' Documents, the Chamber stresses that if the core proposals had been acceptable, it would have investigated the circumstances of the suggested redactions.

  3. 38.

    Under these conditions, there is no assurance that the prosecution will be able to afford adequate disclosure of all the exculpatory materials in the event that the Chamber concludes that Documents should be provided to the defence.

17 V. Conclusions

  1. 39.

    The proposals outlined in the Application demonstrably fail to meet the prerequisites set out hitherto by the Chamber to enable it to lift the stay of proceedings, and they infringe fundamental aspects of the accused's right to a fair trial. Indeed, unless and until the guidance outlined by the Chamber on 24 June, 2008 is sufficiently addressed, it is necessary for the stay of proceedings to remain in place.

  2. 40.

    Addressing each of the four issues by way of summary, the Trial Chamber finds that:

    1. i)

      The Application fails to address comprehensively and sufficiently all of the Documents held by the various information-providers, and particularly the NGOs. There is inadequate clarity as to a significant proportion of the Documents along with the position, overall, of the information-providers, as regards disclosure and the opportunity for appellate review;

    2. ii)

      For the United Nations Documents (i.e. those which are currently to be withheld in their entirety, along with the redacted sections of other Documents), the proposals unacceptably appear to require the Chamber to return the Documents, or the redacted sections, after its initial review and to remove quotations or paraphrases from the judges' notes, unless and until the Appeals Chamber agrees to the same conditions as the Trial Chamber. These requirements will have the effect of preventing the Chamber from keeping the Documents sufficiently under review during the trial;

    3. iii)

      The proposals neither allow the Chamber to refer to the detail of the Documents in a written decision nor do they guarantee that any decision by the Chamber will be susceptible to full appellate review. Until the opportunity for the Chamber to issue a full and detailed written decision in respect of which a proper appeal is guaranteed (during which the Appeals Chamber is able to review all of the relevant documentation, along with a non-redacted version of any relevant decision of the Trial Chamber), one of the principal elements of a fair trial will be missing from the proceedings;

    4. iv)

      The proposals do not provide sufficiently comprehensive information on the redactions required by the providers, nor is a procedure for review of such redactions by both the Trial and – potentially – the Appeals Chambers set out;

    5. v)

      On the basis of the Application and Supplementary Information, there is a real prospect that the prosecution will not be in a position to effect adequate disclosure to the accused of a significant number of Documents (if the Chamber so orders) because, even at this late stage in the proceedings, there is currently no indication that some of the NGOs will be able to assist with the disclosure orders, whether by way of full disclosure, summaries or otherwise and for the United Nations, it is unclear whether sufficient disclosure, in an adequate form, will be possible. However, the Chamber stresses that if all of the Documents from all the information providers are submitted to the Chamber in a non-redacted form for the entirety of the trial and if the Appeals Chamber is able to consider in a similar, non-redacted form all of the relevant materials and any decision of the Trial Chamber on the issue, the Bench would be prepared to review all the Documents (prior to lifting the stay) to assess which Documents need to be disclosed and whether the proposed methods of disclosure accord with the accused's right to a fair trial.

[…]

Judge Adrian Fulford

Judge Elizabeth Odio Benito

Dated this 3 September 2008

At The Hague, The Netherlands

18 Decision on the Consequences of Non-disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June, 2008

[…]

No.: ICC-01704-01/06Date: 13 June 2008

TRIAL CHAMBER I

Before: Judge Adrian Fulford, Presiding Judge

Judge Elizabeth Odio Benito

Judge René Blattmann

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. THOMAS LUBANGA DYILO

Public Document

URGENT

Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008

[…]

  1. 1.

    Trial Chamber 1 (“Trial Chamber” or “Chamber”) of the International Criminal Court (“Court” or “ICC”) in the case of The Prosecutor v. Thomas Luganga Dyilo, following the Status Conference on 10 June, 2008 and the Chamber's oral announcement on 11 June, 2008 that the trial date of 23 June, 2008 was vacated, delivers its decision on the following issues:

    1. (a)

      The consequences of the inability on the part of the Office of the Prosecutor (“prosecution”) to disclose to the accused potentially exculpatory materials covered by agreements entered into pursuant to Article 54(3)(e) of the Rome Statute (“Statute”);

    2. (b)

      The applications by the defence on 2 June, 2008, contained within its “Requête de la Défense aux fins de cessation des poursuites” seeking orders from the Chamber:

    3. 1.

      For the discontinuance of the prosecution and the release of the accused;

    4. 2.

      For the immediate disclosure of potentially incriminatory material;

    5. 3.

      That the defence is not obliged to notify the Court of its lines of defence; and

    6. 4.

      That any potential charges currently being investigated in the context of the situation in the Democratic Republic of the Congo (“DRC”) will not be brought against the accused.

  2. 2.

    Certain other matters were addressed during the Status Conference which, given the Chamber's conclusions on the first issue, have not been resolved in this Decision.

19 I. Background and Submissions

19.1 A. Procedural History

  1. 3.

    The disclosure of potentially exculpatory evidence received by the prosecution under the provisions of Article 54(3)(e) of the Statute has been the subject of consideration – including by way of oral and written submissions – since the earliest hearings before the Trial Chamber in this case. It was first raised by the prosecution in its 11 September 2007 filing to which the defence responded on 24 September, 2007; these were followed by oral submissions during the Status Conference of 1 October, 2007 and 2 October, 2007. The main elements of those submissions, in so far as they relate to the subject matter of the present decision, are rehearsed below.

  2. 4.

    Furthermore, during the course of this pre-trial phase, the Chamber has rendered various decisions which have touched upon this issue, and these also, where relevant, are set out below.

  3. 5.

    On 9 November, 2007 this Chamber rendered its “Decision regarding the timing and manner of disclosure and the date of trial” wherein it held as regards the agreements entered into by the prosecution for the provision of information on a confidential basis, that “from the moment the prosecution entered into the agreements and was thereafter presented with exculpatory materials, it has been under an obligation to act in a timely manner to lift the agreements in order to ensure a fair trial without undue delay.” In light of the proposed commencement of trial (at that time being 31 March, 2008) the Chamber ordered the disclosure of the prosecution evidence to the defence by 14 December, 2007. Any redactions sought by the prosecution were to be explained and justified. The Chamber stated that the obligation to disclose potentially exculpatory evidence as soon as is practicable would continue throughout the trial period.

  4. 6.

    The Chamber further indicated that the prosecution would be under an obligation to withdraw any charges where non-disclosed exculpatory material has a material impact on the Chamber's determination of the guilt or innocence of the accused. If the prosecution were in doubt as to whether or not any material falls into this category, the Chamber directed that it should be put before the Trial Chamber for its determination [author's note: emphasis added].

19.2 B. Submissions of the Parties and the Participants

19.2.1 1. Interpretation of the Statutory Provisions

19.2.1.1 a. The extent of the prosecution's disclosure obligations
  1. 7.

    The prosecution underlined that whilst Article 67(2) of the Statute and Rule 77 of the Rules of Procedure and Evidence (“Rules”) require disclosure of materials, Rule 77 refers to Rule 81 which “subjects disclosure to the requirements of confidentiality contained inter alia in Article 54, as well as to Rule 82 which similarly operates as a restriction on disclosure”.

  2. 8.

    The prosecution submitted that it had taken a very liberal approach to the definition of “exculpatory” under Article 67(2) so as to include tu quoque material. However, the prosecution submitted that material in this category did not afford the accused with a valid defence since in its view the undisclosed evidence does “not materially impact on the Court's determination of the guilt or innocence of the accused”.

  3. 9.

    During the Status Conference on 10 June, 2008, the Bench requested the prosecution to define its usage of the term “exculpatory”. In particular it queried how potentially exculpatory evidence would not, ipso facto, potentially impact on the guilt or innocence of the accused. To this the prosecution submitted that such evidence could be merely mitigating, or Rule 77 evidence (the latter only being material to the preparation of the defence). The prosecution clarified, therefore, that its use of the term “exculpatory material” included, but was not limited to, mitigating evidence.

  4. 10.

    On the question of whether mitigating material should also be disclosed to the defence, prior to any sentencing procedure, the prosecution submitted there should be no difference in the approach to the disclosure of such material.

  5. 11.

    The defence argued that Article 54(l)(a) of the Statute imposed a responsibility on the prosecution to investigate exonerating materials. One reason for this, in the submission of the defence, was that it did not have the resources, authority or institutional aids which are available to the prosecution. This responsibility, according to the defence, created an obligation for the prosecution to disclose exculpatory and mitigating evidence to the defence.

  6. 12.

    The defence submitted that the prosecution had adopted an unjustifiably narrow interpretation of Article 67(2) of the Statute. In particular, it emphasised that the prosecution must disclose not only exculpatory evidence but also mitigating evidence or evidence that affects the credibility of prosecution evidence. The defence argued that exculpatory evidence must be understood in light of Rule 145 of the Rules which provides that any mitigating or aggravating factors must be taken into account when sentencing. This included, in the submission of the defence, evidence relating to: the nature of the unlawful behaviour, the means used to employ it, the accused's degree of participation and intent and the manner, time and location of the crime. The defence argued that all mitigating material within Rule 145 must be disclosed by the prosecution.

  7. 13.

    The defence submitted and relied on jurisprudence of the International Tribunal for the Former Yugoslavia (“ICTY”), in support of the proposition that restrictions on disclosure of materials do not relieve the prosecution of its obligation to disclose to the defence material which tends to show the innocence of the accused. The prosecution contended that the jurisprudence of the ICTY which upheld the principle of the disclosure of exculpatory material could be distinguished from the present circumstances as the prosecution has already disclosed evidence similar to the protected exculpatory material to the defence.

19.2.1.2 b. Status and exculpatory value of non-disclosed materials
  1. 14.

    On 11 September, 2007 the prosecution informed the Chamber that it anticipated completing disclosure, or applying for the removal of restrictions, by the end of October 2007. However, it suggested that the outcome of the process was beyond its control.

  2. 15.

    During the Status conference on 1 October, 2007 the prosecution informed the Chamber of the disclosure status of evidence obtained pursuant to Article 54(3)(e). The prosecution noted that information providers had refused to lift the restrictions in respect of 46 documents comprised of about 220 pages. The prosecution informed the Chamber that, at that time, requests to lift redactions were pending as regards over 500 documents which amounted to about 3080 pages.

  3. 16.

    Following a request by the Chamber on 13 March 2008, the prosecution provided a summary of the status of exculpatory materials in its written submissions on 28 March, 2008.

  4. 17.

    In its 28 March filing the prosecution provided an update on the status of potentially exculpatory materials collected pursuant to Article 54(3)(e). In particular it informed the Chamber that as of 25 March, 2008 it had disclosed or provided for pre-inspection 76 documents containing potentially exculpatory information or falling within the scope of Rule 77. Of these 76 documents, the prosecution noted that 44 were disclosed or provided in full, whilst 32 were disclosed with redactions requested by the information providers. Finally, in reporting on the status of potentially exculpatory material, the prosecution informed the Chamber that a total of 216 items containing potentially exculpatory material or information falling within the scope of Rule 77 had not been disclosed to the defence. For 35 of these items, the prosecution noted that it was awaiting responses to requests to disclose from information providers. However, it noted that information providers had refused to lift Article 54(3)(e) restrictions as regards the remaining 181 items.

  5. 18.

    On 7 April the prosecution informed the Chamber that the undisclosed evidence comprised 212 rather than 216 items.

  6. 19.

    During the Status Conference of 10 June 2008 the prosecution provided up-to-date information to the Chamber on the situation as regards undisclosed material and its sources. In particular the prosecution informed the Chamber that there currently are 156 documents provided by the UN under Article 54(3)(e) for which authorisation to disclose to the defence had been refused. Of those 156 documents, the prosecution informed the Chamber that 112 fell under the heading of Rule 77 of the Rules whilst the remaining 95 were considered potentially exculpatory or mitigating in nature. As to the documents for which a response was pending, the prosecution submitted that negotiations were ongoing, although it was unable to predict the outcome thereof.

  7. 20.

    In addressing the undisclosed materials, the prosecution divided the evidence into two categories: evidence which would not materially impact on the Chamber's determination of the guilt or innocence of the accused and evidence which had that potential. However, having clearly indicated that the evidence fell into these two categories, in a seemingly contradictory submission the prosecution thereafter maintained that none of the undisclosed evidence “in fact” materially impacted on the Chamber's determination of the guilt or innocence of the accused [author's note: emphasis added].

  8. 21.

    In elaboration of this latter submission, the prosecution submitted that evidence which could not, in the prosecution's contention, impact upon the Chamber's decision as to the guilt or innocence of the accused consisted of the following: evidence which purported to establish that children voluntarily joined the UPC/FPLC or were sent by their parents; tu quoque evidence which purported to establish the use of child soldiers by the Lendu or other armed groups in Ituri; reported benevolent acts by Thomas Lubanga Dyilo; material relating to the political nature of the UPC/FPLC and its aim of pacifying Ituri or references to it as an “all-inclusive” organisation; and information falling within the scope of Rule 77 (which, in the prosecution's submission, did not go to the guilt or innocence of the accused but was material to the preparation of his defence).

  9. 22.

    The categories of evidence which the prosecution submitted could materially impact on the Court's determination of the guilt or innocence of the accused included: evidence indicating that Thomas Lubanga Dyilo suffered from a mental condition; that he was intoxicated thus impairing his capacity to control, or understand the unlawfulness of, his conduct; that he was under duress or compulsion; that he acted in self-defence; that he made efforts to demobilise child soldiers; that he had insufficient command over people who committed the crimes with which he is charged; that the UPC/FPLC was under the control of Uganda, Rwanda and other countries. However, it submitted that none of this evidence revealed control as regards the recruitment of children [author's note: emphasis added], and that there was “no doubt” that these categories of evidence would only impact in principle on the Chamber's decision, and that it would not in fact materially impact on the determination of the guilt or innocence of the accused.

  10. 23.

    The defence averred that the documents outlined in the prosecution's description of the categories of undisclosed potentially exculpatory materials were in fact exculpatory and should be disclosed.

19.2.2 2. Interpretation of Agreements Under Article 54(3)(e) of the Statute

19.2.2.1 a. Purpose of Article 54(3)(e) and agreements concluded pursuant to Article 54(3)(e)
  1. 24.

    The prosecution argued that Article 54(3)(e) guaranteed confidentiality, unless the information-providers authorised otherwise, because many of them did not wish for their co-operation to be revealed in juridical proceedings. This interpretation, it was averred, accorded with the terms of the agreements as well as the approach of the prosecution and the information-providers.

  2. 25.

    Despite the requirements of Article 54(3)(e) that confidentiality agreements are to be used solely for the purpose of generating new evidence, the prosecution contended that evidence which it is anticipated may be used during the trial can also be obtained pursuant to Article 54(3)(e). This argument was founded on Rule 82, which anticipates that materials obtained under Article 54(3)(e) may later be introduced as evidence.

  3. 26.

    In defending the confidentiality agreements, the prosecution submitted that it depends upon the co-operation of information-providers who were working under very difficult conditions on the ground and who had made a deliberate decision that, in order to protect staff, their information must be confidential. In the prosecution's submission, the Court “has to accept” that the mandate of the information-providers was “very different to [that of] the Office of the Prosecutor” and that the materials were not collected for the purpose of trial. The prosecution submitted that if the Court was not to accept the “realities” for the UN and NGOs on the ground, then they would not provide evidence and “there was no other option available”. Similarly, in a later submission, the prosecution argued that it was not possible to approach the UN with specific issues in which it was interested before being provided with materials, and that such an approach would only be viable at later stages of the investigation [author's note: emphasis added]. The prosecution contended that it would not have been able to initiate an investigation in the DRC without the information provided by the UN under the confidentiality agreements.

  4. 27.

    The prosecution has interpreted Article 54(3)(e) as not limiting confidentiality agreements to evidence obtained solely for the purpose of generating new evidence. Rather, it submitted that the UN had provided general materials to the prosecution pursuant to the confidentiality agreement, and thereafter the prosecution had selected the evidence to be used in the trial and the items that were to be treated as lead evidence. The prosecution accepted that at the material time, there had been a clear understanding that these materials were likely to be used as evidence.

  5. 28.

    By contrast, the defence noted that Article 54(3)(e) of the Statute only permits the prosecution to enter into a confidential agreement of this kind when it will generate new evidence and it argued that once obtained under this provision, the material should not be tendered as evidence in the trial [author's note: emphasis added].

  6. 29.

    The defence submitted that Article 54(3)e was not intended to make the prosecution's task easier or to allow it to obtain the information more quickly but rather it had a specific purpose that had not been adhered to in the these proceedings.

  7. 30.

    The defence argued that Article 54(3)(e) of the Statute permits confidentiality agreements to cover only documents which will generate new evidence. Accordingly, in the defence's submission, these agreements cannot be used loosely to cover all documents from a particular source.

19.2.2.2 b. Incorporation of agreements under article 54(3)(e) of the Statute in the Court's legal framework
  1. 31.

    Addressing the Relationship Agreement with the UN and those reached with other information providers, the prosecution argued that their interpretation and use of the agreements were justified. In particular, during the ex parte Status Conference held on 2 October, 2007, the prosecution argued that Article 18(3) of the Relationship Agreement between this Court and the United Nations (“Relationship Agreement”) which prohibited it from disclosing confidential materials to any organ of the Court without consent of the information providers, had been endorsed by the Assembly of States Parties. It was argued that the approval by this entity, being the Court's legislative body, gave authority to the prosecution's interpretation of Article 54(3)(e).

  2. 32.

    Despite this, the prosecution acknowledged that an excessive use of Article 54(3)(e) would be problematic and that its use in the present case may be viewed as excessive. The prosecution acknowledged that the language used in the agreements did not necessarily reflect what Article 54(3)(e) was meant to cover.

  3. 33.

