ICC-01/04-01/06-2842 14-03-2012 1/624 SL T

Original: English

No.: ICC-01/04-01/06 Date: 14 March 2012

TRIAL CHAMBER I

Before:

Judge Adrian Fulford, Presiding Judge Judge Elizabeth Odio Benito Judge Ren Blattmann

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v .THOMAS LUBANGA DYILO

Public Judgment pursuant to Article 74 of the Statute

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Decision/Order/Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor
Mr Luis Moreno Ocampo Ms Fatou Bensouda

Counsel for the Defence Ms Catherine Mabille Mr Jean-Marie Biju Duval Legal Representatives of the Applicants

Legal Representatives of the Victims

Mr Luc Walleyn Mr Franck Mulenda Ms Carine Bapita Buyangandu Mr Joseph Keta Orwinyo Mr Paul Kabongo Tshibangu

Unrepresented Victims

Unrepresented Applicants for Participation/Reparation

The Office of Public Counsel for Victims

Ms Paolina Massida

The Office of Public Counsel for the Defence

States Representatives

Amicus Curiae

REGISTRY Registrar
Ms Silvana Arbia

Defence Support Section

Victims and Witnesses Unit

Detention Section

Victims Participation and Reparations Section

Other

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I. II.

THE CHARGES .......................................................................................... 7 BRIEF CASE HISTORY, JURISDICTION AND PARTICIPATION BY VICTIMS .................................................................................................... 10 III. OVERVIEW OF THE PARTIES AND PARTICIPANTS SUBMISSIONS . .................................................................................................................... 23 A. PROSECUTION SUBMISSIONS ............................................................. 23 B. DEFENCE SUBMISSIONS ....................................................................... 27 C. VICTIMS SUBMISSIONS ......................................................................... 35 IV. FACTUAL OVERVIEW............................................................................ 41 A. THE BACKGROUND TO THE CONFLICT IN ITURI.......................... 41 B. THE HEMA-LENDU CONFLICT ........................................................... 43 C. THE UPC ................................................................................................... 46 V. THE EVALUATION OF EVIDENCE...................................................... 50 VI. THE DEVELOPMENT OF THE PROSECUTIONS INVESTIGATION63 A. THE OPENING OF THE INVESTIGATION.......................................... 63 B. THE CREATION OF THE TEAM ........................................................... 64 C. THE INITIAL PROCESS OF GATHERING EVIDENCE....................... 65 D. THE FOCUS OF THE INVESTIGATION ............................................... 68 E. THE DETAILED PROCESS OF GATHERING EVIDENCE.................. 73 F. SECURITY ISSUES.................................................................................... 74 G. DETERMINING THE AGES OF CHILDREN ........................................ 83 VII. INTERMEDIARIES................................................................................... 90 A. THE ISSUE................................................................................................. 90 B. THE DEVELOPING USE OF INTERMEDIARIES ................................. 92 C. PAYMENT TO INTERMEDIARIES ........................................................ 98 D. CONTRACTS WITH INTERMEDIARIES .............................................100 E. INDIVIDUAL INTERMEDIARIES.........................................................101 1. Intermediary 143 ..................................................................................102 a) Background.......................................................................................102 b) The evidence from P-0582 and P-0583............................................103 c) The Other Evidence..........................................................................107 2. Intermediary P-0316.............................................................................137 a) Background.......................................................................................137 b) The evidence from P-0582 and P-0583............................................139 c) The Other Evidence..........................................................................152 3. Intermediary P-0321.............................................................................173 a) Background.......................................................................................174 b) The relevant witnesses.....................................................................176 c) The lists of children..........................................................................203 d) An organisation dealing with victims ............................................205 e) Assessment of Intermediary 321.....................................................206

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Intermediary P-0031.............................................................................207 a) Background.......................................................................................207 b) The evidence from P-0582 ...............................................................208 c) The evidence of P-0157 ....................................................................210 d) Assessment of P-0031.......................................................................215 F. CONCLUSIONS ON THE CHILD SOLDIERS CALLED BY THE PROSECUTION .......................................................................................217 VIII. THE THREE VICTIMS WHO GAVE EVIDENCE ................................221 A. Victims a/0270/07 (V02-0001), a/0229/06 (V02-0003) and a/0225/06 (V020002) ..........................................................................................................222 B. Defence witnesses D-0032 and D-0033...................................................223 C. Conclusions on the three victims who gave evidence ..........................228 IX. THE ARMED CONFLICT AND ITS NATURE.....................................231 A. INTRODUCTION ....................................................................................231 B. SUBMISSIONS .........................................................................................231 C. THE CHAMBERSS CONCLUSIONS....................................................239 X. CONSCRIPTION AND ENLISTMENT OF CHILDREN UNDER THE AGE OF 15 OR USING THEM TO PARTICIPATE ACTIVELY IN HOSTILITIES (ARTICLE 8(2)(e)(vii) OF THE STATUTE) ...................261 A. THE LAW .................................................................................................261 1. Submissions ..........................................................................................263 a) Prosecution submissions .................................................................263 b) Defence submissions........................................................................266 c) Victims Submissions ........................................................................269 2. The Chambers Analysis and Conclusions ........................................273 a) Enlistment and conscription............................................................278 b) Using children under the age of 15 to participate actively in hostilities ...........................................................................................282 B. THE FACTS ..............................................................................................288 1. Relevant Evidential Considerations ...................................................288 2. Age assessments and determinations of witness credibility............290 a) P-0046 ................................................................................................292 b) P-0024 ................................................................................................298 c) P-0012 ................................................................................................300 d) P-0055 ................................................................................................302 e) P-0017 ................................................................................................304 f) P-0016 ................................................................................................306 g) P-0038 ................................................................................................308 h) P-0041 ................................................................................................311 i) P-0014 ................................................................................................313 j) P-0002 ................................................................................................316 k) P-0030 ................................................................................................317 l) D-0011 ...............................................................................................320
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m) D-0037................................................................................................323 n) D-0019 ...............................................................................................324 o) D-0007 ...............................................................................................325 3. Documentary evidence on the presence of child soldiers within the UPC/FPLC ............................................................................................326 a) Logbooks from a demobilisation centre (EVD-OTP-00474, EVDOTP-00476 and EVD-OTP-00739) ...................................................326 b) Letter of 12 February 2003 from the National Secretary for Education to the G5 Commander of the FPLC (EVD-OTP-00518).... ...........................................................................................................329 c) Logbook of radio communications (EVD-OTP-00409) .................333 d) Monthly report by Eric Mbabazi (EVD-OTP-00457) .....................335 4. Conscription and enlistment between September 2002 and 13 August 2003........................................................................................................337 a) The age range of children recruited and related issues ................337 b) Rallies, recruitment drives and mobilisation campaigns..............343 c) UPC/FPLC training centres .............................................................351 5. Use of child soldiers.............................................................................363 a) Participation in battles and presence on the battlefield ................364 b) The use of child soldiers as military guards ..................................368 c) Bodyguards and escorts of commanders and other high-ranking UPC/FPLC officials ..........................................................................370 d) Thomas Lubangas bodyguards......................................................376 e) The Kadogo Unit ..............................................................................381 f) Domestic work .................................................................................384 g) Conditions of use of child soldiers .................................................385 h) The self-defence forces.....................................................................391 6. Overall Conclusions as regards conscription, enlistment and use of children under the age of 15 within the UPC/FPLC .........................397 a) Conscription and enlistment in the UPC/FPLC.............................397 b) Use of children under 15 to participate actively in hostilities ......399 XI. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THOMAS LUBANGA (ARTICLE 25(3)(a) OF THE STATUTE) ............................400 A. THE LAW .................................................................................................400 1. The Mode of Liability Charged...........................................................400 2. The Decision on the Confirmation of Charges ..................................400 a) The Pre-Trial Chambers Conclusions on the Objective Elements 403 b) The Pre-Trial Chambers Conclusions on the Subjective Elements............................................................................................403 3. The Submissions...................................................................................406 a) The Prosecution................................................................................406 b) The Defence ......................................................................................410
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The Legal Representatives of Victims ............................................416 4. Relevant provisions .............................................................................420 5. Analysis ................................................................................................423 a) The Objective Requirements ...........................................................423 b) The Mental Element .........................................................................434 6. Conclusions of the Chamber ...............................................................438 B. THE FACTS ..............................................................................................439 1. COMMON PLAN ................................................................................442 a) The co-perpetrators alleged alliance (Summer 2000 March 2002) ...........................................................................................................442 b) Events leading up to and the take-over of Bunia ..........................450 c) The goals of the UPC/FPLC after September 2002 ........................477 d) Conclusion and legal findings on the common plan ....................480 2. THOMAS LUBANGAS ESSENTIAL CONTRIBUTION .................485 a) Thomas Lubangas role in the UPC/FPLC .....................................486 b) Thomas Lubangas individual contribution to the conscription and enlistment of children under the age of 15 or using them to participate actively in hostilities .....................................................525 c) Conclusions and legal findings on the essential contribution of Thomas Lubanga..............................................................................544 3. MENTAL ELEMENT...........................................................................549 a) Intent and knowledge ......................................................................549 b) Awareness of the factual circumstances that established the existence of a non-international armed conflict and the nexus between the commission of the crime and the armed conflict.....586 4. OVERALL CONCLUSIONS ...............................................................587 XII. DISPOSITION ..........................................................................................591

c)

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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 (Lubanga case), issues the following Judgment pursuant to Article 74 of the Statute:

I. THE CHARGES
1. On 29 January 2007, Pre-Trial Chamber I issued its Decision on the Confirmation of Charges. 1 It confirmed that there was sufficient evidence to establish substantial grounds to believe that:
Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(b)(xxvi) and 25(iii)(a) of the Statue from early September 2002 to 2 June 2003.2

Additionally, the Pre-Trial Chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that:
Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(e)(vii) of the Statute from 2 June to 13 August 2003.3

2.

Under the Rome Statute (Statute)4 and the Rules of Procedure and Evidence (Rules), the charges include a description of the relevant facts and circumstances, and the facts are legally characterised. Therefore the charges are made up of factual and legal elements.

3.

Pursuant to Article 74(2) of the Statute, the judgment shall not exceed the facts and circumstances, described in the charges and any

Decision on the confirmation of charges, 29 January 2007, ICC-01/04-01/06-796-Conf-tEN, and public version: ICC-01/04-01/06-803-tEN (Decision on Confirmation of Charges or Confirmation Decision). The public version of the Decision is referred to hereinafter. 2 ICC-01/04-01/06-803-tEN, page 157. 3 ICC-01/04-01/06-803-tEN, page 158. 4 Where Article is used herein it refers to the Rome Statute unless otherwise indicated.

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amendments to the charges. The charges and any amendments thereto establish the factual scope of the Decision pursuant to Article 74(2). 4. By Regulation 55(1) of the Regulations of the Court (Regulations), the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28. However, it shall not exceed the facts and circumstances described in the charges and any amendments to the charges. 5. Regulation 52(b) of the Regulations establishes what needs to be included in the document containing the charges: [a] statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court. 6. The Appeals Chamber has defined what are the facts in this context:
In the view of the Appeals Chamber, the term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (1) (a) of the Statute.5

7.

It follows that the accused cannot be convicted on a basis that

5 Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 8 December 2009, ICC-01/04-01/06-2205, footnote 163.

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exceeds the factual circumstances that were identified in the Confirmation Decision as supporting each of the legal elements of the crimes charged. 8. The two paragraphs of the Decision on the Confirmation of Charges cited above contain the legal characterisation of the facts, including the mode of liability, the temporal framework of the crimes and the fact that the alleged conscription and enlistment was into the Force Patriotique pour la Libration du Congo (FPLC). The Pre-Trial Chamber, in this section, did not expressly identify the facts that supported each of the legal elements of the crimes charged. However, they were referred to in other sections of the Decision and the Trial Chamber has ensured that the present Judgment does not exceed the facts and circumstances established by the Pre-Trial Chamber.

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II. BRIEF CASE HISTORY, JURISDICTION AND PARTICIPATION BY VICTIMS

Jurisdiction 9. Pursuant to Article 19 of the Statute, the Court shall satisfy itself that it has jurisdiction in any case brought before it.6 The Democratic Republic of the Congo (DRC) became a State party on 11 April 2002 and, pursuant to Article 14, President Kabila referred the situation in the DRC to the Prosecutor in March 2004. 7 Pre-Trial Chamber I concluded that the case falls within the Courts jurisdiction,8 and the Appeals Chamber confirmed the Pre-Trial Chambers Decision on the accuseds challenge to the jurisdiction of the Court. 9 The personal, temporal, territorial and subject-matter elements that are relevant to the Courts jurisdiction have not altered since the Decision on the Confirmation of the Charges, and the issue has not been raised by the parties or any State before the Trial Chamber.

See also Article 8(1) of the Statute: The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes, and Pre-Trial Chambers II decision that the term in particular makes it clear that the existence of a plan, policy or large scale commission is not a prerequisite for the Court to exercise jurisdiction over war crimes but rather serves as a practical guideline for the Court, The Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08-424, para. 211. 7 See Decision assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, ICC-01/04-1, 5 July 2004 (notified on 6 July 2004), page 4. 8 Decision on the Prosecutors Application for Warrant of Arrest, Article 58, 10 February 2006, ICC01/04-01/06-1-US-Exp, reclassified as public on 17 March 2006, ICC-01/04-01/06-8-Corr; Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute, 3 October 2006 (notified on 4 October 2006), ICC-01/04-01/06-512; ICC-01/04-01/06-803-tEN, paras 164-166. 9 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772. See also The Prosecutor v. Katanga and Ngudjolo, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/07-1497, paras 85 and 86.

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Case history 10. The first status conference before the Trial Chamber was held on 4 September 2007, and thereafter there were 54 status conferences prior to the commencement of the trial.10 A list of the main decisions of the Chamber is set out in Annex A. However, it is appropriate to mention in this section four major procedural events which had a significant impact on the course of the proceedings: i) On 13 June 2008, the Chamber stayed the

proceedings inter alia as a consequence of the failure by the Office of the Prosecutor (prosecution or OTP) to disclose a significant body of potentially exculpatory evidence covered by certain

confidentiality agreements that had been entered into on the basis of Article 54(3)(e) of the Statute.11 After a considerable delay, the materials that had been withheld were disclosed, and following a review of them by the Chamber, the stay of proceedings was lifted on 18 November 2008.12 The prosecution called its first witness on 28 January 2009 after the parties and legal representatives of the victims had completed their opening statements on

ICC-01/04-01/06-T-50-ENG (4 September 2007) to ICC-01/04-01/06-T-106-ENG (22 January 2009). The Appeals Chamber held 3 hearings to deliver decisions during this period of time. All transcripts are referred to hereinafter as T-[RELEVANT NUMBER] with an appropriate indication of level of confidentiality, language and version. The most up-to-date version (corrected as appropriate) is the version referred to. 11 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, 13 June 2008, ICC-01/04-01/06-1401. The Decision was confirmed by the Appeals Chamber on 21 October 2008: ICC-01/04-01/06-1486. 12 T-98-ENG, page 2, line 23 to page 4, line 1.

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26 and 27 January 2009.13 ii) The presentation of oral evidence by the prosecution concluded on 14 July 2009, 14 and thereafter the Majority of the Chamber (Judge Fulford dissenting) issued a Decision notifying the parties and

participants that the legal characterisation of the facts may be subject to change, pursuant to Regulation 55 of the Regulations of the Court.15 The Chamber granted leave to appeal the Decision on 3 September 200916 and adjourned the presentation of evidence Regulation and 55 any further the consideration outcome of of the

pending

interlocutory appeal.17 The Appeals Chamber issued its judgment reversing the 14 July 2009 Decision on 8 December 2009. 18 The presentation of evidence resumed on 7 January 2010 with the testimony of the third expert called by the Chamber.19 28 witnesses testified before the Chamber between 7 January and 8 July 2010, including 3 victims called by their legal

T-107-ENG and T-109-ENG. 31 witnesses testified between 28 January and 14 July 2009: 29 witnesses called by the prosecution and 2 experts called by the Chamber. 15 Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 14 July 2009, ICC-01/04-01/06-2049, and Minority Opinion of Judge Fulford, ICC-01/04-01/06-2069. 16 Decision on the prosecution and the defence applications for leave to appeal the Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 3 September 2009, ICC-01/0401/06-2107. 17 Decision adjourning the evidence in the case and consideration of Regulation 55, 2 October 2009, ICC-01/04-01/06-2143. 18 Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 8 December 2009, ICC-01/04-01/06-2205. 19 T-223-ENG; see also T-222-ENG (transcript of status conference on 9 December 2009).
14

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representative and 3 prosecution witnesses (see below). The presentation of the defence evidence commenced on 27 January 2010. iii) On 8 July 2010, the Trial Chamber imposed a second stay of proceedings because of the prosecutions non-compliance with an order for the disclosure of the name of Intermediary 143.
20

The Appeals

Chamber concluded that the orders of a Chamber are binding and the Prosecutor is obliged to comply with them (the Prosecutors wilful non-compliance constituted a clear refusal to implement the orders of the Chamber), 21 but it reversed the stay of proceedings on 8 October 2010 (indicating that a different sanction, namely a financial penalty, should have been considered).22 The presentation of evidence resumed on 25 October 2010. Seven witnesses testified between 25 October and 1 December 2010. iv) On 10 December 2010, the defence filed an application seeking a permanent stay of

proceedings, arguing, inter alia, that four of the

Decision on the Prosecutions Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, 8 July 2010, ICC-01/04-01/06-2517-Red. See also Decision on Intermediaries, 12 May 2010, ICC-01/0401/06-2434-Red2 (public redacted version issued on 31 May 2010). 21 Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled Decision on the Prosecutions Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, 8 October 2010, ICC-01/04-01/06-2582, para. 46. 22 Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled Decision on the Prosecutions Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, 8 October 2010, ICC-01/04-01/06-2582.

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intermediaries

used

by

the

prosecution

had

prepared false evidence and the Prosecutor was aware that some of the evidence connected to these individuals was untruthful, and moreover he failed in his obligation to investigate its reliability.23 Prior to receiving the application, the Chamber had heard 30 witnesses relevant to this issue, including 3 intermediaries. The Chamber issued a Decision dismissing the defence application on 23 February 2011. 24 The presentation of the defence evidence resumed on 28 March 2011 and five final defence witnesses testified before the evidence formally closed on 20 May 2011. 11. As set out above, the presentation of evidence in the case started on 28 January 2009 and was formally closed on 20 May 2011.25 The Trial Chamber heard 67 witnesses, and there were 204 days of hearings.26 The prosecution called 36 witnesses, including 3 experts, 27 and the defence called 24 witnesses.28 Three victims were called as witnesses following a request from their legal representatives. Additionally the Chamber called four experts.29 The prosecution submitted 368 items of evidence, the defence 992, and the legal representatives 13 (1373 in

Requte de la Dfense aux fins darrt dfinitif des procdures, ICC-01/04-01/06-2657-tENG-Red (translation of public redacted version filed on 12 August 2011). 24 Decision on the Defence Application Seeking a Permanent Stay of the Proceedings, ICC-01/0401/06-2690-Conf, 23 February 2011, and public redacted version issued on 7 March 2011 (notified on 8 March 2011), ICC-01/04-01/06-2690-Red2. 25 T-110-Red-ENG and T-355-ENG. 26 This figure includes status conferences held in the course of the trial, the oral closing submissions and an additional hearing held on 15 November 2011 (T-107 to T-358). 27 3 witnesses were recalled; 2 witnesses testified by way of deposition; and 5 were female. Prosecution witnesses are hereinafter referred to as P-0000 [relevant number]. 28 4 were female. Defence witnesses are hereinafter referred to as D-0000 [relevant number]. 29 Ms Elisabeth Schauer (CHM-0001), Mr Roberto Garretn (CHM-0002), Ms Radhika Coomaraswamy (CHM-0003), and Prof. Kambayi Bwatshia (CHM-0004).

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total). In addition to the written submissions, 30 the oral closing arguments of the parties and participants were heard on 25 and 26 August 2011. Since 6 June 2007, when the record of the case was transmitted to the Trial Chamber, 31 the Chamber has delivered 275 written decisions and orders and 347 oral decisions.32 12. Article 76(2) provides that the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence. The defence requested that the Chamber holds an additional hearing in the event of a conviction.33 In an oral Decision delivered on 25 November 2008, the Chamber decided there would be a separate sentencing hearing if the accused is convicted.34 Participation by victims 13. The Rome Statute permits victims to participate in proceedings before the ICC. In accordance with Article 68(3) of the Statute, victims have participated in the present case, and in particular they have

The prosecution filed its closing submissions on 1 June 2011, ICC-01/04-01/06-2748-Conf (public redacted version filed on 21 July 2011, ICC-01/04-01/06-2748-Red). The legal representatives of the victims filed their closing submissions on 1 June 2011: ICC-01/04-01/06-2744-Conf, see also public redacted version ICC-01/04-01/06-2744-Red-tENG (Office of Public Counsel for Victims); ICC-01/0401/06-2746-Conf-Corr, see also public redacted version ICC-01/04-01/06-2746-Red-tENG (legal representatives V01); ICC-01/04-01/06-2747-Conf, see also public redacted version ICC-01/04-01/062747-Red-tENG (legal representatives V02). The defence filed its submissions on 15 July 2011: ICC01/04-01/06-2773-Conf; public redacted version filed on 11 August 2011 (ICC-01/04-01/06-2773Red); see also ICC-01/04-01/06-2773-Red-tENG. The prosecution filed a response to the defence submissions on 1 August 2011: ICC-01/04-01/06-2778-Conf (and public redacted version filed on 16 August 2011, ICC-01/04-01/06-2778-Red). The defence replied on 15 August 2011: ICC-01/04-01/062786-Conf and public redacted version notified on 17 August 2011, ICC-01/04-01/06-2786-Red; see also ICC-01/04-01/06-2786-Red-tENG. The public redacted versions of the briefs are referred to whenever possible hereinafter. 31 Decision transmitting the pre-trial record of proceedings in the case of The Prosecutor v Thomas Lubanga Dyilo to Trial Chamber I, ICC-01/04-01/06-920, 5 June 2007 (notified on 6 June 2007). 32 Information provided by the Registry (excluding Orders for the redaction of transcripts and translations) based on Registrys Tableau de bord. 33 Observations de la Dfense sur linterprtation et lapplication de lArticle 76, 31 March 2008, ICC01/04-01/06-1250, para. 4. 34 T-99-ENG, page 39, lines 22-23.

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applied to introduce evidence, they have questioned witnesses and they have advanced written and oral submissions (with the leave of the Chamber), assisted by their legal representatives. 14. In the Decision on victims participation (Judge Blattmann separately and partially dissenting), the Chamber issued general guidelines concerning the participation by victims during the trial.35 This Decision was appealed.
36

The Appeals Chamber partially

confirmed and partially reversed the Decision.37 The following overall criteria have been established in the decisions of the Trial and the Appeals Chambers: i) Bearing in mind the current situation in the DRC and the potential difficulties in obtaining or producing copies of official identity documents, applicants may establish proof of their identity by way of a range of official and non-official documents.38 ii) Using Principle 8 of the Basic Principles 39 as guidance, a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss. 40 iii) Participation by victims at trial will first and foremost take place by way of the procedure established in Rule 89(1) of the Rules.

35 36

Decision on victims participation, 18 January 2008, ICC-01/04-01/06-1119, paras 106 - 109. Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432. 37 Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432. 38 ICC-01/04-01/06-1119, para. 87. 39 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the United Nations General Assembly, resolution 60/147, 16 December 2005. 40 ICC-01/04-01/06-1119, paras 90-92 and ICC-01/04-01/06-1432, paras 31-39.

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iv) Only those who suffered harm as a result of the crimes charged may be considered victims in the case. Applicants need to demonstrate a link between the harm they suffered and the crimes faced by the accused,41 and they should demonstrate in written applications that they are victims of these offences. v) [P]ursuant to Article 68(3) of the Statute, victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial. 42 Participation is to be decided on the basis of the evidence or issues under consideration at any particular stage in the proceedings and victims wishing to participate should set out in a discrete written application the nature and the detail of the proposed intervention. 43 vi) In accordance with Rule 131(2) of the Rules, victims have the right to consult the record of the proceedings, including the index, subject to any restrictions concerning confidentiality and the protection of national security information. In principle, victims have the right to access and receive notification of all public filings and those confidential filings which concern them (as identified by the parties), insofar as this does not breach any protective measures that are in place. 44 vii)Victims may request the Chamber to use its broad powers to call all the material it considers relevant for the determination of the
41 42

ICC-01/04-01/06-1432, paras 62-64. ICC-01/04-01/06-1432, para. 61. 43 ICC-01/04-01/06-1119, paras 101-104. 44 ICC-01/04-01/06-1119, paras 105-107.

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truth, in order that the evidence identified by victims concerning the guilt or innocence of the accused is introduced (to the extent appropriate). Victims may tender evidence, examine witnesses and challenge the admissibility or relevance of evidence during the trial so long as: (i) they submit a discrete application; (ii) notice is given to the parties; (iii) the personal interests of one or more victims are affected by the evidence; (iv) there is compliance with their disclosure obligations and [any] protection orders;45 (v) the Chamber determines this course is appropriate and (vi) there is consistency with the rights of the accused and a fair trial. 46 viii) Victims have the right to participate in public hearings and to file written submissions, and they may be permitted to participate in closed or ex parte hearings or to file confidential or ex parte submissions, depending on the circumstances. 47 ix) Victims views and concerns may be presented by a common legal representative in order to provide for the fairness and expeditiousness of the trial.48 x) Victims may apply to the Chamber for leave to call evidence relating to reparations during the trial under Regulation 56 of the Regulations of the Court.49 xi) Anonymous victims may participate in the trial. However, the greater the extent and significance of the proposed participation, the more likely it will be that the Chamber will require the

45 46

ICC-01/04-01/06-1432, para. 104. ICC-01/04-01/06-1119, paras 108-111; ICC-01/04-01/06-1432, paras 93-104. 47 ICC-01/04-01/06-1119, para. 113. 48 ICC-01/04-01/06-1119, paras 115 116 and 123 126. 49 ICC-01/04-01/06-1119, paras 119-122.

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victim to identify himself or herself. 50 15. The total number of individual victims authorised to participate in the proceedings is 129 (34 female and 95 male victims). 51 Once the Chamber received the parties observations on their applications and reviewed the reports prepared by the Victims Participation and Reparations Section under Regulation 86(5) of the Regulations of the Court, 52 it concluded, on a prima facie basis, that each of these individuals were victims of the crimes charged against the accused.53 In accordance with the Statute the Trial Chamber examined, on a caseby-case basis, the link between the harm allegedly suffered, the victims personal interests and the charges against the accused. 16. While all 129 victims claimed they had suffered harm as a result of the enlistment or conscription of children under the age of 15, or their use to participate actively in the hostilities, many also alleged they had
ICC-01/04-01/06-1119, paras 130-131. Given that in the case of 6 victims, one of their parents who was authorised to participate received the same reference number as the primary victim, there are 123 reference numbers. Approximately 28 victims were under 18 at the time of the Chambers Decision authorising them to participate in the proceedings. 52 In total, the Chamber received 6 reports and 3 supplementary reports: ICC-01/04-01/06-1275-ConfExp; ICC-01/04-01/06-1380-Conf-Exp; ICC-01/04-01/06-1501-Conf-Exp; ICC-01/04-01/06-1503Conf-Exp; ICC-01/04-01/06-1532-Conf-Exp; ICC-01/04-01/06-1823-Conf-Exp; ICC-01/04-01/062000-Conf-Exp; ICC-01/04-01/06-2474-Conf-Exp; ICC-01/04-01/06-2695-Conf-Exp. 53 The first ruling is the Decision on the applications by victims to participate in the proceedings, issued on 15 December 2008, corrigendum issued on 13 January 2009, ICC-01/04-01/06-1556-Corr with public Anx1. The confidential ex parte annex and the redacted confidential annex with the caseby-case analysis of the applications covered by this first decision are contained in ICC-01/04-01/061563, Conf-Exp-AnxA1 and ConfAnxA2 respectively. The public redacted annex with the case-bycase analysis of this first decision is ICC-01/04-01/06-1861-AnxA1. The second decision is the Decision on the applications by 3 victims to participate in the proceedings, 18 December 2008, ICC01/04-01/06-1562. The confidential ex parte annex and the redacted confidential annex with the caseby-case analysis of the applications covered by the second decision are included in ICC-01/04-01/061564-Conf-Exp-AnxA1 and Conf-AnxA2 respectively. The public redacted annex with the case-bycase analysis of this second decision is ICC-01/04-01/06-1861-AnxA2. The third decision is the Decision on the applications by 7 victims to participate in the proceedings, 10 July 2009, ICC-01/0401/06-2035, with Conf-ExpAnxA containing the confidential ex parte case-by-case analysis of these applications. The confidential and public redacted annexes of this third decision are ICC-01/04-01/062065-Conf-Anx1 and Anx2. The fourth decision is the Decision on the applications by 15 victims to participate in the proceedings, 13 December 2010, public redacted version of the corrigendum of the decision issued on 8 February 2011, ICC-01/04-01/06-2659-Corr-Red with AnxA-Red2. The fifth decision is the Decision on the applications by 7 victims to participate in the proceedings, 30 June 2011, public redacted version issued on 25 July 2011, ICC-01/04-01/06-2764-Red and AnxA-Red.
51 50

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suffered harm as a result of other crimes, such as sexual violence and torture or other forms of ill treatment, which are not the subject of charges against the accused.54 17. The victims who have been granted permission to participate in this trial are, in the main, alleged former child soldiers, although some are the parents or relatives of former child soldiers and one is a school. Since some of the victims were still children when they submitted their applications, their parents, relatives or others have acted on their behalf. The Chamber accepted that the individual who acted for a child did not need to be their parent or legal guardian indeed it permitted children to participate directly without an adult

representing them.55 18. Many of the victims in the case were granted protective measures and, in particular, anonymity because of their vulnerable position living in areas of ongoing conflict. Consequently, of 129 victims, the identities of only 23 have been disclosed to the parties and participants in the proceedings. However, the Chamber found that:
[w]hile the safety and security of victims is a central responsibility of the Court, their participation in the proceedings cannot be allowed to undermine the fundamental guarantee of a fair trial. The greater the extent and the significance of the proposed participation, the more likely it will be that the
54

30 victims (18 female and 12 male) referred to acts of sexual violence which they either suffered or witnessed. These are victims a/0078/06, a/0056/07, a/0007/08, a/0047/06, a/0048/06, a/0057/07, a/0063/07, a/0124/08, a/0126/08, a/0059/07, a/0055/07, a/0058/07, a/0226/06, a/0162/07 (see ICC01/04-01/06-1563-Conf-Exp-AnxA1), a/0407/08 (see ICC-01/04-01/06-1564-Conf-Exp-AnxA1), a/0026/10, a/0027/10, a/0028/10, a/0029/10, a/0030/10, a/0031/10, a/0033/10, a/0035/10, a/0037/10, a/0333/10, a/0334/10, a/0336/10, a/0738/10, a/0739/10, a/0740/10 (see ICC-01/04-01/06-2659-AnxARed2). 30 victims (5 female, 25 male) referred to acts of torture which they either suffered or witnessed. These are victims a/0050/06, a/0237/06, a0238/06, a/0054/07, a/0056/07, a/0060/07, a/0229/06, a/0230/06, a/0224/06, a/0123/08, a/0047/06, a0048/06, a/0052/06, a/0122/08, a/0124/08, a/0125/08, a/0126/08, a/0130/08, a/0058/07, a/0236/06, a/0227/06, a/0221/06 (see ICC-01/04-01/061563-Conf-Exp-AnxA1) and a/0249/09, a/0060/09, a/0053/09, a/0249/09 (see ICC-01/04-01/06-2035Conf-Exp-AnxA), a/0031/10, a/0333/10, a/0336/10, a/0738/10 (see ICC-01/04-01/06-2659- AnxARed2). 55 Public Annex 1 to Corrigendum to "Decision on the applications by victims to participate in the proceedings", 13 January 2009, ICC-01/04-01/06-1556-Corr-Anx1, paras 67-72.

