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Congo Case Marks ICC Debut

Judges consider whether to bring Thomas Lubanga Dyilo to trial.
By Katy Glassborow
The International Criminal Court, ICC, this week began its first-ever case, hearing arguments on whether there is enough evidence against Thomas Lubanga Dyilo from the Democratic Republic of Congo to proceed to trial.

Lubanga is the court's first and only accused in custody and all sides – the judges, prosecution, defence and victims’ lawyers – are feeling their way in this brand new international legal system that was completely untried and untested until this week.

Lubanga’s lawyer Jean Flamme said it was like taking “the first step on the moon every day”.

Lubanga was arrested in March this year, suspected of conscripting children under 15 to fight in his rebel militia, the Union of Congolese Patriots, UPC.

The 45-year-old father of six is accused of being the president and founder of the UPC and having acted as the commander-in-chief of its military wing, the Patriotic Forces for the Liberation of the Congo, FPLC.

During this first phase of proceedings, due to finish on November 28, chief prosecutor Luis Moreno-Ocampo will present the evidence found during investigations in the Congo. Lubanga’s defence team will debate the charge and question the evidence.

The pre-trial judges will then have two months to either confirm the charges or throw out the case. They could also ask the prosecutor to conduct further investigations or to amend the charges.

In addition to being the ICC’s first case, the proceedings are significant because war crime victims, represented by lawyers, will be able to participate, not just as witnesses.

Luc Walleyn, an attorney for several victims, told a press conference that it is a “huge leap forward” to allow them to take part, as provided for by the Rome Statute that bought the ICC into existence in July 2002.

Walleyn explained that his team would represent three families whose children were voluntarily or involuntarily conscripted into Lubanga's UPC militia. Some “never came back from the jungle”.

He told IWPR that steps are being taken to ensure these victims are not considered “prosecutors of a second rank” as some human rights groups have feared, but that they will represent the views of the victims during the trial.

Walleyn also stressed that the lawyers themselves will participate according to “the agenda of the victims, not of the prosecutor”.

George Gebbie, another lawyer for the victims, said it is impossible to limit this sort of case to “guilt and the imposition of penalties” but that “respect must be restored to those who have had crimes committed against them”.

Deputy Prosecutor Fatou Bensouda told journalists that the Congo has among the highest numbers of child soldiers in the world. Bensouda said that regardless of the outcome, the hearing would “highlight the atrocities of using children in adult wars”.

Nonetheless, Bensouda said prosecutors have ample evidence against Lubanga for coordinating the conscription and military training of young children and providing them with weapons.

Flamme, however, was keen to point out his client is a politician who established the UPC as a “multi-ethnic party” to pacify the situation in northeastern Congo and work towards a cessation of hostilities.

On November 9 – the historic first day of the hearing – Lubanga introduced himself at the request of the Presiding Judge Claude Jorda.

Wearing a traditional blue African shirt, he told the courtroom that “being in prison is a source of frustration and humiliation” but that he was attempting to keep up his moral.

Judge Jorda explained that the confirmation hearing is not a trial, but intended to determine whether there is enough evidence to proceed to a trial, stressing that everyone before the ICC is “presumed innocent until guilt is established”.

Flamme told the court that those involved in this hearing are “setting precedents” for the way the ICC will run in the future, and that he is “acting with this responsibility on his shoulders”.

He told the pre-trial judges that he is concerned that Lubanga is flanked by two security guards in court and is assigned a seat on the row behind him, which he said makes communicating difficult.

He also expressed concern about the CCTV camera in the meeting room designated for Lubanga and his attorneys, which he argues may hamper their ability to speak freely and read sensitive documents for fear of this being recorded on tape.

Judge Jorda said that the relationship between a lawyer and his client is “almost sacred” and pushed the court’s Registry on why the CCTV camera had to be in the room.

Flamme then pointed to an ICC newsletter which labelled Lubanga as the accused, reminding the court that his client is a suspect at the moment and only becomes the accused when on trial.

Bensouda then addressed the court, saying that the crime of conscripting child soldiers is “one of the most serious, brutal and morally troubling to the international community”.

She said that the prosecutors hope to send a message that “those who use children to fight adult wars will be tried under the full weight of international law”.

Senior prosecution trial attorney Ekkehard Withopf told the court that Lubanga is a “man with a double face”. He said Lubanga wanted to present himself as a politician and pacifier, but was a military commander who conscripted children into a brutal war.

He said that Lubanga trained the children to kill in military training camps and then “let them die in hostilities”.

Withopf described children being abducted from their schools and houses by Lubanga’s FPLC, saying that families did not resist because they “feared being killed by troops”.

He told the court that these children were taught to use bayonets, daggers, sticks and firearms and were “beaten, threatened and sometimes executed” if they lost their weapons.

Withopf added that Lubanga encouraged children to take cannabis to “make them fearless” and that many were killed on the frontline.

Standing to address the court on behalf of the victims of war crimes, for the first time ever under international law, Walleyn said that the recruitment of child soldiers has “destroyed not only a generation but a whole region”.

He thanked the court for maintaining the anonymity of these victims, saying it is “giving a voice to thousands of unnamed children, dead and unburied in the bush”. He said anonymity is easing the minds of the victims who are “scared of reprisal attacks” from the UPC, which still “wields considerable influence”.

Walleyn told the court that the victims had “been through hell” and explained that they are taking a considerable risk in standing up against “one of the most powerful men in Ituri”. He asked the court to be compassionate and respectful towards the victims who will “forget things and be vague” because of what they have suffered.

When all sides have made their case on November 28, the pre-trial judges will have 60 days to decide whether to proceed to a full trial, with a decision expected in January 2007.

Katy Glassborow is an IWPR reporter in The Hague.

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