    At the Status Conference of 10 June, 2008 the defence submitted that the prosecution's use of the confidentiality agreements, which could affect the discovery of the truth and the fairness of the trial, was untenable because no instance-specific reasons had been provided by the UN justifying the suggested need for confidentiality. The defence cited as an example of the misuse of the agreements that one of the documents provided to it recently by the prosecution, which had been covered by one of the confidentiality agreements, was in fact a public document.

  4. 34.

    The prosecution submitted that the obligation to provide exculpatory material under Article 67(2) of the Statute must be read in conjunction with the Relationship Agreement with the UN, and that, in the result, the obligation is limited to material that has not been provided to the prosecution confidentially or whenever the information provider, under a confidentiality agreement, has granted consent. It submitted that the Relationship Agreement, which prevented the Chamber from viewing the undisclosed material, became binding law pursuant to Article 21(l)(b) of the Statute.

  5. 35.

    The defence submitted, in the context of the Relationship Agreement, that agreements made between the Court and other bodies cannot take precedence over the Statute or the fundamental right of the accused to obtain exculpatory material [author's note: emphasis added]. Accordingly, the defence argued that the prosecutor had manifestly exceeded his mandate.

19.2.2.3 c. Authorisation from information providers under Article 54(3)(e) of the Statute
  1. 36.

    The prosecution made extensive submissions regarding its attempts to obtain the consent of information providers to disclose exculpatory materials. It first informed the Chamber of these attempts during the Status Conference of 1 October, 2007. In order to facilitate disclosure, the prosecution informed the Chamber that it had emphasised the urgency of the matter and it was trying to speed up the process of obtaining authorisation. Whilst the prosecution noted that the United Nations in particular was “very well-prepared to lift the restrictions” it submitted that the negotiation process would take time and that the outcome was beyond the prosecution's control. The prosecution, nonetheless maintained that it “anticipated having disclosed or provided for inspection or having sought to lift any restrictions on disclosure on the materials concerned by the end of October [2007].”

  2. 37.

    The prosecution confirmed its attempts at obtaining this consent from the information-providers in its 10 December, 2007 filing and submitted that it maintained its aim of effecting full disclosure before 14 December, 2007.

  3. 38.

    However, in its written submissions of 24 January, 2008, the prosecution submitted that it had not received responses to its requests to lift the Article 54(3)(e) restrictions prior to 14 December, 2007.

  4. 39.

    The prosecution indicated that it was engaged in continuing negotiations with the information-providers at the Status Conference of 13 March, 2008.

  5. 40.

    On 7 April, 2008 the prosecution informed the Chamber that whilst it was seeking consent from the information providers other than the UN, the deadline imposed by the Chamber had not afforded it sufficient time. However, the prosecution indicated that some responses were expected within a short period.

  6. 41.

    During the Status Conference on 10 June, 2008 the prosecution submitted that negotiations were ongoing, although it was unable to predict the eventual outcome.

19.2.2.4 d. Disclosure of similar materials as an alternative to disclosure under Article 67(2) of the Statute
  1. 42.

    In the event that consent to disclose materials was not forthcoming, the prosecution submitted that its approach was to provide the defence with similar alternative materials [author's note: emphasis added]. On 10 and 15 April, 2008, pursuant to an order of the Chamber, the prosecution filed its submissions on similar alternative material to the undisclosed evidence. The prosecution submitted that it had provided the defence with sufficient similar alternative evidence to allow it to prepare for trial.

  2. 43.

    The defence contested the prosecution's argument that sufficient similar evidence had been provided; it argued that the fundamental right of the accused is to receive the totality of exculpatory materials and no confidentiality agreement, in the submission of the defence, could justifiably form an obstacle to this fundamental right.

19.2.2.5 e. The provision of non-disclosed material to the Bench
  1. 44.

    In order to address the matter fully, on 3 April, 2008 the Chamber ordered the prosecution to provide it with the undisclosed exculpatory material. The prosecution indicated it was unable to comply with this order, citing the provisions of the agreements under which the material had been obtained. Thereon, the Chamber directed the prosecution to furnish it with descriptions of the undisclosed potentially exculpatory material, together with explanations as to why each document was not in the prosecution's view exculpatory; however, the prosecution indicated that it was also unable to comply with this order of the Chamber.

  2. 45.

    As an alternative, the prosecution agreed that if the Chamber were to undertake not to disclose the material without the consent of the information providers, the latter may provide the documents to the Chamber for its review (the Chamber having indicated its willingness to give such an undertaking). However it emerged thereafter that at least two information providers (including the UN) declined to allow the Chamber to view the material, notwithstanding the Chamber's undertaking, and other information-providers required redactions to the information which removed information which may identify individuals or bodies [author's note: emphasis added].

  3. 46.

    The defence submitted that the Chamber was able to review the relevant materials, accepting that this process may reveal some incriminatory material.

  4. 47.

    In the contention of the defence, exculpatory evidence and the confidentiality agreements should be provided to the Chamber so that it can establish whether the agreements are justified. Accordingly, the Chamber can override confidentiality agreements which affect the rights of the defence under Article 67(2) of the Statute and Rule 77 of the Rules.

  5. 48.

    The prosecution submitted that disclosure of exculpatory material should not be ordered by the Chamber pursuant to its powers under Article 72(7) of the Statute but, rather, the appropriate remedy for non-disclosure “where the evidence is so critical as to materially impact on the guilt or innocence of the accused is for the Chamber to make such inferences in the trial as to the existence or non-existence of facts as may be appropriate in the circumstances, and where the Chamber considers this remedy to be insufficient, the appropriate remedy is the dropping of the relevant charges” [author's note: emphasis added].

  6. 49.

    On 9 June, 2008, the prosecution filed an update on information obtained from the United Nations containing potentially exculpatory materials. Therein the prosecution informed the Chamber that, pursuant to recent negotiations, the United Nations had authorised disclosure of two documents to the defence. In respect of 33 documents, the prosecution noted that the UN was willing to explore ways in which “elements of information” could be provided to the Chamber. On 11 June, 2008, the prosecution filed a further confidential update on information obtained from the UN.

  7. 50.

    The Presiding Judge observed during the Status Conference on 10 June, 2008 that Article 67(2) establishes that the Chamber is the arbiter of whether or not material falls to be disclosed and that the confidential agreements tended to undermine its role in this regard. In response, the prosecution argued that the materials it had disclosed to the defence were similar to the material covered by the confidentiality agreements and thus the Chamber was able to evaluate the latter by process of analogy [author's note: emphasis added].

19.2.3 3. Suitability of 23 June, 2008 trial date

  1. 51.

    In arguing for the retention of the 23 June, 2008 trial date, the prosecution averred on 10 June, 2008 that the defence had been provided with alternative evidence, not covered by confidentiality agreements, which was similar in nature. Furthermore, the prosecution argued that Article 67(2), by directing the prosecution to disclose materials that it believed to be potentially exculpatory, implied that it was trusted to deal with evidence in this area appropriately” and that disclosure, as an ongoing obligation, necessitated the defence accepting that disclosure of exculpatory materials would continue throughout the trial [author's note: emphasis added]. In support of this, the prosecution repeated its contention that none of the undisclosed potentially exculpatory material would impact on the guilt or innocence of the accused. Similarly, in the prosecution's submission, the defence would have adequate time to prepare given the trial date is in late June and the limited volume of the material in question.

  2. 52.

    On the proposed 23 June commencement of the trial, the defence argued, during the Status Conference on 10 June, 2008, that it had “never requested the postponement of the trial in writing and will not do so.”

19.2.4 4. The power of the Chamber to stay the proceedings

  1. 53.

    Whilst the prosecution acknowledged the inherent power of the Chamber to discontinue the proceedings, it submitted that such a drastic remedy is strictly limited to the most serious cases involving an abuse of power by the prosecution. It submitted that the abuse would have to call into question the integrity of the system, resulting in a contravention of the rights of the accused of constitutional magnitude. In the prosecution's submissions no such abuse had occurred, nor had the defence alleged as such.

  2. 54.

    The defence argued that the proceedings should be terminated. The power to do so, in the submission of the defence, originated in the inherent power of the Bench to prevent an abuse of the process and ensure the fairness of proceedings.

  3. 55.

    The legal representative of victims a/0001/06 to a/0003/06 submitted that issues relating to the possible discontinuance of the trial go to the crux of victims' interests [author's note: emphasis added]. Responding to the defence's filing requesting the discontinuance of the proceedings, the legal representative of victims a/0001/06 to a/0003/06 argued that there are legally only two justifications for such discontinuance: inadmissibility or lack of jurisdiction. He further submitted that in such a situation certain participants must be heard, including the referring state and victims [author's note: emphasis added]. Discontinuance of the present proceedings, in the submission of the legal representative of victims a/0001/06 to a/0003/06, was not possible and in any event was not within the Trial Chamber's powers but rather those of the Pre-Trial Chamber.

19.2.5 5. Ongoing investigations

  1. 56.

    In relation to the issue of ongoing investigations the prosecution submitted that it was continuing to investigate other possible crimes committed by Thomas Lubanga Dyilo. However, it averred that it would not seek to amend the charges and that it had the right and obligation to conduct such investigations.

  2. 57.

    In this regard, the defence submitted that the prosecution was concealing further potential charges against the accused. This, the defence argued, was in violation of the accused's right to be informed of the charges against him and prosecutorial fairness.

20 II. Relevant Provisions

Article 21 of the Statute

Applicable Law

1. The Court shall apply:

[…]

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

[…]

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights […]

Article 54 of the Statute

Duties and powers of the Prosecutor with respect to investigations

[…]

3. The Prosecutor may:

[…]

(e) Agree not to disclose, at any stage of the proceedings, documents or Information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and

Article 64 of the Statute

Functions and powers of the Trial Chamber

[…]

2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall:

[…]

(c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.

Article 67 of the Statute

Rights of the accused

  1. 1.

    In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:

[…]

(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;

[…]

  1. 2.

    In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

Rule 77 of the Rules of Procedure and Evidence (“Rules”)

Inspection of material in possession or control of the Prosecutor

The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.

Rule 82 of the Rules

Restrictions on disclosure of material and information protected under article 54, paragraph 3(e)

  1. 1.

    Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3(e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused.

  2. 2.

    If the Prosecutor introduces material or information protected under article 54, paragraph 3(e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance.

[…]

Rule 83 of the Rules

Ruling on exculpatory evidence under article 67, paragraph 2 The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2.

  1. 58.

    In addition, in light of Article 21(3) of the Statute, the Chamber has also considered the following international provisions:

Article 14(1) of the International Covenant on Civil and Political Rights

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […]

Article 11(1) of the Universal Declaration of Human Rights

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Article 6 of the European Convention on Human Rights

  1. 1.

    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

  2. 2.

    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

  3. 3.

    Everyone charged with a criminal offence has the following minimum rights:

    1. a.

      to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    2. b.

      to have adequate time and the facilities for the preparation of his defence;

    3. c.

      to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    4. d.

      to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    5. e.

      to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

21 III. Analysis and Conclusions

21.1 The inability on the part of the prosecution to disclose to the accused exculpatory materials covered by Article 54(3)(e) agreements

21.1.1 Preliminary matters

  1. 59.

    The expression “exculpatory material” has been used during the submissions on this issue to cover a variety of circumstances, all of which are to be found in Article 67(2) of the Statute. Exculpatory material therefore includes material, first, that shows or tends to show the innocence of the accused; second, which mitigates the guilt of the accused; and, third, which may affect the credibility of prosecution evidence [author's note: emphasis added]. The prosecution accepts that the exculpatory material which it is unable to disclose to the defence or to put before the judges in non-redacted form comes, in each instance, from one of these categories. Furthermore, the prosecution has included under the general umbrella of materials that it has been unable to disclose those that are covered by Rule 77 of the Rules.

  2. 60.

    Although the prosecution has sought to suggest, in a general sense, that the exculpatory value of the non-disclosed material has been covered in other documents or information that have already been served, the Court has been unable to assess for itself whether this proposition is accurate, and whether, notwithstanding the existence of other disclosed material, fairness dictates that the accused should be provided with part or all of the undisclosed evidence. On this latter issue, the Chamber has grave reservations as to whether serving other, similar evidence can ever provide an adequate substitute for disclosing a particular piece of exculpatory evidence: the right of the accused is to both items [author's note: emphasis added]. In the Chamber's “Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters” of 8 May, 2008 the majority observed in the context of the accused's “absolute entitlement” to potentially exculpatory evidence:

    The fact that it may be undermined by other evidence, or the witness may also provide incriminating evidence, or there are other sources providing similar evidence are all irrelevant for these purposes. If the real possibility exists that this evidence may contribute to a resolution of material factual issues in the case in favour of the accused, he is to be provided with it […]

(See also the decision of the Appeals Chamber of the ICTY in the case of Blaskic, which is considered in paragraph 81 below.)

  1. 61.

    As set out above, under the heading ‘Rights of the accused’, Article 67(2) obliges the prosecution to disclose to the defence exculpatory material in “the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”. It is left to the Chamber to decide whenever there is a doubt as to the application of this provision: “In case of doubt as to the application of this paragraph, the Court shall decide”.

  2. 62.

    Despite the unequivocal terms of this section, the prosecution has been given the opportunity, pursuant to Article 54(3)(e), to enter into agreements not to disclose material provided on a confidential basis, when the sole purpose of obtaining the material is to generate new evidence.

  3. 63.

    In this case over 200 documents, which the prosecution accepts have potential exculpatory effect or which are material to defence preparation, are the subject of agreements of this kind. On 10 June 2008, the Chamber was told that there are “approximately” 95 items of potentially exculpatory material and 112 items which are “material to defence preparation”, pursuant to Rule 77, making a total of 207 items of evidence. Of these 207 items, 156 were provided by the UN [author's note: emphasis added].

  4. 64.

    The prosecution is unable to disclose any of these items of evidence to the accused, in full or in a redacted form. Furthermore, save for a limited number of documents (32) that have been supplied to the Chamber by six unidentified information-providers in redacted form, the prosecution (given the terms of the agreements) is unable to show them to the Chamber. This is because the information-providers do not consent to the judges viewing copies of the original materials (in the majority of instances the Chamber cannot be shown the documents at all), notwithstanding an undertaking which has been given by the judges to uphold the confidential status of the documents or information, unless consent is given by the information-providers for their wider distribution. It needs to be stressed, however, that the Chamber fully appreciates that the UN, and possibly other information-providers, were invited by the Court to enter into these agreements, and it unreservedly accepts that they will have approached this issue in good faith, bearing in mind their own particular responsibilities and their respective mandates.

  5. 65.

    The Chamber has only seen two of the agreements that have been reached under Article 54(3)(e) of the Statute; the Relationship Agreement with the UN, stipulates in Article 18(3) that:

    The United Nations and the Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.

  6. 66.

    The Chamber has not seen the agreements with the other unidentified information-providers; it does not know who they are; and the Chamber has not been provided with the terms of these further agreements.

  7. 67.

    Having been informed earlier that the Prosecutor was to raise these issues with the UN, in a document filed at 20.48 on 9 June, 2008, the judges were informed that the Prosecutor and the UN Legal Counsel had met on 3 June 2008 to discuss them. Following that meeting, two documents have been disclosed to the defence, and in relation to a further 33 documents “the UN is ready and willing to explore with the OTP ways in which elements of information that are contained in the documents and that the OTP believes to be of a potentially exculpatory nature may be made available to the Trial Chamber without at the same time disclosing the documents themselves, either in whole or in part.”

  8. 68.

    It is to be observed that if this proposal is adopted, in the result the Chamber will not be allowed to view and evaluate any of this evidence in its original form and instead it will be dependent on the prosecution's evaluation of its “exculpatory nature” and the adequacy of any “elements of information” – whatever this latter expression means – as may be provided to the judges.

  9. 69.

    The other documents supplied by the UN are not covered by this proposal and the Chamber has simply been informed that “the OTP continues its discussions and efforts to find solutions with the UN in respect of the remaining documents that form part of the list of documents that due to their status cannot be disclosed.”

21.1.2 The Agreements

  1. 70.

    It is necessary, first, to analyse whether the prosecution has correctly applied the provisions of Article 54(3)(e) in the agreements it reached with the information-providers, because it is self-evident that the situation confronting the Court has only arisen because of the agreements which the prosecution has entered into in this case, and the way which they have been implemented. Importantly, therefore, if the exculpatory material was not covered by the agreements, it would have been provided to the defence: non-disclosure is the direct result of the prosecution's use of the Article 54(3)(e) agreements.

  2. 71.

    Addressing whether the agreements conform to the provisions of Article 54(3)(e), in the view of the Chamber the wording of the subsection is clear, and its purpose is readily apparent. In highly restricted circumstances, the prosecution is given the opportunity to agree not to disclose material provided to it at any stage in the proceedings. The restrictions are that the prosecution should receive documents or information on a confidential basis solely for the purpose of generating new evidence – in other words, the only purpose of receiving this material should be that it is to lead to other evidence (which, by implication, can be utilised), unless Rule 82(1) applies [author's note: emphasis added].

  3. 72.

    The prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3)(e) have been used generally to gather information, unconnected with its springboard or lead potential. During the Status Conference on 6 May 2008, the prosecution made this unequivocally clear, during the following exchange:

    Presiding Judge:

    You have used the expression […] “lead evidence” on various occasions today. Is it the Prosecution's intention that these agreements in fact were all limited to lead evidence, what I think on earlier occasions I have referred to as springboard material?

    Prosecution:

    Mr President, your Honours, not at all […] and this is just an example, but the most important example, in relation to the United Nations. On top of the UN relationship agreement and the Memorandum of Understanding there's a letter of 8 November 2005 to the United Nations where interpretation is given to the relevant provisions in the agreement and, in particular, in respect of the Memorandum of Understanding, and here it says in relation to Article 10(6) […] “It is understood as a general rule the United Nations will endeavour to the extent possible to accede to all requests to consent to view such documents and information in trial. This understanding shall also apply with respect to the information of records referred to in Article 11(7).” […] And this […] refers to the question you put to me. Of course, there was never any intention on the side of the Prosecutor, and it was also understood as such by the United Nations, that these materials were received only for lead purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission [added emphasis].