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Chamber will require the victim to identify himself or herself. Accordingly, when resolving a request for anonymity by a victim who has applied to participate, the Chamber will scrutinise carefully the precise circumstances and the potential prejudice to the parties and other participants. []56

19. The Chamber formulated certain key principles for those individuals with dual status as victims and witnesses. 57 Whilst the Chamber indicated that their security should not be compromised, it also established that individuals with dual status do not accrue rights above and beyond those of someone who is solely a victim or a witness.58 20. Common legal representatives have appeared in court for the participating victims, who have been divided into two groups represented by two teams of external counsel. 59 Additionally, the Office of Public Counsel for Victims (OPCV) was authorised to continue representing four dual status victims.60 Through their legal representatives the victims made opening statements, 61 examined witnesses 62 and requested leave to introduce evidence. 63 They were permitted to make written and oral submissions. 21. The Chamber authorised three victims to give evidence as witnesses during the trial and evidence was presented on behalf of a school.64 These three witnesses, who testified in January 2010, were granted incourt protective measures that included voice and face distortion and
ICC-01/04-01/06-1119, para. 131. ICC-01/04-01/06-1119, paras 132-134. 58 Decision on certain practicalities regarding individuals who have the dual status of witness and victim, 5 June 2008, ICC-01/04-01/06-1379, para. 52. 59 Referred to as V01 and V02 team(s) or group of victims hereinafter. 60 T-105-ENG, page 12, line 23 to page 13, line 12. 61 T-107-ENG, page 36, line 5 et seq. 62 The Chamber allowed the legal representatives to question 25 witnesses (the 4 Chamber witnesses, 14 prosecution witnesses and 7 defence witnesses). 63 The Chamber authorised the legal representatives of the victims to submit 13 items of evidence. 64 Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, 26 June 2009, ICC-01/04-01/06-2002-Conf paras 39-40; public redacted version filed on 9 July 2009, ICC-01/04-01/06-2032-Anx.
57 56

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pseudonyms.65 The position of these three witnesses is discussed in greater detail below.

See T-225-Red-ENG, T-227-Red-ENG, T-228-Red-ENG, T-230-Red-ENG, T-234-Red-ENG, T235-Red-ENG.

65

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III. OVERVIEW OF THE PARTIES AND PARTICIPANTS SUBMISSIONS

A. PROSECUTION SUBMISSIONS 22. The principal factual allegations against the accused commence on 15 September 2000 when it is suggested he became President of the Union des Patriotes Congolais (UPC). It is said that he held this position at all material times thereafter. His ambition is described as gaining power in Ituri, but since he was leading a rebel movement this was unachievable without a military force. In unequivocal terms, it is the prosecutions assertion that the accused agreed with others to gain power in Ituri through the recruitment of young persons. It is alleged that the co-perpetrators were establishing an army,

notwithstanding their public promise to end years of ethnic fighting.66 23. The prosecution asserts that in reality the recruitment began when military training in Uganda became a possibility in 2000. The accused and his co-perpetrators launched the first wave of young Hema fighters who would later become the armed wing of the UPC. This led the accused and his co-perpetrators to become closely associated with the UPC and the Hema militia (which are said to have been indistinguishable) and it is alleged they used children to gain power in Ituri.67 24. His Hema connections enabled Thomas Lubanga to cultivate an external profile as a key political player in Iturian politics, and this included the declaration he sent to the political authorities of Uganda on behalf of the co-perpetrators and others who had revolted against
66 67

ICC-01/04-01/06-2748-Red, para. 7. ICC-01/04-01/06-2748-Red, para. 8.

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the Arme Populaire Congolaise (APC), the armed wing of the Rassemblement Congolais pour la Dmocratie Kisangani/Mouvement de Libration (RCD-ML),68 in the summer of 2000. The accused became Minister of Defence in the RCD-ML, the government then in power in the DRC, in 2001. It is alleged that together with his co-perpetrators he broke away from the RCD-ML in April 2002.69 25. The UPC and its military wing, the FPLC,70 took power in Ituri in

September 2002. It is said that at this stage Thomas Lubanga acknowledged that the UPC/FPLC had had a joint military and political profile since 2000. In particular, in April and August 2002 he recognised the groups military actions, and in October 2002 he wrote to the DRC government asking for national recognition, having described his power and territorial reach in Ituri.71 26. The need for a more substantial army led to increased recruitment of young people regardless of age by targeting schools and the general public, and through coercive campaigns in the villages. It is suggested that during the relevant period this inevitably led to the conscription, enlistment and use of children below 15 years of age, even if they were not specifically targeted. Furthermore, no attempt was made to check the ages of the recruits.72 27. The FPLC which, as set out above, became the UPCs military wing was formally created in September 2002.
68

The prosecution

The Chamber refers herein to the RCD-ML. However, on occasion, the acronym RCD/KIS-ML has been used when necessary. 69 ICC-01/04-01/06-2748-Red, para. 9. 70 The letters RP were added to the end of UPC in September 2002. See T-342-ENG, page 35, lines 15 16 (D-0019) and T-125-Red-ENG, page 17, line 19 to page 19, line 20 (P-0041). However, the Chamber notes that the witnesses usually referred to the UPC and often treated the UPC and FPLC interchangeably. Herein, the Chamber refers to the UPC and the UPC/RP as UPC, and the UPC with its army the FPLC as the UPC/FPLC. 71 ICC-01/04-01/06-2748-Red, para. 10. 72 ICC-01/04-01/06-2748-Red, para. 11.

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argues this was the final phase of the execution of the common plan to take over Ituri by military means. 73 It is suggested that it was a professional body, with trained officers and soldiers. It had an intricate and organised hierarchy, with headquarters in Bunia; three sectors and several brigades (with approximately 1000 soldiers in each); and up-todate communications systems.74 28. During the following 11 months, Thomas Lubanga (who it is contended was jointly President of the UPC and Commander-in-chief of the FPLC) directed the military to complete the conquest of Ituri. He is said to have given the orders for the battles at Mongbwalu, Bambi, Lipri and Kobu, and, by controlling the finances, it is suggested he ensured that the military was properly equipped with funds, ammunition, weapons and vehicles.75 29. It is the prosecutions submission that, together with his Chief of Staff and other military commanders, the accused orchestrated campaigns in order to recruit soldiers of all ages, including those below the age of 15 years who were trained and sent to the front line.76 30. The accused gained, and thereafter used, the support of Gegere wise men to raise awareness in the villages. The FPLC recruited children by abduction, and it put pressure on the population to permit recruitment and to accept the enlistment of children during the recruitment campaigns.77 31. Eric Mbabazi, a G5 and top military commander who headed the morale and discipline division of the FPLC, is alleged to have been
73 74

ICC-01/04-01/06-2748-Red, para. 12. ICC-01/04-01/06-2748-Red, para. 12. 75 ICC-01/04-01/06-2748-Red, para. 13. 76 ICC-01/04-01/06-2748-Red, para. 14. 77 ICC-01/04-01/06-2748-Red, para. 15.

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particularly responsible for recruiting children. He reported any difficulties that arose to his superiors.78 32. Following their recruitment, the children were sent to one of 20 military camps set up throughout Ituri where they received standard military training from UPC/FPLC commanders. 79 It is alleged they were beaten, whipped, imprisoned and inadequately fed, and young girls were raped. They were encouraged to drink alcohol and to take drugs, leading to frequent intoxication.80 33. It is contended Thomas Lubanga either knew that children under 15 years of age were being conscripted or enlisted or he was at least aware that this was an inevitable consequence of what was occurring. Despite this knowledge, the recruitment drive continued, as part of the execution of the joint plan. He frequently saw child soldiers, and even his own personal protection unit included children aged between 13 and 17. The accused apparently received a copy of a document from one of the national secretaries to Eric Mbabazi which referred to the presence of child soldiers who were aged between 10 and 16 years.81 34. The prosecution alleges that the use of young people, including children under the age of 15, continued throughout the period of the charges. This escalated when the fighting was intense and it drew the attention of the Organisation of the United Nations (UN) and various humanitarian organisations to this phenomenon. It is argued that in order to dispel the concerns of the international community about the use of child soldiers, the accused issued false demobilisation orders, while, in reality, the position remained unchanged. Thomas
78 79

ICC-01/04-01/06-2748-Red, para. 16. ICC-01/04-01/06-2748-Red, para. 17. 80 ICC-01/04-01/06-2748-Red, para. 18. 81 ICC-01/04-01/06-2748-Red, para. 19.

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Lubanga visited a training camp two weeks after issuing an order of this kind where children significantly under the age of 15 were visible, including amongst the bodyguards of the senior commanders.82 35. The prosecution submits that the crimes were committed in the context of a conflict of a non-international character, and the involvement and influence of various States did not internationalise the armed conflict to which Mr Lubangas UPC/FPLC was a party at the relevant time.83 36. Not all the facts included in this summary fall within the parameters of the facts and circumstances described in the charges as confirmed in the Decision on the Confirmation of Charges. For instance, as noted by the Chamber in various previous decisions, the use of girl soldiers as sexual slaves together with the resulting unwanted pregnancies have not been included. As already indicated, the Chamber has ensured that this Judgment does not exceed the facts and circumstances described in the charges. B. DEFENCE SUBMISSIONS 37. The defence presented a bifurcated case. The first part, which was introduced between 27 January 2010 and 1 December 2010, challenged the testimony of all the prosecutions child soldier witnesses. The prosecution, in turn, called various rebuttal witnesses.84 In light of the evidence given at this stage, the defence argued that the proceedings should be stayed because they had been irremediably vitiated by serious breaches of the fundamental principles of justice [and] the

82 83

ICC-01/04-01/06-2748-Red, para. 20. ICC-01/04-01/06-2748-Red, paras 21-60. 84 One further witness related to this part of the defence was called from 14 to 18 April 2011.

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norms of a fair trial .85 38. The three main contentions of the defence in this regard were (i) that four of the prosecutions intermediaries (Intermediary 143, P-0316, P-0321, and P-0031) were involved in soliciting false testimony from all the prosecution witnesses who were called to give evidence as former child soldiers; 86 (ii) one of the participating victims (said to be an important Congolese politician) solicited false testimony, and the Congolese authorities fraudulently intervened in the investigations;87 and (iii) the prosecution failed to fulfil its obligations either to investigate all the relevant exculpatory circumstances or to effect timely and appropriate disclosure.88 39. In its closing submissions, the defence requests the Chamber to consider, mutatis mutandis, the facts and arguments rehearsed in this application for a permanent stay of the proceedings, which have demonstrated numerous serious failures on the part of the prosecution.89 In particular, the defence sets out what it argues to be the lack of any proper investigation by the prosecution into the reliability of the evidence it called (including the failure to verify the identity of its witnesses or the credibility of their allegations), along with the use of documents which lacked any guarantee of reliability.90 It is suggested that in light of this alleged misconduct, it is impossible for the Chamber to attach sufficient weight, i.e. beyond a reasonable doubt, to any of the evidence introduced by the prosecution, thereby
85 86

ICC-01/04-01/06-2657-tENG-Red, para. 5. ICC-01/04-01/06-2657-tENG-Red, paras 21, 29 68, 75 137, 149 183 and 184 195; and ICC01/04-01/06-2773 Red-tENG, paras 5 9. 87 ICC-01/04-01/06-2657-tENG-Red, paras 25, 200 228 and ICC-01/04-01/06-2773-Red-tENG, paras 10 12. 88 ICC-01/04-01/06-2657-tENG-Red, paras 23, 263 - 285 and ICC-01/04-01/06-2773-Red-tENG, paras 13 17. 89 ICC-01/04-01/06-2773-Red-tENG, paras 3 and 14. 90 ICC-01/04-01/06-2657-tENG-Red, paras 229 et seq.

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rendering a guilty verdict unsustainable.91 40. The second part of the defence evidence (presented between 30 March and 14 April 2011) focussed on the individual criminal responsibility of Mr Lubanga. Five defence witnesses, including four UPC insiders, testified on various aspects of the substantive allegations against the accused. 41. The defence argues in its final submissions that none of the evidence presented at trial proves beyond reasonable doubt that children under the age of 15 were enlisted and conscripted by the FPLC, or were used to participate actively in hostilities, during the period covered by the charges.92 It is further argued the Prosecutor failed to call any former child soldiers who were under the age of 15 at the relevant time, and this, taken alone, casts doubt over the merits of the prosecutions submissions.93 It is also submitted that the allegation of the prosecution that the UPC had 20 camps is unfounded: D-0019 mentioned that the UPC only had 3 camps (Mandro, Rwampara and Bule), and the witnesses who refer to other camps are said to be unreliable.94 42. The defence submits that i) between September 2002 and May 2003 the conflict in Ituri was international in character,95 and ii) there was no conflict (either international or non-international) in Ituri between late May 2003 and 13 August 2003. On this basis, it is suggested the crimes charged under Article 8 of the Statute could not have been

91 92

ICC-01/04-01/06-2773-Red-tENG, para. 17. ICC-01/04-01/06-2773-Red-tENG, paras 700 763. 93 ICC-01/04-01/06-2773-Red-tENG, para. 736. 94 ICC-01/04-01/06-2773-Red-tENG, paras 762, 808 809. 95 ICC-01/04-01/06-2773-Red-tENG, paras 681 and 689.

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committed during that latter period.96 43. It is argued that the common plan, which forms the basis of charging the accused as a co-perpetrator, was not criminal and the allegation in this regard is, in any event, founded on inaccurate facts.97 The defence denies the accused formed a political and military alliance with APC dissidents between July 2000 and March 2002.98 It is said the UPC was not a military organisation in 2000,99 and Mr Lubanga did not personally contribute to the armed rebellion in Bunia between April and August 2002.100 The defence contends that the accused was in custody outside Ituri when the common plan was implemented,101 and there is no evidence that he was involved in its formulation.102 The defence submits his participation in government (as President of the UPC) cannot be equated with participation in a common plan for the purposes of criminal liability for these alleged offences. It is emphasised that the UPC executive, which included Mr Lubanga, was chased out of Bunia in March 2003, and as a result the accused was not in the DRC for the majority of the period between March and May 2003. During this time, the UPC executive was unable to meet, and it is suggested there is no evidence that its members were in a position to communicate. Therefore, it is argued there is no support for the existence of a common plan between March and May 2003.103 44. It is contended the accused did not play a central role in the military

96

ICC-01/04-01/06-2773-Red-tENG, paras 694 699 and ICC-01/04-01/06-2786-Red-tENG, paras 105 109. 97 ICC-01/04-01/06-2773-Red-tENG, paras 764 772. 98 ICC-01/04-01/06-2773-Red-tENG, paras 773 776. 99 ICC-01/04-01/06-2773-Red-tENG, paras 777 786. 100 ICC-01/04-01/06-2773-Red-tENG, paras 787 801. 101 ICC-01/04-01/06-2773-Red-tENG, para. 784. 102 ICC-01/04-01/06-2773-Red-tENG, para. 787. 103 ICC-01/04-01/06-2773-Red-tENG, paras 797 801.

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structure of the FPLC (which was headed by Floribert Kisembo)104 and that he did not personally contribute to the recruitment or training of recruits, or to their allocation or use. 105 The defence suggests that although Mr Lubanga visited the Rwampara training camp in February 2003, the speech he gave on that occasion does not constitute an essential contribution to the process of recruitment. Further, it is said that he did not visit any other training camps or participate in any of the recruitment operations.106 On the contrary, it is submitted the enlistment, training and use of FPLC soldiers was within the sole jurisdiction of the military hierarchy under the leadership of dissident soldiers of the APC and Chief Kahwa. 107 Accordingly, the defence submits the accused did not make an essential contribution to the commission of the crimes with which he is charged.108 45. The defence argues that the testimony of several witnesses demonstrates there were no children under the age of 15 amongst the soldiers assigned to guard the accused.109 46. As to the mental element, the defence contends there is no evidence to suggest the accused either knew or should have known that there were children under the age of 15 in the FPLC, or that he was obliged by his position as President and Commander-in-chief of the UPC/RP to ensure all the recruits were over the age of 15.110 It is further submitted there is no evidence demonstrating that he was aware of any widespread practice of compulsory conscription of children under the

104 105

ICC-01/04-01/06-2773-Red-tENG, paras 802 817. ICC-01/04-01/06-2773-Red-tENG, paras 821 857. 106 ICC-01/04-01/06-2773-Red-tENG, paras 827 845. 107 ICC-01/04-01/06-2773-Red-tENG, paras 849 857. 108 ICC-01/04-01/06-2773-Red-tENG, para. 857. 109 ICC-01/04-01/06-2773-Red-tENG, paras 846 848. 110 ICC-01/04-01/06-2773-Red-tENG, paras 858 889.

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age of 15 or their use by way of participation in the hostilities.111 47. The defence argues that at no time did the accused approve, accept or tolerate the enlistment of children under the age of 15 years old and that each time he found himself in a position to exert his authority Mr Lubanga implemented measures prohibiting the recruitment of child soldiers and ensuring their demobilisation. 112 Between September 2002 and March 2003, and between the end of May and 13 August 2003, the accused is said to have issued a formal ban on the enlistment of minors and to have been active in implementing demobilisation measures for anyone under the age of 18 years in the FPLC and the other armed groups.113 Accordingly, it is submitted the accused did not have the intention required by Article 30 for the crimes with which he is charged.114 48. Moreover, the defence contends that the accuseds position as the UPC President (and de jure Commander-in-Chief of the FPLC) does not lead to the conclusion that he was in a position to ensure that every recruit was older than 15 years of age, particularly since he is not charged with responsibility as a commander under Article 28 of the Statute but instead he is prosecuted under Article 25(3)(a). The defence argues it is impermissible for the accused to be convicted on any basis other than as someone with responsibility under Article 25(3)(a). As set out above, it is the defence submission that the evidence demonstrates that when Mr Lubanga received information that there were children under the age of 18 within the FPLC, he immediately

111 112

ICC-01/04-01/06-2773-Red-tENG, paras 881 889. ICC-01/04-01/06-2773-Red-tENG, paras 890 957. 113 ICC-01/04-01/06-2773-Red-tENG, paras 890 957. 114 ICC-01/04-01/06-2773-Red-tENG, para. 957.

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took steps to ensure they were demobilised.115 It is submitted there is no evidence demonstrating that the accused ordered the recruitment of children under 15 or their use in hostilities. To the contrary, it is argued the only instructions he gave were to order their

demobilisation.116 The defence suggests the prosecution is prohibited from relying on any alleged omissions by the accused as part of its theory of control (in the sense that he allegedly failed to prevent recruitment by his subordinates).117 Further, it is contended that the prosecution has not demonstrated how any contribution by the accused amounted to the sine qua non necessary for the commission of these alleged crimes.118 49. The defence highlights certain items of evidence in this regard. It is suggested it was simply a matter of conjecture on the part of P-0041 that the accused presided over any of the military meetings indeed, it is said there was no basis for this supposition.119 It is argued that the UPC logbooks reveal that the Chief of Staff took all the relevant decisions and, as a result, their relationship fails to provide evidence of effective control on his (the accuseds) part.120 The defence submits P-0055 indicated that he had not witnessed meetings between Mr Lubanga and the Chief of Staff or other commanders. It is said P-0055 merely asserted that the G5 was able to meet with the Chief of Staff and the accused, without indicating whether this happened. 121 The defence relies on the suggested acceptance by the prosecution that the troops of Commander Kakwavu only remained in the UPC between

115 116

ICC-01/04-01/06-2773-Red-tENG, paras 858-864. ICC-01/04-01/06-2773-Red-tENG, paras 806 and 890 et seq. 117 ICC-01/04-01/06-2773-Red-tENG, para. 818. 118 ICC-01/04-01/06-2773-Red-tENG, paras 802 845. 119 ICC-01/04-01/06-2786-Red-tENG, paras 33 34. 120 ICC-01/04-01/06-2786-Red-tENG, para. 35. 121 ICC-01/04-01/06-2786-Red-tENG, paras 36 37 and 43.

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August 2002 and 6 March 2003. On this basis, it is argued Mr Lubanga is not responsible for any recruitment by this group.122 It is contended that the monthly report relied on by the prosecution does not indicate that forced recruitment occurred in the villages. On the contrary, it is suggested it proves that the recruitment was voluntary and, additionally, there is no evidence it was seen by the accused.123 50. The defence submits that the demobilisation orders were meant to be executed, having been transmitted down the chain of command. However, difficulties were encountered, and although the accused asked for reports and to be kept up-to-date, the military leadership found that implementation was difficult, particularly vis--vis the selfdefence forces.124 51. As regards the suggested order from the accused on his return to Ituri that all children under 18 should be demobilised, it is said the evidence demonstrates that during the fighting in May 2003 to regain Bunia from the Ugandans, there were fighters from a number of groups (FPLC members loyal to Floribert Kisembo, Parti pour lUnit et la Sauvegarde de lIntgrit du Congo (PUSIC) dissidents loyal to Chief Kahwa, commanders Tchaligonza and Kasangaki, the self defence groups and armed civilians) who render it impossible to determine which fighters, including children, were part of the UPC. The defence argument, therefore, is that the accused in good faith ordered demobilisation, albeit in difficult circumstances.125 In the context of the assertion by the prosecution that from September 2002 the self-defence forces were part of the UPC/FPLC, the accused does not contest the
122 123

ICC-01/04-01/06-2786-Red-tENG, para. 38. ICC-01/04-01/06-2786-Red-tENG, paras 41 42. 124 ICC-01/04-01/06-2773-Red-tENG, paras 890 928. 125 ICC-01/04-01/06-2773-Red-tENG, paras 934 948.

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suggestion that in September 2002 the forces of Chief Kahwa and dissidents from the APC joined together to form the FPLC. However, it is alleged there is no evidence that all the villages of Ituri with selfdefence forces joined the FPLC, thereby removing the opportunity of guaranteeing their own security. The defence relies on Mr Lubangas meeting with the leaders of the self-defence forces in February 2003, in order to discuss demobilisation, in support of its argument that the self-defence forces were still in existence at that time and were acting autonomously (it is noted that the summary of this meeting is not contested by the prosecution).126 C. VICTIMS SUBMISSIONS 52. The OPCV, in its capacity as legal representative of victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06 addressed as part of its closing submissions the various issues of law that have arisen in the case, along with the matters that directly concern the four participating victims it represents. Summaries of these discrete arguments are set out at the appropriate stage of this judgment. Counsel has particularly rehearsed in detail the evidence that is said to corroborate the evidence of these dual-status witnesses.127 53. On the substantive factual matters arising in the case, the OPCV takes issue with the defence contentions as regards the documents that it is claimed call into question elements of the identifying information for these four victims. It is argued that the practices at the civil registry and in other organisations within the DRC have had an adverse impact on the position of the participating victims. It is suggested there is general recognition that documents relating to identity from
126 127

ICC-01/04-01/06-2773-Red-tENG, paras 922 933. ICC-01/04-01/06-2744-Red-tENG, paras 48 et seq.

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the period relevant to the charges are at risk of containing serious flaws, and the defence arguments on this issue are described as being, certainly in part, speculative. 128 Otherwise, it is contended the oral testimony of these four participating victims should be accorded more weight than the out-of-court statements that they or other witnesses have made. The OPCV maintains that credible explanations exist for the various contradictions and inconsistencies in their accounts,129 and the criticisms of their evidence do not reduce the weight and probative value of their testimony, which is purportedly corroborated.130 54. It is suggested the evidence given by the participating victims has demonstrated that children under 15 years were trained in military camps between early September 2002 and 1 3 August 2003,131 and that they were used to participate actively in hostilities involving the armed forces of the UPC/FPLC.132 It also alleged that children were taken to training camps in Centrale, Mandro, Rwampara, Irumu, Bule, Bogoro and Sota.133 55. As to the accuseds alleged criminality, it is argued he was de jure and de facto President of the UPC (with the FPLC as its armed wing). As Commander-in-Chief of the armed forces it is said he was informed of all the military operations that were implemented by the general staff, and he had responsibility for logistical organisation and securing supplies. The OPCV argues that he maintained direct and regular contact with the ranking military leaders of the UPC/FPLC,

128 129

ICC-01/04-01/06-2744-Red-tENG, paras 32 and 33. ICC-01/04-01/06-2744-Red-tENG, para. 46. 130 ICC-01/04-01/06-2744-Red-tENG, para. 47. 131 ICC-01/04-01/06-2744-Red-tENG, paras 38 - 51. 132 ICC-01/04-01/06-2744-Red-tENG, paras 42 45. 133 ICC-01/04-01/06-2744-Red-tENG, para. 50, and ICC-01/04-01/06-2747-Red-tENG, para. 59.

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either by way of meetings at his residence or via Motorola radios.134 56. It is alleged that children under the age of 15 were amongst his bodyguard and, to his knowledge, within the bodyguards of other ranking military leaders. Similarly, the OPCV argues he would have been aware of their presence amongst the recruits at the various UPC/FPLC training camps, given his regular visits. 135 He is said to have provided them with encouragement.136 57. Evidence is identified to the effect that the accused issued public calls to mobilise the Hema population, and he allegedly implemented or contributed to a policy of encouraging young recruits (including those under 15 years of age) to participate in the war effort.137 58. On the issue of the steps taken to demobilise child soldiers, the OPCV submits these only began in February 2003, and that prior to that time the self-defence committees in Ituri regularly sent recruits for training, many of whom joined the UPC/FPLC.138 59. It is alleged the accused is a direct perpetrator of the alleged crimes,139 most particularly because he invited the Hema population to send children who were below the age of 15 for military training140 and because he had recruits of that age in his own bodyguard. Additionally, it is argued that he is guilty as a co-perpetrator141 on the basis of his capacity as President of the UPC and Commander-in-

134 135

ICC-01/04-01/06-2744-Red-tENG, para. 52. ICC-01/04-01/06-2744-Red-tENG, para. 53. 136 ICC-01/04-01/06-2744-Red-tENG, para. 54. 137 ICC-01/04-01/06-2744-Red-tENG, para. 54. 138 ICC-01/04-01/06-2744-Red-tENG, para. 55. 139 ICC-01/04-01/06-2744-Red-tENG, para. 56. 140 ICC-01/04-01/06-2744-Red-tENG, para. 57. 141 ICC-01/04-01/06-2744-Red-tENG, para. 58.

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Chief.142 60. Finally, it is suggested that various acts of inhuman or cruel treatment, along with allegations of sexual slavery, should be borne in mind when considering his criminal responsibility.143 61. The legal representatives of the V01 group of victims similarly advanced submissions on various legal and factual matters that have been addressed at the appropriate stages of this judgment. They join the OPCV in its submissions as to the accuseds alleged criminal responsibility, particularly regarding his role as President and Commander-in-Chief of the UPC when a campaign to recruit minors under the age of 15 years was launched and pursued. 144 Broadly similar arguments are advanced as regards demobilisation, in which it is emphasised that these initiatives were allegedly not implemented.145 62. It is suggested that the presence of children in the ranks of the UPC was part of a phenomenon of child soldiers [that] was seen in the Democratic Republic of the Congo as from the time of the war triggered by the AFDL in 1996-1997,146 and the use of child soldiers in armed groups was the rule, not the exception.147 63. It is contended the use of child soldiers was a deliberate policy of which the accused was aware,148 and that as a result young recruits were sent to military training camps; children below 15 years of age fought in battles; and some of the victims endured severe

142 143

ICC-01/04-01/06-2744-Red-tENG, para. 59. ICC-01/04-01/06-2744-Red-tENG, paras 61 and 62. 144 ICC-01/04-01/06-2746-Red-tENG, paras 30 32. 145 ICC-01/04-01/06-2746-Red-tENG, paras 34 37. 146 ICC-01/04-01/06-2746-Red-tENG, para. 44. 147 ICC-01/04-01/06-2746-Red-tENG, para. 47. 148 ICC-01/04-01/06-2746-Red-tENG, paras 49 51.

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mistreatment, which took different forms.149 It is argued the conditions at the camps were closer to a concentration camp than to barracks.150 64. Broadly similar arguments have been deployed on behalf of the V02 group of victims. The accuseds position and his alleged authority is particularly emphasised,151 as is the recruitment policy that is said to have resulted in a large number of children under the age of fifteen years [being compelled] to join the FPLC, which forcibly recruited groups of children in several locations in Ituri [] in August 2002.152 The personal involvement of FPLC commanders and (on one occasion) the accused is stressed, 153 along with the instances of voluntary enlistment.154 As with other representatives, the ineffective nature of the demobilisation programme is emphasised.155 65. Generally, it is suggested there are substantial grounds to believe that the FPLC used children under the age of 15 years to participate actively in the hostilities.156 The core of these submissions are set out as follows:
[] Thomas Lubanga Dyilo was present at the time and place of the forcible enlistment of children under the age of fifteen years into the FPLC, and, as President and Commander-in-Chief of the FPLC and the coordinator of the implementation of the common plan with other members of the hierarchy with a view to bolstering the UPC/RP and FPLC war effort, he even gave a speech before the young FPLC recruits, including those under the age of fifteen years, urging them to complete their military training and to prepare to participate in military operations.157

66. In this context it is suggested that the accuseds criminal liability as

149 150

ICC-01/04-01/06-2746-Red-tENG, para. 62. ICC-01/04-01/06-2746-Red-tENG, para. 64. 151 ICC-01/04-01/06-2747-Red-tENG, paras 20 22. 152 ICC-01/04-01/06-2747-Red-tENG, para. 47. 153 ICC-01/04-01/06-2747-Red-tENG, para. 48. 154 ICC-01/04-01/06-2747-Red-tENG, para. 49. 155 ICC-01/04-01/06-2747-Red-tENG, paras 51 52. 156 ICC-01/04-01/06-2747-Red-tENG, para. 58 et seq. 157 ICC-01/04-01/06-2747-Red-tENG, para. 98.

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a co-perpetrator under Article 25(3)(a) of the Statute has been established.158

158

ICC-01/04-01/06-2747-Red-tENG, page 22.

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IV. FACTUAL OVERVIEW

A. THE BACKGROUND TO THE CONFLICT IN ITURI 67. This case is concerned with events that took place between early September 2002 and 13 August 2003 in Ituri in the DRC. Ituri is a district of Orientale Province in the north east of the DRC, bordering Uganda, with population estimates ranging from 3.5 to 5.5 million people. 159 Beginning in 1999, ethnic tensions and competition for resources in the district escalated into a devastating conflict.160 Events that occurred during the latter part of this turmoil are the subject of this case. The following short summary draws, in the main, on undisputed evidence in this case that includes the testimony of the Chambers expert witness Roberto Garretn (CHM-0002) and the prosecutions expert Grard Prunier (P-0360), in addition to a number of other prosecution and defence witnesses. The Chamber has indicated the extent to which the evidence or the issues in this context are in dispute. 68. It is to be observed at the outset that the defence challenges the general reliability of the evidence of Grard Prunier (P-0360), criticising his lack of adequate sources and alleging that some of the information in his report is biased against Thomas Lubanga, the UPC or indeed the Hema community as a whole.161 However, the defence

Report by expert witness Roberto Garretn (CHM-0002), EVD-CHM-00005, page 15 (the translated English version can be found in ICC-01/04-01/06-1655-Anx-tENG, page 13); Report of expert witness Grard Prunier (P-0360), EVD-OTP-00403 at DRC-OTP-0203-0091; EVD-OTP-00623, para. 12. 160 EVD-OTP-00403 at DRC-OTP-0203-0091 to DRC-OTP-0203-0099. This conflict was extensively documented in the Special report on the events in Ituri, January 2002 December 2003 by the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC report) of 16 July 2004, admitted into evidence in this case as EVD-OTP-00623. 161 ICC-01/04-01/06-2773-Red-tENG, paras 664 666.

159

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also relies on his evidence as regards the involvement of the governments of the DRC, Uganda, and Rwanda in the conflict in Ituri during the period of the charges, 162 the security situation in Ituri at the time, 163 the UN Mission in the DRC (MONUC) 164 and the UPCs political strategy.165 69. Overall, bearing in mind the totality of the evidence in this area and the witnesss response to questioning, the Chamber found Grard Prunier (P-0360) to be a credible and reliable witness and has relied on his testimony and his report to establish the factual background set out in this section, as well as to assist with the analysis of the nature of the armed conflict in part IX. 70. The two expert witnesses addressed the DRCs colonial past in considerable detail. Regardless of whether the origins of the conflict the Chamber is concerned with are to be found in that history, it is essentially too remote to be of direct relevance to the present charges. Instead, a convenient starting point is May 1997, when following a war that lasted nine months, Laurent Kabila came to power in Zaire which was re-named the Democratic Republic of Congo.166 President Kabila was assassinated in 2001, and he was succeeded by his son, Joseph Kabila. 167 By this time, there were at least ten conflicts within the country involving nine national armies and nineteen irregular armed forces.168 Six of these conflicts took place either in Orientale Province

162 163

ICC-01/04-01/06-2773-Red-tENG, paras 668 673. ICC-01/04-01/06-2773-Red-tENG, para. 674. 164 ICC-01/04-01/06-2773-Red-tENG, paras 675 677. 165 ICC-01/04-01/06-2773-Red-tENG, para. 678. 166 EVD-CHM-00005, pages 8 and 12 (ICC-01/04-01/06-1655-Anx-tENG, pages 8 and 11). 167 EVD-CHM-00005, page 10 (ICC-01/04-01/06-1655-Anx-tENG, page 9). 168 EVD-CHM-00005, page 11 (ICC-01/04-01/06-1655-Anx-tENG, page 10).