  4. 73.

    Therefore, although the Chamber does not have the information necessary to analyse the circumstances in which each of the individual documents was supplied to the prosecution, the overall picture is clear: the prosecution's general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider's consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to “lead” to new evidence. The prosecution's approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances. The logic of the prosecution's position is that all of the evidence that it obtains from information-providers can be the subject of Article 54(3)(e) agreements [author's note: emphasis added except for bolded portion which is in the original].

  5. 74.

    Judge Steiner on 2 June, 2008 in her “Decision Requesting Observations concerning Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material for the Defence's Preparation for the Confirmation Hearing” observed:

    9. At the outset, the Single Judge notes the considerable number of documents (1632 according to the last indication given by the Prosecution on 25 April 2008) that the Prosecution has collected pursuant to article 54(3)(e) of the Statute, and that, according to the Prosecution, “were considered to be relevant” for the present case. In the view of the Single Judge, this is particularly notable because the present case is confined to the crimes allegedly committed during one attack against one village on a single day.

    10. The Single Judge finds this considerable number of documents to indicate that the Prosecution is not resorting to article 54(3)(e) of the Statute only in exceptional or limited circumstances, but rather is extensively gathering documents under such provision.

    11. This practice, in the view of the Single Judge, is at the root of the problems that have arisen in the present case, as well as in the case of the Prosecutor v. Thomas Lubanga Dyilo, with regard to the disclosure to the Defence of those materials identified as potentially exculpatory (article 67(2) of the Statute) or otherwise material for the Defence's preparation for the confirmation hearing (rule 77 of the Rules) and that have been collected under the conditions of confidentiality set forth in article 54(3)(e) of the Statute.

    12. Furthermore, the series of reports filed by the Prosecution in the last six and a half months (i.e. from 14 November, 2007 to 23 May, 2008) show that the problems posed by the practice of extensively gathering materials pursuant to article 54(3)(e) of the Statute are significantly aggravated by the Prosecution's difficulties in securing the consent of the providers.

With respect, this Bench echoes those sentiments.

  1. 75.

    In light of the prosecution's inappropriate use of these confidentiality agreements, and the resulting inability to effect proper disclosure to the defence, it is manifest that the agreements should not be allowed to operate in a way that subverts the Statute. The choices for the prosecution are clear and stark. Either it must disclose all the potentially exculpatory material in its possession (in accordance with the Statute) to the accused or it will choose not to do so because of the improper agreements it has reached with information providers. If it follows the latter course, the consequences of that decision are analysed in detail hereafter.

  2. 76.

    Finally on this subject, if Article 54(3)(e) is used appropriately, the apparent tension which exists between this provision and Article 67(2) is likely to be negligible: although exculpatory material may be included in the springboard or lead evidence, in the limited circumstances in which this provision should be used, it is likely that a mechanism can be established which facilitates all necessary disclosure; for instance, the prosecution may need to make arrangements with the information-provider for disclosure of such parts of the Article 54(3)(e) material as will enable it to provide any potentially exculpatory evidence to the accused. In any event, if the prosecution is unable to disclose evidence of this kind which is covered by these agreements, the issue should always be raised with the Chamber in accordance with Rule 83.

21.1.3 Does the right to a fair trial include the right to disclosure of potentially exculpatory material?

  1. 77.

    The Chamber has unhesitatingly concluded that the right to a fair trial – which is without doubt a fundamental right – includes an entitlement to disclosure of exculpatory material. This is established not only by the provisions of Article 67(2) of the Statute, but also by a review of the relevant international jurisprudence, and particularly that of the European Court of Human Rights and the ICTY. In Krstic the Appeals Chamber of that latter court stated:

    The disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal and considerations of fairness are the overriding factor in any determination of whether the governing Rule has been breached.

  2. 78.

    In Oric the Trial Chamber of the ICTY observed:

    The jurisprudence of the Tribunal is clear that, in pursuit of justice, the disclosure of Rule 68 [exculpatory] Material to the Defence is of paramount importance to ensure the fairness of proceedings before this Tribunal.

  3. 79.

    In Jespers v. Belgium, the European Commission of Human Rights held that the principle of equality of arms imposes on prosecuting and investigating authorities an obligation to disclose any material in their possession, or to which they could gain access, which may assist the accused in exonerating himself or in obtaining a reduction in sentence. This principle covers a wide variety of evidential possibilities, and it includes evidence which may undermine the credibility of a prosecution witness.

  4. 80.

    Critically, although international human rights jurisprudence and that of the ad hoc tribunals indicate that “only such measures restricting the rights of the accused, which are strictly necessary, ought to be adopted”, these cannot extend to denying him or her a fair trial. For instance, the ICTY in Talic emphasised that although it may be “necessary in some cases to withhold certain material from the defence, so as to safeguard an important public interest” nonetheless “the public interest […] is excluded where its application would deny to the accused the opportunity to establish his or her innocence” [author's note: emphasis added].

  5. 81.

    On a linked issue, the Appeals Chamber of the ICTY has disapproved attempts by the prosecution to avoid disclosure when other, similar evidence has been served. In its judgment on the appeal in the Blaskic case, the Appeal Chamber observed:

    … the Appeals Chamber reiterates that it cannot endorse the view that the Prosecution is not obliged to disclose material which meets the disclosure requirements provided for in Rule 68 if there exists other information of a generally similar nature.

21.1.4 The role of the judges

  1. 82.

    In Rowe and Davis v. U.K., the European Court of Human Rights held that although Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) generally requires the prosecution to disclose to the defence all relevant evidence for or against the accused, considerations of national security or the protection of vulnerable witnesses may, in certain circumstances, justify an exception to this rule. The court decided that any departure from the principles of open adversarial justice must, however, be strictly necessary, and the consequent handicap imposed on the defence must be adequately counterbalanced by procedural safeguards, to protect the rights of the accused.

  2. 83.

    In Rowe and Davis it was decided that where the prosecution has withheld relevant evidence on public interest immunity grounds, without first submitting the material to the trial judge, the fair-trial requirements of Article 6 were not met. This principle was described by the European Court of Human Rights in Rowe as follows:

    [T]he prosecution's failure to lay the evidence in question before the trial judge and to permit him to rule on the question of disclosure deprived the applicants of a fair trial [author's note: emphasis added].

  3. 84.

    It follows that under international jurisprudence it is clear that it is the judges and not the prosecution who are solely competent to decide upon this issue [author's note: emphasis added]. As Judge Pettiti (albeit in a dissenting opinion) has noted, in relation to the non-disclosure of exonerating information:

    Cases where evidence has been hidden from the trial court have left bitter memories in the history of justice.

  4. 85.

    Likewise, in Jasper v. United Kingdom in finding that there had been no miscarriage of justice by non-disclosure of potentially exculpatory material, the European Court of Human Rights stated:

    The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important, safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld.

  5. 86.

    In deciding whether non-disclosure is justified, human rights law suggests that it is the evidence and not summaries which should be provided to the court. The European Court of Human Rights held in V. v. Finland that as the courts (at first instance and on appeal) had been denied access to crucial detailed telephone metering information,

    they were not therefore in a position to monitor the relevance to the defence of the withheld information.

  6. 87.

    Accordingly, under international jurisprudence the judges are empowered to determine relevant issues concerning the disclosure of potentially exculpatory materials. Particularly given that with trials before the ICC the judges are also the ultimate fact-finders, they are in a position to know what effect the exculpatory evidence may have on their ultimate decision in the case. It follows that the Chamber rejects the suggestion, advanced by the prosecution, that it is entitled to decide whether or not potentially exculpatory evidence will only impact in principle on the Chamber's decision, rather than having a material impact in fact on the Chamber's determination of the guilt or innocence of the accused. This is not a decision for the prosecution but for the judges: once the prosecution believes that the evidence “shows or tends to show the innocence of the accused” (Article 67(2) of the Statute), it is to be disclosed to the defence, or in case of doubt put before the Court [author's note: emphasis added].

  7. 88.

    Although the prosecution, as a first stage in this procedure, must make the initial decision as to the exculpatory value or effect of any piece of evidence under Article 67(2) (“evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”), once this threshold is passed and it is accepted that the material has, potentially, an exculpatory effect, only the Chamber can make a decision on non-disclosure if exceptional circumstances so require. If it is proposed that evidence of this kind should be withheld, it is to be put before the judges in its original form and in its entirety. The ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges [author's note: emphasis added]. In this case, the Bench has been prevented from assessing for itself the impact on the fairness of these proceedings should the evidence remain undisclosed, and the approach of the prosecution means, inter alia, that for the purposes of Article 67(2), the Chamber could never, “in case of doubt”, make a decision (because it will be unable to view the underlying material).

  8. 89.

    It has been stressed by the Appeals Chamber in relation to other issues, that any factor implicating the rights of the accused must be assessed on a case by case basis. On the non-disclosure of potentially exculpatory information pursuant to Rule 81(2), the Appeals Chamber held “a thorough assessment will need to be made by the Pre-Trial Chamber of the potential relevance of the information to the Defence on a case by case basis. If the information is relevant or potentially exculpatory, the balancing exercise performed by the Pre-Trial Chamber between the interests at stake will require particular care.” In the view of the Chamber, each individual document purporting to contain potentially exculpatory material must be individually examined by the Chamber in order to enable to it assess whether the trial will be “conducted with full respect for the rights of the accused” in accordance with Article 64(2) of the Statute.

21.1.5 Consequences of non-disclosure

  1. 90.

    If particular circumstances exist, the Court has the duty to halt or “stay” the proceedings. The Appeals Chamber of the ICC has addressed the issue of imposing a stay on criminal proceedings in the following way (in the context of an appeal from the Pre-Trial Chamber in this case):

    36. The doctrine of abuse of process had ab mitio a human rights dimension in that the causes for which the power of the Court to stay or discontinue proceedings were largely associated with breaches of the rights of the litigant, the accused in the criminal process, such as delay, illegal or deceitful conduct on the part of the prosecution and violations of the rights of the accused in the process of bringing him/her to justice.and39. Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed [author's note: emphasis added]. To borrow an expression from the decision of the English Court of Appeal in Huang v. Secretary of State, it is the duty of a court: “to see to the protection of individual fundamental rights which is the particular territory of the courts […]” Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial. In those circumstances, the interest of the world community to put persons accused of the most heinous crimes against humanity on trial, great as it is, is outweighed by the need to sustain the efficacy of the judicial process as the potent agent of justice [author's note: emphasis added].

It is not a necessary precondition, therefore, for the exercise of this jurisdiction that the prosecution is found to have acted mala fides. It is sufficient that this has resulted in a violation of the rights of the accused in bringing him to justice.

  1. 91.

    This is an international criminal court, with the sole purpose of trying those charged with the “most serious crimes of concern to the international community as a whole” and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary – indeed, inevitable - that the proceedings should be stayed. It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified. In this instance, in its filing of 9 June 2008, the prosecution went no further than raising the possibility that the Chamber may be provided at some stage in the future with no more than incomplete and insufficient materials. There is, therefore, no prospect, on the information before the Chamber, that the present deficiencies will be corrected.

21.1.6 Conclusions

  1. 92.

    The Chamber's overall conclusions can be shortly described:

    1. i)

      The disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused's right to a fair trial;

    2. ii)

      The prosecution has incorrectly used Article 54(3)(e) when entering into agreements with information-providers, with the consequence that a significant body of exculpatory evidence which would otherwise have been disclosed to the accused is to be withheld from him, thereby improperly inhibiting the opportunities for the accused to prepare his defence; and

    3. iii)

      The Chamber has been prevented from exercising its jurisdiction under Articles 64(2), Article 64(3)(c) and Article 67(2), in that it is unable to determine whether or not the non-disclosure of this potentially exculpatory material constitutes a breach of the accused's right to a fair trial.

  2. 93.

    Adapting the language of the Appeals Chamber, the consequence of the three factors set out in the preceding paragraph has been that the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.

  3. 94.

    In consequence a stay is imposed on these proceedings. Although the Chamber is not rendered without further authority or legal competence by this decision, it means that unless this stay is lifted (either by this Chamber or the Appeals Chamber), the trial process in all respects is halted. In the circumstances, a hearing will take place on Tuesday 24 June, 2008 at 14.00 in order to consider the release of the accused.

  4. 95.

    Although the Chamber has no doubt that this stay of proceedings is necessary, it has nonetheless imposed it with great reluctance, not least because it means the Court will not make a decision on issues which are of significance to the international community, the peoples of the Democratic Republic of the Congo, the victims and the accused himself. When crimes, particularly of a grave nature, are alleged it is necessary for justice that, whenever possible, a final determination is made as to the guilt or innocence of the accused. The judicial process is seriously undermined if a court is prevented from reaching a verdict on the charges brought against an individual. One consequence is that the victims will be denied an opportunity to participate in a public forum, in which their views and concerns were to have been presented and their right to receive reparations will be affected. The judges are acutely aware that by staying these proceedings the victims have, in this sense, been excluded from justice [author's note: emphasis added].

21.1.7 Other issues

  1. 96.

    During the Status Conference on 10 June, 2008 other matters were discussed, as follows. The defence sought orders from the Chamber: for the discontinuance of the prosecution and the release of the accused; for the immediate disclosure of potentially incriminatory material; that the defence is not obliged to notify the Court of its lines of defence; and that any potential charges currently being investigated in the context of the Situation in the Democratic Republic of the Congo will not be brought against the accused. The Bench was addressed on the reliance by the prosecution on materials that have been communicated to the accused under Rule 77. Finally, the parties and the participants (principally in writing) addressed the consequences of the Appeal Chamber's “Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber 1's Decision on Victims Participation of 18 January” and the further participation of victims pending a decision from the Appeals Chamber.

  2. 97.

    The decision set out above staying the proceedings renders it redundant for the Chamber to reach any further decision on any of these issues. However, if the stay on the proceedings is lifted hereafter, at that stage these matters will be resolved.

[…]

Judge Adrian Fulford

Judge Elizabeth Odio Benito

Judge René Blattmann

Dated this 13 June 2008

At The Hague, The Netherlands

22 Notes and Questions

22.1 Notes and Questions Regarding the Prosecutor's Updated Submission of Evidence of 30 May, 2008 (ICC-01/04-01/06-1363)

22.1.1 What Is the Background to the Lubanga Case? Why Was Lubanga's Force Considered by the Pre-Trial Chamber to Be a National Armed Force?

On 19 April, 2004, the DRC President referred the situation in the DRC to the ICC and on 23 June, 2004 the ICC Prosecutor announced his decision to open a preliminary investigation into the situation. Lubanga had been charged initially only under Article 8(2)(e)(vii) of the Rome Statute which sets out the crime of recruitment or use in hostilities of child soldiers under age 15 in an internal armed conflict:

Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.

The events which constituted the basis for the original crimes charged against defendant Lubanga took place, according to the Prosecution, when Thomas Lubanga was in control of a Hema militia operating in the Ituri district of the Democratic Republic of the Congo (DRC). Lubanga created the Union des Patriotes Congolais (UPC) and the Forces Patriotiques pour la Libération du Congo (FPLC); the military wing of the UPC (commonly referred to jointly as the UPC) and became leader of the UPC/FPLC. He was charged with recruiting children under aged 15 years into the FPLC and using them for active participation in armed hostilities as child soldiers. The Pre-Trial Chamber (PTC), however, ruled that the conflict in Ituri was international from July, 2002 to 2 June, 2003. The Ugandan Government Officials from 2000 to the end of October 2002, and Rwanda Government Officials, from mid-2002 to about June 2003, aided the Hema militia and, once it existed, the FPLC. The original period in which the crimes charged against Lubanga were held to have occurred, according to the Prosecutor, was between July 1, 2002 and 31 December, 2003. However, the PTC in its ruling on confirmation of charges included a shorter period; namely early September 2002 to 13 August, 2003. Due to Uganda's involvement as an occupying power, the Pre-Trial Chamber changed the charge for the initial period (now September 2002 to 2 June, 2003) to one of enlisting, and conscripting children under age 15 years and using them to participate actively in armed hostilities in the context of an international conflict; a charged under Article 8(2)(b)(xxvi) of the Rome Statute. The charges relating to enlisting, and conscripting children under age 15 years and using them to participate actively in armed hostilities in the context of an internal conflict pursuant to Articles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute were also upheld by the PTC and held by the Pre-Trial Court to cover the period 2 June, 2003 to 13 August, 2003. The latter charges cover the internal conflict in the Ituri Eastern region of the DRC, for instance, between the Lubanga-led Hema group and the Lendu militia; each representing their respective warring ethnic groups. Lubanga is charged as a co-perpetrator in the aforementioned crimes who, according to the Pre-Trial Chamber confirmation of charges judgment, appears, based on substantial evidence: (a) to have participated in a common plan with other high military Officials of the FPLC (the common plan being to recruit children as soldiers with no concern whether they were over or under age 15 years); (b) to have made significant contributions toward the implementation of the plan; (c) to have had intent to contribute to the common plan and knowledge that the planned actions constituted international crimes and knowledge as to what the consequences of the common plan would be (i.e., recruitment and use also of children under age 15 years old to actively participate in armed hostilities); (d) to have known and accepted as a shared understanding with the other co-perpetrators that implementing the common plan would result in executing all the elements of the crimes charged; and (e) to have known how to go about exercising joint control over the common plan to commit the international crimes charged.

The Pre-Trial Chamber held – based on the Geneva Conventions (Additional Protocol I), and the case law of the ICTY – that though Article 8(2)(b)(xxvi) of the Rome Statute refers to recruitment of children under age 15 into “national armed forces”, this did not necessarily mean “government” forces. Hence, the Pre-Trial Chamber held that Lubanga's armed group with its central role as a party to the international conflict fell under the meaning of ‘national armed forces’ under Article 8(2)(b)(xxvi).