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(in which Ituri is located) or in Ituri itself.169 B. THE HEMA-LENDU CONFLICT 71. Ituri is fertile and rich in resources such as gold, diamonds, oil, timber and coltan,170 which many groups, inside and outside the DRC, sought to exploit.171 72. Experts have suggested that much of the violence in Ituri during the period from 1999 to 2003 was initially economically motivated, and that the conflict was due in significant part to the involvement of members of the Ugandan national army (the Ugandan Peoples Defence Force or UPDF), who exploited social unrest for their own economic advantage. 172 In August 1998, members of the UPDF supporting the RCD rebels occupied Orientale Province as part of the effort to overthrow President Kabila, and by November 1998 the UPDF had established a base in Bunia.173 73. The DRC has close to 450 different ethnic groups within its borders.174 In Ituri alone there are approximately 18 different ethnic groups, including the Lendu, the Ngiti and the Hema (and its sub-clan, the Gegere or Hema North).175 74. Belgian colonial rule had emphasised the ethnic divisions between the Hema and the Lendu, whilst favouring the former.176 Even after
169 170

EVD-CHM-00005, page 11 (ICC-01/04-01/06-1655-Anx-tENG, page 10). EVD-CHM-00005, page 15 (ICC-01/04-01/06-1655-Anx-tENG, page 14); T-193-ENG, page 61, lines 2 11 and page 88, line 16 to page 89, line 8 (CHM-0002); EVD-OTP-00403 at DRC-OTP-02030092. 171 EVD-OTP00623, paras 16 and 27; EVD-OTP-00403 at DRC-OTP-0203-0096 and DRC-OTP-0203102. 172 EVD-OTP-0405 at DRC-OTP-0203-0019 to DRC-OTP-0203-022 and EVD-OTP-0403 at DRCOTP-0203-0115; EVD-OTP-00623, para. 6. 173 EVD-OTP-00623, para. 18 and Annex II; EVD-OTP-00403 at DRC-OTP-0203-0095. 174 EVD-CHM-00005, page 5 (ICC-01/04-01/06-1655-Anx-tENG, page 4). 175 EVD-OTP-00623, para. 12; EVD-OTP-00403 at DRC-OTP-0203-0092 to DRC-OTP-0203-0093. 176 EVD-OTP-00403 at DRC-OTP-0203-0093 to DRC-OTP-0203-0094.

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Congo declared its independence from Belgium, the Hema remained the landowning and business elite.177 In 1999, 75 of the 77 large farms formerly owned by Belgian colonists before President Mobutus Zairisation programme belonged to members of the Hema community. 178 Powerful Hemas involved in business transported goods from Ituri across the border into Uganda without paying import taxes.179 75. In 1998/1999, some Hema concessionaires reportedly tried to evict Lendu inhabitants forcibly from their land, which led to armed confrontation.180 The violence gradually spread throughout the district of Ituri, and the conflict widened into a confrontation between the Hema and Lendu communities.181 In addition, soldiers from the UPDF initially supported certain Hema landowners and were allegedly responsible for attacks on Lendu villages.182 The Lendu began to create self-defence forces and these militias attacked Hema villages with the support of individual Ugandan officers, the Congolese pre-transition government and certain rebel movements.183 The Hema also created self-defence committees for their own protection.184 The nature of the self-defence forces and their relationship with the UPC/FPLC (particularly whether they continued to operate independently of the

EVD-OTP-00403 at DRC-OTP-0203-0094; and ICC-01/04-01/06-0096 and EVD-CHM-00005, page 16 (ICC-01/04-01/06-1655-Anx-tENG, page 15). 178 EVD-OTP-00403 at DRC-OTP-0203-0094. 179 T-153-Red-ENG, page 83, line 4 to page 88, line 16 and T-154-Red-ENG, page 8, lines 10 25 (P0043); EVD-OTP-0403 at DRC-OTP-0203-0096 (footnote 82). 180 EVD-OTP-00403 at DRC-OTP-0203-0096 to DRC-OTP-0203-0097; T-156-ENG, page 39, line 4 to page 41, line 9 (P-0360); EVD-OTP-00623, paras 4, 17 and 19. 181 EVD-OTP-00623, paras 4, 5 and 18 - 26. 182 EVD-OTP-00403 at DRC-OTP-0203-0097 and DRC-OTP-0203-0101; EVD-OTP-00623, paras 19 21. 183 EVD-OTP-00403 at DRC-OTP-0203-0098 to DRC-OTP-0203-0101 and EVD-OTP-00623, para. 4. 184 T-160-Red2-ENG, page 38, line 11 to page 39, line 25 (testimony of P-0017). It was also reported that in some Hema localities each family was supposedly given weapons to defend themselves, EVDOTP-00623, para. 21.

177

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UPC/FPLC after September 2002) are addressed below.185 76. From 1999 to the middle of 2003, a series of opposing rebel faction leaders struggled for political power in Ituri. 186 According to a MONUC report, [t]he competition for the control of natural resources by combatant forces, exacerbated by an almost constant political vacuum in the region, [was] a major factor in prolonging the crisis in Ituri. 187 The same report suggested that the local ethnic problems would not have turned into massive slaughter without the involvement of national and foreign players including the Ugandan and Rwandan armies.188 77. In 1999, the rebel group with nominal control in Ituri at the time, the RCD, split into two factions, the RCD-Kisangani headed by Ernest Wamba dia Wamba and supported by Uganda, and the RCD-Goma (RCD-G), supported by Rwanda.189 78. Soon afterwards in October 1999, the UPDF decided to create a new province called Kibali-Ituri
190

and General James Kazini, the

commander in charge of the Ugandan army in the DRC, appointed a Hema activist named Adle Lotsove Mugisa as the provisional governor of the new province.191 79. After this decision, violence escalated in Ituri. By November 1999,

185 186

See Section X(B)(5)(h). EVD-OTP-00623, para. 6. 187 EVD-OTP-00623, para. 7. 188 EVD-OTP-00623, para. 19. 189 EVD-OTP-00403 at DRC-OTP-0203-0098; EVD-OTP-00623, paras 18 and Annex I B. 190 However, the province continued to be referred to as simply Ituri. 191 Later, Adle Lotsove was replaced by Ernest Uringi Pa Ndolo, and then in 2002, Jean-Pierre Molondo-Lompondo was installed as governor. T-179-Red-ENG, page 20, line 24 to page 22, line 24; EVD-OTP-0403 at DRC-OTP-0203-0097 and DRC-OTP-0203-0099 to DRC-OTP-0203-0102; and EVD-OTP-00623, para. 20.

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7,000 people had been killed and 100,000 displaced by the fighting.192 Over the next year and a half, a series of political upheavals and rapidly shifting military alliances helped to fuel the continued conflict.193 80. In March 2000, a UN inter-agency assessment mission in Ituri reported that the humanitarian situation was close to catastrophic.194 C. THE UPC 81. Against this background, the UPC was created on 15 September 2000.195 Although Thomas Lubanga was one of the UPCs founding members and its President from the outset,196 the nature of the group when it was created is a matter of dispute in this case. 82. In the summer and fall of 2000, there was a mutiny of Hema officers and soldiers in the APC (the military wing of the RCD-ML) against Ernest Wamba dia Wamba.197 Members of this mutiny included Bosco Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza,

Floribert Kisembo and Chief Kahwa Panga Mandro. 198 Following negotiations with the Ugandan authorities, in the summer of 2000 the mutineers left for training in Uganda.199

EVD-OTP-0403 at DRC-OTP-0203-0098. EVD-OTP-0403 at DRC-OTP-0203-0098 to DRC-OTP-0203-0102 and EVD-OTP-00623, paras 5 6 and 20 23. 194 EVD-OTP-00623, Annex II. 195 EVD-OTP-00661 (UPC Statute) (another version of the UPC Statute dated 15 September 2000 was given EVD-OTP-00715); EVD-OTP-00662 (UPC Programme); T-342-ENG, page 9, line 21 to page 10, line 7 and T-343- ENG, page 41, lines 20 23 (D-0019). 196 Thomas Lubangas name or signature appears on the list of UPC founders in documents EVD-OTP00662 (in this document his signature appears under the designation Le President), EVD-OTP-00726 and EVD-OTP-00661. Additionally, Thomas Lubangas curriculum vitae indicates that he was the UPC President since 2000, EVD-OTP-00621. 197 T-156-ENG, page 56, lines 4 6 (P-0360); T-343- ENG, page 4, lines 1 11 and page 6, lines 7 10 (D-0019); EVD-OTP-00623, Annex I B. 198 T-168-Red-ENG, page 19, lines 3 14 and page 37, lines 11 25 (P-0012) ; T-343-ENG, page 3, line 25 to page 4, line 11 (D-0019). 199 T-343-ENG, page 13, lines 7 16 (D-0019); T-168-Red-ENG, page 33, lines 3 25 (P-0012).
193

192

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83. The precise nature of the UPC at that time and the identity of those responsible for the training in Uganda are disputed issues in the case. These topics are analysed in greater detail below in the chapter dealing with the individual criminal responsibility of the accused.200 84. On 6 November 2000, Ernest Wamba dia Wamba was overthrown by Mr Mbusa Nyamwisi, who was supported by the Hema leader Jean Tibasima and the Hema militia. 201 In January 2001, the Ugandan Colonel Edison Muzoora of the UPDF seized control of the province of Ituri.202 85. By January 2001, a number of smaller splinter militias had emerged, which had ties with the Ugandan, Rwandan or Congolese forces and the rebel groups.203 As a result, by the end of 2001 there had been a sharp increase in ethnically-targeted attacks on villages and violence against civilians.204 86. In early 2002, Thomas Lubanga occupied the position of Minister of Defence in the RCD-ML (the group that controlled Ituri at the time).205 87. During the Sun City Peace negotiations in South Africa in April 2002, Mr Mbusa Nyamwisi, as President of the RCD-ML, shifted his allegiance to the Kinshasa government and he decided to create an
See Section XI. T-168-Red-ENG, page 34, line 2 to page 36, line 18 (P-0012); EVD-OTP-00403 at DRC-OTP0203-0100 to DRC-OTP-0203-0101. 202 EVD-OTP-00403 at DRC-OTP-0203-0101. 203 EVD-OTP-00623, paras 18 and 23. In addition, Uganda created the Front de Libration du Congo (FLC) at this time in order to try to unite Ugandan-supported rebel groups in one organisation under the leadership of Jean-Pierre Bemba. EVD-OTP-0403 at DRC-OTP-0203-0101 to DRC-OTP-02030102. 204 EVD-OTP-0403 at DRC-OTP-0203-0101 and EVD-CHM-00005, pages 16 and 20 21 (ICC01/04-01/06-1655-Anx-tENG, pages 15 and 19). 205 EVD-OTP-00621 (curriculum vitae of Thomas Lubanga); T-124-Red-ENG, page 78, lines 2 14 (testimony of P-0041, stating that in April 2002, Thomas Lubanga was the Minister of Defence for the RCD-ML); T-168-Red-ENG, page 27, lines 6 24 (testimony of P-0012, stating that by February or March 2002, Thomas Lubanga had already been appointed the Minister of Defence); T-344-Red-ENG, page 8, lines 11 18 (D-0019).
201 200

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integrated Hema-Lendu army for the RCD-ML.206 88. Thereafter, certain individuals (allegedly the accused was among them) decided to abandon the RCD-ML 207 and a number of new militias were organised. As a consequence, the conflict in Ituri was driven to new extremes of ethnic fragmentation.208 On 17 April 2002 a political declaration was issued calling for the departure of Mr Mbusa Nyamwisi.
209

Following this declaration, Hema militia

210

members including Chief Kahwa,

Floribert Kisembo, Bosco

Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza and others, mutinied against the RCD-ML.211 The alleged participation of the accused in these events and his relationship with the aforesaid individuals is analysed in the chapter dealing with individual criminal responsibility.212 89. In June 2002,213 when the accused was in Kampala in order to attend a meeting with a group that included John Tinanzabo, Richard Lonema, Jean-Pascal Ndukute, and Nestor Bamaraki,214 the Ugandan authorities arrested Thomas Lubanga and nine of his companions, later transferring them to Kinshasa where they were kept under house

206 T-179-Red-ENG, page 37, lines 14 25 (P-0014); EVD-OTP-0403 at DRC-OTP-0203-0102 to DRC-OTP-0203-0106. 207 T-340-ENG, page 37, line 7 to page 41, line 4; T-343-ENG, page 49, line 25 to page 52, line 6 and page 69, lines 12 15 (D-0019). 208 EVD-OTP-0403 at DRC-OTP-0203-0103 to DRC-OTP-0203-0106. See also T-179-Red-ENG, page 37, line 14 to page 39, line 23 (P-0014). This is, at least in part, a contentious issue in the case, namely whether Thomas Lubanga personally organized the overthrow of the RCD-ML. 209 EVD-D01-00050; T-343-ENG, page 62, line 13 to page 63, line 17 and page 66, line 21 to page 67, line 10 (D-0019). 210 T-340-ENG, page 53, line 13 to page 54, line 22 (D-0019). 211 T-168-Red-ENG, page 29, lines 3 13 (P-0012); T-340-ENG, page 55, line 15 to page 57, line 2 and T-343-ENG, page 76, line 10 to page 77, line 9 (D-0019). 212 See Section XI. 213 T-344-Red-ENG, page 17, lines 4 7 (D-0019); T-179-Red2-ENG, page 79, lines 12 16 (P-0014); T-125-Red-ENG, page 9, lines 6 9; T-126-Red-ENG, page 7, lines 21 24 (P-0041). 214 T-179-Red2-ENG, page 80, line 21 to page 81, line 9 (P-0014) and T-125-CONF-ENG, page 2, lines 16 24 and T-125-Red2-ENG, page 4, line 18 to page 5, line 12 (P-0041).

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arrest.

215

The conditions of detention of Mr Lubanga and the

delegation of tasks to, and communication on his part with, his alleged co-perpetrators and other UPC members are considered in detail in the chapter dealing with individual criminal responsibility.216 90. In early August 2002, RCD-ML dissidents (backed by Uganda), attacked Bunia and, after several days of fighting,217 took control of the town, ousting Mr Mbusa Nyamwisi and the RCD-ML. 218 The APC forces were driven out and Governor Lompondo fled the city on foot.219 It is, however, a matter of contention in this case whether the UPC was responsible for forcing the RCD-ML out of Bunia. This, as with other contested issues, is discussed below.220 91. Within this context, the prosecution submits that the accused, jointly with his co-perpetrators, committed the crimes of conscription, enlistment and use of children under the age of 15, from 1 September 2002 to 13 August 2003.

T-125-Red2-ENG, page 8, line 11 to page 11, line 4 and T-126-Red-ENG, page 7, lines 21 to page 9, line 9 (P-0014); T-181-Red2-ENG, page 8, line 25 to page 9, line 14 (P-0014); T-168-Red-ENG, page 40, lines 4 5 and page 41, lines 21 24 (P-0012); T-340-ENG, page 45, lines 1 25 and T-344Red-ENG, page 18, line 23 to page 19, line 12 (D-0019); T-174-Red2-ENG, page 30 line 18 to page 31, line 2 (P-0055). 216 See Section XI. 217 EVD-OTP-0403 at DRC-OTP-0203-0104 to DRC-OTP-0203-0105; T-344-Red-ENG, page 2, line 19 to page 3, line 7. The rebels call themselves the Front pour la Rconciliation et la Paix (FRP) in their declaration, EVD-OTP-00386/ EVD-OTP-00663. The extent to which the FRP was the UPC under another name is contested in this case. Thomas Lubangas role in the takeover of Bunia is also contested. The prosecution alleges that he orchestrated and oversaw the attack whereas the defence alleges that he was not involved in the armed rebellion that overthrew Mr Mbusa Nyamwisi (it is observed that Mr Lubanga was detained in Kinshasa at the time) and instead it is suggested he merely took political advantage of a rebellion which he did not lead, in order to take power after its success. 218 T-156-ENG, page 55, lines 15 19 (P-0360); EVD-OTP-00386/EVD-OTP-00663, T-125-RedENG, page 13, line 1 to page 15, line 2 (P-0041); T-179-Red2-ENG, page 76, lines 11 17 (P-0014); T-168-Red-ENG, page 42, line 18 to page 43, line 9 (P-0012); T-340-ENG, page 59, line 24 to page 62, line 5 (D-0019); T-160-Red2-ENG, page 73, lines 2 5 and T-162-CONF-ENG, page 5, lines 5 10 (P-0002). 219 EVD-OTP-00403 at DRC-OTP-0203-0105 and T-168-ENG, page 43, lines 5 7. 220 See Section XI.

215

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V. THE EVALUATION OF EVIDENCE

Burden of Proof 92. Under Article 66 of the Statute, the accused is presumed to be innocent until the Prosecutor has proved his guilt.221 For a conviction, each element of the particular offence charged must be established beyond reasonable doubt.222 Evidence 93. Evidence was introduced during the trial in oral, written and audiovisual form. This included the viva voce testimony of sixty-seven witnesses (including expert witnesses) who appeared before the Chamber in person and via a video link. Two witnesses gave their evidence by way of sworn depositions (Article 69(2) of the Statute and Rule 68 of the Rules). Written statements were admitted pursuant to Rule 68 of the Rules. 223 Documents and other material such as transcripts of interviews, videos, the records from a variety of organisations, letters, photographs and maps were either introduced during the oral evidence of witnesses or by counsel (in the latter case, following a written application). 94. This Judgment is based on the entire proceedings and the Chambers evaluation of the evidence under Article 74(2) of the Statute. The Chamber has assessed the reliability of individual pieces
221 222

Article 66(1) and (2) of the Statute. Article 66(3) of the Statute. 223 See, e.g., Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses, 15 January 2009, ICC-01/04-01/06-1603. A French translation was filed on 27 January 2011: Dcision relative la requte de lAccusation aux fins dadmission des dclarations pralablement enregistres de deux tmoins, 15 January 2009, ICC-01/04-01/06-1603tFRA.

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of evidence and their probative value in the context of any other admissible and probative material. 95. The parties and participants were responsible for identifying the evidence that is relevant to the Article 74 Decision in their final submissions. During the course of giving directions as to the timetable for the closing stages of the case on 1 April 2011, the Chamber stated:
So far as the bar table documents are concerned, it is likely that we will only consider them to the extent that they are referred to in your written closing submissions. So if there are bar table documents which at the end of the case you consider to have relevance and importance, you must identify the part of the document that you rely on, and you must set out a short explanation of the point or points that you make in relation to that document and the section of it that you have identified. If you fail to refer to a bar table document or you fail to refer to parts of a bar table document, you should work on the basis that there is a very real risk that we will simply not take it into consideration. We do not intend to read each and every one of the documents that you have respectively submitted, guessing at what might be the unexplained relevance of the particular piece of paper. These proceedings should not be conducted on the basis of judicial guesswork. Similarly, we have heard a great deal of oral evidence. Some of it, on analysis, may well prove to have greater relevance than other parts of the evidence that we have heard, and there is a duty on you all to indicate the principal facts, the principal parts of the oral evidence that we have heard that you rely on, coupled with a sufficient explanation as to why you say the particular piece of evidence or section of evidence has relevance to your case, either in support of the case that you are making or by way of criticism of the case for the other side. Now, it may be that the Bench will consider some of the evidence that you have not identified. That, of course, is a matter entirely for us if we choose to do so. But for those parts that you consider to be relevant, you must flag it up, and I hope thats clear.224

96. In the Order on the timetable for closing submissions, dated 12 April 2011, the Chamber set out as follows:
5. For the documents that have been admitted into evidence without having been introduced during the examination of a witness (viz. the bar table documents), as set out by the Chamber during the hearing on 1 April 2011 in

224

T-342-ENG, page 64, line 6 to page 65, line 7.

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their final submissions the parties and participants are to identify the documents, or parts thereof, that are relied on, and to provide a sufficient explanation of relevance. 6. Similarly, the parts of the oral evidence relied on by the parties and participants and the documents relied on during the examination of witnesses must be clearly identified. There is a duty on the parties and participants to indicate the principal facts arising out of the oral evidence that are relied on, and to provide a sufficient explanation of relevance.225

97. These directions were not the subject of objection or suggested variation. The Chamber has focussed particularly on the matters raised by the parties and participants in their closing submissions, and it reviewed other items of evidence as appropriate. 98. Article 74(2) of the Statute directs the Chamber to base its decision only on evidence submitted and discussed before it at the trial. In the Chambers view, the phrase discussed before it at the trial encompasses not only the oral testimony, together with any documents and other items, such as video recordings, that were discussed during the hearings, but also any items of evidence that were discussed in the written submissions of the parties and the participants at any stage during the trial (e.g. documents introduced by counsel pursuant to a written application). The key is that the evidence upon which the Chamber bases its Article 74 Decision must have been introduced during the trial and have become part of the trial record, through the assignment of an evidence (EVD) number. 99. Article 74(2) of the Statute must also be read in conjunction with Article 69(4), which provides that:
The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of
225

ICC-01/04-01/06-2722.

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Procedure and Evidence.

100. The Appeals Chamber has held that Article 69(4) of the Statute is a mandatory provision that requires the Trial Chamber to rule on the admissibility of each item of submitted evidence at some point in the proceedings.226 The determination of admissibility is to be made in light of the relevance, probative value and the potential prejudice of each item of evidence.227 101. The combined effect of Articles 69(4) and 74(2) of the Statute is that the Chambers Article 74 Decision is to be based only on evidence that (i) has been submitted; (ii) has been discussed [] at trial, in the sense that it is part of the trial record; and (iii) has been found to be admissible by the Chamber.228 In reaching its verdict, the Chamber has considered only the materials that satisfy these three criteria. Oral Evidence 102. When evaluating the oral testimony of a witness, the Chamber has considered the entirety of the witnesss account; the manner in which he or she gave evidence; the plausibility of the testimony; and the extent to which it was consistent, including as regards other evidence in the case. The Chamber has assessed whether the witnesss evidence conflicted with prior statements he or she had made, insofar as the relevant portion of the prior statement is in evidence. In each instance the Chamber has evaluated the extent and seriousness of the inconsistency and its impact on the overall reliability of the witness.
226

The Prosecutor v. Bemba, Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled "Decision on the admission into evidence of materials contained in the prosecution's list of evidence'', 3 May 2011, ICC-01/05-01/08-1386, para. 37. 227 ICC-01/05-01/08-1386, para. 37; see also Article 69(4) of the Statute. 228 Rule 64(3) of the Rules (Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber).

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103. The Chamber has made appropriate allowance for any instances of imprecision, implausibility or inconsistency, bearing in mind the overall context of the case and the circumstances of the individual witnesses. For example, the charges relate to events that occurred in 2002 and 2003. Memories fade, and witnesses who were children at the time of the events, or who suffered trauma, may have had particular difficulty in providing a coherent, complete and logical account. There are other potential reasons why a witnesss evidence may have been flawed and the Chamber, when assessing his or her testimony, has taken these considerations into account and they are reflected in its overall assessment of the account in question. 104. In certain instances, the Chamber has not relied on part of a witnesss account whilst accepting other aspects of his or her evidence, thereby acknowledging that it is possible for a witness to be accurate on some issues and unreliable on others. Nonetheless, when the Chamber rejected part of a witnesss testimony, it has invariably considered the impact of that decision as regards the reliability of the remainder of the individuals evidence. 105. The Chamber called a psychologist who gave expert testimony on the psychological impact of a child having been a soldier and the effect of trauma on memory.229 This provided useful background evidence when the Chamber assessed the accounts of the individuals in this category. 106. The Chamber has considered the individual circumstances of each witness, including his or her relationship to the accused, age, vulnerability, any involvement in the events under consideration, the
229

See T-166-ENG and EVD-CHM-00001 and EVD-CHM-00002.

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risk of self-incrimination, possible prejudice for or against the accused and motives for telling the truth or providing false testimony. Evidence other than direct oral evidence 107. The Rome Statute framework provides the Chamber with a considerable degree of flexibility as regards the evidence it receives, as analysed by the Chamber in its Decision on the admissibility of four documents:230
19. There are four key factors arising from the provisions contained within the statutory framework which provide the necessary starting-point for an investigation of the Trial Chamber's general approach to this issue (the admissibility of evidence other than direct oral evidence). 20. First, the chamber's statutory authority to request the submission of all evidence that it considers necessary in order to determine the truth: Article 69(3). 21. Second, the Chamber's obligation to ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused: Article 64(2). 22. Third, although the Rome Statute framework highlights the desirability of witnesses giving oral evidence - indeed, the first sentence of Article 69(2) requires that "[t]he testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or the Rules of Procedure and Evidence" - the second and third sentence of Article 69(2) provide for a wide range of other evidential possibilities: "[t]he Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused." Therefore, notwithstanding the express reference to oral evidence from witnesses at trial, there is a clear recognition that a variety of other means of introducing evidence may be appropriate. Article 68, which is expressly referred to in the first sentence of Article 69(2) as providing instances when there may be a departure from the expectation of oral evidence, deals directly with the particular exigencies of trials before the ICC, and most particularly there is an express recognition of the potential vulnerability of victims and witnesses, along with the servants and agents of a State, which may require "special means" to be used for introducing evidence. The Court is enjoined to

230

ICC-01/04-01/06-1399-Corr, 13 June 2008 (corrigendum issued on 20 January 2011).

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consider the range of possibilities that exist to afford protection, subject always to the rights of the accused and the need for the trial to be fair and impartial. 23. Fourth, Article 69(4) of the Statute confers on the Chamber a broad power to make decisions as regards evidence: "[t]he Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of witness, in accordance with the Rules of Procedure and Evidence" and by Article 64(9) the Trial Chamber has the power to "[r]ule on the admissibility or relevance of any evidence." Therefore, the Court may rule on the relevance or admissibility of evidence, and Rule 63(2) provides that "[a] Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9 to assess freely all evidence". It follows that the Chamber has been given a wide discretion to rule on admissibility or relevance and to assess any evidence, subject to the specified issues of "fairness". 24. Therefore, summarising these four key factors, the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited - at the outset - the ability of the Chamber to assess evidence "freely". Instead, the Chamber is authorised by statute to request any evidence that is necessary to determine the truth, subject always to such decisions on relevance and admissibility as are necessary, bearing in mind the dictates of fairness. In ruling on admissibility the Chamber will frequently need to weigh the competing prejudicial and probative potential of the evidence in question. It is of particular note that Rule 63(5) mandates the Chamber not to "apply national laws governing evidence". For these reasons, the Chamber has concluded that it enjoys a significant degree of discretion in considering all types of evidence. This is particularly necessary given the nature of the cases that will come before the ICC: there will be infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during particularly egregious instances of armed conflict, when those involved will have been killed or wounded, and the survivors or those affected may be untraceable or unwilling - for credible reasons - to give evidence.

108. With evidence other than direct oral evidence, the Chamber has made allowance for the potential problems that accompany any lack of opportunity to question the individual(s) who originally supplied the information. The extent to which this is relevant and may cause prejudice depends on the nature and circumstances of the particular evidence. The situations (as indicated in the preceding quotation) are infinitely variable and the Chamber has approached this issue on a

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case-by-case basis. 109. With documents, the Chamber has assessed the contents of the particular document, its provenance and any other relevant material. To the extent known, the Chamber has considered the documents author, as well as his or her role in the relevant events and the chain of custody from the time of the documents creation until it was submitted to the Chamber. The indicia of reliability have been assessed on a broad basis and the Chamber has borne in mind that a document, although authentic, may be unreliable. Corroboration 110. Rule 63(3) of the Rules prohibits the Chamber from impos[ing] a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court. The extent to which a piece of evidence, standing alone, is sufficient to prove a fact at issue is entirely dependent on the issue in question and the strength of the evidence. Accordingly, once again the Chamber has adopted a caseby-case approach. Circumstantial Evidence 111. Nothing in the Rome Statute framework prevents the Chamber from relying on circumstantial evidence. When, based on the evidence, there is only one reasonable conclusion to be drawn from particular facts, the Chamber has concluded that they have been established beyond reasonable doubt.231

231

The Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", 3 February 2010, ICC-02/05-01/09-73, para. 33.

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Expert Witnesses 112. When assessing the testimony of expert witnesses, the Chamber has considered factors such as the established competence of the particular witness in his or her field of expertise, the methodologies used, the extent to which the findings were consistent with other evidence in the case and the general reliability of the experts evidence. Interpretation and Translation 113. Simultaneous interpretation has been used throughout the trial because the evidence in this case was given in a number of different languages. While this has generally been of an appropriate standard, on some occasions concerns were expressed as to its accuracy. 232 Following a breakdown of the recording equipment during the trial, the Registry introduced various measures to ensure the interpretation was correct, and it conducted a full revision of a large number of the Swahili transcripts. 233 While no complaint was made in the final submissions regarding the accuracy of the interpretation, the Chamber has borne in mind that this was a problem that needed to be addressed on a number of occasions. 114. In addition, the Chamber has borne in mind the difficulties that sometimes arose when interpreting or understanding particular words, such as the names of people and places. Protective Measures 115. Measures to protect the identity of many of the witnesses in this
232

See, e.g., Decision on discrepancies between the English and the French Transcripts and related issues, 18 June 2009, ICC-01/04-01/06-1974. 233 See, e.g., Registry report to the Chamber on Swahili interpretation matters, 11 May 2010, ICC01/04-01/06-2431 (reclassified as public on instruction of Trial Chamber I dated 17 May 2010).

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case were ordered by the Chamber due to concerns for their personal safety or that of their families.234 For similar reasons, many witnesses are referred to in this Judgment by number rather than by name and certain details that might reveal their identities have been omitted. It is to be emphasised that whenever the Chamber ordered protective measures for witnesses, the parties and participants were aware of the relevant identifying information. 116. To ensure the effectiveness of the protective measures ordered by the Chamber, testimony was frequently heard in private session, which the public was unable to follow. Pursuant to Articles 64(7) and 67(1) of the Statute, the Chamber has instructed the parties and, to the extent necessary, the participants to undertake a comprehensive review of the transcripts of the closed-session testimony, and it has ordered the public reclassification of any portions that do not contain information which may create a security risk. Confidential information has been included to the greatest extent possible in this Judgment, whilst avoiding creating any security risks, and in some instances it has been necessary to cite the parties submissions rather than the relevant transcript references. 117. In addition to the in-court protective measures discussed above, the Chamber authorised redactions to certain documents, which the parties requested in order to protect various categories of sensitive information. These redactions were reviewed by the Chamber and some were lifted during the course of the trial. The Chamber is satisfied that no further disclosure is possible under the present circumstances.
234

All expert witnesses testified without protective measures, as did 7 prosecution witnesses and 14 defence witnesses.

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The Accuseds Statement 118. The accused chose not to testify under oath, as is his right under Article 67(1)(g) of the Statute. No adverse inference has been drawn from this decision. The accused opted to make an unsworn statement to the Chamber in accordance with Article 67(1)(h) of the Statute.235 The defence challenge to the entirety of the prosecutions evidence 119. In its final submissions, the defence asserts that the prosecution failed to fulfil its obligations as regards disclosure and to investigate exculpatory circumstances, arguing that these suggested failures impair the reliability of the entire body of evidence presented at trial by the Prosecution to such an extent that it cannot support findings beyond all reasonable doubt.236 The prosecution argues that it met its disclosure and investigative obligations, and it is submitted that the proceedings have not been vitiated in the manner complained of.237 120. The Chamber is unpersuaded by the suggested violations of the prosecutions statutory duties, particularly since the Chamber took measures throughout the trial to mitigate any prejudice to the defence whenever these concerns were expressed. Additionally, the Chamber kept these obligations on the part of the prosecution permanently under review. 121. Throughout the trial, the Chamber addressed any potential prejudice to the accused arising from incomplete or late disclosure.

235 236

T-357-ENG, page 48, line 16 to page 49, line 19. ICC-01/04-01/06-2773-Red-tENG, paras 13-18. 237 ICC-01/04-01/06-2778-Red, paras 108-110.