22.1.2 The Prohibition Against Recruitment and Use of Children Under Age 15 in Soldiering

The DRC had ratified the Convention on the Rights of the Child 27 October, 1990 and the Optional Protocol to the CRC on the involvement of children in armed conflict (OP-CRC-AC) 12 February, 2002. Thus, these international treaties had been ratified by the DRC during the time that Lubanga committed his alleged offences regarding the recruitment and use of child soldiers under age 15 for active participation in armed conflict. The CRC at Article 38 prohibits the recruitment of child soldiers under age 15 as well as prohibiting their direct participation in hostilities. The OP-CRC-AC prohibits the direct participation of children 18 and under in hostilities (Article 1), the compulsory recruitment of under 18s into the State armed forces (Article 2) and restricts voluntary recruitment into the State armed forces to those over 15 with certain safeguards in place to ensure the age of at least 15 years as well as voluntariness (Article 3). Furthermore, the OP-CRC-AC prohibits under any circumstances the recruitment, or use in hostilities of children (persons under age 18), by armed forces distinct from State armed forces (Article 4) such as were the Lubanga UPC forces. The CRC and the OP-CRC-AC place obligations on the State to ensure that these protections for children regarding child soldiering are implemented. Thus, the CRC and the CRC-OP-AC could form part of the basis for holding that defendant Lubanga did, or should have known that his recruitment and use of child soldiers under age 15 in hostilities was an international crime.

22.1.3 Was the Prohibition Against the Recruitment and Use of Child Soldiers Under Age 15 for Active Participation in Hostilities Established Customary International Law?

Note that The CRC provision regarding the recruitment and use of child soldiers under age 15 parallels Article 77 of “Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June, 1977” (available at http://www.icrc.org/ihl.nsf/WebART/470-750099?OpenDocument, accessed 13 February, 2009); ratified by the DRC in 1982:

Article 77 – Protection of children

1. Children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require, whether because of their age or for any other reason.

2. The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces [author's note: emphasis added]. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest.

3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.

4. If arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units as provided in Article 75, paragraph 5.

5. The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time the offence was committed.

Hence, there appears to be ample basis for the Pre-Trial Court's holding in the Lubanga case that the prohibition against the recruitment and use of child soldiers for active participation in hostilities was well-established customary (humanitarian) international law. Indeed, the PTC (in its confirmation of charges decision 29 January, 2007 in the Lubanga case) made reference to the prohibition against the recruitment and use of child soldiers under age 15 for direct participation in hostilities which is set out in the Geneva Convention of 1949 and its additional Protocols, and in the Convention on the Rights of the Child. In addition, the PTC referenced the 31 May, 2004 decision of the Special Court of Sierra Leone in the Norman case in which the Appeals Chamber held that prior to November 1996, “the prohibition against child recruitment had already crystallized as a customary law norm” (para. 311, p. 106). Hence, Lubanga's alleged ignorance of the law regarding the prohibition against recruitment and use of children under 15 for active participation in hostilities appeared, in the PTC view, unlikely. This was furthermore especially the case since Lubanga was a prominent political-military leader in the DRC who would likely have known the customary lawful practice in this regard, and had in any case a duty to know it.

22.1.4 What Was the Pre-Trial Chamber's Assessment of the Lubanga's “Mistake of Law” Defence? Is Ignorance of the Law Ever a Viable Defence to the Charge of Having Committed an International Crime According to the Provisions of the Rome Statute and How Was This Defence Assessed in the Lubanga Case?

Lubanga had argued more specifically in regards to a “mistake of law” that he could not be held criminally responsible for the recruitment or use of child soldiers under age 15 years for active participation in hostilities. This, as he was allegedly unaware that the DRC had ratified the Rome Statute which includes specific provisions against the recruitment or use of child soldiers under age 15 years to actively participate in hostilities; whether in an internal or international conflict. However, the Pre-Trial Chamber held in opposition that the ICC statute was in force and ratified by the DRC at the time Lubanga was alleged to have committed the war crimes of recruiting and using child soldiers under age 15 in international and internal hostilities (date of the DRC ratification was 11 April, 2002 and the statute entered into force 1 July, 2002). The Defence argued that the Ituri territory was occupied by Uganda at the time and that for Uganda the Rome Statute did not enter into force until 1 September, 2002. The PTC pointed out that the DRC had also ratified the Geneva Convention of 1949 in 1961 and Protocol I to the Geneva Convention in 1982, while Uganda had ratified the Geneva Convention of 1949 in 1964 and Protocols I and II to the Geneva Convention in 1991; all of which contained prohibitions against the recruitment and use of children under 15 in armed conflict. Further, the PTC held that that the population of the DRC was aware of the ratification of the ICC statute. In addition, the PTC rejected the “mistake of law” defence holding that the problem of the recruitment and use of child soldiers in hostilities had been raised with Lubanga by NGOs during the time periods in question (see the Pre-Trial Chamber decision on confirmation of charges in the Lubanga case, PTC I, 29 January, 2007 (ICC 01/04-01/06); see also Thomas Weigend 2008, Intent, mistake of law and co-perpetration in the Lubanga decision on confirmation of charges, Journal of International Criminal Justice 6:471–487). Thus, the PTC did not accept that (1) Lubanga was ignorant of the fact that his actions in respect of the recruitment and use of children under 15 years to actively participate in armed conflict constituted international crimes, and (2) held that, in any case, he should have known that the prohibitions against such activities was well established in customary international law (i.e., rejected his “mistake of law” defence).

Article 32 of the Rome Statute, furthermore, makes it clear that ignorance of the law is not a defence unless it negates the mental element required for commission of the offence:

Article 32: Mistake of fact or mistake of law

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime […] [author's note: emphasis added].

On the issue of the mental element required for commission of the war crimes of conscripting, enlisting or using child soldiers under age 15 years for active participation in hostilities, the PTC held that Lubanga did know or should have known that children under age 15 were being recruited and used in hostilities by his armed group and that he did meet the standard of Article 30(1) of the Rome Statute for commission of an international crime; namely: (a) having had the intent to commit the international crimes of conscripting, enlisting and using children under 15 in armed hostilities in the context of an international conflict for a period and in the context of an internal conflict during another period, and (b) having the knowledge that his actions contributed to implementing the elements of the crimes as described at Article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the ICC “Elements of the Crime” (which elements constitute the war crimes of conscripting or enlisting children under age 15 years as soldiers and using them to actively participate in hostilities); those elements being as follows:

“Elements of Crimes” as set out by the ICC (included at Appendix F.2)

Article 8(2)(b)(xxvi) War crimes of using, conscripting or enlisting children

1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities.

2. Such person or persons were under the age of 15 years.

3. The perpetrator knew or should have known that such person or persons were under the age of 15 years [author's note: emphasis added].

4. The conduct took place in the context of and was associated with an international armed conflict [author's note: emphasis added].

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Article 8(2)(e)(vii) War crime of using, conscripting and enlisting children

1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.

2. Such person or persons were under the age of 15 years.

3. The perpetrator knew or should have known that such person or persons were under the age of 15 years [author's note: emphasis added].

4. The conduct took place in the context of and was associated with an armed conflict not of an international character [author's note: emphasis added].

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

22.1.5 What Was the Pre-Trial Chamber's Holding Regarding Whether a “Mistake of Fact” or a “Mistake of Law” Existed Which Effectively Negated the Mental Element of the Crimes Charged Against Lubanga Regarding the Recruitment and Use of Child Soldiers Under Age 15? Is the Alleged Consent of the Child, or the Parents' Consent on Behalf of the Child, a Legally Valid Defence to the Recruitment (“Enlistment” or “Conscription”) and Use of Child Soldiers Under Age 15 for Active Involvement in Armed Hostilities?

The PTC thus, on the basis of the substantial evidence presented by the Prosecutor at the Pre-Trial hearing, rejected any notion that Lubanga had made a “mistake of fact” (i.e., regarding the age of the children recruited), or a “mistake of law” (i.e., believing that it was lawful for a national armed force to “recruit” children under age 15 years – whether allegedly voluntarily and/or forcibly - in the context of an international or non-international conflict). Thus, the PTC held that there was nothing in the Lubanga case which negated the existence of the mental element required for commission of the ICC crimes regarding the recruitment and use of child soldiers under age 15 to actively participate in hostilities (as specified under Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Elements of Crimes). For instance, the PTC held that Lubanga should have known and can be assumed to have known that the prohibition in the ICC statute against the recruitment of child soldiers barred both so-called voluntary and forcible recruitment.

The PTC held that alleged consent of the children, (which would include also their parents' alleged voluntary consent on the children's behalf where such parental consent purportedly existed), is not a defence to the crimes regarding the “enlistment” or “conscription” and use of child soldiers under age 15 years for active participation in hostilities as set out in the Rome Statute. That is, consent is not a valid defence to either “conscription” or “enlistment” under the Rome statute (“It follows then that enlisting is a ‘voluntary’ act, whilst conscripting is forcible recruitment. In other words, the child's consent is not a valid defence” PTC I Confirmation of Charges Judgment, 29 January, 2007, No. ICC-01/04-01/06, para. 247, p. 85, see also para. 252, p. 87). Consider, in this regard (as will be discussed in further detail in the notes regarding the amicus curiae brief in the Lubanga case), that while “enlistment” implies voluntariness; in the context of war-torn countries where the population has been subjected to a terror campaign such as in the DRC; the purported voluntariness of children caught up in such a situation becoming child soldiers is debatable at best. The PTC appears to acknowledge this, as the word “voluntary” in the aforementioned quote from the PTC Lubanga confirmation of charges decision is placed in quotes when referring to the alleged voluntariness of the enlistment of children under 15 as child soldiers in this case. Further, even if the “enlistment” was allegedly voluntary, it would not undermine the longstanding international law principle that children under 15 years old ought not to be recruited for child soldiering; particularly where there is a high likelihood that it is for the purpose of active engagement in hostilities.

22.1.6 What Is the Implication of the Rome Statute's Requirement that a Perpetrator, in Order to Be Found Criminally Responsible, Must Have Not Only Intent to Commit the Crime(s), but Also Knowledge that His or Her Conduct Will Engage All of the Elements of the Crime(s) Charged?

Article 30 of the Rome Statute requires that the perpetrator has not only intent, but also knowledge that his or her conduct engages all the elements of the crime for which he or she is held liable. However, the crime of recruitment and use of child soldiers under age 15 does not allow an interpretation of the knowledge requirement under Article 30 of the Rome Statute to be used as an excuse. Thus, for instance, the ICC stipulation regarding elements of crimes places the burden on those who would use children as soldiers to reasonably ensure that the children are not under age 15 years. Hence, where children under 15 years old are recruited as child soldiers and/or used in armed hostilities, the perpetrator is held responsible for either knowing the child was under 15, or not making reasonably sufficient efforts to ascertain the child's true age. The fact that perpetrators are also held responsible where they should have known the child's age was under 15 (see Article 8(2)(b)(xxvi) under Elements of the crime: “The perpetrator knew or should have known that such person or persons were under the age of 15 years”) reflects the reasonable presumption that, in most every instance, efforts at age ascertainment would have revealed that the child was under 15. (Where such reasonable efforts were undertaken, but the perpetrator still did not know the child's correct age; then one could argue that in such instances one cannot assume that the perpetrator should have known the child's real age.) Thus, the perpetrator is considered to have met the mental element set out at Article 30(1) of the Rome Statute regarding the intent and knowledge criterion for commission of the crime (i.e., knowledge of the element of recruiting and/or using children under age 15 as child soldiers) whether the perpetrator knew the age of the children, or alternatively should have known the children's age:

Article 30 of the Rome Statute Mental element

  1. 1.

    Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge [author's note: emphasis added].

  2. 2.

    For the purposes of this article, a person has intent where:

    1. (a)

      In relation to conduct, that person means to engage in the conduct;

    2. (b)

      In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

  3. 3.

    For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

In this respect then the Articles of the Rome Statute concerning the recruitment and use of child soldiers under age 15 are formulated so as to preclude most, if not all, perpetrator excuses relating to alleged mistakes of fact or law.

22.1.7 Does the Evidence Presented by the Prosecutor in the Lubanga Case Reveal that Lubanga Knew, or Should Have Known that His Conduct in Regards to the Recruitment and Use of Child Soldiers Under Age 15 Constituted a War Crime?

Recall some of the specifics of the alleged evidence against Lubanga presented by the Prosecutor to the Pre-Trial Chamber. Consider whether that evidence, if ultimately accepted as factual by the Trial Court, points to knowledge that (a) the children recruited as child soldiers were often as not under age 15 and/or (b) the defendant should have known that the children were under 15 but made no, or at least inadequate attempts to discern their actual age. Recall also that the CRC, Geneva Convention of 1949 and its additional Protocols I and II, the OP-CRC-AC and Rome Statute prohibiting the recruitment and use of children under age 15 for active participation in armed conflict had all been ratified by the DRC and were in force at the relevant time period in which the alleged offences by Lubanga regarding the recruitment and use of child soldiers under 15 were committed.

22.1.8 What Was Some of the Key Evidence Presented by the Prosecutor Regarding Lubanga's Alleged Meeting of the Intent and Knowledge Criteria for Criminal Culpability with Respect to the War Crimes Charged Against Him?

With respect to evidence relevant to the issue of Lubanga's alleged knowledge and intent with respect to the international crimes charged consider the following: There was evidence presented by the Prosecutor which the PTC held established substantial grounds to believe, that (a) there had been widespread use of child soldiers by the Lubanga forces and often re-recruitment by the FPLC of child soldiers who had been previously demobilized by Lubanga's forces; (b) once recruited, by whatever means (including drugging and abduction), the children were forced to fight even if they did not wish to due to the threat of beatings or even execution; (c) there did not appear to be any effort to ascertain the age of the children and children as young as 10 were recruited and used directly in hostilities and even used as bodyguards for various commanders including Lubanga (note that the PTC held that the use of children under 15 as bodyguards in the context of an armed conflict constitutes the use of the children to “actively participate” in hostilities as per the Rome Statute provisions prohibiting the recruitment and use of children under 15 years old as child soldiers. Thus, “active participation” as set out in Articles 8(2)(b)xxvi and 8(2)(e)vii is not limited only to combat operations as long as the activity is directly connected to the hostilities in some way); (d) Lubanga had regularly visited military training camps with large numbers of child soldiers present and had addressed the children and encouraged them in their combat role; (e) Lubanga encouraged Hema families to surrender one child per family to “the cause” as a child soldier with Lubanga setting no age specification for this recruitment; (f) Lubanga engaged in a PR campaign in which he claimed he disavowed the recruitment or use of soldiers under age 18 for active participation in hostilities. However, Lubanga did not, it appears, in actuality disavow the recruitment and use of child soldiers under age 15. Hence, Lubanga did not follow through in demobilizing significant numbers of the hundreds of children under age 15 recruited into his armed forces contrary to his promise to do so. For instance, the Prosecutor in this regard presented witness and other evidence such as the following:

37. The military wing of the UPC, eventually named the FPLC, required the recruitment through conscription and enlistment – of a constant supply of soldiers to fill the ranks of the UPC military apparatus. To meet this need, the UPC established an even more structured policy and implemented a widespread campaign of conscription and enlistment of soldiers in large number, including men, women and youth without regard to their age. The UPC enlisted whoever was available. In some instances, the UPC even re-recruited previously demobilised child soldiers.

[…]

38. The UPC/FPLC recruitment campaign shows a consistent pattern of repeated and large scale enlistment and conscription of children, including those under the age of 15 years, into the UPC/FPLC. Forcible conscription of children by the UPC/FPLC included individual cases of abductions, large scale abductions and other forms of forced recruitment drives, which were directly or indirectly targeted at youths, including those under the age of 15. In some circumstances, the very children under 15 years who were themselves abducted were forced by their commanders to arrest and abduct children, including girls under the age of 15, into the UPC.

39. As part of its broad child recruitment policy, the UPC/FPLC leadership systematically pressured Hema families in UPC/FPLC-controlled territories to provide children for military service. Emissaries and propaganda were employed to encourage Hema youth to join the UPC/FPLC military. (“Submission of the prosecution's updated summary of presentation of evidence”, ICC-01/04-01/06-1363, 30 May, 2008, paras. 37–39)

[…] A battalion commander within the UPC/FPLC states that the FPLC had up to seven hundred child soldiers, He also states that the battalion he commanded had up to 50 child soldiers from the ages of 14 to 16 years old. (“Submission of the prosecution's updated summary of presentation of evidence”, ICC-01/04-01/06-1363, 30 May, 2008, para. 41)

[…] high ranking UPC/FPLC commanders, including Thomas LUBANGA, inspected the training camps while child soldiers were visibly present. (“Submission of the prosecution's updated summary of presentation of evidence”, ICC-01/04-01/06-1363, 30 May, 2008, para. 43)

22.1.9 According to the Prosecutor in the Lubanga Case, Was There a Common Plan with Respect to the Recruitment and Use of Child Soldiers for Active Participation in Hostilities?

The Prosecutor set out a case for the charge that Lubanga was in fact one of the masters of a common plan that involved the recruitment (often by force) and use of children under age 15 in direct armed hostilities (co-perpetration). The Prosecution evidence also reveals (if not successfully refuted at trial) that as head commander of the UPC/FPLC, Lubanga could have intervened, but instead failed to do anything to stop this recruitment and use of child soldiers under 15 years old as active participants in the conflict. Further, the evidence, unless ultimately controverted, reveals that Lubanga was directly involved in the recruitment and use of child soldiers under age 15 exposing them to mortal danger as his bodyguards and as combat soldiers on the frontlines.

22.1.10 Why Have Numerous NGOs and Human Rights Activists Maintained that the Prosecutor Has Too Narrowly Restricted the Charges in the Lubanga Case? What Have Critics Charged Regarding the Prosecutor's Decision to Charge Lubanga Only with Respect to the War Crime of Recruiting and Using Child Soldiers Under Age 15 for Active Participation in Hostilities?