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Taking incomplete disclosure first, amongst other measures, the Trial Chamber stayed the proceedings on two occasions when it concluded that the lack of disclosure rendered a fair trial impossible.238 When the prosecution invoked Article 54(3)(e) of the Statute as a basis for nondisclosure of certain materials, the Chamber ordered the disclosure of alternative evidence or summaries, in order to prevent any unfairness to the accused.239 122. Late disclosure was addressed in a number of other ways. For example, following the disclosure of documents relevant to the questioning of witness P-581 after his testimony had finished, the Chamber granted the defence request for the witness to be recalled.240 Another example is provided by the prosecutions late disclosure of documents in early 2011. On that occasion, even though the agenda for closing submissions had been set, the Chamber indicated to the defence that it would be permitted to raise this issue if it considered that there are consequences that need to be addressed evidentially following any order of disclosure that we make.241 123. Whenever violations of the prosecutions statutory obligations have

See Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution for the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008, ICC-01/04-01/06-1401; see also Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with VWU, 8 July 2010, ICC-01/04-01/06-2517-Conf. A public redacted version was issued on 8 July 2010, ICC-01/04-01/06-2517-Red. 239 Reasons for Oral Decision lifting the stay of proceedings, 23 January 2009, ICC-01/04-01/06-1644, and Decision issuing Annex accompanying Decision lifting the stay of proceedings of 23 January 2009, 23 March 2009, ICC-01/04-01/06-1803. 240 T-310-Red2-ENG, page 69, line 13 to page 70, line 7 and T-316-ENG, page 9, lines 13 19 and page 11, lines 17 22; see also T-326-ENG, page 3, line 3 to page 4, line 5; page 6, line 12 to page 7, line 12 and page 9, lines 3 11 (ordering the prosecution to provide a report on disclosure-related issues following the late disclosure of a document relating to witness P-0031); Decision on the prosecutions disclosure obligations arising out of an issue concerning witness DRC-OTP-WWWW0031, 7 December 2010, ICC-01/04-01/06-2656-Conf. A public redacted version was issued on 20 January 2011, ICC-01/04-01/06-2656-Red. 241 T-352-Red-ENG, page 17, line 24 to page 18, line 17.

238

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been demonstrated, the Chamber has evaluated whether, and to what extent, they affect the reliability of the evidence to which they relate. In each instance, any problems that have arisen have been addressed in a manner which has ensured the accused has received a fair trial.

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VI. THE DEVELOPMENT OF THE PROSECUTIONS INVESTIGATION

124. Given the specific circumstances of the case, and in particular the defence submissions that the reliability of the entire body of prosecution evidence is affected,242 the Chamber has set out the history to the investigations extensively in order to demonstrate the extent of the problems the investigators faced and the background to the considerable reliance that the prosecution placed on certain

intermediaries (as addressed in a later section). A. THE OPENING OF THE INVESTIGATION 125. The investigation by the Office of the Prosecutor was opened on 23 June 2004, following the referral of the case from the DRC.243 In the Decision on Intermediaries, the Chamber ordered the prosecution to call an appropriate representative to testify as to the approach and the procedures applied to intermediaries. 244 As a result, Bernard Lavigne (P-0582), who had been recruited to lead the relevant investigation team,245 and one of the investigators, Nicolas Sebire (P0583), were called to give evidence. Although they were not necessarily accurate on every issue, the Chamber found both of these witnesses to be essentially reliable, and unless the contrary is indicated, the Chamber has accepted their testimony (as set out

242 243

ICC-01/04-01/06-2773-Red-tENG, paras 1 18. Prosecutions Response to the Defences Requte de la Dfense aux fins darrt dfinitif des procdures , 31 January 2011, ICC-01/04-01/06-2678-Conf (public redated version filed 29 March 2011, ICC-01/04-01/06-2678-Red), para. 1. 244 ICC-01/04-01/06-2434-Red2, para. 146. 245 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 7, line 23 to page 9, line 8 and page 13, line 2 to page 14, line 20.

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below).246 B. THE CREATION OF THE TEAM 126. The Deputy Prosecutor decided the investigation team for the DRC was to be led by a francophone magistrate,247 in order to provide legal control of their work so as to avoid some of the difficulties encountered at other similar institutions,
248

and the Prosecutor

appointed P-0582 as the team leader (chef denqute, responsable dquipe).249 His first task was to recruit a team,250 given that when he arrived in June 2004 there were only two people working on the case. 251 Overall, approximately 12 team members were recruited. 252 They included individuals who had worked for various non governmental organisations (NGOs),253 or who had other experience in the field of international justice254 and human rights.255 127. Between 2004 and 2007, 256 P-0582 focussed, inter alia, on the

246

This conclusion is equally relevant to the sections in which the evidence of P-0582 and P-0583 is set out below. 247 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, lines 11 14. 248 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, 15 19. 249 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, lines 5 7. 250 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, line 12. 251 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 14 16. 252 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 14 16. 253 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, line 23; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68DepositionRed2-ENG, page 42, lines 14 18; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06Rule68Deposition-Red2-ENG, page 42, lines 18 20. 254 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 42, lines 21 22. 255 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 42, lines 23 24. 256 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 8, lines 12 21.

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protection of witnesses, 257 and he set up a protection programme within the OTP.258 128. Michael De Smedt was P-0582s direct supervisor, and he reported to the Prosecutor of the Court.259 C. THE INITIAL PROCESS OF GATHERING EVIDENCE 129. The process of gathering evidence began following P-0582s arrival at the Court.260 He indicated that they verified or cross-checked the material already in their possession against open sources, as well as by reference to items on the internet and other general

documentation. 261 They were assisted in the task of gathering and analysing this information by the technical and logistical support section. 262 They received several reports and documents about the DRC,263 including from well-known international,264 and various local, NGOs.265 However, P-0582 was surprised by the differences between the reports from the NGOs and the situation that confronted the investigation team during its work.266

257

Transcript of Deposition on 16 page 13, line 25 to page 14, line 2. 258 Transcript of Deposition on 16 page 14, lines 16 17. 259 Transcript of Deposition on 16 page 14, lines 22 23. 260 Transcript of Deposition on 16 page 17, lines 13 14. 261 Transcript of Deposition on 16 page 17, lines 14 19. 262 Transcript of Deposition on 16 page 17, lines 20 22. 263 Transcript of Deposition on 16 page 17, lines 22 25. 264 Transcript of Deposition on 16 page 18, lines 1 3. 265 Transcript of Deposition on 16 page 18, lines 3 5. 266 Transcript of Deposition on 17 page 47, lines 14 18.

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130. P-0582 in an interview with the War and Peace Institute267 stated the following: [] Investigators also sometimes find it difficult to corroborate information
provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise, says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that human rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.268

131. P-0582 confirmed that this reflects what he said.269 As regards the comments of William R. Pace,270 the Coalition for the ICC convenor, P0582 said that although he would not go so far as to say that humanitarian groups are lousy investigators, nonetheless

investigations carried out by humanitarian groups, in his opinion, are more akin to general journalism than a legal investigation.271 132. P-0583 stated that at the beginning of their work, the only information available to the investigation team was an analysis of the DRC prepared by the OTP, which included a list of potential incidents.272 This information related specifically to the Ituri region of the DRC.273 133. In particular, documentary material was not available to the investigators, especially in the first months, which would have enabled them to understand the geographical and historical context of
267 268

EVD-D01-00774 is the relevant article from the Wall Street Journal. Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 46, lines 14 20. 269 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 46, line 23. 270 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 5 6. 271 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 6 9. 272 T-334-Red2-ENG, page 11, lines 4 14. 273 T-334-Red2-ENG, page 11, lines 15 17.

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the issues they were dealing with. However, they participated in meetings aimed at providing information about the country. A regional expert offered some minimal information and the MONUC reports on the situation were reasonably precise.
274

Debriefings

followed the first reports of the missions.275 Therefore, from the outset there were informal mechanisms for passing on information regarding the situation in Ituri, both then and earlier.276 134. The investigative team was subject to significant pressure, including from within the OTP as well as the Court more generally, because it was felt necessary to make progress.277 The first major group of reports were analysed in 2004.278 135. The initial missions were very difficult for a number of reasons,279 but most particularly because of the lack of external support for the Courts activities in the field.280 At a local level, various UN agencies helped the investigation team.281 However, there were contradictions and inconsistencies in the approach of the UN that created real problems for the OTPs investigators, and when assistance was sought the UN sometimes declined or imposed excessive constraints. 282

274

Transcript of Deposition on 17 page 53, line 22 to page 54, line 6. 275 Transcript of Deposition on 17 page 54, lines 7 9. 276 Transcript of Deposition on 17 page 54, lines 9 11. 277 Transcript of Deposition on 17 page 54, line 23 to page 55, line 3. 278 Transcript of Deposition on 17 page 55, line 4. 279 Transcript of Deposition on 16 page 23, lines 2 4. 280 Transcript of Deposition on 16 page 23, lines 5 8. 281 Transcript of Deposition on 16 page 23, lines 8 12. 282 Transcript of Deposition on 16 page 23, lines 12 24.

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Because of these difficulties, it was impossible to find witnesses quickly,283 and the team was unable to provide them with security.284 Nonetheless, following the first exploratory missions, they gathered information, documentation and the names of certain potential witnesses, 285 and the UN frequently provided assessments to the investigative teams.286 D. THE FOCUS OF THE INVESTIGATION 136. By 2004 the emerging focus was Ituri:287 the OTP analysts proposed (and the Prosecutor accepted) that they should work particularly in this region of eastern Congo.288 Therefore, although the OTP continued to consider other provinces within the DRC, this is where the investigative team began working.
289

However,

the

relevant

documentation arrived in a piecemeal fashion.290 137. P-0582 gave evidence that they identified the militia groups that appeared to bear responsibility for acts of violence within the jurisdiction of the Court.291 At the relevant time, there were a number of different groups. Some were set up on the initiative of particular individuals; others were created by neighbouring countries or were

283

Transcript of Deposition on 16 page 23, line 25 to page 24, line 1. 284 Transcript of Deposition on 16 page 24, lines 1 2. 285 Transcript of Deposition on 16 page 24, lines 3 4. 286 Transcript of Deposition on 16 page 36, lines 18 20. 287 Transcript of Deposition on 17 page 55, lines 4 8. 288 Transcript of Deposition on 16 page 19, lines 9 14. 289 Transcript of Deposition on 17 page 55, lines 8 19. 290 Transcript of Deposition on 17 page 55, lines 19 24. 291 Transcript of Deposition on 16 page 20, lines 1 4.

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the result of splits within the militias.292 However, in his view, the only militias were, in essence, the UPC293 (primarily drawn from the Hema population),294 the Front des Nationalistes Intgrationnistes (FNI) and the Force de Rsistance Patriotique en Ituri (FRPI) (comprising, in the main, members of the Lendu community and some Alur) .295 138. Individuals were recruited from particular ethnic groups,296 and P0582 suggested that they committed acts of violence of all types, including pillage and murder.297 The armed groups created systematic insecurity, 298 and different militias controlled the various regions within Ituri. 299 For instance, Mudzipela was a Hema-dominated neighbourhood to which the UPC had easier access than other armed groups, and therefore P-0582 considered it was highly probable that UPC soldiers contributed to the prevailing insecurity.300 139. Ultimately they decided to focus on two specific militia groups,301 the UPC and the FNI/FRPI, and the first mission to Bunia took place in September 2004.302

292

Transcript of Deposition on 16 November page 26, lines 1 6. 293 Transcript of Deposition on 16 November page 26, lines 8 9. 294 Transcript of Deposition on 16 November page 26, lines 13 14. 295 Transcript of Deposition on 16 November page 26, lines 10 12. 296 Transcript of Deposition on 16 November page 26, lines 15 17. 297 Transcript of Deposition on 16 November page 26, lines 17 19. 298 Transcript of Deposition on 16 November page 36, lines 8 10. 299 Transcript of Deposition on 16 November page 36, lines 14 15. 300 Transcript of Deposition on 16 November page 36, lines 10 13. 301 Transcript of Deposition on 16 November page 20, lines 3 4. 302 T-334-Red2-ENG, page 11, lines 15 23.

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140. P-0582 said that they travelled to Kinshasa as part of an official visit, during which they began meeting various people who were potentially useful for their investigations.303 They were unable to visit east Congo,304 but they received assurances as to collaboration by the DRC,305 and they met field officers from MONUC.306 141. They acted under the requirement imposed on the prosecution by the Statute to investigate both incriminating and exculpatory evidence,
307

and they exercised a degree of caution about the

documents they received, given their role was not the same as that of representatives of NGOs.308 142. P-0582 suggested that although they began working in 2004, they did not discover any material to justify an investigation before 2005.309 There was a degree of international and local pressure, once it was known that officials from the Court had arrived in the country.310 The OTP needed to carry out its investigations, notwithstanding the continued presence of the militias in Ituri in 2004311 (e.g. in Bunia there were militias in some of the neighbourhoods), and the UN did not

303

Transcript of Deposition on 16 page 18, lines 18 21. 304 Transcript of Deposition on 16 page 18, lines 18 19. 305 Transcript of Deposition on 16 page 18, lines 23 24. 306 Transcript of Deposition on 16 page 18, lines 24 25. 307 Transcript of Deposition on 16 page 20, lines 14 19. 308 Transcript of Deposition on 16 page 20, line 20 to page 21, line 2. 309 Transcript of Deposition on 16 page 21, lines 10 12. 310 Transcript of Deposition on 16 page 21, lines 13 15. 311 Transcript of Deposition on 16 page 21, lines 15 17.

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consistently maintain peace throughout the territory. 312 The first missions encountered considerable difficulties because arrangements for their arrival had not been put in place.313 143. They met activists, including certain militant activists, during their initial mission who wanted to provide information, and this led them to identify the first intermediaries. 314 It follows that from the outset they selected individuals who could assist with potential witnesses, because direct contact was not always possible.
315

Furthermore, given the security issues for the witnesses, the prosecution rapidly decided that it was necessary to use

intermediaries (this issue is addressed in considerably greater detail hereafter).316 144. In 2005 the investigation teams began to determine their objectives, although these varied because of changes in the choices of the OTP and the way in which it conducted its cases317 (as a result, inconsistent requests were made to the investigators) and it was difficult for them to determine clear goals, along with the means to attain them. 318 P0582 suggested that the OTP hesitated in formulating its objectives and the steps to be taken to attain them.319 On occasion, the investigators

312

Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 17 19. 313 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 7 9. 314 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 14 20. 315 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, line 21 to page 23, line 1. 316 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, line 24 to page 23, line 1. See, paras 151 to 168. 317 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 8 10. 318 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 10 24. 319 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 20 24.

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focussed on a single militia or a single incident whereas, at other times, they concentrated on several militias or the use of children generally.320 145. However, eventually a decision was made to pursue a principal charge and thereafter the investigation teams knew exactly what had to be done, and they were able to investigate and identify the potential witnesses. 321 Their first objective was to ensure the safety of these individuals.322 146. P-0582 did not recall when the Prosecutor decided to prosecute Thomas Lubanga for child-soldier-related offences, 323 although the witness remembered there was a meeting when it was decided that they would only try to prosecute the accused on this basis,324 following an evaluation of the available documentation.
325

The analysts

concluded that Ituri during the relevant period was where the most significant acts of violence had occurred, for which up to three militias were responsible.326 147. At the time of the investigations, UN agencies had received information to the effect that some individuals were falsely presenting themselves at demobilisation centres as former child soldiers from the militias in order to join the reintegration programme.
320

327

The

Transcript of Deposition on 16 page 28, lines 8 23. 321 Transcript of Deposition on 16 page 24, line 25 to page 25, line 3. 322 Transcript of Deposition on 16 page 25, lines 3 8. 323 Transcript of Deposition on 16 page 29, lines 20 23. 324 Transcript of Deposition on 16 page 29, lines 23 25. 325 Transcript of Deposition on 16 page 30, lines 4 6. 326 Transcript of Deposition on 16 page 30, lines 6 12. 327 Transcript of Deposition on 18 page 13, lines 13 22.

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investigation team was aware that the militias often included very young people, although P-0582 was not personally aware of individuals having falsely claimed that they had been child soldiers in the militias.328 Nonetheless, the witness acknowledged that it became known in Bunia that a threatened witness might be relocated and some individuals treated this as an opportunity to secure free rehousing.329 E. THE DETAILED PROCESS OF GATHERING EVIDENCE 148. The interviews with witnesses in Bunia did not start before 2005.330 The investigators in the field were responsible for identifying witnesses and they visited various locations in order to gather information, by way of a screening exercise which required taking statements.331 149. The screened information was provided to the analysts,332 together with a broader team within the OTP. These individuals were responsible for determining whether a statement should be taken (leading potentially to testimony before the Court) and assessing the status of the individual. 333 If someone became a suspect, his or her rights were protected by securing the assistance of counsel, in

Transcript of Deposition on 18 page 13, line 22 to page 14, line 7. 329 Transcript of Deposition on 16 page 41, lines 17 20. 330 Transcript of Deposition on 16 page 33, lines 22 23. 331 Transcript of Deposition on 18 page 5, lines 7 11. 332 Transcript of Deposition on 18 page 5, lines 11 13. 333 Transcript of Deposition on 18 page 5, lines 14 19.

328

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accordance with Article 55(2) of the Statute.334 150. After the screening process, the investigators and the Prosecutors team considered whether to call the witness at trial.335 If it was decided the individual should testify, there would be a further, longer interview.336 F. SECURITY ISSUES 151. During 2004 and 2005, the security situation in Bunia and the rest of Ituri evolved in an inconsistent manner.337 During P-0582s first visit to Bunia, he heard gunfire from AK-47s in the neighbourhood of Mudzipela;338 indeed, every evening during the course of that mission he was aware of the sound of shooting.339 152. MONUC was operating in Bunia: it conducted security assessments and it liaised with the investigators on the security situation.340 Their ability to go outside the central UN base was limited, both in order to leave Bunia and to travel at night.341 P-0582 was told by his contacts within the justice system and the police force that armed groups were still active, particularly on the outskirts of Bunia and more generally

334

Transcript of Deposition on 18 page 5, lines 20 24. 335 Transcript of Deposition on 16 page 76, lines 1 4. 336 Transcript of Deposition on 16 page 76, lines 9 11. 337 Transcript of Deposition on 16 page 34, lines 10 13. 338 Transcript of Deposition on 16 page 34, lines 15 17. 339 Transcript of Deposition on 16 page 34, lines 18 19. 340 Transcript of Deposition on 16 page 34, lines 24 25. 341 Transcript of Deposition on 16 page 34, line 25 to page 35, line 4.

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within Ituri.342 P-0583 indicated that according to intelligence received from the MONUC security forces, the UPC and FRPI militia forces were still active in those areas and that violent incidents had occurred at the beginning of 2005.343 153. P-0582 gave evidence that armed groups established roadblocks on the routes linking Bunia with the other towns or with the border, where they collected taxes. 344 This hindered indeed, effectively stopped the delivery of supplies by road. 345 P-0583 provided a broadly similar account.346 He indicated that the security situation had a marked impact on the offices ability to undertake its work because it was impossible for the team to go to the villages and meet with potential witnesses, and there were limited meeting places.347 P-0583 said the only way of contacting these individuals was to rely on intermediaries.348 154. The serious security situation affected the investigators duty of protection. 349 P-0582 indicated that operating in an open way was effectively impossible because the local population and the press were aware of the arrival of investigators from the Court and the nature of their work.350 Any foreigner seen in Bunia was assumed to be from the

342

Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 5 7. 343 T-334-Red2-ENG, page 12, lines 18 25. 344 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 8 11. 345 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 11 12. 346 T-334-Red2-ENG, page 11, line 24 to page 12, line 7. 347 T-334-Red2-ENG, page 13, lines 1 8. 348 T-334-Red2-ENG, page 15, lines 1 8. 349 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 15 17. 350 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, lines 5 8.

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ICC. 351 This made the investigators job particularly delicate and it created risks. Indeed, they did everything possible to hide the fact that they were conducting an investigation. 352 Their position was made more problematic because the local population did not distinguish between officials from the Registry, the OTP and other sections from within the Court.353 155. P-0582 indicated that MONUC soldiers were attacked by militia groups and he estimated that more than twelve of its soldiers were killed after skirmishes with the militia groups in 2005.354 MONUC soldiers accompanied the investigators on visits outside Bunia.355 One of the investigators reported that his vehicle was hit by bullets during a mission to a village, when he was escorted by armoured vehicles from MONUC. 356 The investigators were at risk of being attacked during their investigations or of becoming involved in confrontations between MONUC troops, who accompanied regular Congolese soldiers of the Forces Armes de la Rpublique Dmocratique du Congo (FARDC), and the armed opposition groups. 357 Therefore, the witness suggested that Bunia was insecure, particularly given the lack of a police force capable of maintaining law and order.358 The work of the Court was not always welcome, which led to the risk of attacks on
351

Transcript of Deposition on 16 page 37, lines 11 14. 352 Transcript of Deposition on 16 page 37, lines 20 23. 353 Transcript of Deposition on 16 page 37, line 24 to page 38, line 3. 354 Transcript of Deposition on 16 page 38, lines 7 9. 355 Transcript of Deposition on 16 page 38, line 10. 356 Transcript of Deposition on 16 page 38, lines 11 12. 357 Transcript of Deposition on 16 page 38, lines 13 16. 358 Transcript of Deposition on 16 page 38, lines 17 18.

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investigators or their abduction.359 156. It was considered that all the witnesses not just from the prosecution were at risk, regardless of whether individual threats were credible. 360 Given these clear dangers, the witnesses quickly expressed their anxiety lest their identities or the fact that they were in contact with the investigators became known. 361 This led to the adoption of a very specific and rigorous policy for investigators and witnesses362 which slowed down the work of the OTP363 because the priority was their security.364 157. A team was established, called the GCU (the Gender and Childrens Unit), 365 which dealt with psychological support and other issues relating to witnesses.
366

However, P-0582 indicated that the

Operational Support Unit (OSU) was specifically responsible for witness protection, although it did not become operational until mid 2005 as regards assessing security and witness protection. 367 P-0582 suggested that prior to its establishment, the OSU nonetheless existed in an early form with responsibilities that were limited to providing

359

Transcript of Deposition on 16 page 38, lines 21 25. 360 Transcript of Deposition on 16 page 41, lines 13 15. 361 Transcript of Deposition on 16 page 39, lines 7 11. 362 Transcript of Deposition on 16 page 39, lines 11 12. 363 Transcript of Deposition on 16 page 39, lines 18 20. 364 Transcript of Deposition on 16 page 39, lines 20 21. 365 Transcript of Deposition on 16 page 43, lines 1 3. 366 Transcript of Deposition on 16 page 42, lines 3 4. 367 Transcript of Deposition on 16 page 43, lines 9 13 and 16 17.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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support for investigations in the field.368 158. The Victims and Witnesses Unit (VWU), as a unit of the Registry, was created at the outset, 369 and it worked with the prosecutions investigation team in Bunia.
370

The system proposed by the

investigators, if there were risks or threats to witnesses following an assessment into the security situation, was to react by way of an initial rapid response by the OTP followed by intervention on the part of the witness protection unit of the Registry.371 P-0582s work, particularly in 2006, was to resolve any difficulties between the OTP and the Registry as regards witness protection,
372

and there were some notable

disagreements between the VWU and the OTP as to the protection to be provided to certain individuals.373 159. Several militias were investigated for threatening witnesses. 374 However, the real problem was not the threat from the various groups but rather the risk of an individual being identified by members of his or her community, village or family as having cooperated with the Court.375 In particular, those who assisted were worried about being identified by the people they had spoken about,376 given most of the

368

Transcript of Deposition page 43, lines 13 17. 369 Transcript of Deposition page 43, lines 21 22. 370 Transcript of Deposition page 43, lines 22 23. 371 Transcript of Deposition page 44, lines 2 5. 372 Transcript of Deposition page 44, lines 7 9. 373 Transcript of Deposition page 44, lines 21 25. 374 Transcript of Deposition page 46, lines 23 25. 375 Transcript of Deposition page 47, lines 11 13. 376 Transcript of Deposition page 47, lines 13 16.

on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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witnesses mentioned the names of the militia leaders who did not want to be implicated. 377 The witnesses were at risk from these individuals, who were in a position to threaten them.378 160. The OTP did not normally contact the families of witnesses, given the danger that information would be provided to the political or military leaders who were still in Bunia, 379 thereby exposing the witness to the risk of immediate abduction. 380 Security became the primary concern of the investigation team.381 161. For similar reasons, the investigators did not go to the schools the children had allegedly attended and they did not try to secure any school records.382 The Hema community in Bunia had a reputation as being the best educated and they ran well-organised schools.383 The investigators did not want to raise the suspicions of the Hema intellectuals who may have had links with the political or military movements, 384 and the investigators would have been immediately identified if they had visited the neighbourhoods.385 162. There was no field office in 2004 and 2005 at the time when P-0582

377

Transcript of Deposition on 16 page 47, lines 17 22. 378 Transcript of Deposition on 16 page 47, line 22 to page 48, line 3. 379 Transcript of Deposition on 18 page 32, line 13 to page 33, line 6. 380 Transcript of Deposition on 18 page 33, lines 1 3. 381 Transcript of Deposition on 18 page 33, lines 8 11. 382 Transcript of Deposition on 18 page 33, lines 12 23. 383 Transcript of Deposition on 18 page 33, lines 15 19. 384 Transcript of Deposition on 18 page 33, lines 20 21. 385 Transcript of Deposition on 18 page 33, lines 21 23.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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went to interview the first group of witnesses.386 The office was set up over a period until it was fully operational in 2006.387 At the outset, it was necessary, but not always easy, to find premises that were sufficiently discreet for meetings with the witnesses.388 Until the field office was set up, the investigators identified a variety of different places for the interviews. 389 Churches were sometimes used, but caution had to be exercised because of the role of clergy in the political life in Ituri and the need not to attract attention,390 and locations such as libraries, schools, deserted areas and rented houses were utilised.391 Although the UN refused to provide space, the investigators nonetheless needed to be protected by an armed force such as MONUC.392 Eventually, a solution was found.393 163. Some NGOs refused to cooperate with the Court,394 whilst others were interested in assisting either informally or formally. 395 NGOs asked the investigators to treat the information they provided on a confidential basis.396 Some representatives of the UN, in contrast with certain members of the organisations hierarchy, provided the
386

Transcript of Deposition on 16 November page 72, lines 14 18. 387 Transcript of Deposition on 16 November page 72, lines 18 19. 388 Transcript of Deposition on 16 November page 73, lines 2 3. 389 Transcript of Deposition on 16 November page 77, lines 5 7. 390 Transcript of Deposition on 16 November page 77, lines 8 11. 391 Transcript of Deposition on 16 November page 77, lines 12 15. 392 Transcript of Deposition on 16 November page 72, lines 20 22. 393 Transcript of Deposition on 16 November page 72, line 23 to page 73, line 1. 394 Transcript of Deposition on 16 November page 70, lines 16 23 and page 71, lines 3 4. 395 Transcript of Deposition on 16 November page 71, lines 4 6. 396 Transcript of Deposition on 16 November page 71, lines 7 9.

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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investigators with considerable assistance.397 164. The investigators relied on UN flights since they could not use the internal Congolese airlines.398 At the beginning, they rented cars rather than utilise UN vehicles because the latter were immediately identifiable.399 Eventually, the Court purchased vehicles similar in type to the sizeable number used by NGOs, which were unidentifiable.400 165. On average an investigator stayed in the field for ten days, although this varied because, for instance, some interviews lasted longer than others; on occasion the interviews were cancelled at the last minute; or a new witness needed to be interviewed urgently.401 The investigators lost motivation given the absence of a field office and the need to find apartments,402 which sometimes provided them with only a floor and a duvet, and no shower; these were not the best long-term conditions, although things improved considerably after the field office was built.403 166. The investigation teams tried to work in rotation. There was a team member in the field as frequently as possible during the first months,404 but because there were only a few investigators it was not possible to have someone in the field permanently. This would have been the
397

Transcript of Deposition page 71, lines 9 13. 398 Transcript of Deposition page 73, lines 6 9. 399 Transcript of Deposition page 74, lines 18 21. 400 Transcript of Deposition page 74, lines 21 25. 401 Transcript of Deposition page 75, lines 3 6. 402 Transcript of Deposition page 75, lines 8 10. 403 Transcript of Deposition page 75, lines 10 13. 404 Transcript of Deposition page 75, lines 14 16.

on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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correct approach, according to P-0582.405 167. To summarise, from the outset of the investigation, human rights activists gave the investigators the names of potential witnesses, since they had seen these people and they knew what they were going to say.406 Because of their long-term presence,407 it was considered that the activists were better placed than the investigators, and particularly it did not cause any surprise when the activists spoke with representatives of MONUC or had discussions with villagers.408 The investigators could not move about freely without being threatened409 and witnesses were endangered if the investigators spoke directly with them. As a result, the investigating team or some of the activists suggested the latter should act as intermediaries. 410 Therefore, from early on, even with the assistance of the intermediaries, the investigators were restricted as to the timing and the location of any meetings,411 and they had to act discreetly.412 P-0583 gave evidence that the only solution to the security problem was to use intermediaries, who enabled the team to contact witnesses.413 168. The implications of the choices made in the course of the investigation are discussed as necessary in the relevant sections. Many
405

Transcript of Deposition on 16 November page 75, lines 16 18. 406 Transcript of Deposition on 16 November page 48, lines 9 13. 407 Transcript of Deposition on 16 November page 48, lines 13 15. 408 Transcript of Deposition on 16 November page 48, lines 15 20. 409 Transcript of Deposition on 16 November page 48, lines 21 22. 410 Transcript of Deposition on 16 November page 48, line 22 to page 49, line 2. 411 Transcript of Deposition on 16 November page 49, lines 3 5. 412 Transcript of Deposition on 16 November page 49, lines 5 7. 413 T-334-Red2-ENG, page 13, lines 9 11.

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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although by no means all of the evidential difficulties in this case as far as the prosecution is concerned have been the result of the involvement of three particular intermediaries (P-0143, P-0316 and P0321), in the circumstances that are described below. G. DETERMINING THE AGES OF CHILDREN 169. A recurring issue in the context of this part of the evidence is whether some of the intermediaries encouraged a number of young witnesses to lie about aspects of their past, including their ages. 170. P-0582 indicated that at the relevant time, the civil administration in the DRC functioned only to a limited extent,414 and the conditions the team were operating under were not ideal for establishing, with ease, the age of the alleged child soldiers.415 This issue was the subject of ongoing internal discussions within the OTP as to the policy to be adopted for collecting evidence in this context. 416 P-0582, as an investigation leader, was not alone in considering that a prosecution forensic expert should be instructed immediately, in order to provide at least an approximate idea of age. 417 However, the Executive Committee within the OTP was of the view that the statements given by the witnesses sufficiently indicated that the relevant individuals were below 15 years of age.418 It was also anticipated that confirmation would be provided in the interviews with the officers (or with others with responsibility) that there was general awareness that children
414

Transcript of Deposition on 18 page 14, lines 20 21. 415 Transcript of Deposition on 18 page 14, line 22 to page 15, line 1. 416 Transcript of Deposition on 18 page 15, lines 1 4. 417 Transcript of Deposition on 18 page 15, lines 11 - 23. 418 Transcript of Deposition on 18 page 15, line 21 to page 16, line 2.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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under 15 years were involved.419 P-0582 indicated that there was an important debate within the OTP on this problem once the forensic expert raised the issue at the very start of the investigations (at the end of 2004).420 171. When the investigators had finally identified 5 or 6 children who came within the classification of child soldiers on the basis of their statements, it was considered necessary to confirm their ages through objective evidence.
421

The investigators requested civil status

documents, although they did not personally collect them from the relevant offices of the civilian administration in Bunia422 (this issue is developed elsewhere). 423 A doctor saw the children,
424

and the

investigators were informed that, within the Hema community, children could not be baptised before a certain age.425 172. Against the background that P-0582 was involved personally, as a team leader, with 5 or 6 alleged former child soldiers, it is important to note that the investigators did not speak with their families to arrange interviews with the children or their relatives.426 The main concern of the investigators was the security of the children, particularly if they were attacked because of their contact with the investigators. 427
419

Transcript of Deposition page 16, lines 3 5. 420 Transcript of Deposition page 16, lines 6 9. 421 Transcript of Deposition page 16, lines 14 17. 422 Transcript of Deposition page 16, lines 17 23. 423 See para. 173. 424 Transcript of Deposition page 16, line 24. 425 Transcript of Deposition page 17, lines 1 6. 426 Transcript of Deposition page 17, lines 8 12. 427 Transcript of Deposition page 17, lines 21 25.

on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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Therefore, the policy of the OTP was to not meet with the families in order to avoid endangering them: it was feared that a member of the extended family might reveal to the militia leaders the identity of the individual who had provided the information. 428 This policy was applied to all the witnesses and it was only varied on an exceptional basis.429 173. P-0582 did not ask the village chiefs (chefs de collectivit) about the child soldiers, given their close association with the militias that were under investigation (although there were some discussions on other issues).430 Additionally, the investigators did not request the files of the alleged child soldiers from the headmasters or directors of the relevant schools, in order to cross-check their ages.431 However, Intermediary 143 (who was one of the principal intermediaries), in the context of the general problems relating to children, was asked by the investigators whether he was aware of school registers that listed the children, thereby potentially establishing whether individual children could be linked with particular classes of students within identified age ranges. 432 Intermediary 143 carried out some research and provided certain documents, which were photocopied.433 He was directed not to try to obtain birth certificates from the Mayors Office in Bunia or

428

Transcript of Deposition on 18 page 18, lines 5 9. 429 Transcript of Deposition on 18 page 18, lines 15 18. 430 Transcript of Deposition on 18 page 18, line 19 to page 19, line 7. 431 Transcript of Deposition on 18 page 19, lines 12 15. 432 Transcript of Deposition on 18 page 19, lines 16 24. 433 Transcript of Deposition on 18 page 20, lines 3 7.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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Mudzipela.