It should be noted that NGOs and many human rights groups have criticized the Prosecutor for restricting the charges against Lubanga to those concerning recruitment and use of children under 15 as soldiers activity participating in hostilities. These critics hold that there is ample evidence of Lubanga's responsibility as a co-perpetrator of the common plan also for (a) crimes including, but not limited to, murder, torture, mutilations and rape of civilians including children; (b) crimes, including but not limited to, sexual violence, physical violence including executions of child soldiers including those in his own FPLC forces; (c) international crimes targeted at female child soldiers, including those under age 15, such as sexual slavery, forced marriage and forced pregnancy. There is no bar against the Prosecutor bringing further charges against Lubanga in regards to the latter alleged crimes. However, this means that the victims of these crimes - often women and girls – must survive an even more prolonged period without having one of the alleged perpetrators of these crimes (if convicted) being held accountable. The practical difficulties of pursuing these charges at a later date may reduce the victims' chance for validation by the international community of their suffering in regards to these sexual and other crimes of violence. Can it be argued that the suffering of girl soldiers in the FPLC and the gendered nature of a significant portion of the violence allegedly committed by the Lubanga FPLC forces against children has not be acknowledged? This, given the restrictive charges that have been brought against Lubanga.

Critics have suggested that the OTP wanted to have cases before the ICC as soon as possible and secure quick convictions, and hence focused on selected crimes (rather than a representative range of the alleged crimes committed by the Lubanga forces). This in order to reduce the time and resources required for the investigations (see International Centre for Transitional Justice, Kathy Glassborow (17 October, 2008) DRC: investigative strategy under fire, available at http://www.ictj.org/en/news/coverage/article/2075.html). The OTP counters, however, that the selected charges are simply a reflection of the limited resources that the OTP has to work with despite the complexity of the cases and circumstances to be investigated.

22.2 Notes and Questions on the “Decision on the Prosecution's Application to Lift the Stay of Proceedings” (ICC-01/04-01/06-1467)

22.2.1 What Rationale Did the Trial Chamber Give for Issuing Its June 13, 2008 Conditional Stay on the Trial Proceedings? What Was the Trial Chamber's Rationale in the Lubanga Case for Holding that in Order for the Trial to Proceed, Material Collected by the Prosecutor Under Non-disclosure Agreements Was in Fact Potentially Subject to Disclosure If the Court Deemed It Necessary?

Trial Chamber I had initially issued a conditional stay of proceedings in the Lubanga case on 13 June, 2008 (the stay was “conditional” according to the majority view of the Appeal Court as expressed in its 21 October, 2008 judgment on the release of Lubanga at para. 31, p. 12, No.: ICC-01/04-01/06 OA 12; though not according to the dissenting Judge Pikis). This stay of trial proceedings was issued on the ground that there was, at the time, according to Trial Chamber I, an impossibility of holding a fair trial. That alleged impossibility (under the circumstances that existed at the time in June and July 2008) was, according to Trial Chamber I, due to the OTP's non-disclosure of exculpatory evidence for full review by the Chamber in-camera: (a) without redactions or omissions of any sort, and, (b) thereafter, possible release of any or all of this material to the defence; redacted, if at all, to the extent authorized by the Chamber. The purpose of this in-camera review by the Trial Court of the documents collected under the umbrella of non-disclosure agreements would be for the Trial Chamber to determine, on a document-by-document basis, just what sensitive information/documents must be turned over to the defence in whole or in part.

The Trial Chamber held that (1) the documents collected by the OTP from the United Nations and NGOs in confidence constituted “evidence” in itself; and (2) hence the material was potentially subject to disclosure if the trial was to proceed. This unless the Trial Chamber itself determined with respect to some or all of the material that non-disclosure was warranted in consideration of various factors (i.e., victim safety, etc.). The OTP had indicated that some of the material obtained under the non-disclosure arrangements was potentially exculpatory. For this reason also, the Trial Chamber held it imperative that the material be reviewed by the Trial Chamber to decide what documentary “evidence” needed to be provided to the defence and in what form. The Trial Chamber took the position that since the Prosecutor had not developed further information on the basis of the undisclosed documents, the material upon which the Prosecutor wished to rely was not covered under the Article 54(3)(e) provision of the Rome Statute. Article 54(3)(e) of the Rome Statute allows for non-disclosure of “lead material” that is documents used only to generate new evidence (see 21 October, 2008 Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …” at Judge Pikis dissenting opinion, para. 14, pp. 45–46, ICC-01/04-01/06 OA 13, on the Prosecutor's failure to develop new information [“evidence”] based on the undisclosed materials). The Appeal Court held that material that may be kept confidential by the OTP under a non-disclosure agreement is either: (a) evidence that leads to entirely new evidence that is not similar to the original, or (b) evidence that leads to the OTP to acquiring new material parallel to the content of that in the original springboard material (see 21 October, 2008 Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …” Judge Pikis Dissenting Opinion at para. 39, p. 55, ICC-01/04-01/06 OA 13). The victims argued that the material collected in confidence was not itself evidence under Article 54(3)(e) of the Rome Statute and therefore need not be disclosed to the defence (21 October, 2008 Dissenting Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …”, at Judge Pikis Dissenting Opinion, para. 25, p. 49, ICC-01/04-01/06 OA 13, outlining the victim's position on the issue of non-disclosure of the documents and its consequences).

22.2.2 What Was the Prosecutor's Position Regarding the Proper Interpretation of Article 54(3)(e) of the Rome Statute? What Difficulties Does the ICC Prosecutor Potentially Face when Entering into Non-disclosure Agreements Regarding Documentary Evidence?

The Prosecutor contended that (1) according to the wording of Article 54(3)(e) of the Rome Statute, all evidence is potentially covered under that Article (i.e., springboard evidence or not), and (2) the aforementioned Article does not confine the OTP to receiving in confidence under non-disclosure agreements only material that provides evidentiary leads to the exclusion of source material that did not generate leads to new evidence (see 21 October, 2008 Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e)and the application to stay the prosecution of the accused …” regarding the Prosecutor's position on the non-disclosure issue, Dissenting Opinion of Judge Pikis, para. 23, p. 48, ICC-01/04-01/06 OA 13).

Consider that the Prosecutor most frequently has no way of knowing in advance when entering into non-disclosure agreements regarding particular information or “evidentiary” documents relating to a complex “situation” he wishes to investigate (as he did with the United Nations and certain NGO's in the Lubanga case) whether: (1) that material will ultimately generate leads to new evidence such that the Prosecutor will not need to request consent for disclosure of the “springboard evidence”, or (2) the OTP will be able to obtain new but parallel evidence to that in the original material which the OTP had hoped would serve as springboard material providing investigative leads. Yet, the Appeal Court noted, apparently with approval, that “The Trial Chamber [author's note: in Lubanga] admonished the Prosecutor for collecting evidential material under non-disclosure agreements without any certainty that he would be able to use it and make disclosure of it” (emphasis added) (21 October, 2008, Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …”, Dissenting Opinion of Judge Pikis, para. 34, p. 53, ICC-01/04-01/06 OA 13).

22.2.3 What Was the Position of the Lubanga ICC Trial Chamber and Appeals Court Regarding the Proper Interpretation of Article 54(3)(e) of the Rome Statute?

According to Trial Chamber I and the Appeals Court in the Lubanga case then material obtained in confidence that generates leads to entirely new evidence and/or parallel new evidence is by definition under Article 54(3)(e) not considered evidence requiring disclosure. However, if material obtained in confidence under a non-disclosure agreement turns out not to serve as a springboard to new evidentiary material, then the original information or documentary material obtained under the non-disclosure agreement is itself evidence requiring disclosure by definition under Article 54(3)(e) of the Rome Statute:

If the material constitutes evidence in itself and the Prosecutor fails to generate new evidence corresponding to it or reproducing it, he will be stranded with evidential material that he will be unable to disclose to the accused unless the providers agree to this course. The duty of the Prosecutor to disclose to the accused exculpatory material is not mitigated in such circumstances. Article 67(2) of the Statute is specific on the subject. (emphasis added) (21 October, 2008, Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …”, dissenting opinion of Judge Pikis, para. 40, p. 55, ICC-01/04-01/06 OA 13)

22.2.4 Did the Trial Chamber in Lubanga Link Article 54(3)(e) and Article 67(2) of the Rome Statute to Reach Its Position Regarding the Potential Need to Disclose Some or All of the Documents and Information Collected by the Prosecutor Under the Nondisclosure Agreements?

That the evidence that was not “springboard” or “lead evidence” needed to be released to the defence, according to the Trial Chamber in Lubanga, was especially the case since (a) some of the material was characterized as potentially exculpatory, and (b) the OTP thus had an obligation under Article 67(2) to provide the defence with the potentially exculpatory material in the possession of the Prosecution. However, in this regard, reconsider the exact wording of Article 54(3)(e) of the Rome Statute which states that:

The Prosecutor may […] (e) agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents […]

22.2.5 Does the Exact Wording of Article 54(3)(e) of the Rome Statute Support the Position of the ICC Prosecutor or Trial Chamber Regarding What Constitutes Evidence or Information Subject to Disclosure?

Consider whether the following interpretation of Article 54(3)(e) is viable and supports the Prosecution's position on non-disclosure of material collected with the intention of it being “lead material”: (a) Article 54(3)(e) does not specify that the material received in confidence must be disclosed if no leads are developed from it (something which the Prosecutor does not have full control over). Rather, Article 54(3)(e) only stipulates that the material can be held in confidence if the purpose of its collection was to use it to try and generate new information (“evidence”); (b) Article 54(3)(e) maintains that the Prosecutor may agree to confidentiality at any stage of the proceedings, hence perhaps suggesting indirectly that should the material result in no leads – something which may become evident only very late in the proceedings – the Prosecutor could still keep the material confidential; and (c) the information which might be generated from the lead material is referred to as “new evidence” in Article 54(3)(e); thus suggesting that the original material obtained in confidence is itself “evidence” from the outset though subject to certain non-disclosure agreements resulting in redactions or withholding of the material altogether unless consent is provided by the source for disclosure of some or all of the material.

22.2.6 Was the ICC Appeal Court in Lubanga Correct in Affirming the ICC Trial Chamber's Conditional Stay on Proceedings (the Latter Issued Based on the Prosecutor's Failure to Obtain Consent from the United Nations and NGOs and Other Sources for Potential Disclosure of Any or All of the Documents and Information that Had Been Gathered Under Non-disclosure Agreements)?

The Appeal Court in an 21 October, 2008 decision unanimously affirmed the decision of the Trial Chamber regarding the conditional stay of the trial proceedings. This it did, it is respectfully submitted, based on what may be (if the above interpretation is correct) a misinterpretation of Article 54(3)(e). More specifically, the Appeal Court relied heavily on the fact that the Prosecutor did not generate new evidence from the undisclosed material. The Appeal Court in its 21 October, 2008 judgment on the non-disclosure of potentially exculpatory material held that, therefore, not disclosing the information under this circumstance amounted to what in the English common law would be considered an “abuse of process”. This being the case, according to the Appeal Court, since Article 54(3)(e) did not apply (the undisclosed material was not lead or springboard material which generated new evidence, and hence must be turned over to the defence subject to any restrictions imposed by the Trial Chamber for the protection of witnesses and consent of the source). Note that though “abuse of process” is not a concept specifically defined under the Rome Statute; the principle is implicitly recognized given the right of due process for the accused articulated in the Rome Statute.

22.2.7 Did the Appeal Court in Lubanga Emphasize the Prosecutor's Alleged Failure to Explore the Implications of the Failure to Develop New Evidence from the Material Gathered in Confidence?

The Appeal Court commented on the OTP failure to appreciate and explore the weighty implications of not having been able to generate new evidence from the material obtained under the non-disclosure agreements:

What must be noticed is that neither the parties nor the victims touch upon or address the implications of the Prosecutor failing to generate new evidence from the mass of material that came into his possession long ago. (21 October, 2008, Appeal Court opinion on the appeal of the Prosecutor against the decision of Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered under Article 54(3)(e) and the application to stay the prosecution of the accused …”, dissenting opinion of Judge Pikis, para. 26, p. 50, ICC-01/04-01/06 OA 13)

22.2.8 What Are the Implications of the Exact Wording Used in Article 67(2) of the Rome Statute on Disclosure of Exculpatory Material by the Prosecutor?

Now let us turn to a consideration of the Prosecutor's obligation to turn over to the Defence exculpatory information and documents in his or her possession as per Article 67(2) of the Rome Statute which states:

In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide [author's note: emphasis added].

Article 67(2) of the Rome Statute thus: (a) admits of the fact that there may be instances in which it is not clear if certain evidence needs to be turned over to the defence; (b) refers to evidence in the “possession or control” of the Prosecutor as well as to (c) disclosure as “provided for in this Statute” (the Rome Statute). Recall that the Rome Statute under Article 54(3)(e) allows for non-disclosure of documents or information obtained by the OTP in confidence under a non-disclosure agreement and that these are not in the complete control of the Persecutor's Office in that they can be released in whole or in part only with the consent of the source. Can it be argued then that the disclosure of evidence or information as “provided for in this Statute” which information is in the “possession or control” of the Prosecutor (as per Article 67(2) of the Rome Statute), whether exculpatory or incriminating, excludes material acquired via non-disclosure agreements if that excluded material was collected for the purpose of generating leads to new evidence (whether or not the anticipated leads actually materialized and generated new evidence)? Recall also in considering the impact on the OTP of Articles 54(3)(e) and 67(2) taken together that (a) the Court is not empowered to order the OTP to release to the Defence information gathered under a non-disclosure agreement, and (b) the OTP is an independent organ of the Court.

22.2.9 What Was the Position of the ICC Trial Chamber in Lubanga on Whether the Stay on Trial Proceedings Which It Issued 13 June, 2008 Was Reversible?

In its 13 June, 2008 judgment issuing the stay, the Lubanga Trial Chamber I held that the stay was potentially reversible as reflected in the following statement by the Trial Chamber:

[…] Although the Chamber is not rendered without further authority or legal competence by this decision, it means that unless this stay is lifted (either by the Chamber or the Appeals Chamber), the trial process in all respects is halted. […] (13 June, 2008, Trial Chamber I “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”, ICC-01/04-01/06-1401, para. 94, obiter dicta, emphasis added)

22.2.10 What Was the Trial Chamber's Rationale for Its 2 July, 2008 Order for the Unconditional Release of Lubanga?

Due to the Trial Chamber's conclusion in the 13 June, 2008 stay decision that under the circumstances (non-disclosure of “evidence” collected under confidentiality agreements as per Article 54(3)(e) of the Rome Statute), there could be no due process for the accused, Trial Chamber I ordered the unconditional release of Lubanga in a judgment of 2 July, 2008 judgment. This since the trial at that point was not proceeding. Lubanga, however, was kept in custody in The Hague ICC detention facilities pending the outcome of appeals by the Prosecutor on both the conditional stay and the unconditional release decisions rendered by Trial Chamber I.

22.2.11 What Was the Reasoning of the ICC Appeal Court's 21 October, 2008 Reversal of the Trial Chamber I Order of 2 July, 2008 for the Unconditional Release of Lubanga?

In a decision of 21 October, 2008 (ICC-01/04-01/06 OA 12), the Appeals Chamber reversed the Trial Chamber I decision on the unconditional release of Lubanga; concluding that the release of the defendant was not the “inevitable” consequence of the stay of proceedings (contrary to the 2 July, 2008 conclusion of Trial Chamber I). The Appeal Court reached this conclusion given that the stay imposed by the Trial Chamber was conditional and hence potentially reversible (i.e., if circumstances changed, the Trial Chamber could, if it so decided, order the trial to proceed in which case the defendant should be available at the proceedings). Also on 21 October, 2008 the Appeals Chamber ruled that the stay imposed by the Trial Chamber in June 2008 was imposed for justifiable reasons at that point in time (the alleged impossibility of a fair trial at that juncture) and hence it affirmed that conditional stay decision. The Appeal Court, however, remanded the case back to the Trial Court to reconsider the accused's unconditional release in light of any new circumstances in the case (i.e., the willingness of the United Nations and NGOs and other confidential sources to allow the OTP to release for in-camera review by the Trial Chamber in unredacted form all of the previously undisclosed documents [over 200 documents]; some of which purportedly might have exculpatory value). Note that the Appeal Court made it clear in its 21 October, 2008 decision affirming the Trial Court's imposition of a conditional stay that:

If the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay of proceedings may decide to lift the stay of the proceedings in appropriate circumstances and if this would not occasion unfairness to the accused person for other reasons, in particular in light of his or her right to be tried without undue delay […] (21 October, 2008, Appeal Court decision on the appeal of the Prosecutor against a decision of the Trial Chamber I entitled: “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused”, para. 5, p. 4, ICC-01/04-01/06 OA 13)

The conditional stay on the trial proceedings in Lubanga was ultimately lifted by Trial Chamber I on 18 November, 2008 and the trial began on 26 January, 2009.

22.2.12 What Was the Trial Chamber's Position Regarding Which Organ of the ICC Had the Authority to Decide Which Documents and What Information, If Any, Gathered Under Non-disclosure Agreements Should or Should Not Be Disclosed to the Defence (Such Disclosure Occurring Only with Consent of the Source)?

Trial Chamber I held that it was the Trial Chamber and not the Prosecutor that should decide which undisclosed materials, if any, should be released to the defence in whole or in part to ensure due process vs. which should be held confidential and for what reason. This after Trial Chamber I had had an opportunity to review the full documents in-camera without redactions and hear the submissions on the matter of the potential disclosure of particular documents in whole or in part (that is submissions on the issue from the Parties and any interveners who might be granted standing).