434

Instead, particular families were asked if birth

certificates could be obtained, and, if so, Intermediary 143 requested them from the authorities, in order to pass these documents to the investigators.435 174. It is important to note that the prosecution was not seeking to verify whether particular children were listed in the relevant school registers; instead bearing in mind that the Hema community was supposed to be better educated than other communities they wanted to establish whether, at a particular age, a child would be in an identified class.436 Therefore, P-0582 did not attempt to go to the schools where the relevant individuals had indicated they had been enrolled.437 175. The Independent Electoral Commission of the DRC (IEC), the body that issues voter I.D. cards, was set up during this time,438 but, according to P-0582, it only provided the ages of parents rather than their children:439 he suggested that children were not registered in the electoral lists.440 The Chamber notes, however, that P-0582 was wrong in this regard, given the IEC documents containing their names shown to P-0007, P-0008, P-0010 and P-0294, which were introduced into evidence by the defence.441 Moreover, the evidence before the Chamber
Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 5 8. 435 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 8 12. 436 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 13 17. 437 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 17 21. 438 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 15 16. 439 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 16 18. 440 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 18 19. 441 Material from the Independent Electoral Commission relating to these witnesses were admitted into evidence by the Chambers decision ICC-01/04-01/06-2664-Conf of 17 December 2010 (a public redacted version was issued on 16 March 2011, ICC-01/04-01/06-2664-Red): EVD-D01-01005, EVD434

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was that the investigators did not know the members of the electoral commission and they did not want to contact them in an indiscreet way.442 Whilst acknowledging the difficult circumstances in the field at the time of the investigation, this failure to investigate the childrens histories has significantly undermined some of the evidence called by the prosecution. 176. The prosecution relies on expert reports relating to the X-ray examination of bones and teeth, and it is suggested that these may help determine the age of witnesses P-0007, P-0008, P-0010, P-0011, P0157, P-0213, P-0294, P-0297 and P-0298.443 The defence submits that the experts recognised the limitations of assessing age in this way, and argues that it is necessary for the Chamber to approach this evidence with caution.444 These examinations were not meant to determine a persons age with precision; furthermore, the model is based on European and American populations rather than those from SubSaharan Africa, and the methodology has not been updated for 50 years. Therefore, it is suggested this approach will only provide an

D01-01006, EVD-D01-01025, EVD-D01-01026, EVD-D01-01027, EVD-D01-01028, EVD-D0101030 and EVD-D01-01031. An earlier decision ICC-01/04-01/06-2596-Conf of 26 October 2010 had admitted into evidence another voting card (EVD-D01-00762). A public redacted version of this latter decision was issued on 17 November 2010 (ICC-01/04-01/06-2596-Red). The Chamber notes that the probative value of the material from the Independent Electoral Commission is disputed by the legal representative of victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06, who are P-0007, P-0008, P0010, and P-0011 respectively. Counsel submits that the voting cards and the personal information contained in the database of the DRC Independent Electoral Commission lack probative value because, at the time in Ituri, the administrative procedures for issuing identity documents were seriously flawed and it was possible for anyone to obtain identity documents containing information which may or may not have been accurate, at his or her convenience (ICC-01/04-10/06-2744-Red-tENG, para. 33). Statements by witnesses P-0007, P-0008 and P-0010 on the circumstances of obtaining voting cards (with inaccurate information) were admitted into evidence by decision ICC-01/04-01/06-2694 of 2 March 2011(corrigendum of the decision issued 9 March 2011, ICC-01/04-01/06-2694-Corr): EVDOTP-00655, EVD-OTP-00658 and EVD-OTP-00660 with related material EVD-OTP-00656, EVDOTP-00657 and EVD-OTP-00659. 442 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 19 23. 443 ICC-01/04-01/06-2748-Red, paras 358 and 359. 444 ICC-01/04-01/06-2773-Red-tENG, paras 92 94.

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approximate answer, particularly given it is not an exact science.445 The Chamber accepts that this material needs to be treated with care, not least because analysis of this kind, based on X-rays, was principally developed to measure biological rather than chronological age. 446 Catherine Adamsbaum (P-0358), a forensic expert, stated that this means of measurement becomes less precise after 15 years of age,447 and the extent of the range, or the margin, of error is uncertain.448 There may be differences depending on ethnicity, and the Chamber accepts the evidence that [] the x-ray evaluation of a bone age is to be used with great caution. It is not a precise method, far from it, but it still can give us an indication as to the bone-maturation age of an individual.449 Socio-economic factors can also have an effect.450 P-0358 testified that in this field medical assessment is not an exact science, and all estimates were based on age ranges.451 There are no reasons for doubting the validity of this approach. 177. Furthermore, the Court notes that the prosecution invited the Chamber to draw conclusions as to the age of various witnesses when it had presented markedly contradictory evidence on this issue.452 The

ICC-01/04-01/06-2773-Red-tENG, paras 93 96. T-172-Red-ENG, page 88, line 17 to page 89, line 25. 447 T-172-Red-ENG, page 90, lines18 19. 448 T-172-Red-ENG, page 91, lines 12 16. 449 T-172-Red-ENG, page 92, lines 4 25. 450 T-172-Red-ENG, page 93, lines 16 22. 451 T-173-ENG, page 43, line 7 to page 44, line 5. 452 For example, for P-0008, see EVD-OTP-00428, T-172-Red-ENG, page 47, line 7 et seq. The expert concluded that the witness was aged at least 19 on 5 December 2007 and was therefore born before December 1988, contrary to the witness account which was 1989 (T-135-Red3-ENG, page 64, lines 12 14). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748Red, para. 425, For P-0157, see EVD-OTP-00435, T-172-Red-ENG, page 53, lines 13-22: the expert report indicates the witness was born before December 1988 (thereby contradicting the witness who said he was born in 1991, see T-185-Red2-ENG, page 63, line 7). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748-Red, para. 511. For P-0294, see EVDOTP-00440 and T-172-Red-ENG, page 69, line 23 to page 70, line 11: the expert report indicates the witness was born before December 1989 (contradicting his testimony that he was born in 1991, see T150-Red2-ENG, page 44, lines 13 14; T-151-Red2-ENG, page 53, lines 15 17). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748-Red, para. 365.
446

445

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evidence on the age of specific children is discussed in the relevant sections.

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VII. INTERMEDIARIES
A. THE ISSUE 178. The fundamental question raised by the defence under this heading is whether, during the investigations leading to this trial, four of the intermediaries employed by the prosecution suborned the witnesses they dealt with, when identifying or contacting these individuals or putting them in touch with the investigators, and whilst carrying out risk assessments.453 It is suggested, inter alia, that if this possibility is established, then any witnesses the intermediaries had dealings with should not be relied on. Indeed, it is argued that if this impropriety is substantively made out, the reliability of the prosecutions contentions in this case as a whole will be called into question.454 179. This issue was the central focus of the defence application seeking a permanent stay of the proceedings for abuse of process. 455 In its decision on this aspect of the defence application, the Chamber held that:
197. This is undoubtedly an important and a highly contentious issue in the case, but in the judgment of the Chamber the alleged abuse on the part of the prosecution, even taken at its highest, would not justify staying the case at this stage. Given the ability of the Court to resolve all the relevant factual issues in due course [] and bearing in mind this application only relates to one, albeit significant, area of a wider case, it would be a disproportionate reaction to discontinue the proceedings at this juncture. 198. Contrary to the submission of the defence, the Chamber will be able, in due course, to reach final conclusions on the alleged impact of the involvement of the intermediaries on the evidence in this case, as well as on the wider alleged prosecutorial misconduct or negligence based on the suggested failure by the Office of the Prosecutor to supervise or control the
453 454

ICC-01/04-01/06-2657-tENG-Red, paras 27 and 28. ICC-01/04-01/06-2773-Red-tENG, paras 1 18. 455 ICC-01/04-01/06-2657-tENG-Red.

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individual intermediaries and to act on indications of unreliability (together with the consequences of any adverse findings in this regard, which the defence alleges taints all the prosecution's evidence).456

180. It needs to be emphasised that with many of the witnesses in this category who came into contact with the intermediaries, the Chamber has recognised that they may well have given a truthful account as to elements of their past, including their involvement with the military, whilst at the same time at least potentially lying about particular crucial details, such as their identity, age, the dates of their military training and service, or the groups they were involved with. As regards this aspect of the case, the Chamber needs to be persuaded beyond reasonable doubt that the alleged former child soldiers have given an accurate account on the issues that are relevant to this trial (viz. whether they were below 15 at the time they were conscripted, enlisted or used to participate actively in hostilities and the circumstances of their alleged involvement with the UPC). 181. For the reasons analysed above, the prosecution submits that, due to the difficulties in the DRC and the OTPs lack of a police force, it was necessary to rely on intermediaries.457 It is suggested that their role was limited, in the sense that the intermediaries were excluded from the decision-making process and, save exceptionally, when the witnesses were screened and interviewed.458 182. It is argued by the Prosecutor in those circumstances that the intermediaries simply played a supporting role.459

456 457

ICC-01/04-01/06-2690-Red2. ICC-01/04-01/06-2678-Red, para. 14. 458 ICC-01/04-01/06-2678-Red, para. 17. 459 ICC-01/04-01/06-2678-Red, para. 38.

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B. THE DEVELOPING USE OF INTERMEDIARIES 183. P-0582 testified that there was an instruction that the intermediaries were not supposed to know the objectives of the investigation team.460 It was suggested that in order to survive, the intermediaries had to avoid being aware of too many details.461 To the extent possible, the investigators did not provide them with information, 462 in order to ensure that the intermediary, the investigator and the witness would not be compromised.
463

Therefore, it was suggested that the

intermediaries were not given any substantive information about the case.464 Indeed, it was asserted that the latter was too complicated to enable discussion with anyone who was not a member of the investigation division.465 Additionally, the differences and variations in the objectives meant that many intermediaries ceased asking for information about the investigators activities and focussed instead on getting to know the witnesses.
466

P-0582 indicated that the

intermediaries were unaware of the questions that the witnesses were asked.467 184. It was accepted that, in reality, the intermediaries were activists, most of whom were fully aware of developments within the sphere of

460

Transcript of Deposition page 63, lines 4 5. 461 Transcript of Deposition page 63, lines 6 9. 462 Transcript of Deposition page 63, lines 12 13. 463 Transcript of Deposition page 63, lines 13 17. 464 Transcript of Deposition page 15, lines 13 16. 465 Transcript of Deposition page 15, lines 17 19. 466 Transcript of Deposition page 15, lines 19 22. 467 Transcript of Deposition page 15, lines 23 24.

on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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international criminal justice and the objectives of the investigators.468 P-0582 acknowledged that the intermediaries consulted internet sites in order to keep up-to-date with the progress of the investigations (along with broader issues concerning international criminal justice just referred to) even before the investigators arrived in the DRC.469 However, P-0582 said the investigators were reluctant to discuss their developing objectives.470 185. Although P-0582 was not present at all the screenings or during the interviews and accordingly he could not say if intermediaries were ever present nonetheless they were not authorised to participate.471 Indeed, P-0582 said that it was out of the question for intermediaries to be present.472 186. After each witness was screened, a representative of the prosecution division, as opposed to the intermediary473 (who did not contribute to this process),474 decided whether he or she should be interviewed. 187. P-0582 indicated that to his knowledge, no member of the office asked intermediaries to tell potential witnesses to lie to the investigators during their interviews or in court.475 Indeed, he said that he was unaware of any information that demonstrated that
468

Transcript of Deposition on 16 page 63, line 25 to page 64, line 2. 469 Transcript of Deposition on 16 page 64, lines 2 4. 470 Transcript of Deposition on 16 page 64, lines 5 8. 471 Transcript of Deposition on 17 page 16, lines 1 3. 472 Transcript of Deposition on 17 page 16, lines 5 7. 473 Transcript of Deposition on 17 page 16, lines 12 17. 474 Transcript of Deposition on 17 page 17, lines 3 6. 475 Transcript of Deposition on 17 page 17, lines 7 12.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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intermediaries had asked witnesses to lie during the screening process or in court.476 The quality of work of the intermediaries he was aware of, coupled with their correct behaviour (as he assessed it) indicated that the information received from them was valid.477 188. P-0582 explained that it was considered necessary to avoid intermediaries who were not serious in their offer to help the Court, and the investigators did not use intermediaries who were trying to gain publicity or money by introducing witnesses to the OTP.478 189. During the identification phase, depending on the competence of the intermediary, the latter might be shown photographs so as to establish if an individual was known or lived in a particular area.479 190. P-0582 explained that there were two categories of intermediaries.480 Those in the first category assisted in identifying witnesses and they facilitated contact between the witnesses and the investigators.481 They helped with health problems, issues relating to threats and any lack of understanding on relevant issues.482 These individuals, who were often activists, were said to be reasonably professional in their management of the safety and security of the witnesses.483

476

Transcript of Deposition on 17 November 2010, page 17, lines 18 23. 477 Transcript of Deposition on 17 November 2010, page 17, line 23 to page 18, line 2. 478 Transcript of Deposition on 16 November 2010, page 49, lines 21 25. 479 Transcript of Deposition on 16 November 2010, page 66, lines 4 8. 480 Transcript of Deposition on 16 November 2010, page 49, line 10. 481 Transcript of Deposition on 16 November 2010, page 49, lines 11 13. 482 Transcript of Deposition on 16 November 2010, page 49, lines 14 16, and page 65, lines 13 14.. 483 Transcript of Deposition on 16 November 2010, page 49, lines 17 20.

ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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191. Intermediaries in this category generally contacted the investigators because of information in their possession or because they knew witnesses who could be helpful. 484 Following a request from the investigators, the intermediaries would collect the witnesses from their homes, organise meetings and ensure they were not seen with the investigators.485 192. It was important to compile a reasonably accurate file on each witness without raising suspicions within his or her family or village.486 These were extremely delicate missions, and an error could lead to the identification of the individual and abduction or assault at the hands of one of the militias. 487 Additionally, the work of the investigators would have been undermined if it was alleged that a witness had been tracked down by soldiers following contact with the Court. 488 P-0582 suggested that the intermediaries, through their professionalism, made it possible to introduce the investigators to children in the best possible circumstances.489 193. The second category of intermediaries assisted by contributing to the evaluation of the security situation.490 These individuals included, inter alia, some members of MONUC; soldiers of the Congolese armed forces; and anyone with useful information, for instance, on the

484

Transcript of Deposition on 16 page 61, line 25 to page 62, line 2. 485 Transcript of Deposition on 16 page 62, lines 10 15. 486 Transcript of Deposition on 16 page 62, lines 15 17. 487 Transcript of Deposition on 16 page 62, lines 18 20. 488 Transcript of Deposition on 16 page 62, lines 20 22. 489 Transcript of Deposition on 16 page 62, line 22 to page 63, line 1. 490 Transcript of Deposition on 16 page 50, lines 17 21.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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security situation.491 194. P-0582 stressed that the two categories of individuals overlapped.492 The term intermediary began to be used in the summer of 2004, but intermediaries only received contracts much later.493 195. There was no formal recruitment procedure for selecting

intermediaries. 494 An intermediary was simply someone who could perform this role; there was no process of candidacy or application and instead it was a matter of circumstance.495 Two or three activists became intermediaries simply because they quickly offered to identify potential witnesses.496 P-0583 stated that the criteria used to identify suitable individuals to act in this capacity depended on the opportunities and the events confronting them. However, the team could not use those who had been involved in the fighting or who had perpetrated crimes.497 196. Over time, when it was felt necessary to place the relationship with the intermediaries on a more formal basis, limited contracts of employment were proposed.498 However, there was a tension between the need to give a more formal appearance to the intermediaries

491

Transcript of Deposition on 16 November page 51, line 22 to page 52, line 5. 492 Transcript of Deposition on 16 November page 68, lines 1 8. 493 Transcript of Deposition on 16 November page 53, lines 9 12. 494 Transcript of Deposition on 16 November page 53, line 14. 495 Transcript of Deposition on 16 November page 53, lines 14 16. 496 Transcript of Deposition on 16 November page 53, lines 17 20. 497 T-334-Red2-ENG, page 15, lines 9 18. 498 Transcript of Deposition on 16 November page 53, lines 21 23.

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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function and the risks they ran in the field.499 They did not want the latter to be subordinated to the former.500 It was suggested that the highest investigative standards expected by the Court did not reflect the reality of the situation in the field,501 and the central problem of the security of the witnesses. The intermediaries were an integral part of the protection system.502 In this context, P-0582 indicated his belief that the intermediaries security was a primary constraint.503 197. The investigation team carried out some verification of the intermediaries, based on the information available to them.504 In some instances (in the absence of contrary information), their background was sufficiently demonstrated by the reports on their human rights activities in the field (as confirmed by the NGOs) along with the risks they had taken in order to conduct successful investigations.505 This approach was not applicable to intermediaries who were not recognised human rights activists, and who were, for instance, engaged in more discreet activities.506 The investigators attempted as far as possible to obtain information on the intermediaries, but obtaining information was risky because it could expose them to a

499

Transcript of Deposition page 54, lines 1 3. 500 Transcript of Deposition page 54, lines 4 5. 501 Transcript of Deposition page 54, lines 5 10. 502 Transcript of Deposition page 54, lines 10 12. 503 Transcript of Deposition page 54, lines 13 14. 504 Transcript of Deposition page 55, lines 4 5. 505 Transcript of Deposition page 55, lines 5 9. 506 Transcript of Deposition page 55, lines 10 12.

on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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disproportionate level of risk.507 C. PAYMENT TO INTERMEDIARIES 198. P-0582 suggested that the majority of the intermediaries were not paid508 and did not request payment.509 However, if they travelled as part of their activities, their expenses for transport and communication were reimbursed.510 Up to a certain point it had not been proposed to pay intermediaries for their work, because it was undertaken on a voluntary basis. 511 P-0582 suggested the investigators were very stringent when reimbursing costs.512 199. P-0582 indicated that in the majority of cases intermediaries were reimbursed in the most transparent manner possible, either because they had the documents justifying the claim, or in the absence of documents, a flat rate was paid based on the investigators understanding of the local situation.513 For example, in relation to a trip by an intermediary using a motorcycle from Bunia to Mongbwalu, the investigators would establish the cost of the trip with officers from organisations such as MONUC.514 200. All the reimbursements to intermediaries were on the basis of an

507

Transcript of Deposition on 16 page 55, lines 12 16. 508 Transcript of Deposition on 16 page 58, lines 8 10. 509 Transcript of Deposition on 16 page 58, line 10. 510 Transcript of Deposition on 16 page 58, lines 11 14. 511 Transcript of Deposition on 16 page 58, lines 15 17. 512 Transcript of Deposition on 16 page 58, lines 18 21. 513 Transcript of Deposition on 16 page 58, line 25 to page 59, line 3. 514 Transcript of Deposition on 16 page 59, lines 4 8.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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expense declaration form.515 Initially, investigators paid an advance to the intermediaries,516 but later it was decided that these payments were to be set out and justified in a document, to which the supporting material such as invoices or statements had been attached.517 This was recorded in the OTPs database.518 201. The arrangements, as described by P-0582, covered the period from 2004, when the Court was still in its infancy, until 2007 when it became an operational institution.519 202. P-0582 stressed that witnesses were not paid to answer questions.520 If they received money, it was compensation for expenses, such as transport, meals and communications; this was on a fixed basis because it was very difficult to estimate particular costs. 521 If the individual was staying at a hotel or with a family, they were given an allowance to cover additional expenses.522 The investigative team was concerned primarily with not being viewed as paying extravagant amounts to witnesses, thereby seeming to promise money in exchange for evidence.523 Striking the right balance was not easy, and one of the

515

Transcript of Deposition page 60, lines 1 2. 516 Transcript of Deposition page 60, lines 2 4. 517 Transcript of Deposition page 60, lines 5 10. 518 Transcript of Deposition page 60, lines 10 11. 519 Transcript of Deposition page 60, lines 15 17. 520 Transcript of Deposition page 14, lines 12 13. 521 Transcript of Deposition page 14, lines 13 19. 522 Transcript of Deposition page 14, lines 20 21. 523 Transcript of Deposition page 14, lines 21 24.

on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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intermediaries gave the investigators an indication of certain costs.524 Although the investigators often had documents setting out the amounts for certain items (such as the use of telephones),525 for costs such as food and lodging, the intermediaries assisted in assessing the relevant level of compensation.526 D. CONTRACTS WITH INTERMEDIARIES 203. With time it became apparent that certain intermediaries were so indispensable that they had to be provided with some form of more appropriate compensation.527 A special contract was devised that spelt out the duties of the intermediary, including the protection of the witnesses.528 204. Whilst P-0582 worked for the OTP, three intermediaries were employed under these contracts. 529 The three intermediaries who signed contracts with the Court were P-0316, Intermediary 143 and Intermediary 154.530 205. P-0582 was aware of the risk that the intermediaries might manipulate the investigators they dealt with.531 For instance, it was suggested that the initial approval of P-0316 as an intermediary was based on the value of the information he provided, which was rapidly
524

Transcript of Deposition on 17 page 15, lines 1 6. 525 Transcript of Deposition on 17 page 15, lines 6 8. 526 Transcript of Deposition on 17 page 15, lines 8 10. 527 Transcript of Deposition on 16 page 59, lines 9 11. 528 Transcript of Deposition on 16 page 59, lines 11 15. 529 Transcript of Deposition on 16 page 59, lines 16 18. 530 Transcript of Deposition on 17 page 59, line 25 to page 60, line 5. 531 Transcript of Deposition on 17 page 19, lines 18 19.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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confirmed, enabling the investigators to advance their knowledge of the case. 532 This intermediary came from the government. 533 P-0582 acknowledged that with informers there was a bias in the information they provided (that, it was said, was clear to the investigators),534 and checks were made with other sources to establish if P-0316 was engaging in a degree of manipulation.535 E. INDIVIDUAL INTERMEDIARIES 206. As set out above, in the Chambers Decision on the Defence Application Seeking a Permanent Stay of the Proceedings, the Chamber described the evidence relating to the allegations raised by the defence against the prosecution intermediaries. At that stage of the proceedings, the Chamber found that even if the defence submissions were accepted at their highest that the Prosecutor knew that there were doubts as to the integrity of the four intermediaries, staying the proceedings, as an exercise of judgment, would be

disproportionate.536 The Chamber decided that it would be able to reach final conclusions on the alleged impact of the involvement of the intermediaries (and the wider alleged prosecutorial misconduct or negligence) during the later stages of the trial.537 207. In order to assess the role played by each of the four main intermediaries discussed below, and to determine whether the evidence given by the witnesses they had contacts with is reliable, the
532

Transcript of Deposition on 17 November page 19, lines 6 9. 533 Transcript of Deposition on 17 November page 19, lines 10 11. 534 Transcript of Deposition on 17 November page 19, lines 11 14. 535 Transcript of Deposition on 17 November page 19, lines 15 18. 536 ICC-01/04-01/06-2690-Red2, para. 199. 537 ICC-01/04-01/06-2690-Red2, para. 198.

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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Chamber has considered each intermediarys involvement with the OTP and the relevant witnesses, as well as the particular evidence given by those witnesses.

1. Intermediary 143

a) Background 208. In its Decision on Intermediaries, the Chamber described the evolution of the position of Intermediary 143 leading to an order for disclosure of his identity to the defence. 538 It set out the evidence relating to Intermediary 143s involvement with the prosecution witnesses,539 and concluded that it was strictly necessary to disclose his identity to the defence for the purposes of conducting necessary and meaningful investigations and to secure a fair trial for the accused.540 The Chamber also found that the evidence did not meet the criteria for ordering him to be called as a witness in the proceedings.541 However, the prosecution was instructed to call a witness who could give evidence on the approach and the procedures applied by the prosecution in relation to intermediaries during the investigations.542 In addition, the prosecution was ordered to provide further information on the intermediaries and to disclose the known contacts between the intermediaries and the witnesses, and between the intermediaries.543

538 539

ICC-01/04-01/06-2434-Red2, paras 40 and 41. ICC-01/04-01/06-2434-Red2, paras 43 47. 540 ICC-01/04-01/06-2434-Red2, para. 143. 541 ICC-01/04-01/06-2434-Red2, para. 143. 542 ICC-01/04-01/06-2434-Red2, paras 146 and 150 (iv). 543 ICC-01/04-01/06-2434-Red2, paras 147 and 150 (i, ii and v).

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209. Intermediary 143 introduced numerous witnesses to the OTP,544 five of whom were called by the prosecution. 545 It is noteworthy that, according to a contact chart provided by the prosecution, 546 the following lengthy list of potential witnesses were first contacted via Intermediary 143: DRC-OTP-WWWW-0006, trial witness P-0007, trial witness P-0008, DRC-OTP-WWWW-0009, trial witness P-0010, trial witness P-0011, trial witness P-0031 (who was also an intermediary), DRC-OTP-WWWW-0132, WWWW-0155, DRC-OTP-WWWW-0137, DRC-OTP-

DRC-OTP-WWWW-0170,

DRC-OTP-WWWW-0176, DRC-OTP-

DRC-OTP-WWWW-0179, WWWW-256,

DRC-OTP-WWWW-0216,

DRC-OTP-WWWW-267,

DRC-OTP-WWWW-0278, DRC-OTP-

DRC-OTP-WWWW-0279,

DRC-OTP-WWWW-0280,

WWWW-0281, DRC-OTP-WWWW-0282 and DRC-OTP-WWWW287.547 In addition, he had contact with the following witnesses: DRCOTP-WWWW-0028, DRC-OTP-WWWW-0030, DRC-OTP-WWWW0156, DRC-OTP-WWWW-0178, DRC-OTP-WWWW-0243. Finally, he was in touch with intermediaries P-0316 and P-0321, amongst others.548 b) The evidence from P-0582 and P-0583 210. P-0582 considered that Intermediary 143 must have introduced himself to the investigators, but he was not sure exactly how.549 P-0582 suggested that Intermediary 143 made it possible for the investigators

Table of contacts, EVD-D01-01039, No. 72. P-0007, P-0008, P-0010, P-0011 and P-0031. Intermediary 143 also introduced prosecution witnesses P-0006 and P-0009, who were withdrawn. 546 Table of contacts, EVD-D01-01039, No. 72. 547 EVD-D01-01039, No. 72. 548 T-324-Red2-ENG, page 24, line 24 to page 26, line 16 and EVD-D01-01039, No. 72. 549 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 22 24.
545

544

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to identify several children who could testify.550 211. Intermediary 143 identified a number of child witnesses who, according to their statements, were under 15 years of age.551 Thereafter he maintained contact with the witnesses, and informed the investigators as to the state of their health, and any difficulties they were experiencing. 552 Additionally, Intermediary 143 provided more general information about the security situation in Bunia, 553 and he resolved individual problems (such as threats to witnesses and organising medical treatment).554 212. As far as the investigators were concerned, the former child soldiers introduced to the OTP by Intermediary 143 had been recruited into the military apparatus of the UPC.555 P-0582 suggested that Intermediary 143 was aware that the investigators were looking for children who were under the age of 15 at the relevant time, 556 against the background that determining age was not easy.557 213. During the early months, the objectives of the investigation were not precisely formulated because the investigators were collecting information and they were open to any suggestions, depending on the

550

Transcript of Deposition on 17 page 5, lines 2 4. 551 Transcript of Deposition on 17 page 21, line 22 to page 22, line 1. 552 Transcript of Deposition on 17 page 22, lines 2 7. 553 Transcript of Deposition on 17 page 22, lines 8 9 and 19 - 19. 554 Transcript of Deposition on 17 page 22, lines 20 25. 555 Transcript of Deposition on 17 page 25, lines 11 13. 556 Transcript of Deposition on 17 page 25, lines 16 18. 557 Transcript of Deposition on 17 page 25, lines 19 21.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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documentation they received.558 Indeed, at the outset they thought that they were going to be dealing with massacres and other atrocities.559 However, once they received information from Intermediary 143 and others (e.g. investigators from the UN) that during the fighting children under the age of 15 had been used systematically, a decision was taken by the OTP to investigate this issue further.560 Intermediary 143 was not provided with any particular criteria, given the investigators were open to any new information.561 214. Although Intermediary 143 made suggestions as to individuals the investigators might meet, 562 he did not establish the criteria for identifying witnesses but instead he had been asked if he knew militia members, 563 and, following a request from the investigators, he introduced children who were to be assessed by them.564 However, in practice, Intermediary 143 often identified children for the prosecution before investigators asked him to do so, 565 although P-0582 did not know the precise manner in which this occurred.566 215. The OTP asked Intermediary 143 to provide documents for the child

558

Transcript of Deposition on 17 page 24, lines 4 8. 559 Transcript of Deposition on 17 page 24, lines 11 16. 560 Transcript of Deposition on 17 page 24, line 17 to page 25, line 3. 561 Transcript of Deposition on 17 page 25, lines 4 8. 562 Transcript of Deposition on 17 page 23, lines 11 12. 563 Transcript of Deposition on 17 page 23, lines 9 10. 564 Transcript of Deposition on 17 page 23, lines 17 19. 565 Transcript of Deposition on 17 page 26, lines 2 7. 566 Transcript of Deposition on 17 page 26, lines 6 9.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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soldiers because he was in the best position to obtain them. 567 The children or their legal guardians were asked for their civil status documents, which were given to the investigators by the

intermediaries. 568 The evidence set out hereafter reveals that this process of verification was often not undertaken satisfactorily as regards the witnesses who had contact with the principal

intermediaries dealt with in this section. 216. P-0582 indicated that on the basis of several meetings, as well as the assessment of the investigators who had direct links with Intermediary 143, he was quite content with the management of the child soldier witnesses and any relevant security measures.569 P-0582 explained that Intermediary 143 undertook the work assigned to him and they discussed his future role.
570

It was P-0582s estimation that

Intermediary 143 had a really high idea of his activities and responsibilities and the fact that he was working for a cause that [] was dear to him.571 The children never mentioned any problems with him.572 217. The relationship between P-0031 (a trial witness and intermediary as noted above) and Intermediary 143 was not good. Although they were both human rights activists, one of them accused the other of

567

Transcript of Deposition on 17 page 26, line 24 to page 27, line 2. 568 Transcript of Deposition on 17 page 27, lines 6 8. 569 Transcript of Deposition on 17 page 29, lines 18 22. 570 Transcript of Deposition on 17 page 29, lines 23 24. 571 Transcript of Deposition on 17 page 29, line 24 to page 30, line 1. 572 Transcript of Deposition on 17 page 30, lines 3 5.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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wanting to poison him.573 c) The Other Evidence 218. The defence argues that the evidence overall demonstrates that Intermediary 143 suborned prosecution witnesses.574 219. It has been established that the Office of the Prosecutor employed Intermediary 143 under contracts that were regularly renewed between 1 June 2005 and 2010.575 220. P-0581 stated that Intermediary 143 arranged travel and transport for witnesses on behalf of the OTP,576 and he obtained identification papers.577 He secured the consent of some of the witnesses guardians in order to take X-rays. As discussed above Intermediary 143 was involved with issues concerning the safety and the health of some of the witnesses. He also acted on behalf of some victims.578 221. The prosecution called Witnesses P-0007, P-0008, P-0010 and P-0011 (all introduced to the OTP by Intermediary 143), each of whom claimed at trial to have been recruited into the UPC when they were under the age of 15. Intermediary 143 also introduced P-0006 and P0009 to the Office of the Prosecutor, who were withdrawn from the list of trial witnesses but whose written statements were before the Pre573

Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 9 11. 574 ICC-01/04-01/06-2657-tENG-Red, para. 149. See also ICC-01/04-01/06-2773-Red-tENG, para. 5. 575 EVD-D01-01053; EVD-D01-01040, No. 202; EVD-D01-01052; EVD-D01-01051; EVD-D0101046; EVD-D01-01047; EVD-D01-01049; and EVD-D01-01050. 576 See, e.g., EVD-D01-00932, EVD-D01-00784, EVD-D01-00891, EVD-D01-00893 and EVD-D0100931. 577 Intermediary 143 assisted P-0297 in obtaining an identity card. T-302-CONF-ENG, page 53, line 20 to page 54, line 21 and EVD-D01-00295. Intermediary 143 also provided the birth certificates for Witnesses P-0007 (EVD-OTP-00085), P-0008 (EVD-D01-00055), P-0010 (EVD-D01-01102) and P0011 (EVD-D01-00059). This is recorded in the metadata of the aforesaid exhibits. See also EVDD01-00926, a receipt reimbursing Intermediary 143 for birth certificates obtained. 578 First Report to Trial Chamber I on Victims Applications Under Regulation 86(5) of the Regulations of the Court, 11 April 2008, ICC-01/04-01/06-1275-Conf-Exp-Anx2, pages 6, 8, 12 and 216.

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Trial Chamber at the stage of the confirmation of charges.579 All six individuals were authorised to participate in the current proceedings as victims (P-0006 is a/0051/06, P-0007 is a/0047/06, P-0008 is a/0048/06, P-0009 is a/0049/06, P-0010 is a/0050/06, and P-0011 is a/0052/06).580

(1) The evidence of P-0007 and P-0008 and evidence relevant to their assessment (a) P-0007 222. P-0007 and P-0008 are alleged former child soldiers who have also been authorised to participate in the proceedings. P-0007 testified that although during his meeting with representatives from the OTP in 2005 (having been introduced by Intermediary 143) he confirmed that all of his answers were accurate, in fact at the time he did not know his true date of birth.581 In August 2005, the witness apparently told the IEC that his year of birth was 1986, and he gave them a name that differed from the one provided by him to the prosecution.582 His birth certificate (dated November 2005) records the year of his birth as 1990.583 223. Although the witness gave his names in evidence, he explained that his parents, brothers and sisters call him by different names, and later in his testimony he indicated that he had used two further names.584 He also stated that he was born in 1987585 (he repeated this date in

579 580

ICC-01/04-01/06-803tEN. ICC-01/04-01/06-1861-AnxA1. 581 T-148-Red2-ENG, page 34, lines 6 18. 582 EVD-D01-01031 (extract from the IEC database). 583 EVD-D01-01103. 584 T-148-Red2-ENG, page 17, lines 20 24; T-149-Red2-ENG, page 47, line 5 to page 48, line 18. 585 T-148-Red2-ENG, page 18, lines 14 17.

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November 2010).586 224. In these circumstances his reliability is profoundly called into question, given the considerable, and essentially unexplained, differences as to the date of birth of this witness, in his oral testimony and in the documentary evidence. 225. The witness gave contradictory testimony concerning the names of his father (this is discussed further below). 226. The witness testified that when he was 15 years old (during his second year of secondary education), soldiers from the UPC abducted him outside his school.587 Thereafter, he was sent for military training (this was at the beginning of 2003).588 He stayed at a training centre in Irumu589 for about a month.590 Later, he became a bodyguard in Bunia to a UPC commander,591 once he had spent two to three months at the camp at Mandro,592 and he fought in battles at Bogoro, 593 Lipri and Bunia.594 It follows from the above that he completed his training in March or April 2003. 227. It is suggested by the defence that P-0007 gave an implausible account regarding certain aspects of his time in the UPC. He said that Chief Kahwa and Mr Bagonza were both commanders at the material time. 595 Similarly P-0007 maintained that Commander Bagonza was

586 587

EVD-OTP-00655. T-148-Red2-ENG, page 22, line 17 to page 24, line 3. 588 T-148-Red2-ENG, page 21, lines 6 16. 589 T-149-Red2-ENG, page 67, lines 4 16. 590 T-148-Red2-ENG, page 54, line 25 to page 55, line 1; T-149-Red2-ENG, page 80, lines 10 12. 591 T-148-Red2-ENG, page 59, lines 20 23. 592 T-148-Red2-ENG, page 56, lines 10 13; T-149-Red2-ENG, page 44, lines 18 20. 593 T-149-Red2-ENG, page 9, lines 15 20; T-150-Red2-ENG, page 19, line 17 to page 20, line 4. 594 T-149-Red2-ENG, page 18, lines 6 13. 595 ICC-01/04-01/06-2773-Red-tENG, paras 122 - 124, T-148-Red2-ENG, page 58, lines 11 12 and T-149-Red2-ENG, p. 7, lines 2 3.

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present at meetings at the residence of the UPC Chief of Staff.596 The defence suggests that the evidence has established that Commander Bagonza was killed in 2002.597 However, although there is evidence that Mr Bagonza died, there is no clear evidence as to the date of his death and the Chamber accordingly discounts this particular criticism. 228. P-0007 stated that Chief Kahwa was in charge while he was at the camp in Mandro in early 2003. 598 Furthermore, he maintained that Thomas Lubanga and Chief Kahwa were present at the end of his training at Mandro, around March or April 2003.599 The defence relies on the testimony of D-0019 to argue that the evidence establishes that Chief Kahwa left the UPC at the end of 2002.600 The defence also refers to a UPC decree dated 2 December 2002 formally removing Chief Kahwa from his position as UPC defence minister.601 It is not disputed by either party that this document originates from the UPC, and the Chamber accepts its authenticity. This evidence thus contradicts P0007s testimony that Chief Kahwa was present at, and in charge of, Mandro camp in 2003. 229. Further, it is significant that when P-0007 met with prosecution investigators in 2005, he did not mention that he had participated in, and had been wounded during, the battle of Dele, which he described as the most difficult battle he had fought in.602 When questioned about this omission by the defence, the witness suggested that he

596 597

T-149-Red2-ENG, page 6, line 14 to page 7, line 3. ICC-01/04-01/06-2773-Red-tENG, referring to testimony of D-0026. 598 T-148-Red2-ENG, page 56, lines 4 9, and page 58, lines 1 13. 599 T-148-Red2-ENG, page 50, line 2 to page 53, line 9; T-149-Red2-ENG, page 43, lines 22 25 and page 44, lines 6 8. 600 ICC-01/04-01/06-2773-Red-tENG, referring to T-340-ENG, page 48, line 9 to page 49, line 14, in which it is stated that Chief Kahwa resigned from the UPC at the end of October 2002 (testimony of D0019). 601 EVD-D01-01089. 602 T-150-Red2-ENG, page 10, lines 14 18.

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failed to refer to this battle at that stage because he had spoken about many events that had happened in his life, and he felt that it was not necessary to say anything about it and, additionally, if he talked about it he would be asked a lot of questions.603 He also suggested that he remembered telling the investigators in 2005 that he had been injured during the battle of Dele.604 This is contradicted by the fact that during questioning by the prosecution in 2005, the witness is recorded as having said he was injured near Lipri (the first battle).605 As read out in court, at paragraph 50 of his 2005 statement to OTP investigators, he gave an account of the wound and its consequences which was at variance with his testimony before the Court. 606 Accordingly, the Chamber does not consider that his account on these issues is reliable. 230. When asked to explain the discrepancies between his in-court testimony and his earlier statements to the prosecution, P-0007 stated that I told [the investigators] certain things, but I also withheld a certain amount of information, because I was afraid that such information would reveal my identity and I will be at danger.607 (b) P-0008 231. P-0008 is an alleged former child soldier who has also participated in the proceedings as a victim. P-0008 maintained, during his evidence, that he was the cousin of Witness P-0007,608 and he gave a name that differs slightly from the one on his voting card.609 He said he was born

603 604

T-150-Red2-ENG, page 10, line 8 to page 11, line 11. T-150-Red2-ENG, page 11, lines 15 17. 605 T-150-Red2-ENG, page 17, line 21 to page 18, line 12. 606 T-150-Red2-ENG, page 18, line 21 to page 19, line 16. 607 T-149-Red2-ENG, page 93, lines 3 8. 608 T-135-Red3-ENG, page 4, line 25 page 5, line 6. 609 Compare T-135-CONF-ENG, page 64, lines 14 16 with EVD-OTP-00659.

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in 1989 610 and he provided the names of his parents. 611 P-0008s testimony before the Court on this issue partially contradicts the information on his birth certificate (obtained by P-0143 on 11 August 2005), which states that he was born in 1991 and lists names for his parents that, to an extent, differ from those given in Court. 612 The witnesss electoral card indicates that he was born in 1987.613 232. P-0008 suggested that soldiers from the UPC forcibly enlisted him at the beginning of 2003, whilst he was attending school.614He underwent military training for two weeks615 at the UPC camp in Irumu,616 at the conclusion of which he was deployed as a bodyguard.617 He fought at the battles of Lipri 618 and Barrire. 619 However, his account, viewed overall, is contradictory and implausible. The description of his abduction changed significantly, in that in evidence he said that he was taken by soldiers after he fled home from school,620 whilst in his statement of July 2005 he said [o]ne day at the beginning of 2003, on a date I am not able to give, the UPC militia arrived in the village, at the time, when I lived with my family, to have a meeting with the civilian population. I dont know why this meeting nor what was discussed at the meeting took place because I didnt take part in it. On the evening of the same day, a group of these militias arrived at my home and

610 611

T-135-CONF-ENG, page 65, lines 12 14. T-135-CONF-ENG, page 64, line 25 to page 65, line 11. 612 EVD-D01-00055 and metadata. 613 See extract of the IEC database, EVD-D01-01028. See also the declaration on the electoral card, EVD-OTP-00658. 614 T-135-Red3-ENG, page 7, lines 2 18 and page 12, lines 13 16 and T-137-Red-ENG, page 21, line 19 to page 22, line 5. 615 T-137-Red2-ENG, page 47, lines 18 20. However, in his 2005 interview with the prosecution he claimed he was trained for two months: ICC-01/04-01/06-T-137-Red2-ENG, page 47, line 10. 616 T-135-Red3-ENG, page 9, lines 10 16. 617 T-135-Red3-ENG, page 22, line 23 to page 23, line 3. 618 T-135-Red3-ENG, page 24, lines 14 15 and lines 18 21. 619 T-135-Red3-ENG, page 24, line 17. 620 T-135-Red3-ENG, page 7, line 2 to page 8, line 1.

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ordered me to follow them to undergo military training.621 233. In his witness statement he suggested that they walked to the camp at Irumu from Sota (a distance that was not very far), 622 whilst in evidence his account was that they went by vehicle (taking about two hours). 623 P-0008 claims that Chief Kahwa and Mr Bagonza were commanders at the time at which he states he became a member of the UPC, at the beginning of 2003.624 As with P-0007, the defence argues that the evidence has established that Chief Kahwa left the UPC at the end of 2002.625 The defence also contends that the witnesss allegations as regards Mr Bagonza are implausible since he was killed in 2002. 626 As set out above, the Chamber considers that there is insufficient evidence as to the date of Commander Bagonzas death. However, there is evidence that Chief Kahwa was not a UPC commander in 2003. 234. P-0008 suggested that he failed to tell the investigators in his statement of July 2005 that he had fought at Barrire because of the amount he had to say, and (probably) because of lack of time and the amount of information. 627 In evidence, the witness said that he stayed at Mandro for a single day628 whilst in his 2005 statement he suggested he was there for 2 months.629 He suggested he was unable to give names for any of his siblings because he has not seen them for

621 622

T-137-Red2-ENG, page 34, lines 19 25. T-137-Red2-ENG, page 41, lines 1 5. 623 T-135-Red3-ENG, page 9, line 22 to page 10, line 18 and T-137-Red-ENG, page 41, line 13 to page 42, line 12. 624 T-135-CONF-ENG, page 12, line 16 and page 40, lines 18 - 23. 625 ICC-01/04-01/06-2773-Red-tENG, para. 125. 626 ICC-01/04-01/06-2773-Red-tENG, para. 125. 627 T-137-Red2-ENG, page 73, lines 13 19. 628 T-138-Red2-ENG, page 5, lines 3 5. 629 T-137-Red2-ENG, page 72, lines 13 18.

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such a long time.630 Similarly, he could not recall whether he saw his parents after he joined the UPC.631 235. The prosecution argues that the fact that P-0008 admitted in open court that he had raped a girl during one of the battles in which he was fighting ought to be a factor in assessing his credibility.632 (c) Matters common to P-0007 and P-0008 236. P-0031 testified that he had been in close contact with P-0007 and P0008 soon after they left the army, and that at the time they indicated they had been enlisted by the UPC/FPLC.633 He also gave evidence about a record that was kept of children who had been associated with armed groups, indicating that P-0007 was 14 years old and P-0008 11 years old on the date that they arrived at the centre, although he did not know which social worker had drafted the document.634 However, during questioning by the defence, P-0031 stated that although P-0008 gave the age of 11 when he arrived at the centre, over time we discovered that the childs age was not 11 years and in fact he was older, although P-0031 could not remember the precise age.635 237. Moreover, documentary evidence tends to demonstrate that P-0007 and P-0008 lied about having attended school in a particular town in the year 2001-2002 and at the beginning of the 2002-2003 academic year, because the records establish they were both at school in a different location altogether. The relevant documents indicate that P0007 and P-0008 were in the 1st year of secondary school in 2001-2002
630 631

T-137-Red2-ENG, page 13, lines 4 6. T-137-Red2-ENG, page 14, lines 19 25. 632 ICC-01/04-01/06-2748-Red, para. 427. 633 T-201-CONF-ENG, page 72, line 22 to page 74, line 25. 634 T-200-Red2-ENG, page 89, line 1 to page 90, line 18, referring to EVD-OTP-00474. 635 T-202-CONF-ENG, page 67, line 14 to page 69, line 4.

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at a school other than the one they claimed to have attended. The names of the two witnesses are to be found under Classe 2e C/O [2nd Year of Secondary School], under Section V left during the course of the year. 636 There are no sustainable reasons for concluding that these records are forgeries or that they are inaccurate. 238. Witnesses P-0007 and P-0008 were re-interviewed by the

prosecution on 7 and 8 January 2010,637 following their evidence before the Chamber. 638 They accepted that the family relationships were significantly different from the description provided by each of them earlier.639 The re-interview also demonstrates that P-0008 had lied in the relevant documents as to his mothers name.640 Similarly, P-0007 appears to have lied in evidence as to his fathers name. 641 During these post-testimony interviews they each provided various names for their siblings 642 that had not been forthcoming during their oral evidence.643

EVD-D01-00181, page 4243 and EVD-D01-00182, page 4231. See also EVD-D01-00183. Prosecutions Omnibus Application Concerning Disclosure by the Defence and other procedural issues related to the Prosecutions preparation for the Defence case, 2 October 2009, public redacted version filed 5 October 2009, ICC-01/04-01/06-2144-Red and Second Decision on Disclosure by the defence and Decision on whether the prosecution may contact defence witnesses, 19 November 2009, public redacted version issued 20 January 2010, ICC-01/04-01/06-2192-Red, para. 66. 638 P-0007: EVD-D01-00752; EVD-D01-00753 and EVD-D01-00754. P-0008: EVD-D01-00750 and EVD-D01-00751. 639 EVD-D01-00750, page 0380, lines 286-298 (re-interview of P-0008). EVD-D01-00752, page 0618, lines 3758 - 372 (re-interview of P-0007). See also EVD-D01-00753, page 0633, lines 35 56. 640 P-0008s birth certificate (obtained by P-0143 in 2005) gives one set of names for his mother, EVDD01-00055. In his January 2010 interview with the prosecution, P-0008 provided two entirely different names. EVD-D01-00750, page 0380, lines 299 to page 0381, line 317. 641 In his testimony before the Court, P-0007 suggested two names for his father. T-148-CONF-ENG, page 18, lines 2 3. However, P-0007 stated in his re-interview that his fathers name was entirely different from the one he previously set out (EVD-D01-00753, page 0636, lines 146-157 and page 0639, lines 254 -256) and that the name given during his testimony actually belonged to a different, but close, family member. EVD-D01-00753, page 0636, line 169 to page 0637, line 191. 642 P-0007: EVD-D01-00753, page 0639, line 267 et seq; P-0008: EVD-D01-00750, page 0383, line 407 et seq. 643 P-0007 omitted to name several of his brothers and sisters. T-149-CONF-ENG, page 48, line 24 to page 51, line 4. P-0008 stated during his testimony that he had forgotten the names of his brothers and sisters. T-137-Red2-ENG, page 13, lines 5- 6.
637

636

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(d) D-0012 239. The defence relies on the evidence of D-0012 to challenge the credibility of P-0007 and P-0008. D-0012 joined the UPC army after arriving in Bunia.644 Although he could not recall the year, he went into the military three months before the departure of Governor Lompondo. 645 D-0012 served as a soldier in the UPC until he was demobilised (following the arrival of the French forces).646 He became a bodyguard for one of the UPC commanders after he joined the army, 647 and in due course he worked for a number of other commanders.648 240. D-0012 stated that throughout the time that he was in the army, P0007 and P-0008 were attending school, although following the disorder only some of the schools were functioning in the town they lived in.649 The witness believes that P-0007 and P-0008 stayed in that town for one or two years.650 The prosecution argues that since D-0012 joined the UPC/FPLC army before Governor Lompondo was chased out (i.e. before August 2002), and remained there until the French military arrived (i.e. July 2003), he would not have known whether P0007 and P-0008 were soldiers during this period.651 241. The Chamber considers that although the witnesss evidence was somewhat contradictory as to whether he saw the family of D-0007 and D-0008 during this time,652 he indicated he had seen them when he

644 645

T-248-Red2-ENG, page 38, line 18 to page 39, line 4. T-248-Red2-ENG, page 38, line 25 to page 39, line 2. 646 T-248-Red2-ENG, page 39, lines 5 7. 647 T-248-CONF-ENG, page 39, lines 13 17. 648 T-248-CONF-ENG, page 39, lines 19 25. 649 T-248-CONF-ENG, page 40, lines 15 19. 650 T-248-CONF-ENG, page 40, line 19. 651 ICC-01/04-01/06-2748-Conf, para. 430. 652 T-248-CONF-ENG, page 40, lines 20 23.

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spent a year in the same town D-0007 and D-0008 lived in while he was serving in the army.653 Even though the witness could not say with complete certainty that P-0007 and P-0008 had not served as soldiers whilst he was away, nevertheless when he left for the army they were not in any armed force and when he returned it was not suggested by anyone that they had joined a military group. 654 Furthermore, in all of the places the witness travelled to as a soldier, there was no mention of P-0007 and P-0008. 655 When the witness

returned from Uganda in 2005 or 2006, he was told P-0007 and P-0008 had left to study elsewhere.656 242. The prosecution further argues that the evidence of P-0007, P-0008 and D-0012 must be viewed against the information provided by the parents of P-0007 and P-0008, to the effect that they had been pressured by UPC/FPLC members to say that their children had not been in the UPC/FPLC army, along with D-00012s account that he had been visited by two representatives of the UPC prior to testifying.657 243. Notwithstanding these contentions by the prosecution, the Chamber has accepted the evidence of D-0012: in contrast with the testimony of P-0007 and P-0008, this witness gave a measured and entirely credible account, which was internally consistent. He met with at least two individuals prior to giving his statement to the OTP,658 but the Chamber accepts he was not put under any material pressure.659 While D-0012 could not say definitively that P-0007 and P-0008 were not in the army, he gave credible evidence that, to the best of his
653 654

T-248-CONF-ENG, page 40, line 20 to page 41, line 15 and page 43, lines 6 9. T-248-Red2-ENG, page 41, lines 17 21. 655 T-248-Red2-ENG, page 41, lines 22 25. 656 T-248-CONF-ENG, page 42, lines 13 19. 657 ICC-01/04-01/06-2748-Conf, para. 431. 658 T-249-CONF-ENG, page 6, line 1 to page 7, line 14. 659 T-249-CONF-ENG, page 7, line 24 to page 8, line 1; T-249-CONF-ENG, page 9, lines 15 18.

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knowledge, this was not the case. 244. During their re-interviews with the prosecution, P-0007 and P-0008 accepted that they had lied about the relationships within their family.660 (e) P-0496 and P-0497 245. P-0496 and P-0497 provided written statements which were admitted into evidence on 17 June 2010 following the joint agreement of the parties.661 These two individuals addressed some of the issues concerning the credibility of P-0007 and P-0008. However, their accounts were not tested by questioning under oath, and this written material does not overcome the profound underlying difficulties with the credibility of these two witnesses, as extensively rehearsed above. (f) Conclusions as to P-0007 and P-0008 246. The prosecution relies on the evidence of these witnesses in its submissions on the facts.662 In essence, it is argued that they provided detailed and credible evidence as to their abduction, training and participation in hostilities, and it is suggested that there are reasonable explanations for the few minor discrepancies in their evidence.663 The defence submits that P-0007 and P-0008 lied about aspects of their family relationships as well as issues relating to their identity, their schooling, their recruitment in the armed forces and their participation

660

EVD-D01-00750, page 0380, lines 286-298 (re-interview of P-0008). EVD-D01-00752, page 0618, lines 3758 - 372 (re-interview of P-0007). See also EVD-D01-00753, page 0633, lines 35 56. 661 T-303-Red-ENG, page 29, line 18 to page 30, line 2. 662 ICC-01/04-01/06-2748-Red, paras 407-432. 663 ICC-01/04-01/06-2748-Red, para. 432.

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in hostilities. 664

The OPCV submits that corroboration has been

provided as regards the names and dates of birth of P-0007 and P-0008 and that the criticisms by the defence as to their identity are based on unreliable documents and hearsay evidence. With reference to its previous submissions in response to the abuse of process application, the OPCV suggests that any apparent contradictions arising from the documentary material should be viewed against the background of the serious faults in the registration system in the DRC. 665 The OPCV further contends that P-0496 has provided relevant confirmatory material. 666 Finally, the OPCV argues that there is no reason for concluding that the evidence that tends to undermine the in-court testimony of these witnesses should be preferred to their sworn evidence.667 247. The Chambers assessment of these two witnesses is that the weaknesses and contradictions in their evidence (particularly as to their ages and true identities) along with the evidence of D-0012 undermine the reliability of their testimony. The difficulties with their accounts are not satisfactorily or sufficiently explained by fears for their safety or that of their family. The Chamber is unable to rely on the evidence of either witness in these circumstances. (2) The evidence of P-0010 and evidence relevant to her assessment (a) P-0010 248. P-0010 is an alleged former child soldier who is participating in the
ICC-01/04-01/06-2773-Red-tENG, paras 97 124, 133 147 and ICC-01/04-01/06-2786-RedtENG, paras 81-84. 665 ICC-01/04-01/06-2744-Red-tENG, paras 31 33. 666 ICC-01/04-01/06-2744-Red-tENG, paras 34 and 35. 667 ICC-01/04-01/06-2744-Red-tENG, para. 46.
664

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proceedings as a victim. P-0010 was born in the DRC.668 Although at one stage in her evidence she said that she was born during a particular month in 1989,669 she also gave evidence that she does not know the day or the month;670 furthermore, she did not obtain a copy of her birth certificate,671 and she does not know who provided the copy annexed to her application to participate as a victim.672 Her birth certificate indicates that she was born in 1988673 and her electoral card gives a different date: 1986.674 249. P-0010 gave evidence that she did not finish her schooling (during the fourth grade) because she was enlisted in the UPC armed forces675 during 2002.676 She said this happened after Governor Lompondo had left Bunia,677 when the witness and her mother fled with a group of people who were trying to reach Beni in order to avoid the Lendu.678 As part of her testimony she maintained that UPC soldiers enlisted her at Dele (where there is a slaughterhouse), about 7 kilometres outside Bunia on the road to Beni.679 However, the defence put to the witness that at page 10 of her application to participate in the proceedings as a victim, she gave a radically different account, namely that she had enlisted at the stadium in Bunia, which P-0010 said she did not remember.680

668 669

T-144-CONF-ENG, page 12, lines 19-24. T-144-CONF-ENG, page 12, line 25 to page 13, line 3. 670 T-145-Red2-ENG, page 47, lines 14 22. 671 T-145-Red2-ENG, page 48, lines 22-25. 672 T-145-Red2-ENG, page 59, lines 1-7. 673 EVD-D01-01102. 674 EVD-D01-00762. 675 T-144-Red2-ENG, page 14, lines 6-12. 676 T-144-Red2-ENG, page 35, lines 21-23. 677 T-145-Red2-ENG, page 3, lines 16-17. 678 T-144-Red2-ENG, page 18, lines 6-21. 679 T-144-Red2-ENG, page 14, line 20 to page 15, line 8 and T-145-Red-ENG, page 56, lines 13-14 and page 60, lines 16 19. 680 T-145-Red-ENG, page 56, lines 16-24.

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250. The witness testified that she was 13 years old at the time she was abducted. 681 During the examination of the witness, the defence suggested to her that when completing her application to participate as a victim she had set out that she was barely 15 years old at the time of her enlistment, which the witness said she did not recall.682 The witnesss electoral card lists her year of birth as 1986. 683 In a posttestimony interview with the OPCV, the witness stated that she intentionally lied about her date of birth in order to obtain this document.684 Finally in this regard, the Individual case story that relates to this witness gives her birth year as 1987.685 The Chamber has considered the circumstances in which this was provided, namely when P-0010 met with an official from MONUC.686 251. It is suggested in the Individual case story that P-0010 was forcibly enlisted by the APC towards the end of 1999,687 and that she subsequently underwent military training in Rwampara prior to fighting under the orders of a particular commander. It is recorded that she transferred at the end of 2001 to Mahagi, and only joined the UPC when the latter attacked in 2002. Finally, it is set out that she ultimately left the UPC in July 2003. 688 Witness P-0010, whilst denying she met a MONUC agent, identified a representative from another organisation689 with whom she discussed what happened to her during her time in the army, from her enlistment onwards.690 However, in her testimony before the Chamber, P-0010 did not agree that she had been
681 682

T-144-Red-ENG, page 15, line 5. T-145-Red-ENG, page 56, line 25 to page 57, line 5. 683 EVD-D01-00762. 684 EVD-OTP-00660. 685 EVD-D01-00082. 686 T-208-CONF-ENG, page 39, lines 6 11. 687 EVD-D01-00082. 688 EVD-D01-00082. 689 T-145-CONF-ENG, page 70, lines 12 - 16. 690 T-145-CONF-ENG, page 71, lines 1 - 3.

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enlisted in the APC prior to joining the UPC.691 252. P-0010s account was that after the UPC soldiers stopped her at Dele, she was sent with others to a training centre at Rwampara692 for two weeks, and thereafter (during 2002)693 they were taken to Mandro by Chief Kahwa. 694 When she completed her training, she was appointed as a bodyguard to a particular UPC commander.695 Again, it is of note that when interviewed by the prosecution in September and October 2005, P-0010 indicated that the commander selected her after she had fought at Libi and Mbau.696 253. P-0010 stated that Commander Pepe was the Commander of the (UPC) camp.697 However, D-0037 and D-0007 testified that he was a member of the APC and not the FPLC.698 254. The witness recognised herself in a portion of a video recording699 as the figure standing in the centre of the screen with her hands together in front of her body.700 The witness also recognised one of her friends, whom she said was an escort.701 The witness suggested that this video was filmed in Rwampara.702 She identified a person who was leading songs as a man she saw when they were visiting Rwampara that day.703 The witness indicated that Bosco Ntaganda, the accused and the

T-145-Red2-ENG, page 66, line 23 to page 67, line 14 and page 72, line 24 to page 73, line 16. T-144-Red2-ENG, page 15, lines 2 10 and page 21, lines 14-15. 693 T-144-Red2-ENG, page 35, lines 21-23. 694 T-144-Red2-ENG, page 15, lines 9 11. 695 T-145-Red2-ENG, page 63, line 8 to page 64, line 1. 696 T-145-Red2-ENG, page 65, line 2 to page 66, line 13. 697 T-144-Red2-ENG, page 33, line 17. 698 T-349-ENG, page 19, lines 19 24 (D-0037); T-348-ENG, page 26, lines 4 21 (D-0007). The prosecution suggests that there may have been two different Commanders with the name of Pepe, ICC01/04-01/06-2778-Red, footnote 172. 699 EVD-OTP-00570. 700 T-145-Red2-ENG, page 13, lines 2-10. 701 T-145-Red2-ENG, page 13, line 12 to page 14, line 8. 702 T-145-Red2-ENG, page 26, lines 9-14. 703 T-145-Red2-ENG, page 18, line 24 to page 19, line 2.
692

691

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Minister of Defence had arrived in order to visit the recruits.704 In one section 705 the witness said the person on the screen was Thomas Lubanga.706 They were singing battle songs.707 The witness stated that she saw Thomas Lubanga for this first time during this visit.708 255. In another section,709 the witness said the people moving toward a vehicle in the video were leaving, 710 including Bosco Ntaganda, Thomas Lubanga and the Minister of Defence. 711 The witness also identified a bodyguard in the video: a uniformed soldier, who was shorter than the others.712 She did not know his name or his age, but said that he was younger 713 and a kadogo, probably around 10 years old.714 256. The witness was asked to identify the people in the video, and she stated that the ones who had sticks and wore military uniforms were almost at the end of their training,715 unlike those in civilian clothing.716 257. There is a body of evidence (considered hereafter) that tends to undermine the reliability of the detail of this witnesss account in certain important respects. However, the video material, to a significant extent, speaks for itself and it falls therefore (along with the account of the witness as regards its content) into a separate category.
T-145-Red2-ENG, page 19, lines 3 to 8. T-145-Red2-ENG, page 19, line 11. 706 T-145-Red2-ENG, page 19, lines 11-15. 707 T-145-Red2-ENG, page 38, lines 6-8. 708 T-145-ENG, page 24, lines 20-23. 709 Minutes 00:36:50 to 00:37:42 of Video EVD-OTP-00570 (DRC-OTP-0120-0293); T-145-Red2ENG, page 21, lines 24-25. 710 T-145-Red2-ENG, page 21, lines 24 to page 22, line 10. 711 T-145-Red2-ENG, page 22, line 25 to page 23, line 2. 712 T-145-Red2-ENG, page 23, lines 12-15. 713 T-145-Red2-ENG, page 23, lines 16-19. 714 T-145-Red2-ENG, page 23, line 24 to page 24, line 2. 715 T-145-Red2-ENG, page 24, lines 3-12. 716 T-145-Red2-ENG, page 24, lines 12-14.
705 704

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(b) D-0005 and D-0006 258. Witnesses D-0005 and D-0006 gave evidence that they first met P0010 in Mahagi when she was a soldier in the APC.717 259. D-0005 recognized P-0010 in a photograph shown to her in court.718 She said that P-0010 was already a soldier in the APC armed forces when they met. 719 Furthermore, she confirmed the place of birth indicated by P-0010, although she testified that P-0010 was born in 1985 (and not in 1989 as stated by P-0010 in the course of her testimony).720 D-0005 gave evidence that P-0010 joined the UPC.721 In an interview with the prosecution conducted after she had completed her evidence, P-0010 confirmed that she knew D-0005.722 260. D-0006 was 17 years of age when he joined the UPC. 723 He

recognised P-0010 on the photograph he was shown in the course of his testimony,724 and he confirmed the place of birth she had given in her testimony.725 When they met, D-0006 was serving as a soldier in the UPC726 and P-0010 was a member of the APC;727 indeed, P-0010 told D0006 that she had been in the APC for a long time.728 D-0006 described the APC as an armed group that had been created before the UPC.729 P0010, along with others from the APC, joined the UPC when they were
T-261-Red2-ENG, page 17, lines 16 20 (D-0005); T-254-Red-ENG, page 49, lines 14 24 , page 52, line 21 to page 53, line 1 and page 54, lines 10 12 (D-0006). 718 T-261-CONF-ENG, page, 16, line 23 to page 17, line 11 and page 19, lines 18 20; EVD-D0100112. 719 T-261-Red2, page 17, lines 16 24. 720 T-261-CONF-ENG, page 18, lines 2 7. 721 T-261-Red2-ENG, page 18, line 10 to page 19, line 12. 722 EVD-D01-00742, page 0379, lines 127-143. 723 T-254-Red-ENG, page 79, line 23 to page 80, line 4. 724 T-254-CONF-ENG, page 47, lines 17 22 and page 48, lines 3 4; EVD-D01-00112. 725 T-255-CONF-ENG, page 8, line 18. D-0006 stated she was born in one of two localities, one of which corresponds to the place of birth given by P-0010 (T-144-CONF-ENG, page 12, lines 19-24). 726 T-254-Red-ENG, page 52, lines 6 11. 727 T-254-Red-ENG, page 52, line 21 to page 53, line 1. 728 T-254-Red-ENG, page 62, line 19 to page 63, line 1. 729 T-254-Red-ENG, page 54, line 10.
717