22.2.13 Is Lubanga Claiming Actual Innocence or Mounting Various Affirmative Defences to the War Crimes Charged?

It should be recalled that the evidence presented by the Prosecutor was accepted by the Pre-Trial Chamber as sufficient for proceeding with the trial (i.e., setting out substantial grounds to believe Lubanga had committed the offences charged). Also note that Lubanga has not made a plea of “actual innocence”, but rather is preparing to mount various affirmative legal defences to otherwise criminally culpable actions and inactions. These defences will have to be established by the Defence as applicable on the evidence if Lubanga is to be excused for certain behaviors and found not criminally culpable and/or there are to be found certain mitigating factors.

22.2.14 What Was the Nature of the Dispute Between the Office of the Prosecutor and Trial Chamber I in Lubanga Which Persisted Even After the OTP Obtained Permission from His Sources for the Potential Disclosure of Materials and Information the OTP Had Collected in Confidence?

The Prosecutor (subsequent to the conditional stay on trial proceedings imposed by Trial Chamber I) negotiated with the United Nations and the NGOs involved on the release of the previously undisclosed documents in question. In a 9 September, 2008 application for leave to appeal the 3 September, 2008 refusal by the ICC Trial Court I to lift the stay on the Lubanga proceedings (which leave to appeal was accepted), the Prosecutor made the point that he had arranged to provide the Trial Court with unredacted versions of all the undisclosed “discovery” documents at issue. The Trial Chamber refused, however, to review the documents regarding whether any or all of these documents are potentially exculpatory unless there was an assurance from the Prosecutor that the Defence would have access to any potentially exculpatory material. The Prosecutor states (Prosecution's Application for Leave to Appeal against Decision on Application to Lift the Stay of Proceedings, ICC-01/04-01/06, 9 September, 2008, pp. 3–4):

The Prosecution respectfully submits that it has addressed the concerns that led to the original stay and complied with the substance of the conditions imposed by the Chamber, and that it was an error of the Chamber to conclude otherwise. The Chamber can now review all undisclosed documents in an unredacted form. It is in a position to make a decision on which documents need to be disclosed. In its initial decision of 13 June 2008, the Chamber decided to stay the proceeding because there was no prospect for the Chamber to receive the necessary material in order to assess the impact, if any, of the undisclosed information on the rights of the defence.The Prosecution submits (1) that the principle of fair trial requires that the judges are the final arbiter of what has to be disclosed to the defence and (2) that, fair trial does not necessarily require that all information collected has to be provided to the Defence. In this Court, as well as in other national and international jurisdictions, there are grounds – inter alia, protection of witnesses, national security – providing for non disclosure in specific circumstances.The Prosecution submits that the role of the Chamber as a custodian of the fairness of the proceedings and the rights of the accused has not been affected in the present proceedings, and the Chamber is in a position to make informed determinations on these matters. At this time, the Chamber can be provided with all the relevant material from the information providers for its examination. The Prosecution has provided to the Trial Chamber all undisclosed evidence from NGOs in unredacted form and on 10 July informed the Trial Chamber that “the Prosecution is in a position to immediately provide [author's note: to the Trial Chamber] all UN documents that form part of the Undisclosed Evidence to the Trial Chamber”.

22.2.15 Did the Trial Chamber in Lubanga Decline Its Jurisdiction in Its 3 September, 2008 Refusal to Review Unredacted Documents In-camera that Had Been Collected by the OTP Under Nondisclosure Agreements?

Can it be argued that the Trial Chamber in its initial 3 September, 2008 refusal to lift the stay (i.e., refusing to review the now unredacted United Nation's and NGO documents in-camera and decide which, if any, should be disclosed and in what form), improperly declined its jurisdiction to (a) assess how to best balance the accused's right to a fair trial against the rights of victims and other informants to security of the person; and (b) assess whether that balancing can occur and still ensure that the defendant Lubanga's right to a fair trial is adequately protected? By declining to review the now unredacted materials in camera (to determine what documents, if any, should be provided to the defence in whole or in part, for instance, as potentially exculpatory evidence relevant to the defence case), did the Trial Court in fact place Mr. Lubanga in the enviable position of having the Trial Court create the perception (arguably incorrect) that a fair trial was not possible in the case. This refusal to review the unredacted material in-camera thus leading inexorably to the Trial Court's conclusion that the case must not proceed and that Lubanga must be unconditionally released. If the foregoing is the case, was the Prosecutor (Prosecution's Application for Leave to Appeal against Decision on Application to Lift the Stay of Proceedings, ICC-01/04-01/06, 9 September, 2008, p. 5) then correct in his assertion that:

The Chamber's current approach, chiefly its refusal to modify the terms of the stay of proceedings and to even consider examining the documents in question, adversely affects the fairness of the proceedings vis-à-vis the Prosecution and the victim participants, as well as the expeditious conduct of the proceedings and the outcome of trial.

22.2.16 What Was the Trial Chamber's Position in Lubanga Regarding the Need for the Appeal Court to Receive Unredacted Materials for Review?

The Trial Chamber also reasoned that the stay could not be lifted as the United Nations and the NGOs required that certain confidentiality requirements would need to be agreed upon before the documents could be disclosed to the Trial Chamber for in-camera review. Specifically, the United Nations and NGOs expected that the Trial Chamber would not include those portions of documents that these sources wished redacted if those documents were referred to in the Trial Chamber's judgment. Hence the Appeal Court, if there were an appeal, would not have had access to unredacted versions of certain documents referred to and quoted (with redactions) in the lower Court's judgment. The Prosecutor (Prosecution's Application for Leave to Appeal against Decision on Application to Lift the Stay of Proceedings, ICC-01/04-01/06, 9 September, 2008, pp. 5–6) made the following arguments in that regard:

The Prosecution submits this is a hypothetical argument – the possibility that the decision might not be able to be subject of full appellate review – and this hypothetical argument was a basis for a decision to maintain the stay of the proceedings. It is hypothetical as (1) there could be no appeal, (2) the Appeal Chamber could decide that it does not require reading the documents in order to review the Decision and (3) finally, the Appeal Chamber, as the master of its own proceedings, will determine the conditions it can and cannot accept from the information providers.The Decision further infringes on the prerogatives of the Appeal Chamber. The Prosecution submits that the proper scope of appellate review is a matter within the sole jurisdiction of the Appeals Chamber, and it is for that Chamber to authoritatively pronounce upon the requirements and conditions for such review.Finally, the Trial Chamber has imposed a condition which may be impossible to fulfill for the Prosecutor, as there appears to be no procedural basis on which the Appeals Chamber could consider and agree to the assurances required by the provider in advance or in the abstract, outside of the context of any appeal. Thus, the Chamber is affecting the rights of the Prosecutor and the victims to an actual trial in order to preserve a hypothetical unfair appeal.

Was it the case that in its reasons for initially refusing to lift the stay on the trial proceedings, the Trial Chamber was, as the OTP suggested, interfering with the Appeal Court's jurisdiction? Alternatively, was the Trial Chamber instead attempting to ensure a fair judicial process? The latter by declining to accept the conditions for disclosure demanded by the information providers (i.e., the Trial Chamber demanding, absent any agreement by the Appeal Court to the contrary, that the Appeal Court be able to conduct a review of the trial judgment – should there be an appeal – knowing fully what was the basis for the trial judgment and what evidence was relied upon such that no redactions of material evidence would appear in the judgment for fear those redactions might adversely impact the fairness and efficacy of the appellate review).

22.2.17 What Is the Proper Balance of Rights of the Parties and the Victim Participants in a Case Involving Non-disclosure Agreements?

Trial Chamber I in the Lubanga case thus demanded that (a) the Defence be assured of access to any potentially exculpatory material (previously undisclosed) regardless the circumstances if the Trial Court deemed it necessary and appropriate, and (b) the Appeal Court agree in advance to any non-disclosure conditions imposed by the information providers. By setting these conditions for lifting the stay, did the Trial Court effectively deny the possibility; at that point at least, of obtaining justice for the victims should the United Nations, NGOs and other sources not make it possible for the OTP to meet these requirements? Given that the stay has now been lifted, all of the Trial Chamber's concerns appear to have been addressed. Many of these concerns would have vanished with the disclosure of the material to the Trial Chamber for its in-camera review (the OTP having received consent from the United Nations and NGO sources for full disclosure of the material to the Trial Chamber).

22.2.18 What Is the Current Situation in the Democratic Republic of the Congo?

Note that the fighting in the Democratic Republic of the Congo has in fact not stopped and that informants and witnesses come forward at considerable personal risk. On 22 December, 2008, the United Nations Security Council renewed the mandate for UN forces in the DRC for another year given an escalation of violence there in the late summer months. That violence has been directed also at humanitarian staff and facilities, in various parts of the country according to United Nations reports.

22.2.19 What Are the Potential Security Implications for (1) Victim Witnesses and Participants, and (2) Confidential Sources of the Prosecutor Due to the Lubanga Trial Chamber Succeeding in Gaining Access to All Previously Undisclosed Information and Documentary Evidence?

The original stay of proceedings had specific requirements for lifting of the stay, i.e., potential release to the defence of any exculpatory evidence, (including previously undisclosed documents that were not lead evidence), possibly in unredacted form – in whole or in part – depending on the decision of the Trial Chamber regarding any redactions. Yet, where defendants have instigated or co-perpetrated a reign of terror, it is understandably exceedingly difficult, or often impossible for victims, humanitarian agency personnel and other confidential sources to provide the OTP with consent for release of all unredacted material to the Trial Chamber and/or Defence. The Lubanga Trial Chamber has, however, gained access to all previously undisclosed information or evidentiary material for its in-camera review. The information providers relinquished this control given their understanding, in light of the Trial Chamber conditional stay decisions, that a failure to do so would result in the Lubanga trial not proceeding. However, persons who might be at high personal risk have not completely relinquished their personal control over their ability to protect themselves through certain non-disclosure of information or documents. This is the case since they may still decline to consent to the release to the Defence of some or all of the material in question which could potentially jeopardize their well-being. Alternatively, where such voluntary consent from information providers is given to release to the Defence the previously undisclosed material or information (where the Court deems it necessary), these information providers must leave the matter of their personal security largely up to the Court. How much risk they are ultimately exposed to, if any, will depend, in those instances, on the Trial Chamber's decisions regarding disclosure and the Trial Chamber's calculus in weighing the rights of the accused to due process against the rights to safety of the victims and other information providers. The difficulty is, however, that the Trial Court has no litmus test to ensure absolute accuracy in assessing whether disclosure of a document to the Defence ensures the rights of the accused while not posing an intolerable security risk to the information provider. This is, after all, in the final analysis, a judgment call. Any protection provided by the ICC, furthermore, may not be comprehensive enough, or failsafe enough to adequately protect all those information providers involved in every instance. This may even be the case where documents are released with selective redactions.

22.2.20 What Evidence Is There that There Is a Great Deal of Fear for the Safety of Victim Witnesses and Victim Participants in the Lubanga Case As Well As for the United Nations and NGO Staff Who Have Provided Documents and Information Vital to the Prosecution?

In the Lubanga case, it was experienced United Nations personnel and NGOs who feared for their safety and/or their ability to carry on their work in the DRC and wanted certain documents or parts of documents undisclosed and held in confidence by the OTP. It has been reported that over 50% of the evidentiary documents in the Lubanga case were submitted by the OTP sources on the condition of confidentiality. Further, 80% of the potential witnesses required ICC protection for their security. This includes maintenance of witness anonymity from the public and, until three months before trial, also anonymity from the accused (see Sabine Swoboda 2008, The ICC disclosure regime – a defence perspective, Criminal Law Forum 19:449–472 at p. 463). We can assume that the United Nations and NGO information providers' fears for their personal safety were in all likelihood well-founded. These OTP sources were thus, based on those very real fears, reluctant to hand over unredacted previously undisclosed documents to the Trial Chamber even for an in-camera review. However, the sources, as discussed, finally relented allowing the lifting of the Trial Chamber's conditional stay on the proceedings in the Lubanga case. One can only hope that all precautions that the Trial Chamber takes to safeguard the victims and other information sources are adequate and that for their courage none of these sources pay the ultimate price at the hands of any of the militia that may be disgruntled by the information these sources have provided in the case.

22.2.21 What Was the Trial Chamber's Initial Position on the Disclosure of Any and All Potentially Exculpatory Material?

Recall that when it was arranged that the previously undisclosed documents provide by NGOs and the United Nations to the OTP were, or would be soon provided for the Trial Chamber's in-camera review with no material kept secret, the Trial Chamber held that any exculpatory document must potentially be made available to the Defence. The Trial Chamber declined to conduct such an in-camera review of the material if that condition could not also be met. Now, as mentioned previously, the stay has been lifted on remand of the case by the Appeal Court back to the Trial Chamber and the trial proceedings began 26 January, 2009. In an oral decision, Trial Chamber I communicated publicly that the reasons for the stay “have fallen away” (see Coalition for the International Court Media Advisory 18 November, 2008 available at http://www.iccnow.org).

22.2.21.1 What Were the Written Reasons Provided by the Trial Chamber in Its 23 January, 2009 Judgment (ICC-01/04-01/06) for Lifting of the Stay of Trial Proceedings in the Lubanga Case?

The Trial Chamber held that without the consent of the information providers, the Trial Chamber could not order disclosure of documents obtained by the Prosecutor under non-disclosure agreements. Where that consent was not forthcoming, and the material would normally have been disclosed to the Defence (i.e., were there no non-disclosure agreement), the Trial Chamber held it would have to determine if counter-balancing measures were available to ensure that the right of the accused to due process were protected.

The Trial Chamber next made a determination that under certain circumstances, as set out by the Lubanga Appeal Chamber in its 13 May, 2008 decision (ICC-01/04-01/07-475, paras. 71–72), redactions (nondisclosure to the Defence and/or public) were permissible to evidentiary documentary materials covered under Article 67(2) (material in the possession or under the control of the Prosecutor relevant to the issue of the potential innocence of the accused, mitigation of the guilt of the accused, and/or which might affect the credibility of the Prosecution case) and/or material covered under Article 77 of the Rome Statute (concerning the need for providing discovery materials to the defence subject to any disclosure restrictions provided for in the Rome Statute). The Trial Chamber thus implemented non-disclosure of certain information, including, where necessary, non-disclosure of identities and of identifying information. The Trial Chamber held that, after considering what, if any, counter-balancing measures should be taken, that the rights of the accused (Lubanga) were not compromised. Such counter-balancing measures might include, for instance, alternate material of evidentiary value provided by the Prosecutor to substitute for the non-disclosed material, admissions of fact by the Prosecutor upon which the defence can rely and need not call the unnamed witness, etc. (Lubanga Trial Chamber, Reasons for oral decision lifting the stay of proceedings, ICC-01/04-01/06, 23 January, 2009, para. 46).

The Trial Chamber held that Article 54(3)(f) of the Rome Statute had general applicability throughout the statute despite the fact that the heading of Article 54 of the Rome Statute refers to the investigative stage (“Duties and powers of the Prosecutor with respect to investigations”). Article 54(3)(f) provides that the Prosecutor may:

(f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

The Trial Chamber (Reasons for oral decision lifting the stay of proceedings, 23 January, 2009, para. 38) commented as follows on this issue:

There would be real difficulty in the prosecution's proper discharge of its function if it is limited in its ability to implement, or to request, protective measures to the investigative stage only. It is clearly necessary for the prosecution to have the ability to take or to initiate these steps at any stage during the trial and the Chamber, adopting a purposive interpretation, is persuaded that this provision, notwithstanding where it is included in the Statute, has general applicability throughout all stages of the pre-trial and trial stage.

The Trial Chamber held that the combined effect of Article 54(f) and 64(2)64(6)(c)(e)(f) is that: “[…] the Trial Chamber, once constituted, has a statutory responsibility for the protection of victims and witnesses throughout the entirety of the period it is seized of the case” (Reasons for oral decision lifting the stay of proceedings, 23 January, 2009, para. 41). Clearly, Trial Chamber I in these written reasons for lifting the stay accorded the right to safety of the victims and various NGO and United Nations personnel and other information sources no less weight than the right of the accused to a fair trial. It is, in this author's respectful view, a great victory for the victim participants, witnesses and for NGOs and United Nations personnel and others cooperating with the ICC Prosecutor to have their right to security of the person affirmed in Lubanga as a guaranteed statutory right (in effect both a procedural and substantive right) under the Rome Statute; one which cannot be legitimately intentionally compromised in any significant way. The Trial Chamber reasons in Lubanga are consistent in this regard with the ICC Appeal Court judgment in Katanga of 13 May, 2008 in Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled, “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May, 2008, ICC-01/04-01/07-475, para. 44) which was referenced by the Trial Court in Lubanga in its 23 January, 2009 ruling. These rulings (Katanga case, “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May, 2008, ICC-01/04-01/07-475, para. 54) establish that:

[…] the specific provisions of the Statute and the Rules for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court.

22.2.22 What Are the Implications for Due Process in ICC Proceedings Given that Victims May Participate and Make Independent Submissions at Every Stage Rather than Just Being Witnesses?

The Prosecutor in the Lubanga case made the following pointed statement (Prosecution's Application for Leave to Appeal against Decision on Application to Lift the Stay of Proceedings, ICC-01/04-01/06, 9 September, 2008, para. 20, p. 12):

[…] fairness is not a concept confined to the rights of the accused. Rather, fairness requires that the procedural and substantive rights and obligations of all participants, including the Prosecution, be respected. The Chamber's refusal to lift the stay of proceedings adversely impacts on the fairness of the proceedings vis-à-vis the Prosecution and the victims. The Decision, loses sight of the rights of these procedural actors who also enjoy a legitimate expectation of fair proceedings.

The Prosecutor is undoubtedly correct in his statement that “fairness is not a concept confined to the rights of the accused” but rather “fairness requires that the procedural and substantive rights and obligations of all participants […] be respected” in ICC proceedings. Recall in that regard, for instance, that victims have participation rights at all stages of ICC proceedings unlike the situation in most other criminal proceedings where victims are only potential witnesses who have a voice only if called by the prosecution, and then only in response to the questions put to them. Consider then how: (a) the disputes in the Lubanga case about the disclosure of materials gathered by the OTP under non-disclosure agreements, and (b) the nature of the ultimate resolution of these disputes will impact on respect for the ICC process, and on confidence that the ICC process can provide a measure of justice to the victims of the most grievous international crimes.

22.3 Notes and Questions Regarding the Amicus Brief “Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict” of 17 March, 2008 (ICC-01/04-01/06-1229-AnxA)

22.3.1 What Was the Position of the Special Representative of the Secretary-General on Children and Armed Conflict in Lubanga on the Issue of Recruitment of Children into Soldiering and the Child's Alleged Voluntary Consent as a Defence to the War Crimes Charge?

The Special Representative of the UN Secretary General on Children and Armed Conflict (hereafter in these notes referred to as “the Special Representative”) makes the point that:

Consent of the child is not a valid defense to any of the three child soldiering war crimes. The line between lawful recruitment and unlawful recruitment is drawn based solely on age, under the Rome Statute as elaborated upon by the Elements of the Crimes, not on any act of the child. All “Voluntary” acts or statements or other indications or interpretations of consent by children under the legal age for recruitment are legally irrelevant. […] (Amicus brief, para. 10)

This foregoing is a critical point given that (a) the erroneous defences may be proffered by ICC defendants based on the alleged voluntariness of the child participants in soldiering in arguing either innocence and/or mitigation and (b) the ill-considered rationales that have been proffered by some cultural relativists regarding the use of child soldiers in the developing world combined with the notion that international law prohibiting such a practice is de-contextualized and has a Western bias and that child soldiering can thus allegedly not be assessed according to international criminal legal norms (see Grover SC 2007, A response to KA Bentley's “Can There Be Any Universal Children's Rights”, International Journal of Human Rights 11(4):429–443; section concerning child soldiers).

22.3.2 What Was the Position of the Special Representative of the Secretary-General on Children and Armed Conflict in Lubanga on the Issue of “Best Interests of the Child” and Recruitment of Children into Soldiering?

Consider that the Special representative in her amicus brief (Amicus Brief: Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict, ICC-01/04-01/06-1229-AnxA, para. 11) in the Lubanga case makes the critical point without reference to any purported exception based on the cultural, socio-political, economic or other context for child soldiering that:

There is no best interest of the child defense. Recruitment is per se against the best interest of the child. The Rome Statute codifies this understanding in its prohibition without exception of conscripting, enlisting, and using child soldiers.

22.3.3 What Evidence in the Lubanga Case Appears Inconsistent with the Notion of Voluntary Recruitment of Children into Soldiering?

Note that the concept of so-called “voluntary” recruitment into the Lubanga forces is difficult to reconcile with the following facts among others:

  • Children in the DRC have endured years of civil war. There has been various forms of manipulation of the children and the parents by warring armed forces with the objective of recruitment. The Prosecutor's evidence in the Lubanga case (to date accepted as credible evidence by the Pre-Trial Court) is that Lubanga demanded that every Hema family offer up at least one child to serve as a child soldier for the cause regardless whether the child was under 15 and that abducted children themselves were among those deployed to recruit such children by any means necessary including force; promises of the opportunity to have their families protected if the child joined, opportunities for revenge, etc., (see Prosecutor's 30 May, 2008 submission above).

  • Children and families suffered and continue to suffer extreme poverty (in the DRC, for instance, in 2005 families of an average of six persons earned less than $1 per day; (see The Redress Trust 2006, Victims, Perpetrators or Heroes? Child soldiers before the International Criminal Court, http://www.redress.org. Children often with no means of survival having lost their parents were “recruited” by the Lubanga and other forces).

22.3.4 What Is the Status of Child Soldiers Under International Humanitarian Law?

For a discussion of child soldiers as “protected civilians” under international law see Grover SC (2008, “Child soldiers” as “non-combatants”: the inapplicability of the refugee convention exclusion clause, International Journal of Human Rights 12(1):53–65).

22.3.5 What Is the Implication of Wide Spread Recruitment of Child Soldiers and the War Crimes Set Out in the Rome Statute Regarding the Recruitment and Use of Child Soldiers Under Age 15 for Active Participation in Hostilities?

The Special Representative makes the point that when there is widespread recruiting of child soldiers (by various means) the probability is high that children under 15 will be recruited even where they may not have been specifically targeted. Hence, the Prosecutor's evidence in the Lubanga case (yet to be proved at trial) of such widespread recruitment of children as part of the “common plan” speaks to the point that Lubanga should have been aware that children under 15 were being recruited into his armed forces The OTP alleges that at various points child soldiers under age 18 were ordered to be demobilized by Lubanga from his forces in what the Prosecutor contends were sham PR stunts (see “Submission of the Prosecution's Updated Summary of Presentation of Evidence”, ICC-01/04-01/06-1363, 30 May, 2008, paras. 76–82, and hence Lubanga according to the Prosecutor was are of the problem of such recruitment and use of children within in his own forces).

22.3.6 What Is the Potential Implication of the Difference in Wording Between Additional Protocol I to the Geneva Conventions and the Rome Statute in Regards to the War Crimes Concerning the Recruitment and Use of Child Soldiers?

The Additional Protocol I to the 1949 Geneva Convention at Article 77 prohibits the recruitment or direct use in hostilities of children under age 15. The Rome Statute uses significantly different wording as to use referring instead to a prohibition against using child soldiers under 15 to participate actively. This leaves open the possibility for an interpretation which includes criminalization under the Rome Statute of a broader range of underage child soldier involvement in hostilities such as spying, sabotage and scouting operations. Yet, the term “actively participate” is also vague. It is unclear whether the ICC will, in the Lubanga case, or in any pending case consider that (a) the use of girl soldiers under age 15 as “bush wives”, sexual slaves, domestics and support persons in every conceivable way for militia commanders meets the criterion for “active participation” in hostilities and (b) the use of girl children for these forms of active participation in hostilities is an international crime under the ICC articles dealing with child soldiering. This in addition to meeting the elements of any specific additional charges for related sexual crimes such as rape such that the conduct charged in each count is non-duplicative. At present, the Pre-Trial Chamber's interpretation of “participate actively” in hostilities appears to exclude recognition of girl soldiers as soldiers if they served support roles as forced wives to armed force commanders and subordinates, etc., even though these female children under age 15 moved with the forces and were exposed to all the risks of being a member of such a group such as were the boys:

[…] the Confirmation of Charges Decision purports to establish a bright-line rule to determine which activities qualify under the “participate actively” standard. The Special Representative submits that this effort is ill-conceived and threatens to exclude a great number of child soldiers – particularly girl soldiers – from coverage under the using crime. (Amicus Brief, 17 March, 2008, para. 20)

22.3.7 What Was the Position of the Special Representative of the Secretary-General on Children and Armed Conflict in Lubanga on the Issue of Who Meets the Criteria for Being Considered a Child Soldier?

In her amicus brief in the Lubanga case, the Special Representative endorsed the approach of the Special Court of Sierra Leone in the AFRC case with respect to who is designated as a child soldier and who is considered to have been used to actively participate in hostilities: “Using children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat … any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation” (cited at Amicus Brief, 17 March, 2008, para. 21). The special representative also made mention of the Cape Town Principles definition of “child soldier”:

The exclusion of girls from the definition of child soldiers would represent an insupportable break from well-established international consensus. The definition of child soldier auxiliary to the Cape Town Principles recognized that “child soldier” includes “girls recruited for sexual purposes and for forced marriage.” (Amicus Brief, 17 March, 2008, para. 24)

22.3.8 According to the Special Representative of the Secretary-General on Children and Armed Conflict in Lubanga, What Evidence Is There that Girl and Boy Child Soldiers Constantly Shift Between Combatant and Non-combatant Roles?

The Special Representative noted that girl children shifted from combatant to non-combatant role and vice versa as did the boy children recruited and should be considered as child soldiers:

A case-by-case approach is particularly apt and critical in the context of modern conflicts in which the nature of warfare differs from group to group and the children used in hostilities play multiple and changing roles. When the Special Representative spoke to girl combatants in the eastern DRC, they spoke of being fighters one minute, a “wife” or “sex slave” the next, and domestic aides and food providers at another time. Children are forced to play multiple roles, asked to kill and defend, carry heavy burdens, spy on villages and transmit messages. They are asked to perform many other functions and their use differs from group to group. Eva was a young girl whom the Special Representative met in the DRC. She was only twelve when she was abducted on her way to school. Initially, Eva was kept in a situation of forced nudity and subject to sexual abuse. She worked in the camp cooking, cleaning and being a sexual slave, and was often taken along for armed attacks on the villages to be a “porter” to carry the looted goods. (Amicus Brief, 17 March, 2008, para. 22)

Hence, the Special Representative has argued in her amicus brief in the Lubanga case that children recruited into the armed ranks can be considered as “actively participating” in hostilities whether directly fulfilling combatant roles or any type of significant and on-going non-combatant roles by the armed forces in question including girls who are being sexually abused:

The Court should deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” crime [author's note: using to participate actively in hostilities]. […]” (Amicus Brief, 17 March, 2008, para. 25)

22.3.9 What Is the Implication of the ICC's Refusal to Regard as Child Soldiers Those Girl Children Who Are Forced Child Brides and Child Sex Slaves Attached to Militia Groups?

To the extent that the ICC does not acknowledge girl children who are used as forced wives and sex slaves as child soldiers, does the international criminal justice system further serve to re-victimize these girls. This by (a) making them invisible as soldiers, and denying them redress in respect of the child soldiering offences codified in the Rome Statute and (b) making it more difficult for the girls thus to re-integrate into the community (due to the missed opportunity to publicly place the blame for their participation with the armed units on the perpetrators):

The Special Representative explains that girl combatants are often invisible: “Because they are also wives and domestic aides, they either slip away or are not brought forward for DDR programs. Commanders prefer to ‘keep their women,’ who often father their children, and even if the girls are combatants, they are not released with the rest. Their complicated status makes them particularly vulnerable. They are recruited as child soldiers and sex slaves but are invisible when it comes to the counting.” (Amicus brief, 17 March, 2008, para. 26, emphasis added)

22.3.10 What Is the Mandate of the ICC Special Gender and Children's Unit?

Recall that the ICC system includes a Special Gender and Children's Unit which is designated in part with assisting child witnesses who have been the victims of sexual violence often in the context of armed conflict which form of violence in contemporary times has become an increasingly prevalent international crime.

22.3.11 What Is the Nature of Child Involvement in the International Criminal Court Process?

22.3.11.1 What Role Have Children Played in the Lubanga ICC Court Proceedings?

According to the United Nations Mission in Congo (MONUC), there were an estimated 30,000 children in armed forces or groups in 2004 in the region (The Redress Trust 2006, Victims, perpetrators or heroes? Child soldiers before the International Criminal Court, available at http://www.redress.org, p. 18). In the International Criminal Court (ICC), child witnesses have played a pivotal role in providing eye witness testimony to the Office of the Prosecutor on the charged offence against Lubanga Dyilo of recruitment, and use of children under age 15 years for active participation in armed hostilities. The child witnesses, for instance, have provided testimony on the use of coercion and torture of children by the UPC/FPLC in furtherance of its goal of recruitment, and forced retention of child soldiers, and the forced recruitment and use of girl child soldiers. Certain of these witnesses presented testimony or made independent submissions via their legal representative as victim participants at the Pre-Trial Court proceedings, and at the Trial level, for instance, in respect of the Prosecutor's appeal of the Trial Chamber's stay of proceedings decision (that stay now lifted). However, due to the restriction in charges against Lubanga Dyilo (to those pertaining only to the recruitment and use for active participation in hostilities of children under age 15), the children are unable to testify as witnesses, or to make submissions (via their legal representative as “victim participants”) with respect to other atrocities (i.e., a pattern of sexual violence against children as international crimes separable from the recruitment and use of child soldiers under 15) allegedly committed by the defendant and his forces. Child victims, as is the case with adult victims, may participate then at the ICC either: (a) as witnesses called to testify in response to the questions posed by the Defence or the Prosecution, etc., or (b) as “victim participants” making independent submissions regarding their position on a legal issue (submissions are normally made via their legal representative and are independent, for instance, in terms of the Prosecutor). As victim participants the children may also make submissions pertaining to the issue of any reparations to which they may be entitled. Many international criminal law experts and human rights advocates believe that the children's participation increases the chances for a just outcome; especially with regard to the reparations matter (i.e., when the children may make submissions in their own interests as victim participants in the proceedings regarding reparations). It would appear, though this remains to be seen in future cases, that the practice of the ICC will be to consider that children (persons under age 18) are under a legal disability and hence should always make their submissions as victim participants via a legal representative. As the ICC does not have jurisdiction over persons under age 18, children who have committed atrocities, for instance as child soldiers, do not appear before the ICC as defendants.

22.3.11.2 What Are the ICC Rules Regarding Child Victim Participants in the ICC Process or Child Witnesses Giving Testimony Before the ICC?

  • The ICC under Article 68(3) provides for victim participation including when the victims are children (consistent also with the accused's right to a fair trial). Where the victim participants are children, the ICC, as mentioned, will normally require that a legal representative or other adult participate on their behalf. Article 68 of the ICC statute provides, in addition, for certain procedural and other measures to better ensure the protection of the physical and psychological well being of child witnesses (or potential child witnesses) and of child “victim participants” or (potential participants):

    Article 68 of the Rome Statute Protection of the victims and witnesses and their participation in the proceedings

  1. 1.

    The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial [author's note: emphasis added].

  2. 2.

    As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness [author's note: emphasis added].

  3. 3.

    Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence [author's note: emphasis added].

  4. 4.

    The Victims and Witnesses Unit [of the ICC] may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6 [author's note: emphasis added].

  5. 5.

    Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial [author's note: emphasis added].

  6. 6.

    A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

  • Victims may file complaints regarding international crimes and/or provide information on already filed complaints to the Office of the Prosecutor of the ICC. The OTP, after a preliminary examination of the information received and any additional information obtained, will bring the situation before the Pre-Trial Chamber where he or she determines that international crimes falling under the ICC jurisdiction may have occurred. Thus victims may not directly bring a case before the ICC. The charges in the indictment must be confirmed by the Pre-Trial Chamber (PTC) of the ICC. There may also be instances in which the PTC ultimately orders the Prosecutor to investigate where the Office of the Prosecutor initially may have declined to investigate but the victims have requested that the PTC review this refusal. The PTC oversees and reviews the decisions of the Office of the Prosecutor. The case is not admissible until the PTC confirms the charges and rules the case admissible. Thus, the victims, in accord with the procedures, may in a variety of case scenarios have an opportunity to make submissions as “victim participants” at the PTC hearing and at subsequent proceedings (either directly in person or through written submission, or through a legal representative) where the interests of the victims are at stake and the information is relevant to the issues to be decided. For instance, in the Lubanga Democratic Republic of Congo case, the Appeal Court which in its 6 August, 2008 decision (para. 7) granted the victims the opportunity to participate at the Appeal level, did so in consideration of the following criteria:

    (i) whether the individuals seeking participation are victims in the case;

    (ii) whether they have personal interests which are affected by the issues on appeal;

    (iii) whether their participation is appropriate [i.e. their testimony is relevant to the issues to be tried, whether they are capable of giving informed, reasoned testimony etc ] and lastly;

    (iv) that the manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

  • Victims must apply to the Court's Registrar to be heard as “victim participants” and this opportunity to be heard may or may not be granted. Victims who have been given the opportunity to be heard may, through their legal representative, cross-examine the accused, experts, or other witnesses on the charges as well in respect of any hearing on reparations.

  • Under Article 75 of the Rome Statute, victims are entitled to such restitution, compensation and rehabilitation as the Court deems appropriate. (Such forms of reparation were not available under the statutes of the ICTR or the ICTY which provided only for the return of property to its rightful owner in terms of reparation for pecuniary damages.) The ICC statute also provides that the availability of reparations of various sorts be publicized so that the probability of victims accessing those funds and other types of reparations should be optimized. The ICC may also provide for reparations on its own motion (not all victims may be in a position, for whatever reason, to be able to request reparations), and the ICC may also order reparations for a designated group of victims (i.e., “collective reparations”). These reparations may, in some instances, come from the ICC Victim Trust Fund to which the parties to the ICC contribute funds for diverse forms of victim support at various stages of the proceedings and for reparations or it may come from other sources.

  • Supporting the victims in their role as witnesses or as victim participants is the “Victims' Participation and Compensation Unit” of the ICC Office of the Registrar which is an independent body within the Registry's “Victims and Witnesses Unit”. The Victims' Participation and Compensation Unit provides, for instance, assistance in organizing legal counsel for victims and provides support for that legal counsel. The Victims and Witnesses Unit provides various types of support to the victims before, during and after their participation in the ICC investigation and/or proceedings as needed including, but not limited to, providing protection for the victim and his or her family, and counselling by mental health and other experts for the victims of trauma as well as other services including urgent medical services and relocation services for those at high personal risk. (Note that under the ICTR and ICTY Court systems, no such assistance was available to victim witnesses who had suffered atrocities though the incarcerated defendants, in contrast, had access to medical services.) In those cases where there are gender-specific matters relating to sexual violence, or in some other respect, the ICC Victims and Witnesses Unit works to assist the Court in implementing the measures necessary to ensure the well-being of victim witnesses or victim participants including child victims. ICC child victim witnesses, with the approval of the Court, and having regard to the fact that testifying itself as to atrocities suffered may be very traumatizing, may testify in-camera, via closed circuit television, or in the presence of a support person who may be a family member, legal representative, mental health professional or other. The ICC is empowered, if it so decides, to use anonymous testimony (i.e., from child victim witnesses where the child's security is at high risk) to the degree, and in the form deemed required, and which is still compatible with the due process rights of the accused (i.e., using a pseudonym instead of the child's name; disguising the child's voice, and blocking pictures of a child testifying via videoconference, etc.). The child victim witnesses are, however, always subject to rigorous cross-examination (see Without Borders 2003, Victims guide to the International Criminal Court, available at http://www.rsf.org, for detailed information on the work of the ICC Victims' Participation and Compensation Unit).