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fighting in Mahagi.730 261. D-0006 said that P-0010 was either his age or he was a year older, having been born on 18 April 1985, 731 although he later stated that he did not know her age. 732 Following her evidence, P-0010 confirmed that she knew D-0006,733 although in evidence she had denied knowing anyone by that name.734 The prosecution advances a detailed argument that the testimony of D-0006 is unreliable.735 The Chamber does not accept the prosecutions criticisms, in that D-0006 provided an entirely credible account of his knowledge of P-0010. Although he could not give evidence about every aspect of her life,736 such as information as regards her parents,737 he testified in detail about other aspects of her history, including other members of her family.738 The Chamber notes, however, that this evidence did not coincide by any means entirely with the account of P-0010.739 262. The Chamber was impressed generally by the detail and internal consistency of the evidence of D-0006, and has determined that he was an essentially credible and reliable witness. (c) Conclusions as to P-0010 263. The defence suggests that the authenticity of [P-0010s electoral

T-254-Red-ENG, page 49, lines 22 24. T-254-Red-ENG, page 46, lines 1 4 (D-0006s age) and page 66, lines 13 18 (P-0010s age in relation to D-0006). 732 T-255-Red2-ENG, page 12, lines 22 24. 733 EVD-D01-00743, page 0396, line 224. 734 T-145-CONF-ENG, page 74, lines 3 8. 735 ICC-01/04-01/06-2748-Conf, paras 401 402. 736 He did not know P-0010s ethnicity, although he stated she had told him where she came from (T255-CONF-ENG, page 9, line 25 to page 10, line 2). 737 T-255-Red2-ENG, page 9, lines 15 18 (name of her parents) and page 10, lines 3 4 (fathers profession). 738 T-255-CONF-ENG, page 9, lines 19 24. 739 T-145-Red2-ENG, page 47, lines 7 10.
731

730

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card] is established by the extract from the IEC database740 and that her explanation to the effect that she provided false information in order to obtain an official document
741

is implausible. 742 The

prosecution contends that P-0010s explanation is corroborated by the account of witnesses P-0007 and P-0008 and it is consistent with other evidence. 743 The OPCV submits that any apparent contradictions arising from the documentary material should be viewed against the background of the serious faults in the registration system in the DRC and it suggests that P-0010s birth certificate has low probative value while the electoral card lacks any probative value.744 264. While the defence submits that the Individual case story document contains the correct date of birth and refers to D-0005s testimony of having met a MONUC representative together with P0010,745 it is challenged by the prosecution on the basis of P-0010s own evidence and a discrepancy between the date of the interview on the document and the date of the visit as recounted by D-0005. 746 In addition, the prosecution points out that according to the evidence given by the experts P-0358 and P-0359, it is scientifically possible for [P-0010] to have been under the age of 15 at the time of her recruitment in late 2002.747 265. The OPCV submits that there is no reason for concluding that the evidence that tends to undermine the in-court testimony of this

ICC-01/04-01/06-2773-Red-tENG, para. 151, referring to EVD-D01-00762. EVD-OTP-00660. 742 ICC-01/04-01/06-2773-Red-tENG, para. 154. 743 ICC-01/04-01/06-2778-Red-tENG, para. 102. 744 ICC-01/04-01/06-2744-Red-tENG, paras 31 33. 745 ICC-01/04-01/06-2773-Red-tENG, paras 155 and 156. 746 ICC-01/04-01/06-2748-Red-tENG, para. 399, referring to T-145-Red2-ENG page 69, lines 16 21 and page 70, lines 2 16 and ICC-01/04-01/06-2778-Red, para. 95. 747 ICC-01/04-01/06-2748-Red, para. 400, referring to EVD-OTP-00430.
741

740

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witness should be preferred to her sworn evidence.748 The defence, on the other hand, points to various contradictions and inconsistencies in the documentary evidence and her testimony concerning her enlistment and activities within the UPC, 749 and emphasises that P0010 materially benefited, in a significant way, from her participation as a witness in the trial.750 266. The defence suggests that P-0010s account of the interruption to her schooling in 2002 during her 4th year751 is contradicted by the relevant school register, 752 which is said to show that in 2002 she was not registered at that institution.753 In all the circumstances, the Chamber accepts the considerable evidence that this witness was in the APC between 1999 and 2002, 754 which significantly casts doubt over her account of her schooling and the circumstances in which she joined the UPC. 267. The OPCV argues that P-0010s evidence on being enrolled in the FPLC was corroborated by D-0005, and it is not disputed by the defence.755 The prosecution submits that the testimony of D-0005 is not credible, as it is suggested that she should have known certain facts of which she was ignorant. 756 Although at one stage D-0005 gave an NGO an incorrect account as regards her service as a child soldier,757 the Chamber was impressed by what was, overall, an internally

748 749

ICC-01/04-01/06-2744-Red-tENG, para. 46. ICC-01/04-01/06-2773-Red-tENG, paras 160 162. 750 ICC-01/04-01/06-2773-Red-tENG, para. 167. 751 T-144-Red2-ENG, page 13, lines 13-16 and page 18, lines 6 8. 752 EVD-D01-00180; T-294-ENG, page 22, line 19 page 23, line 13. 753 ICC-01/04-01/06-2773-Conf, para. 157. 754 EVD-D01-00082, which states that P-0010 was forcibly recruited by the APC in 1999 and remained with this group until her integration into the UPC in 2002); the testimony of D-0005 and D-0006. 755 ICC-01/04-01/06-2744-Red-tENG, para. 36. The OPCV points out that the defence only questions the age of P-0010 when she was enrolled, and not the enrollment itself (footnote 117). 756 ICC-01/04-01/06-2748-Conf, para. 403. 757 T-261-Red2, page 26, lines 13 21 (D-0005).

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consistent and persuasive account under oath, which the Chamber accepts. 268. Whilst the Chamber accepts that at some stage P-0010 may have served as a soldier within the UPC, it is not satisfied beyond reasonable doubt that this occurred when she was under 15 years of age. The internal contradictions in her accounts, as extensively canvassed herein, including the unexplained differences as to her date of birth in both her testimony and the documentary evidence, together with the strength of the conflicting external evidence, mean that she is not a witness that the Chamber is able to rely on as regards many aspects of the relevant detail of her account. However, the video material and her comments on it, as set out above, remain essentially unaffected by these criticisms. (3) The evidence of P-0011 and evidence relevant to his assessment (a) P-0011 269. P-0011 is an alleged former child soldier who was authorised to participate in the proceedings. P-0011 gave in evidence what he said was his name758 and indicated he has not been known by any other names, including nicknames.
759

Substantial

discrepancies

and

difficulties, however, emerged on this issue. First, he had not told the OTP prior to giving evidence about one of the names he supplied in his testimony (stating simply that he had not wanted to mention it),760 and similarly, that name does not appear on his birth certificate.761 At

758 759

T-138-CONF-ENG, page 52, lines 9 10. T-138-Red2-ENG, page 53, lines 4 12. 760 T-139-CONF-ENG, page 48, lines 17 22. 761 EVD-D01-00059.

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page 21 of his application to participate in these proceedings as a victim (Certification of a child after leaving an armed group) the name provided also contains a material variation.762 He testified that his sister or grandmother had suggested that latter name,763 although it is to be noted that this variation also appears on an investigators note dated 27 March 2008 (albeit with a slightly different spelling).764 He indicated that when he was younger he was called by another name that was not the one he was given at birth,765 which he recalled having provided to a representative of the OTP.766 270. He stated that he was born in 1992,767 a date indicated to him by members of his family, 768 and in particular his grandmother had suggested it to him prior to his first meeting with one of the representatives of the OTP.769 However, this date differs from the date in his original witness statement (provided to the investigators in July 2005).770 The witness stated this latter date was a mistake that he had made.771 271. The evidence he gave on where he attended school772 is inconsistent and contradicts the information set out at paragraph 14 of his statement to OTP investigators.
773

When

asked

about these

contradictions P-0011 stated that he was unaware of the truth, which

T-139-CONF-ENG, page 49, lines 11 13. T-139-CONF-ENG, page 49 line 14 to page 50 line 6. 764 EVD-D01-01087. 765 T-139-CONF-ENG, page 51, lines 10 12. 766 T-139-Red2-ENG, page 51, lines 14 22. 767 T-138-CONF-ENG, page 53, line 24 to page 54 line 2. 768 T-138-Red2-ENG, page 54, lines 3 5. 769 T-139-Red2-ENG, page 2, lines 13 19 and page 57, line 17 to page 58, line 1. 770 T-139-CONF-ENG, page 58, lines 2 7. 771 T-139-Red2-ENG, page 58, lines 8 15. 772 T-138-CONF-ENG, page 54, lines 10 16; T-139-CONF-ENG, page 67, line 20 to page 68, line 7, page 71, lines 5 6 (location of one of the schools), page 74, line 16 to page 75, line 8 and page 77, lines 2 7. 773 T-139-CONF-ENG, page 71, line 7 to page 72, line 9.
763

762

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he must have forgotten, but he thought the information given in the statement was correct.774 272. P-0011 initially suggested that he joined the UPC in July 2002 and he remained in military service with this group until July 2003. 775 However, in his application to participate as a victim, he indicated that he had been enlisted in January 2003776 and had fought throughout the year 2003 and the first three months of 2004.777 When the application was put to him during his examination, P-0011 gave evidence to the effect that he had been enlisted in July 2002 and left the military in March 2003.778 The circumstances of his joining the UPC are equally uncertain. The witness suggested at paragraph 20 of his statement to the OTP that he "met a group of UPC soldiers who suddenly appealed to [him] to join them and to join their army and receive military training and to fight the Lendu enemies". 779 P-0011 said that the interpreter had made an error during the interview,780 and that he had been enlisted by force.
781

However, the witness was notably

inconsistent on this issue, in that he said during his evidence that when his studies were interrupted during the war, in addition to digging for gold, he voluntarily signed up for military service782 with the UPC,
783

and that he was not enlisted by force but went

voluntarily.784 273. A possible explanation for his willingness to join the UPC was given
774 775

T-139-Red2-ENG, page 72, lines 12 15 and page 74, lines 2 9. T-138-Red-ENG, page 57, line 24 to page 58, line 3 and page 58, lines 11 18. 776 T-140-Red2-ENG, page 18, lines 3 5 and page 19, lines 1 2. 777 T-140-Red2-ENG, page 19, lines 15 20. 778 T-140-Red2-ENG, page 19, line 22 to page 20, line 5. 779 T-139-Red2-ENG, page 82, lines 12 19 and page 83, lines 3 8. 780 T-140-Red2-ENG, page 8, lines 10 22. 781 T-140-Red2-ENG, page 8, lines 23 25. 782 T-138-Red-ENG, page 57, lines 13 20. 783 T-138-Red-ENG, page 57, line 24 to page 58, line 3. 784 T-138-Red-ENG, page 58, lines 4 10; T-140-Red2-ENG, page 9, lines 1 5.

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at paragraph 21 of his July statement to the OTP in which he had described how he had joined the organisation to avenge his mothers death.785 However, when this was read out in Court, P-0011 stated that although the statement had been re-read to him and he had confirmed its accuracy, this first statement to the prosecution contained errors whilst his second statement was correct.786 The witness testified that his mother had been alive when he entered military service, and accordingly he did not agree with the relevant part of the statement that was read to him.787 The witness later testified that his mother

died after he had left to join the military.788 However, in a transcribed interview dated 8 January 2010, P-0011 suggested that his mother is aware of his testimony before the Court.789 Further evidence indicating that P-0011s mother is alive was given by D-0024, which the Chamber has accepted.790 274. An additional element of confusion is provided by P-0011s application to participate in the proceedings before the Court, in which he indicated at page 11, in section D (entitled Information Regarding the Alleged Crimes) that he had been forcibly enlisted by Bosco Ntaganda in 2003.791 It was further indicated that [a]fter two months of training in Bule, [he] was sent for combat throughout the year 2003 and even during the first few months of 2004.792 The witness said in evidence that he did not remember very well, but that the reference to

785 786

T-140-Red2-ENG, page 11 line 9 to page 12, line 1. T-140-Red2-ENG, page 12, line 5 to page 14, line 13. 787 T-140-Red2-ENG, page 15, line 15 to page 16, line 13. 788 T-140-Red2-ENG, page 17, lines 10 17. 789 EVD-D01-00745, page 0082 at lines 1173 1175. 790 T-246-CONF-ENG, page 8, lines 1 9. 791 T-140-Red2-ENG, page 18, lines 3 18. 792 T-140-Red2-ENG, page 18 lines 16 18.

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training and forceful enlistment by Bosco Ntaganda was not true.793 275. There was some minor difficulty in P-0011s evidence in relation to where he was enlisted, as he gave two different names.794 At one stage the witness said that they are in the same place.795 It became apparent that there is a relatively insubstantial distance between the two locations when they were shown to the witness on a map, although they are clearly not in the same place.796 276. During his evidence, P-0011 said he was in the fourth year when his studies were interrupted at the outbreak of war and he remained at home to help with farm work. 797 He completed that academic year when he left military service.798 However, in an earlier account P-0011 had said that he had finished his fourth year before he enlisted.799 277. The witnesss evidence was contradictory as regards certain events with a particular friend. In evidence, P-0011 said they enlisted in the army at the same time, travelling to Bule with soldiers.800 However, in his July 2005 statement at paragraph 21, he stated they were not together when he joined the UPC militia.801 When asked about this discrepancy, P-0011 insisted that he had told the investigators that he had been with his friend and that the UPC soldiers took them to Bule.802 278. His evidence was that soldiers took him to Lopa in a Toyota Stout

793 794

T-140-Red2-ENG, page 18, lines 23 25. T-139-CONF-ENG, page 88, lines 7 12. 795 T-139-CONF-ENG, page 88, lines 15 22. 796 T-140-Red2-ENG, page 3, line 11 to page 5, line 21; EVD-D01-00060. 797 T-138-Red2-ENG, page 56, lines 5 10. 798 T-139-Red2-ENG, page 79, line 22 to page 80, line 1. 799 T-139-Red2-ENG, page 68, lines 5 10. 800 T-140-Red2-ENG, page 6, line 17 to page 7, line 7. 801 T-140-Red2-ENG, page 7, lines 8 23. 802 T-140-Red2-ENG, page 7, lines 13 23.

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vehicle and from there by foot to a military camp at Bule.803 There they started training after they had built their accommodation,804 and that after four months he was given his equipment including uniforms and a weapon.805 Later, he said he fought during battles at Barrire806 and Lipri. 807 However, although he testified that Barrire was the first battle he took part in, 808 he failed to mention this to the OTP investigators in July 2005. His first statement to the OTP, under the heading Active participation in UPC attacks on Lipri includes the following: I have a very clear and unforgettable memory of that day because there it was the first time I ever killed a person. 809 The witness said that this description was incorrect, because he killed for the first time at Barrire.810 279. P-0031 confirmed that he remembered P-0011 from the context of his work.811 280. It was a highly unusual feature of this witnesss evidence that in advance of his meeting with representatives of the OTP in July 2005, he had written the names of some of the main localities he was to mention in his statement on his jeans.812 When asked about this, the witness gave a distinctly confused explanation, including that he had done it for the pleasure of it before he had met the investigator.813

803 804

T-138-Red2-ENG, page 62, line 11 to page 63, line 19. T-140-Red2-ENG, page 29, line 24 to page 30, line 12. 805 T-140-Red2-ENG, page 30, lines 13 21. 806 T-140-Red2-ENG, page 41, lines 2 4. 807 T-139-Red2-ENG, page 17, line 14 to page 19, line 1. 808 T-140-Red2-ENG, page 41, lines 2 4. 809 T-140-Red2-ENG, page 41, line 23 to page 42, line 1. 810 T-140-Red2-ENG, page 42, lines 2 11. 811 T-202-CONF-ENG, page 74, lines 1 3. 812 EVD-D01-00062. 813 T-140-Red2-ENG, page 62, line 1 to page 63, line 1.

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(b) D-0024 281. D-0024, a member of P-0011s family,814 said he was born in 1990, or between 1990 and 1991. 815 D-0024 gave evidence as to P-0011s schooling and the places where he lived that contradicts the evidence of P-0011.816 282. During the period of conflict between the Ngiti and the Lendu around 2002/2003, D-0024 sometimes met P-0011 and one of his close relatives in the market,817 and she indicated that P-0011 never served as a soldier.818 She was asked how she knew that P-0011 had never been a member of an armed group and she replied he was someone she saw because he was a very close family relative.819 283. The prosecution challenges the evidence of D-0024. It is suggested that her evidence on P-0011 not being in an armed group is vague and unsubstantiated, and that she was not in a position to know whether he was in the army. 820 284. Although D-0024 was not in a position to be aware, at all relevant times, of the situation as regards P-0011 (she testified she fled the area for two weeks in 2002821 and at one point during the war she feared that P-0011 and one of his close relatives were dead),822 the Chamber found her evidence convincing, and in the main internally consistent. In all the circumstances, she provides some supporting

T-246-CONF-ENG, page 7, lines 13 16. T-246-Red2-ENG, page 10, lines 13 15. 816 T-246-CONF-ENG, page 18, lines 12 to page 20, line 14 and page 26, lines 7 9 and 16 17; T247-CONF-ENG, page 4, lines 5 8. 817 T-247-CONF-ENG, page page 9, line 12 to page 12, line 16. 818 T-246-CONF-ENG, page 28, lines 7 12. 819 T-246-Red2-ENG, page 28, lines 19 21. 820 ICC-01/04-01/06-2748-Red, paras 392 394. See also EVD-D01-00745, page 77, lines 1011-1012. 821 ICC-01/04-01/06-T-247-CONF-ENG, page 10, line 19 to page 11, line 8. 822 ICC-01/04-01/06-T-247-CONF-ENG, page 11, line 25 to page 12, line 6.
815

814

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evidence for the suggestion that P-0011 did not serve as a child soldier within the UPC, although taken alone her account is inconclusive. (c) Conclusions as to P-0011 285. The OPCV submits that the name and date of birth of P-0011 have been confirmed and the documents used by the defence to question his identity are unreliable, and it is suggested the allegations made by the accused in his abuse of process application as regards this witness are speculative.823 The OPCV submits any contradictions that are apparent from these documents should be analysed taking into account the serious faults in the registration system in the DRC. 824 The OPCV further submits that P-0011 was recruited by the UPC military in July 2002 and remained within the group until July 2003,825 and it suggests there is no reason why the subsequent out-of-court statements of other witnesses and the information they generally provided that tends to contradict this testimony should be given greater weight than his own account.826 It is also argued that any contradictions and inconsistencies in P-0011s (and other victims) evidence can be explained by their concerns about security and the lapses of memory that are linked to trauma and stress.827 286. The prosecution submits that it is reasonable that the witness could not recall exactly what he told investigators 4 years earlier.828 287. The defence contends that it is inexplicable that the legal representative of P-0011 (the OPCV) contests the probative value of the
823 824

ICC-01/04-01/06-2744-Red-tENG, paras 31 and 32. ICC-01/04-01/06-2744-Red-tENG, para. 33. 825 ICC-01/04-01/06-2744-Red-tENG, para. 37. 826 ICC-01/04-01/06-2744-Red-tENG, para. 46. 827 ICC-01/04-01/06-2744-Red-tENG, para. 46. 828 ICC-01/04-01/06-2778-Red, para. 103.

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witnesss birth certificate, since this document purportedly established his identity and age for the purposes of his application to participate and for reparations (it was annexed thereto).829 288. Given the internal contradictions and the confusion within the evidence of P-0011 (as set out above), and taking into account the evidence of D-0024, the Chamber has real doubts as to the suggestion that P-0011 served as a child soldier within the UPC in the circumstances he described, namely when he was under 15 years of age and during the period covered by the charges. The internal contradictions in his accounts, as extensively canvassed hereinbefore, together with the conflicting external evidence, mean that he is not a witness that the Chamber is able to rely on as regards the detail of his account. (4) Other matters concerning the reliability and integrity of Intermediary 143 289. In the course of 2007 and 2008, Intermediary 143 submitted some questionable financial requests, 830 several of which were considered excessive and unjustified by representatives of the OTP.831 290. An internal OTP report of 23 February 2006 which dealt with an incident in early January 2006 concerning three potential witnesses, called into question the credibility and reliability of Intermediary 143.832

829 830

ICC-01/04-01/06-2773-Red-tENG, para. 190. EVD-D01-01086. 831 EVD-D01-01086, page 0170 to page 0174. 832 EVD-OTP-00641, page 3/5.

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(5) Assessment of Intermediary 143 291. Given the pattern of unreliability as regards the witnesses introduced by Intermediary 143 and called to give evidence during the trial (P-0007, P-0008, P-0010 and P-0011), the Chamber accepts that there is a real risk that he played a role in the markedly flawed evidence that these witnesses provided to the OTP and to the Court. Bearing in mind this consistent lack of credibility as regards the trial witnesses he introduced to the investigators, and particularly focussing on the cumulative effect of their individual accounts, it is likely that as the common point of contact he persuaded, encouraged or assisted some or all of them to give false testimony. The Chamber accepts that the accounts of P-0007, P-0008, P-0010 and P-0011 were or may have been truthful and accurate in part, but it has real doubts as to critical aspects of their evidence, in particular their age at the relevant time. Although other potential explanations exist, the real possibility that Intermediary 143 corrupted the evidence of these four witnesses cannot be safely discounted. 2. Intermediary P-0316 292. The Chamber first considers the evidence relating to the role and credibility of P-0316 before turning to the witnesses whose testimony may have been affected. a) Background 293. In its Decision on Intermediaries, the Chamber described the evolution of the position of Intermediary P-0316, and including the evidence of P-0015 who revealed the identity of Intermediary P-0316 to

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the defence on 16 June 2009. 833 The Chamber noted that several witnesses gave evidence to the effect that Intermediary P-0316 may have misused his position; this amounted to the allegation that he possibly persuaded or invited witnesses to give false testimony to the Court.834 The Chamber instructed the prosecution to call Intermediary P-0316 as a witness in order to address the allegations levelled against him, the conflicts in the evidence and the contacts between the intermediaries.835 294. P-0316 fulfilled a support role
836

for the prosecution, on a

contractual basis, 837 between 19 November 2005 838 and 31 March 2006. 839 However, his work for the OTP (for which he was paid) spanned a longer period, in that it had started at least by April 2005840 and continued once his contract ended, extending through until 2008. 841 Although P-0316 stated that his functions did not involve contact with, or providing transportation for, the witnesses (or other individuals),842 the defence confronted him with a receipt signed by him indicating that he had received $30 for transport relating to, and his communication with, three witnesses.843 295. It is noteworthy that this intermediary had contact with the following lengthy list of potential witnesses: (first contact via P-0316)

ICC-01/04-01/06-2434-Red2, paras 21 23 and 38, 39. ICC-01/04-01/06-2434-Red2, para. 140. 835 ICC-01/04-01/06-2434-Red2, para. 141. 836 T-331-Red2-ENG, page 6, lines 3 18. 837 T-328-Red2-ENG, page 11, line 4 to page 12, line 8. 838 T-328-Red2-ENG, page 11, lines 15 19. 839 T-331-Red2-ENG, page 7, lines 18 19. 840 T-328-Red2-ENG, page 9, lines 1 7. 841 T-328-Red2-ENG, page 12, lines 4 8; T-332-Red-ENG, page 37, lines 5 13 ; See also, by way of exemple, the receipts for expenses spanning the relevant years: EVD-D01-00411 (January 2008); EVD-D01-00355 (December 2005); EVD-D01-00308 (January 2008); EVD-D01-00364 (December 2007) and EVD-D01-00365 (February 2006). 842 T-331-Red2-ENG, page 7, lines 9 15. 843 T-331-Red2-ENG, page 7, line 20 to page 8, line 1; EVD-D01-00355.
834

833

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DRC-OTP-WWWW-0020,

DRC-OTP-WWWW-0021,

DRC-OTP-

WWWW-0035, 844 DRC-OTP-WWWW-0147, DRC-OTP-WWWW-0156, DRC-OTP-WWWW-0159, WWWW-0175, DRC-OTP-WWWW-0161, DRC-OTP-

DRC-OTP-WWWW-0178,

DRC-OTP-WWWW-0249,

DRC-OTP-WWWW-0268, DRC-OTP-WWWW-0270 and DRC-OTPWWWW-0314. He also had contact with DRC-OTP-WWWW-0250 (first contact via P-0316 and Individual 183), DRC-OTP-WWWW-0303 (first contact via P-0321), 845 trial witness P-0015 (potentially first contact via P-0316), trial witness P-0038 (potentially first contact via P0316), DRC-OTP-WWWW-0028846 (first contact via the associate of P0316), DRC-OTP-WWWW-0183,847 DRC-OTP-WWWW-0163 and DRCOTP-WWWW-0166. 296. Witnesses P-0015, D-0016 (DRC-OTP-WWWW-0035) and P-0038 are relevant to this intermediary. Their particular evidence is addressed below. b) The evidence from P-0582 and P-0583

297. P-0316 was introduced to P-0583 in April 2005. 848 P-0582 considered that P-0316 had good knowledge of the region and the various parties to the conflict, and he knew individuals who were involved in the events.849 P-0583 began working with P-0316 in April 2005 and this continued, although with varying frequency, until his (P-0583s) departure from the Court in September 2007.850 At the time when the
844 845

DRC-OTP-WWWW-0035 was called by the defence as D-0016. EVD-D01-01039, No. 133. 846 DRC-OTP-WWWW-0028 testified in the Katanga and Ngudjolo case, see ICC-01/04-01/06-2702Red, paras 30 - 43. 847 DRC-OTP-WWWW-0183 is referred to hereinafter as Individual 183. 848 T-334-Red2-ENG, page 55, lines 3 10. The person who introduced P-0316 to P-0582 is identified at T-334-CONF-ENG, page 53, line 24 to page 54, line 2. 849 T-334-Red2-ENG, page 16, line 24 to page 17, line 16 and pge 18, line 11. 850 T-334-Red2-ENG, page 57, lines 7 11.

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team began working with P-0316, P-0583 was the lead investigator and acted as the focal point for, and was most in contact with, P-0316.851 The first requests made to P-0316 by the OTP were to identify potential witnesses, based on his knowledge of the Ituri situation.852 This was at an early stage, a few months after the departure of the Operation Artemis contingent.853 298. P-0582 considered that all the intermediaries he knew behaved in a sufficiently correct way and did not ask anyone to tell lies,854 but he suggested that P-0316 was not very comfortable with children and victims.
855

P-0583 similarly stated that while P-0316 was very

successful in providing reliable information and that they trusted him, the role of an intermediary in the sense of taking care of children or witnesses, in contrast to merely putting them in contact with the prosecution, did not suit him very well.856 It was suggested that P0316 identified and provided reliable information about members of certain militias;857 he was the main intermediary for the OTP as regards identifying militia members; 858 he travelled to locations which the investigators could not visit in order to contact witnesses; 859 he introduced witnesses to the OTP, some of whom were not known to the prosecution860 (for instance P-0015861 and D-0016 862 ); he arranged
851 852

T-334-Red2-ENG, page 18, line 24 to page 19, line 6. Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 8 10. 853 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 10 14. See Section IX on the nature of the armed conflict. 854 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, line 7 to page 18, line 2. 855 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 9, lines 1 3. 856 T-334-Red2-ENG, page 17, lines 10 16; T-335-Red2-ENG, page 8, lines 10 to 25 and page 9, line 11. 857 T-334-Red2-ENG, page 17, lines 6 9, page 55, lines 17 20, and page 57, lines 19 23 (P-0583). 858 T-334-Red2-ENG, page 57, lines 16 23 (P-0583). 859 T-334-Red2-ENG, page 18, lines 4 11 (P-0583). 860 T-334-Red2-ENG, page 63, lines 21 24 and page 67, line 20 to page 68, line 5 (P-0583). 861 T-264-Red2-ENG, page 22, lines 11 22 and T-264-CONF-ENG, page 61, lines 15 24 (P-0015).

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their travel;

863

and he obtained identification papers.

864

P-0316

regularly provided information on the security situation in Bunia and in Ituri in general, and P-0583 was frequently in contact with him for information as to what was happening in the field. 865 As regards unknown individuals, P-0316 informed P-0583 about a number of witnesses who were officers of the UPC or other groups who could be contacted.866 This was around the time of the first missions, at the end of 2004 or beginning of 2005.867 During the more formal phase of P-0316s work, it was one of his responsibilities to put the OTP in contact with individuals who had not yet been identified.868 299. P-0583 recalled that P-0316 was not asked to provide identity cards for those he introduced to the OTP, although when he told the OTP that someone of interest had been identified, the individual concerned would be asked to bring any relevant documents.869 300. P-0583 indicated that he found P-0316 to be intelligent and professional, and his reliability and credibility were demonstrated in the work he undertook and the way he responded to questions

862 863

T-256-CONF-ENG, page 8, line 24 to page 9, line 6 (D-0016). T-334-Red2-ENG, page 19, line 23 to page 20, line 1; T-335-Red2-ENG, page 33, lines 7 13; T336-Red2-ENG, page 9, lines 14 19 (P-0583); See also, by way of exemple, expense receipts relating to travel arrangements for witnesses: EVD-D01-00684 (P-0583 testified that the code used for P-0316 was DRC-SS05, T-334-Red2-ENG, page 64, lines 17 20);EVD-D01-00357; EVD-D01-00758 and EVD-D01-00725. 864 T-336-Red-ENG, page 10, lines 10 21 (P-0583) and page 58, line 11 to page 59, line 8 (P-0038); See also, by way of example, the expense receipts relating to documents prepared for witnesses: EVDD01-00682 and EVD-D01-00382. 865 T-334-Red2-ENG, page 66, lines 1 9 (P-0583); P-0582 also contacted P-0316 concerning security related questions, Transcript of Deposition on 17 November 2010, ICC-01/04-01/06Rule68Deposition-Red2-ENG, page 8, lines 7 14 and Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 61, lines 21 24. 866 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 15 20. 867 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 4 12 (P-0583). 868 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 63, lines 5 12 (P-0583). 869 T-334-Red2-ENG, page 67, line 20 to page 68, line 5.

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addressed to him. 870 He usually found the contact details for those identified by the team.871 P-0583 was asked if he had communicated any doubts or concerns regarding P-0316s work to his superiors, and although he indicated that there were the normal discussions that occurred when using an intermediary informer, his view was P-0316 was better at providing information than taking care of witnesses.872 301. P-0583 did not raise any specific concerns about using P-0316 and he did not reassess the testimony of witnesses introduced by him, in addition to the usual, systematic verification process for the contents of witness statements.
873

There was a process of reassessment

whenever new evidence came to light.874 302. Notwithstanding the favourable assessment set out above, evidence was given as to reservations concerning P-0316. P-0583 noted that he was not appointed to work as a liaison officer and explained that the relevant panel, which he had not been a part of, did not find P-0316 to be more capable than the other candidates.875 Of considerably greater significance, when first asked to give details relating to his background and his then occupation, P-0316 provided information about his professional obligations towards the DRC government (viz. his work for the Congolese intelligence services, the Agence Nationale de Renseignement, ANR) that were capable of undermining his impartiality. 876 P-0583 could not recall if he saw a copy of P-0316s curriculum vitae (dated 5 December 2004)877 or whether he was aware of

870 871

T-334-Red2-ENG, page 25, lines 1 15. T-334-Red2-ENG, page 25, lines 15 18. 872 T-335-Red2-ENG, page 8, lines 10 25 and page 9, line 11. 873 T-335-Red2-ENG, page 13, lines 12 22. 874 T-335-CONF-ENG, page 13, lines 22 25. 875 T-334-Red2-ENG, page 69, line 16 to page 70, line 8. 876 T-334-CONF-ENG, page 56, lines 3 11 (P-0583). 877 EVD-OTP-00597.

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it.878 P-0583 recalled, however, that although P-0316 had introduced himself as a member of that body, he said it no longer paid him.879 303. At the beginning of 2006, this information was set out in his curriculum vitae. 880 P-0583 could not recall asking him whether he continued to work for the intelligence services after that time. 881 Instead, P-0583 believed that P-0316s background was a guarantee that he was capable of providing the team with the information necessary to locate individuals of interest, but it was also a reason to check thoroughly the material he provided. 882 P-0583 saw it as an advantage that P-0316 was familiar with issues such as confidentiality and security.883 The fact that P-0316 might have been working for this national body therefore did not cause him any particular concerns.884 The witness never came into contact with P-0316s superiors from within the intelligence services;885 indeed, he was not aware of any contact between the OTP and this intermediarys managers.
886

However, although P-0583 said he generally appreciated P-0316s work, he could not entirely trust him because of his professional obligations towards the DRC government and because he started working for other investigators without informing P-0583.887 304. P-0582 indicated that in that part of the DRC it was difficult to say who was working for whom.888 He gave evidence that it was possible

878 879

T-334-Red2-ENG, page 56, lines 18 24. T-335-CONF-ENG, page 14, line 24 to page 15, line 13. 880 T-335-Red2-ENG, page 14, line 24 to page 15, line 6. 881 T-335-Red2-ENG, page 15, lines 6 13. 882 T-335-Red2-ENG, page 15, line 23 to page 16, line 8. 883 T-334-CONF-ENG, page 17, line 17 to page 18, line 3. 884 T-335-Red2-ENG, page 16, lines 9 13. 885 T-335-CONF-ENG, page 19, lines 4 8. 886 T-335-Red2-ENG, page 19, lines 9 13. 887 T-334-Red2-ENG, page 25, line 19 to page 26, line 6. 888 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 65, lines 16 17.