22.3.12 Are There Any Potential Barriers to Child Participation at the ICC?

22.3.12.1 What Are the Implications of Article 69 of the Rome Statute for Child Participation Before the ICC?

It has been suggested that Article 69 of the Rome Statute (requiring a solemn declaration by the witness that he or she will give truthful testimony) may potentially serve improperly as a barrier to child participation at the ICC. The ICC is empowered to allow children to testify if they have knowledge of relevant facts and can relate them and appear to understand the difference between truth and lies and understand the need to tell the truth. Beresford (2005) makes the point (consistent with empirical psychological findings on children's developmental process), that a child being able to explain the difference between the truth and a lie does not mean that the child will necessarily tell the truth, while conversely, their not being able to tell the difference between the truth and a lie does not automatically mean the child will not tell the truth. Hence, Beresford (2005, Child witnesses and the international criminal court system: does the International Criminal Court protect the most vulnerable? Journal of International Criminal Justice 3:740) concludes that:

The exclusion of children's testimony under this limb of the competence requirement seems to run counter to the goal of bringing all relevant evidence before the Chambers. It also ignores the ability of judges to make decisions about weight and credibility which they will do with regard to those persons who are presumed to be competent. In this author's view, the judges should base their decision about credibility on the totality of the child's evidence and not their response to questions couched in legalistic language […] children should always be allowed to testify unless it can be reasonably demonstrated that they are incapable of giving an intelligible account of the events that are the subject of the proceedings.

This author is in accord with Beresford in that various significant parts of the child's account will be open for independent corroboration or lack of corroboration in most if not all instances (through other eyewitness accounts, forensic, medical, documentary and other evidence, etc.), and hence, there will be a check on the veracity or likely veracity of the child victim's testimony. Furthermore, as Beresford points out, allowing child victim testimony, even if the child cannot make a solemn declaration, or adequately demonstrate knowledge of the difference between lies and the truth when confronted with out of context examples, “would not affect the rights of the accused, as they will still be able to challenge the reliability and credibility of the child's evidence through cross-examination” (Beresford 2005, Child witnesses and the international criminal court system: does the International Criminal Court protect the most vulnerable? Journal of International Criminal Justice 3:740). Beresford also notes that often humanitarian organizations do not coordinate with the ICC investigators and other personnel and organs of the court. This can result in the child being unnecessarily re-interviewed multiple times by different agencies and personnel leading to stress and confusion and even trauma for the child. Beresford, therefore, recommends videotaping the child's interview in most every case and especially when the child is young. This in order that repeated interviewing can be avoided to the extent possible. He maintains, further, that videotaped interviews may lead to more accurate, fuller testimony than does non-videotaped testimony. What is clear is that it is as necessary to make special accommodation for children in providing testimony as it is for any other person with special needs (i.e., psychological research has found that having a support person present in the courtroom enhances children's ability to testify fully and completely (i.e., see Goodman et al. (eds.) 1992, Testifying in criminal court: emotional effects on child sexual assault victims, University of Chicago Press, 121). As Beresford also explains, interpreters, in addition, must be sensitive to “the characteristics of particular child witnesses” otherwise there is a risk of communication breakdowns as the child may not understand the question or be intimidated, etc. He points out that “it is unlikely that many children will give testimony in either of the Court's two working languages” (Beresford 2005, Child witnesses and the international criminal court system: does the International Criminal Court protect the most vulnerable? Journal of International Criminal Justice 3:745). Beresford also recommends that where the accused is unrepresented he or she should normally not do the cross-examination of the child directly but should have legal representation (either arranged privately or by the court) to carry out such cross-examination. This in order to ensure that the child's testimony is not unnecessarily “diminished” […] for in the end:

If the ICC treats child witnesses insensitively, the quality of their participation suffers, thereby reducing the likelihood that justice will be done. While the reduction of stress or trauma is important in itself, it may also result in more reliable evidence being given. In fact it may make available vital evidence, without which the case could not proceed. (Beresford 2005, Child witnesses and the international criminal court system: does the International Criminal Court protect the most vulnerable? Journal of International Criminal Justice 3:747)

22.3.12.2 What Is the Status and Efficacy of ICC Outreach Activity?

There is a need for better outreach activity, for instance: (a) informing the population, including children, that recruitment and use of children in soldiering is an international crime; (b) informing child victims of their rights under the ICC statute; and (c) informing children, families and supporters of the potential therapeutic benefits of the children's ICC participation as well as (d) informing the child victims and their families of the possibility of reparation should the case be won. All of this may lead to better re-integration of the ex child soldiers into the community and better acceptance of the children by their community as victims of international crimes. In this regard, note the following statement by the NGO The Redress Trust (The Redress Trust 2006, Victims, perpetrators or heroes? Child soldiers before the International Criminal Court, available at http://www.redress.org, p. 47):

Even in Eastern DRC, where the International Criminal Court has received positive publicity due to the Lubanga arrest, and where victims are familiar with the notion of participating in criminal proceedings, there is still widespread incomprehension by civil society as to what this ‘foreign’ court will provide, and how that will help meet their needs in the context of conflict and poverty. It is suggested that outreach initiatives focus on these ‘preliminary issues’.

22.3.13 What Has Been the General Reaction of the Populace in the DRC to the Crimes Charged Against Lubanga?

Lubanga and the other DRC defendants with superior responsibility and/or other high level alleged involvement in the commission of the international crimes charged to date have been indicted only under the child soldiering war crime provisions of the ICC statute. Yet, there is abundant evidence that other crimes involving child victims among others occurred in the DRC after the coming into force of the ICC statute in July 2002. These international crimes include, among others, forcible transfer of children from their communities to the armed groups (who at times were even members of opposing ethnic groups), sexual slavery, systematic rape of girl children, massacres and torture. There is a need therefore for prosecution of the relevant accused also for these additional grave international crimes:

[…] as concerns Thomas Lubanga's case, the charges concerning child soldiers have been met with surprise […] Furthermore, this surprise is coupled with incomprehension and some frustration as the crimes which are perceived as “more grave”, such as rape, large scale massacres or torture have not been included in the initial list of charges. It is feared by many that these latter acts will not receive the required attention. This has caused significant disappointment given that hopes were high when the arrest was first announced. It is hoped that at least further arrests will follow quickly to make up for the lacunae of the present charges, to maintain momentum and to cover numerous other areas and atrocities committed […]. (The Redress Trust 2006, Victims, perpetrators or heroes? Child soldiers before the International Criminal Court, available at http://www.redress.org, p. 47, emphasis added)

22.3.14 What Barriers May Child Victims Face in Their Search for Justice via the ICC?

It has been noted that large numbers of children have been the victims of war crimes in recent years and that therefore they are essential sources of information regarding such international crimes (i.e., see Beresford 2005, Child witnesses and the international criminal court system: does the International Criminal Court protect the most vulnerable? Journal of International Criminal Justice 3: 721–748). It would be the hope that child victims, as persons in their own right with an inherent entitlement to justice under international criminal law, would receive just satisfaction via the ICC process and outcome in any particular case. This, however, continues to be a struggle. Perpetrators may escape, or at least significantly delay a modicum of justice for the child victims based on various legal manoeuvres despite the videotaped, audiotaped, and/or print documentary evidence that may be available and/or eyewitness evidence of their involvement in international crimes (i.e., the recruitment of children under age 15 into armed forces and their use for active participation in hostilities). Does the release of alleged perpetrators in the face of such evidence, based on procedural matters beyond the control of the Prosecutor (as arguably almost occurred in the Lubanga case), serve to undermine both the dignity and the psychological and physical well-being of the surviving child victims and their families? One must ask whether complete impunity is justified for such offences due to the abandonment of a case based on alleged technical errors by the Prosecutor (i.e., incomplete disclosure to the Trial Chamber due to inability to obtain agreement to full disclosure from NGOs, the United Nations and other sources for certain documentary evidence). Most importantly, what is the standard for determining if such non-disclosure has substantially affected the due process rights of the accused, and has the ICC always applied that standard in a non-arbitrary way? Was the standard appropriately applied by the ICC Trial Chamber in the Lubanga case when it issued an unconditional release order for Lubanga at a point in the case which was prior to the Prosecutor being able to obtain agreements for the full disclosure to the Trial Chamber of previously confidential documentary evidence? Might other more limited remedies have been appropriate at that point also?

22.3.15 How Adequately Has the ICC Protected Child Witnesses at Every Stage of the ICC Process?

To the extent that child witnesses/complainants are not protected at every stage of the investigation and proceedings including after the trial (which would be contrary to the requirements of Article 68 of the Rome Statute), it may be concluded that the ICC system, in those instances, is in fact not acting in the best interests of the children. Examples of the failure of ICC staff to adequately protect child witnesses in every situation have been provided by Save the Children. For instance, Save the Children, based on research and field investigations, suggested that the ICC process in Northern Uganda had put children (and adults) at risk:

[…] Save the Children is deeply worried over the way ICC has so far approached formerly abducted children for interviews in the pre-investigation period. The fact that ICC is interviewing children and young persons in the centers where children live could put these centers at risk of reprisals and attacks from the LRA. Mechanisms to protect children had neither been guaranteed nor put in place as part of the pre-investigation procedures. This is a breach of internationally recognised principles and standards of child protection. […] The confidentiality of witnesses and information is an important policy of the Chief Prosecutor which was discussed in a meeting between Save the Children ad representatives from the ICC. Nevertheless information from Northern Uganda shows that it has been fairly easy for research teams to identify who the ICC have interviewed and to do follow up interviews with these children and young people. This raises serious concerns about the ICC's capacity to maintain strict confidentiality in the process to come. Just interviewing children to obtain general information can, in the current situation of ongoing conflict, put them at increased risk of being targeted, re-abducted and killed. (“Child protection concerns related to the ICC investigations and possible prosecution of the LRA Leadership”, Save the Children in Uganda Report, Kampala, Uganda, 30 March, 2005, p. 2)

In that same report, Save the Children Uganda pointed out that the ICC at the time did not appear to have a suitable protocol for interviewing children and follow up with those children (i.e., the children did not always understand why they were being interviewed, what protections they would or would not receive from the ICC, their right not to consent to the interview, who would use the information gathered, how that information would be handled, the potential risks to them of consenting to be interviewed, etc; Child Protection Concerns related to the ICC Investigations and Possible Prosecution of the LRA Leadership, Save the Children in Uganda report, Kampala, Uganda, 30 March, 2005, p. 5)

22.3.16 Have Child Witnesses and Participants Always Been Treated with an Adequate Level of Respect by All Judges and Staff of the International Criminal Courts?

It is essential that child victim witnesses, as any other, are treated with respect by the international criminal courts but this has not always occurred. It is necessary that any staff or judges who consistently cannot show child witnesses this respect be held accountable and, in this author's view, be asked to recuse themselves from the case. Human Rights Watch reported such insensitivity occurred on occasion at the Special Court of Sierra Leone (a hybrid international criminal court):

It is absolutely necessary that when witnesses come forward to testify, often at great risk to themselves and their families, that they are treated with dignity and respect. This is a matter of principle and also pragmatic, as ill-treatment of witnesses will have a chilling effect on witness cooperation with the court and undermines the very principles on which the court is founded. […] Human Rights Watch was told that judges have reportedly referred to the “degree of intelligence of a witness” in reference to a witness' lack of education, laughed concerning the illiteracy of a witness, requested that a witness whose arms were obviously amputated raise hands to demonstrate this, and, in at least one instance, stated the name of a child witness in open court. At the same time, Human Rights Watch was told that judges have demonstrated sensitivity in other instances to witnesses, particularly with rape victims […] The judges have also worked with the Witnesses and Victims Support Unit to ensure proper treatment of witnesses. (Treatment of witnesses and courtroom management, Human Rights Watch report, available online at http://www.hrw.org/reports/2004/ sierraleone0904/3.htm)

22.3.17 Does the ICC Code of Ethics for Judges Speak to the Issue of Respect for Witnesses and Victim Participants?

The ICC Code of Ethics at Article 8 (Code of Judicial Ethics International Criminal Court, ICC-BD/02-01-05, http://www2.icc-cpi.int/NR/rdonlyres/A62EBC0F-D534-438F-A128-D3AC4CFDD644/140141/ICCBD020105_En.pdf) speaks to the issue of the need to treat witnesses with respect. These principles are relevant to any international criminal court proceeding though each court has its own code:

Article 8 Conduct during proceedings […] 3. Judges shall avoid conduct or comments which are racist, sexist or otherwise degrading and, to the extent possible, ensure that any person participating in the proceedings refrains from such comments or conduct.

22.3.18 What Are the Weaknesses of a Code of Judicial Ethics As the Only Vehicle for Ensuring that Judges Conduct Themselves in a Manner Befitting Their Position As Judges?

Codes of Judicial Ethics are but advisory as to proper professional and ethical conduct for judges. The question can be raised then as to whether there is a need for an independent oversight body with respect to the judicial panels of any level of the ICC and all other international criminal court systems such that (a) judges who undermine the dignity of witnesses, and contribute to the further violation of victim human rights in any way (i.e., through biased rulings, etc.) can be held accountable and (b) victims can receive the appropriate remedy for any such judicial misconduct. (Note that the ICC, does, under Chapter 8 of its rules of court, have a mechanism for dealing with complaints against judges, but how accessible and effective this mechanism will be remains to be seen). This issue of judicial accountability was raised at an international workshop on judicial ethics held in 2003. The report issued as a result of this workshop (“Toward the development of ethics guidelines for international courts”, Report on the Workshop on Judicial Ethics held in conjunction with the Brandeis Institute for International Judges, 24 July, 2003, Salzburg, Austria, p. 11, available online at http://www.brandeis.edu/ethics/pdfs/internationaljustice/ethics/EthicsGuidelines.pdf) states the following:

The issue of accountability plays into the discussion of disciplinary procedures since it was generally expressed that international judges should be answerable not only to their courts, but also perhaps to external entities. What these entities should be and how a judge's accountability to them should be evaluated are, the group agreed, complex questions to answer. Yet it was also widely felt that the development of recognizable mechanisms to ensure accountability, and disciplinary measures for cases where standards of conduct are not met, would go far in allaying the fears of critics who believe that international courts answer to no one.

The international judges group attending the aforementioned 2003 workshop on judicial ethics and the international courts suggested that several key questions regarding the accountability of, for instance, international criminal court judges remain to be adequately answered, for instance: (a) are the judges of the international courts sufficiently accountable and to whom (i.e., are they accountable to peer judges, to member States, to NGOs, to victims, to the media, to the interested public, and/or to their own consciences)? and (b) are there disciplinary measures in place and are these appropriate for serious and less serious violations of judicial ethics?

22.3.19 What Potential Legal Standing Do Children Have Before the ICC?

The question arises as to how accountable the international criminal courts are likely to be to child victims and how that relates to the child's legal standing. The ICC does, it appears, recognize children's legal capacity in their own right to bring information forward to the Office of the Prosecutor for the prosecutor's consideration. Further, the ICC provides for the participation of child victims as victim participants who may make independent submissions generally through their representatives. The question arises whether the test for the right to children's participation is clear enough so as to eliminate arbitrary exercise of judicial discretion in the matter. Hence, the possibility for wide variation exists in whether minor children will be given the opportunity to participate in the ICC judicial process in any particular case either directly or through their representative. In the Lubanga case, as per a 11 July, 2008 ICC Appeal Court decision, children will be permitted to testify at trial regarding the evidence pertaining to the charge; recruitment (i.e., enlistment and/or conscription) and use of children under age 15 to participate actively in hostilities, but not other international crimes they are alleged to have suffered as the result of victimization by Lubanga directly or indirectly through his forces. The child victims who may participate in the ICC Lubanga case include: (a) child victims who suffered direct harm as a result of the war crime allegedly committed by the defendant and his militia (i.e., relating to the matter of the recruitment and use of child soldiers under 15 for active participation in hostilities) and (b) those who suffered indirect but personal harm as a result (i.e., siblings and other family members who suffered psychological harm as a result of the child family member in question being “recruited” and/or used as a child soldier, other child community members who lived in fear that they, too, would be taken, etc.). The Appeal Court affirmed that the “victim participants” in Lubanga may lead evidence as to the guilt or innocence of the accused and may also challenge the relevance and admissibility of evidence.

22.3.20 What Statement Did the NGO “No Peace Without Justice” Make in Regard to the Importance of Child Victim Participation in the Lubanga ICC Proceedings?

“No Peace Without Justice” issued the following statement regarding the implications for the ICC of child witness testimony in the Lubanga case; the first case to proceed before the ICC, and strikingly one focused on a child-specific international crime:

The opportunity to testify and the recognition of the relevance and importance of their suffering by the Court and the world, is in itself an important part of addressing the crimes committed…NPWJ calls for the immediate development of a child specific ICC Code of Conduct setting out the required treatment of child witnesses, from the moment of first contact with the Court, through the pre-trial, trial and post-trial process, and that appropriate mechanisms be put in place to provide protection and support in their longer-term integration within society. (Rome, Brussels, 29 January, 2007, available at http://www.iccnow.org/documents/NPWJ_PR_ICC_DRC_ConfCharges_29jan07.pdf)

Judge Fulford has said the ICC is a “brave new court […] We have no internal precedents. We are constructing our jurisprudence from scratch” (Lisa Clifford and Katy Glassborow, Institute for War and Peace Reporting, ICC Africa-Update, The Hague, AR No. 158, 29 Feb, 2008), Lubanga Trial Delay Concerns, `available online at http://www.iwpr.net/index.php?apc_state=hen&s=o&o=l=EN &p=acr&s=f&o=343028). It remains to be seen, however, just how brave the ICC and the other international criminal courts will ultimately be, and what legacy of justice they actually create for the child victims of grave international crimes.