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to buy information or people who would provide information for a small amount of money.889 P-0583 indicated that the OTP was aware of the nature of P-0316s relationship with the government and that the investigators talked about P-0316 probably having links to the President of the Republic.890 However, P-0582 did not believe that the mandate of the Court was compromised on account of P-0316s work for the DRC intelligence services (in his view, he probably continues to work for them). 891 P-0582 was particularly concerned with P-0316s capacity to give information regarding security. 892 He investigated whether the material provided by P-0316 was reliable, although he said checks of this kind were also conducted for other individuals who assisted in a similar way.893 305. As regards payments to P-0316, he was reimbursed for his expenses, including transporting witnesses, and, additionally, he received a small amount of pay894 (P-0583 thought this was calculated on the basis of the G3 post within the UN system).895 306. P-0583 gave evidence about a Receipt for Reimbursement to DRC-SS05 896 (the code used for P-0316) 897 and another similar receipt 898 (for travelling to locate a witness). 899 P-0583 agreed that

889

Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 65, lines 17 20. 890 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 66, lines 2 4. 891 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 66, lines 5 6. 892 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 66, line 25 to page 67, line 1. 893 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 67, lines 2 8. 894 T-334-Red2-ENG, page 19, line 20 to page 20, line 1. 895 T-334-Red2-ENG, page 23, lines 16 22. 896 EVD-D01-00353. 897 T-334-Red2-ENG, page 64, lines 12 20. 898 T-334-Red2-ENG, page 64, line 24 to page 65, line 3; EVD-OTP-00611. 899 T-334-Red2-ENG, page 65, lines 21 25.

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$44.56 appeared to be the daily salary paid to P-0316,900 although he said the payment varied, depending on the work he undertook.901 307. P-0583 suggested that initially P-0316 did not work under a contract and he was simply remunerated for the work he undertook. 902 He signed a receipt for his pay at the end of a mission, which reflected the hours or days he had been engaged and he was reimbursed to the extent possible.903 The money was advanced by the prosecution, with the agreement of the officials within the OTP.904 P-0583 thought that P0316 signed a contract with the OTP towards the end of 2005 or in 2006. 905 It was for a brief period of time (between one and three months) from the beginning of 2006.906 P-0583 was in favour of this temporary contract, because it formalised the relationship with P-0316, so that he progressed from informant to intermediary, thereby enabling him to provide significantly more public work for the OTP.907 As a result, P-0316 became an openly recognised member of the team.908 He also provided assistance to the Registry.909 308. P-0583 was reminded of an email he wrote on 16 May 2006, 910 wherein he noted that a payment to P-0316 should be made as soon as possible; that it was becoming more and more difficult to justify paying certain expenses; and that some of the information provided by P-0316 seemed bizarre and required cross-checking. Although he could not recall this particular email exchange, P-0583 explained that it
900 901

T-334-Red2-ENG, page 65, lines 4 8. T-334-Red2-ENG, page 65, lines 9 14. 902 T-334-Red2-ENG, page 23, line 23 to page 24, line 9. 903 T-334-Red2-ENG, page 24, lines 9 13. 904 T-334-Red2-ENG, page 24, lines 16 20. 905 T-334-Red2-ENG, page 24, lines 21 25. 906 T-334-Red2-ENG, page 68, lines 17 21. 907 T-334-Red2-ENG, page 68, lines 22 to page 69, line 5. 908 T-334-Red2-ENG, page 69, lines 11 15. 909 T-334-Red2-ENG, page 69, lines 13 14 and page 70, lines 15 18. 910 EVD-D01-00391.

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must have been written after P-0316 had been turned down for a staff position and at that time there were no particular directives regarding payment for personnel in his position, raising the question of what payment procedures should be adopted.911 He said that cross checking information
912

was

usual

when

working

in

these the

circumstances,

and the word bizarre simply meant

information was surprising.913 309. When asked to explain what he had said concerning the justification of expenses, P-0583 indicated that he had not meant that P-0316 was unable to justify his expenses or had acted excessively, but instead that it had become difficult to justify some of them to the finance section because he was not officially working for the Court, and it was necessary to explain why he should be paid or reimbursed.914 A receipt for P-0316s expenses was always filed with the finance office.915 Over time the financial section raised additional questions about his expenditure, and in due course rules and regulations had to be established to govern the reimbursement of individuals of this kind.916 310. P-0582 did not favour formalising the work relationship with P0316,917 but the decision within the OTP was that either they had to end cooperation with him completely or (as the senior officials within the OTP proposed) he was to be given a contract, which recognised that he was to work more in the light [] and not so much in the

911 912

T-335-Red2-ENG, page 9, line 23 to page 10, line 9. T-335-Red2-ENG, page 10, lines 10 20. 913 T-335-Red2-ENG, page 12, lines 8 23. 914 T-335-Red2-ENG, page 11, lines 6 22. 915 T-335-Red2-ENG, page 11, lines 17 22. 916 T-335-Red2-ENG, page 11, line 24 to page 12, line 4. 917 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 67, line 21 to page 68, line 9.

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dark. 918 Due to the contract, it was necessary to describe P-0316s work, including his relationship with the investigators.919 In the event, this intermediary continued to provide the investigators with security information drawn from his networks that they otherwise would not have had access to.920 311. Although P-0316s contract ended on 31 March 2006, he still carried out the same functions as an intermediary.921 He was responsible for a number of witnesses; he knew where to find them; and he was one of a small number of people in this position, because the investigators did not want to involve others in the management of witnesses. 922 Therefore, he continued to work with witnesses and he provided field information.923 Incident with P-0316 and P-0143 312. P-0582 was asked to consider two investigators notes (EVD-D0100383 and EVD-D01-00384), 924 and he indicated there were several levels of management that were engaged by an incident described therein, which generated a significant amount of discussion about their dealings with intermediaries. 925 In summary, two investigators

918

Transcript of Deposition on 17 November page 68, lines 9 13. 919 Transcript of Deposition on 17 November page 68, lines 15 20. 920 Transcript of Deposition on 17 November page 68, lines 21 24. 921 Transcript of Deposition on 17 November page 68, line 25 to page 69, line 7 (P-0582). 922 Transcript of Deposition on 17 November page 69, lines 3 6 (P-0582). 923 Transcript of Deposition on 17 November page 69, lines 6 7 (P-0582). 924 Transcript of Deposition on 17 November page 2, lines 3 4. 925 Transcript of Deposition on 17 November page 2, lines 20 22.

2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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had particular difficulties concerning P-0143 and P-0316.926 313. P-0582 gave evidence that P-0316 told the investigators that three children who were potential witnesses had been interviewed by the Congolese police services. 927 However, investigations carried out by the investigators revealed that this was inaccurate.
928

P-0582

understood that the UN had confirmed that harassment alleged by P0316 was a falsehood.929 314. By way of detail, P-0316 had told the OTP that three children from the FNI/FRPI who were interviewed by Office 2 (the intelligence service of the Congolese Ministry of the Interior)930 had felt threatened as a result, causing at least two of them to leave Bunia.931 The OTP asked P-0316 to locate these individuals.932 However, the investigators discovered that they had not, in fact, left Bunia and they asked P-0143 to review the situation.933 He indicated to the OTP that the children had not been interviewed at Office 2 and they had not been threatened. Furthermore, apart from one of them going home for Christmas, they had not left Bunia.934 According to the Investigators Report on this incident, P-0143 stated the whole incident would have been made up in order to gain attention and therefore some economic
926

Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 2, line 23 to page 3, line 1 (P-0582). 927 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 3, lines 1 4. 928 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 3, lines 4 6. 929 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 5 8. 930 See EVD-D01-00383, footnote 1. 931 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 21 23; EVD-D01-00383, para. 4. 932 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 21 24; EVD-D01-00383, para. 6. 933 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 2 5; EVD-D01-00383, para. 5. 934 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 6 8; EVD-D01-00383, paras 8, 10, 13 and 14.

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gain. In addition, he conceded that the lack of expertise in dealing with former child soldiers from the side of the original intermediary might have accentuated the incident.935 315. P-0582 concluded that although the truth had not been told, it was difficult to determine who was responsible.936 The main report on this incident was immediately transferred to the head of investigations because the issue was too important to remain at team level. 937 Therefore, the information was provided to those responsible for the situation in the DRC (including the relevant prosecuting counsel).938 The incident was sufficiently serious that they required permission from Michel De Smedt and the Prosecutor of the Court before they could continue working with the witnesses affected by this incident.939 Counsel with trial responsibility remained the direct supervisor for the investigators on all issues concerning the development of the investigation and any potential prosecution.940 Michel De Smedt and Ekkehard Withopf (the latter was lead counsel in the case) were consulted, and Michel De Smedt said that both intermediaries had to be retained.941 316. Notwithstanding these issues, P-0582 (who was working on witness security as opposed to the investigation) considered the information

935 936

See EVD-D01-00383, para. 16. Transcript of Deposition on 17 page 70, lines 16 20. 937 Transcript of Deposition on 17 page 5, lines 12 15. 938 Transcript of Deposition on 17 page 3, lines 11 16. 939 Transcript of Deposition on 17 page 6, lines 4 6. 940 Transcript of Deposition on 17 page 7, lines 2 9. 941 Transcript of Deposition on 17 page 72, lines 9 18.

November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

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provided by P-0316 was useful and interesting; 942 it was of good quality; and, in comparison with other sources, entirely credible.943 P0582s view was that there were considerable interests at stake and that they did not want to lose a trusted source of information on the basis of a single incident.944 He accepted that intermediaries could be manipulative and they had their own agendas.945 317. P-0582 was referred to the last paragraph of the investigators note from 13 February 2006,946 where it is set out that: [t]he investigators have decided not to establish further initial contacts with former child soldiers through intermediary [P-0316], as he proved to be unreliable in his approach. 947 P-0582 suggested this was because the female investigators had taken sides, and had decided that P-0143 unlike P0316 was somebody who could be trusted.948 318. P-0582 was referred to a note written on 23 February 2006.949 The following is set out at the bottom of page 3:
Meeting with intermediaries [P-0143] and [P-0316] to clarify origin of false information on harassment by undetermined official authorities of three former child soldiers screened by investigators in December 2005: after talking to both intermediaries, it was made clear to investigators that the three children screened in December 2005 were never the object of harassment because of their contact with ICC investigators. However, each intermediarys version differed significantly, raising doubts about their
942

Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 17 21. 943 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 6, lines 12 14. 944 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 71, line 23 to page 72, line 1. 945 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, line 23 to page 71, line 1. 946 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, lines 21 23; EVD-D01-00384. 947 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 73, lines 1 3; EVD-D01-00384 at DRC-OTP-0232-0277. 948 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 73, lines 8 10. 949 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 6 9; EVD-OTP-00641.

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credibility and reliability. Relevant MONUC representatives that were alerted in December 2005, namely the Human Rights and the Child Protection section, were informed accordingly about the outcome of the falsehood of the harassment.950

319. P-0582 maintained that the female investigators believed that P-0316 had lied.951 320. This incident revealed, therefore, that one of these intermediaries had invented a story for the investigators on a potentially highly significant issue, and some of those working for the OTP considered it was likely to have been P-0316.952 321. Finally, before leaving this incident, an investigator noted within the relevant reports that it was the other intermediarys impression that one of the children involved in the incident and introduced to him by P-0316 appeared to have been coached. 953 Furthermore, DRCOTP-WWWW-0028 (one of the three children) gave evidence before Trial Chamber II (the transcripts of his testimony were admitted in the present proceedings) 954 that he had been encouraged to lie by Individual 183,955 who was acting as P-0316s assistant in relation to his work as an intermediary.956

950

Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 11 20. 951 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, line 21 to page 75, line 8. 952 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 71, lines 17 18. 953 EVD-D01-00384 at page DRC-OTP-0232-0276. 954 ICC-01/04-01/06-2702-Red, paras 30 - 43. 955 The Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-T-221-Red-ENG, page 24, line 16 to page 25, line 8, page 36, line 1 to page 37, line 4 and page 38, lines 6 9 (P-0316 is No. 12 and P-0183 is No. 14 in the list which is referred to). 956 T-337-CONF-ENG, page 15, lines 10-24 (P-0038); T-335-CONF-ENG, page 16, line 20 to page 17, line 4 (P-0583) ; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68DepositionCONF-ENG, page 63, line 18 to page 64, line 8 (P-0582).

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c) The Other Evidence 322. It is the defence submission that P-0015 and D-0016 demonstrated in evidence that P-0316 persuaded them to make false statements to the Prosecutor, which he helped prepare.957 323. P-0316, however, denied being aware that P-0015 and D-0016 were potential witnesses for the Court, 958 and he gave evidence to the Chamber that D-0016, P-0015 and P-0038 were not introduced to the OTP at his initiative. 959 Three witnesses 960 and P-0583 (as discussed below) contradicted this latter assertion.961 (1) P-0015 324. P-0583 indicated that P-0015 was introduced to the investigators by P-0316 in 2005,962 whilst P-0316 appeared to maintain that the OTP told him to locate P-0015, having pointed him out in a photograph.963 325. P-0582 stated that P-0316 was present at the first relevant meeting in Kampala on 3 October 2005,964 and he helped organise the interviews that were held in Bunia between P-0015 and the investigators in November 2005, although he did not participate when they took place. 965 P-0316, on the other hand, maintained that he had not

ICC-01/04-01/06-2773-Red-tENG, paras 6 and 363, referring to ICC-01/04-01/06-2657-ConftENG, paras 35 to 68. 958 EVD-D01-00372, page 0486, line 1157 to page 0487, line 1205; EVD-D01-00377, page 0489, line 14 to page 0499, line 349 and page 0499, line 354 to page 0512, line 806. 959 T-332-Red2-ENG, page 30, line 8 to page 33, line 4; page 42, line 20 to page 47, line 2; T-333Red2-ENG, page 16, line 19 to page 17, line 6. 960 T-256-CONF-ENG, page 8, line 16 to page 9, line 6 (D-0016 ); T-264-Red2-ENG, page 64, line 4 to page 65, line 24 (P-0015); and T-337-CONF-ENG, page 19, line 18 to page 20, line 9 (P-0038). 961 T-335-Red2-ENG, page 31, lines 4 - 10 (D-0016 is referred to as Witness 0035) and page 84, line 10 24 (P-0583). 962 EVD-OTP-00629, paras 47 and 48 and T-335-CONF-ENG, page 84, lines 15- 24. 963 T-332-Red2-ENG, page 45, line 10 to page 46 line 20. 964 T-334-Red2-ENG, page 38, line 19 to page 39, line 2 and T-335-CONF-ENG, page 83, line 19 to page 84, line 6 and page 84, line 25 to page 85, line 7. 965 T-336-Red2-ENG, page 9, lines 14 19; T-334-Red2-ENG, page 38, line 24 to page 39, line 2.

957

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participated in, still less attended, the meeting between P-0015 and the investigators in October or November 2005.966 Although he could not recall whether he had been in Kampala at the time of the first meeting,967 a receipt indicates that he claimed expenses from the OTP to cover travel and accommodation costs in Kampala from 25 September to 5 October 2005.968 326. P-0583, at paragraph 48 of his written statement, indicated that P0015 was unwilling to leave his militia, contrary to the evidence of P0316.969 P-0583 stated that he was surprised when P-0015 told him that he had come to give information and to cooperate, but that he did not want to leave his armed group.970 327. P-0583 failed to verify the identity of P-0015 by examining the teams archives, and later he unsuccessfully attempted to check his identity (along with others) in the Congolese voters database.971 He also enquired of the Tribunal de Grande Instance as to whether P-0015 was registered with the civil registry, but he was unable to recall the result.972 328. P-0583 gave evidence that although it was the general policy of the investigation team to ask witnesses if they knew the names of other individuals who were supposedly members of military or political units, he did not do this for P-0015. 973 However, the team moved rapidly from one investigation to another, and the resources available and other obstacles impeded the process of verifying the content of the
966 967

T-332-Red2-ENG, page 48, line 20 to page 49, line 1 and page 49, lines 16 20. T-332-Red2-ENG, page 49, lines 2 5. 968 EVD-OTP-00611. 969 T-335-Red2-ENG, page 85, lines 8 21. 970 T-335-Red2-ENG, page 85, lines 16 18. 971 T-336-Red2-ENG, page 10, line 25 to page 11, line 10. 972 T-336-Red2-ENG, page 11, lines 10 16. 973 T-336-Red2-ENG, page 13, lines 6 16.

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statements and determining the credibility of the witnesses.974 329. P-0583 noted that at paragraphs 151 and 152 of his statement, P-0015 gave details on how he joined the FNI when he left the UPC and on his position within the FNI.975 P-0583 suggested that this information was effectively unverifiable.976 330. P-0015 stated at the beginning of his evidence on 16 June 2009, when called by the prosecution:
This is contrary to the statement given to the OTP and that's why I wanted to make the statement and explain why I came here. That's why I met the OTP's intermediary who told me the following. He said, you have to change your name, you have to change your identity. Don't give the true story that took place; in other words, there was a story that they were telling to the witnesses. And I say that they're crooks. Why is it that I say that they're crooks and swindlers? Well, instead of letting me tell the true story of what took place and instead of letting me describe all of the events that I lived through, they are inventing statements in order to manipulate the investigation.977

331. The witness stated that the intermediary in question was P-0316.978 332. When P-0015 later testified between 17 and 22 March 2010, he gave evidence that P-0316 had asked him to change his name and to provide a story from a newspaper or a journal about weapons and ammunition going to Bunia via Uganda.
979

He also gave him

instructions on which name to use.980 P-0015 produced a report card for the year 2002/2003 bearing what he said is his true name.981 333. P-0015 was told by P-0316 to provide particular information on
974 975

T-336-Red2-ENG, page 13, lines 15 23. T-336-CONF-ENG, page 14, lines 12 17. 976 T-336-CONF-ENG, page 16, lines 8 23. 977 T-192-Red2-ENG, page 6, lines 8 18. 978 T-192-CONF-ENG, page 5, line 18. 979 T-264-Red2-ENG, page 64, lines 9 22; T-265-Red2-ENG, page 9, lines 9 14 and page 10, lines 2 6. 980 T-264-CONF-ENG, page 64, line 19 page 65, line 5. 981 T-192-CONF-ENG, page 6, line 7; T-265-REd2-ENG, page 25, lines 15 19, EVD-D01-00123.

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weapons to the OTP investigator, and the latter thereafter asked P0015 to relay this material to another organisation, which in turn discovered that it was false 982 (P-0583 confirmed that he set up a relevant meeting which took place).983 P-0015 stated that P-0316 had falsely told an investigator from the OTP that he (P-0015) lived in the countryside. P-0316 had bought him a ticket for a trip to Kampala even though P-0015 was living there at that time.984 P-0015 confirmed that because he was living in Kampala he did not, in reality, have any transportation or accommodation costs.985 D-0016 identified P-0015 on a photograph986 and gave evidence as to where he lived.987 On P-0316s direction he gave false details about his military training and his schooling.988 The idea, he said, was to provide the investigator with P0316s story. 989 Each morning, in meetings at the hotel with the intermediary prior to the interview, he was given an outline of the account he was to provide to the investigators.990 The witness said:
The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to school and where I had had military training.991

334. P-0015 indicated that P-0316 told him to hide his Hema ethnicity and his identity (he suggested that the name he was told to use was not a Hema or Iturian name), so that any investigation into his past

T-264-Red2-ENG, page 68, lines 5 24. T-335-Red2-ENG, page 88, line 17 to page 89, line 7. 984 T-265-Red2-ENG, page 9, line 23 page 10, line 13. 985 T-265-Red2-ENG, page 10, lines 9 13. 986 EVD-D01-00113; T-257-CONF-ENG, page 6, line 1 8. D-0016 used a name that closely resembles the name that P-0015 indicated in testimony was his real name (T-192-CONF-ENG, page 6, line 7). 987 T-257-CONF-ENG, page 7, lines 19 25. 988 T-264-Red2-ENG, page 70, lines 11 19. 989 T-264-CONF-ENG, page 70, lines 11 19. P-0015 referred to the first name of P-0316. 990 T-264-Red2-ENG, page 33, lines 4 8. 991 T-265-Red2-ENG, page 21, lines 11 13.
983

982

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would be very difficult for the prosecution. 992 He falsely told the investigators, at P-0316s instigation, that his parents were dead in order to stop the police from investigating them.993 335. P-0015 said that P-0316 invented a rank for him as a soldier and provided a matching identity document (although P-0316 apparently did not specify that he should say he had been part of the UPC).994 In his account to the investigators, P-0015 claimed to have served in a position and at a rank that would have necessitated in-depth knowledge on his part of particular military issues. 995 However, he maintained he did not know a great deal about the structures and the organisation of the UPC, or who commanded the various brigades.996 When audio extracts were played to him during his interview with the prosecution, P-0015 was unable to identify the commanders who were referred to by individual code names. 997 In addition, despite the position he had claimed to occupy in the FNI, 998 he was unable to describe its political or military structure and could not explain the meaning of this acronym.999 336. When P-0583 was informed that P-0015 had told the Court that he had lied about his identity, he expressed his surprise because during his interview P-0015 had provided a significant amount of detail about the events he had witnessed, and P-0583 formed the impression that he was credible. 1000 P-0583 was also surprised because through P-

992 993

T-265-Red2-ENG, page 22, lines 19 25; T-265-CONF-ENG, page 23, lines 10 13. T-265-CONF-ENG, page 20, line 21 page 21, line 8; EVD-OTP-00729, para. 10. 994 T-265-Red2-ENG, page 13, lines 10 14. 995 EVD-OTP-00729, paras 41, 89-94 and 97. 996 EVD-OTP-00729, para. 170. 997 EVD-OTP-00738, paras 23, 35 37 and 43. 998 T-336-CONF-ENG, page 16, lines 11 13 (excerpt of statement read out during the examination of P-0583). 999 EVD-OTP-00729, paras 10 and 149-150; EVD-OTP-00738, para. 17. 1000 T-334-Red2-ENG, page 37, lines 7 13.

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0015s intermediary (namely P-0316) he made contact with someone in another city in the DRC who had information about a militia leader of interest.1001 This individual referred to the name P-0015 later claimed was his false name, thereby at the time appearing to corroborate P0015s identity.1002 337. The prosecution contends that the evidence of P-0015 is suspect for several reasons, including the length of time he waited before recanting his original testimony to the OTP, the fact that he refused to provide a photograph to prosecution investigators so that it could be shown to his grandparents, and by reference to particular factors relating to his family.1003 It is emphasised that P-0015 testified that he was threatened at one point by four men, including a UPC soldier, an event which he reported to the prosecution at the time. 1004 The

prosecution also refers to the testimony of P-0583 in relation to the fact that the prosecutions interview of P-0015 was carried out over several days, as according to P-0583 it is difficult to imagine that you can learn a story and memorise it and repeat in the same way over several days.1005 338. As to the threats made to him, however, P-0015 explained that the soldier had been looking for him because they had business and their own internal conflict, and he may have thought that P-0015 had money.1006 In addition, when asked why he had not informed the prosecution earlier about the false nature of his statements, P-0015 referred to security concerns and said he had been threatened by P-

1001 1002

T-334-Red2-ENG, page 37, lines 13 16. T-334-Red2-ENG, page 37, lines 16 20 and page 38, lines 2 - 13. 1003 ICC-01/04-01/06-2678-Red, para. 64. 1004 ICC-01/04-01/06-2678-Red, para. 64. 1005 ICC-01/04-01/06-2678-Red, para. 66, relying on T-334-Red2-ENG, page 39, lines 3 13. 1006 T-264-Red2-ENG, page 35, lines 1 4.

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0316 on numerous occasions.1007 He also gave evidence to the effect that he had been subjected to pressure from his family and the Hema community due to his appearance in The Netherlands as a witness.1008 339. The Chambers assessment of P-0015 is that the numerous weaknesses in the details of the account he provided the investigators in 2005 tend to indicate that he gave, at that stage, a significantly false story as to his identity and his alleged involvement with the UPC. Furthermore, when P-0015s testimony is coupled with the evidence of P-0583 concerning the circumstances in which he was introduced to the OTP and the October and November 2005 interviews, there is a persuasive basis for concluding that P-0316 lied to the Chamber as regards his dealings with P-0015. In all the circumstances, the Chamber finds that P-0015 has given a wholly credible account during his oral evidence (as opposed to what he said to the investigators in 2005) which is supported by other evidence, as rehearsed above that P-0316 went to significant lengths to persuade him to give a false account to the OTP, in part to secure financial benefits. In these circumstances, the Chamber has only relied on P-0015s evidence to the extent that it relates to P-0316. (2) P-0038 340. This witness is an alleged former UPC soldier. He joined Laurent Kabilas army in 1997 when he was 13 years old.1009 He was disarmed later that year, 1010 and joined the UPC in 2001 1011 as a result of the
T-264-Red2-ENG, page 51, lines 1 9 and lines 16 22 and page 71, lines 1 12. T-264-Red2-ENG, page 54, line 23 to page 58, line 12. 1009 T-113-Red-ENG, page 30, lines 3 9. 1010 T-113-Red-ENG, page 30, lines 18 24. 1011 T-113-Red-ENG, page 31, line 12. The English transcript refers to the year 2000. However, in light of the evidence given and the prosecutions question, the French transcript with its reference to the year 2001 is correct (T-113-Red-FRA, page 31, line 4).
1008 1007

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latters recruitment campaign. It follows he does not allege that he was a child soldier below the age of 15 within the UPC. The witness

described the training camps of the UPC,1012 and the extensive use that was made of child soldiers for various tasks including fighting,1013 and acting as bodyguards and as wives of commanders.1014 The witness received extensive weapons training,1015 including in Rwanda,1016 and he was involved in battles at Mongbwalu, 1017 Komanda, Kobu and Bunia.
1018

The witness gave considerable evidence about the

recruitment of children under the age of 15 by the UPC and their use to participate actively in hostilities (see below).1019 341. It is first to be noted that P-0038 contradicts the evidence of P-0316. The latter gave evidence to the effect that P-0038 had already been in contact with the investigators of the Court, and he was only asked to find his contact details after the OTP had supposedly lost track of P0038.1020 P-0316 stated he was able to find a telephone number for P0038, which he provided to the investigators.1021 P-0038 said a friend of his knew he had been involved in fighting and introduced him to P0316, who put him in contact with an OTP investigator.1022 Witness P0038 indicated that when he met P-0316 they discussed his experience in the military, and P-0316 named individuals in the UPC and asked

T-113-Red-ENG, page 37, line 24 to page 38, line 5 and page 59, lines 21 22. T-114-Red-ENG, page 82, lines 9 11. 1014 T-114-Red-ENG, page 82, line 21 to page 83, line 3. 1015 T-114-Red-ENG, page 7, lines 3 4 and page 7, line 16 to page 8, line 3. 1016 T-113-Red-ENG, page 35, lines 5 8. 1017 T-113-Red-ENG, page 48, line 24 to page 49, line 8. 1018 T-113-Red-ENG, page 52, lines 6 9. 1019 See paras 688, 801, 814, 821-824, 851-853, 915 and 1074. 1020 T-333-Red2-ENG, page 16, line 19 to page 17, line 6. 1021 T-333-Red2-ENG, page 17, lines 15 21. 1022 T-337-CONF-ENG, page 45, lines 2 5 and T-336-Red2-ENG, page 43, line 4 to page 44, line 20 (P-0038s friend worked together with P-0316 in the same national institution, T-333-CONF-ENG, page 24, lines 16 21); P-0316 testified that P-0038 had already been in contact with the investigators and that he did not introduce him, T-333-Red2-ENG, page 16, line 21 to page 17, line 6.
1013

1012

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him whether he knew them.1023 Thereafter, P-0316 suggested he should see a representative of the OTP.1024 P-0038 stated he was in contact with P-0316 1025 and described his relationship to P-0316s two colleagues, one of whom was a member of P-0038s extended family.1026 P-0038 portrayed Individual 183 as P-0316s right-hand man, somebody who assisted him with his tasks for the Court.1027 Also of note is that P-0038 stated he had prepared notes for use during his meetings with the investigators and he gave a convoluted explanation as to why he had suggested showing these notes to the investigators in a foreign country, due to security concerns.1028 342. As to his credibility, P-0038 claims that he was a member of the UPC between 2001 and 2005,1029 and he maintained in evidence that he served as Chief Kahwas bodyguard in April 2002. 1030 The defence submits that the witnesss description of his military activities alongside Chief Kahwa are false, given the school records demonstrate that he was enrolled in school in Bunia until July 2002.1031 343. P-0038 stated he left school in November 2001 and returned to continue his studies in 2003. 1032 However, during the trial, he was shown records from the school he attended in 2001/2002. He identified himself among students listed in the schools records.1033 P-0038s name

1023 T-336-Red2-ENG, page 45, line 23 page 46, line 5 and T-337-CONF-ENG, page 8, line 9 to page 9, line 6. 1024 T-336-Red2-ENG, page 46, lines 5 6. 1025 T-337-Red2-ENG, page 34, lines 15 17. 1026 T-336-Red-ENG, page 77, line 14 to page 78, line 4; T-337-CONF-ENG, page 14, lines 9 16 (the two colleagues P-0038 refers to are the ones who worked with P-0316 in the Congolese intelligence services). 1027 T-337-Red2-ENG, page15, lines 10 - 24. 1028 T-337-Red2-ENG, page 23, line 10 to page 29, line 20; EVD-D01-00395 (notes). 1029 T-113-Red2-ENG, page 31, lines 13 15. 1030 T-114-Red2-ENG, page 43, line 13 18; page 46, lines 9 12. 1031 ICC-01/04-01/06-2773-Red-tENG, para. 457. 1032 T-113-Red2-ENG, page 31, lines 12 18; T-114-Red2-ENG, page 48, lines 11 16. 1033 T-114-Red2-ENG, page 50, line 24 to page 51, line 14.

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was listed in the column entitled Authorised to repeat,1034 and the document does not explain why students in that column are entitled to repeat. The defence suggested the records indicate that P-0038 was at school during the 2001/2002 year (contrary to his evidence), rather than being in the UPC.1035 The witness insisted he did not complete the school year.
1036

The defence argued the students who left the

institution halfway through the school year were listed in Column E of the relevant document, under the heading Left in the Course of the Year, 1037 and given his name is not in that column, he must have completed the year.1038 344. In the view of the Chamber, the witness gave a plausible explanation as to why his name did not appear in Column E, as follows:
A. I didn't complete the school year in this institution because I was allowed to repeat the year. It doesn't say why, but I know that I didn't take the exams. Because here I can't see where this has been said. Well, in fact, it says who repeated the year or went back to class, but it doesn't say why. It mentions those who left in the course of the year. It says, "Left in the course of the year," but there's no reference to those who repeated the year, and there's no reference to the reasons for which this was done.1039

The other evidence on this issue does not undermine this explanation. 345. The defence also challenges P-0038s evidence that he re-enrolled in school during the 2003/2004 year and was a student during the day and a soldier at night, on the basis that this suggestion is implausible.1040 The witness explained that, at the time he returned

1034 1035

T-114-Red2-ENG, page 51, lines 4 11. T-114-CONF-ENG, page 51, line 12 page 52, line 13. 1036 T-114-Red2-ENG, page 52, lines 11 12. 1037 T-114-Red2-ENG, page 51, line 25 to page 52, line 4. 1038 ICC-01/04-01/06-2773-Red-tENG, para. 457, referring to EVD-D01-00172, page 4017. 1039 T-114-Red2-ENG, page 52, lines 11 18. 1040 ICC-01/04-01/06-2773-Red-tENG, para. 458.

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to school in 2003, there was no UPC presence in Bunia during the day but there were patrols during the night. He stated that even though he was studying, he was under the orders of the UPC and in that sense he was a soldier. He stated he had been told the army is not finished, it continues. 1041 The Chamber is of the view that P-0038s account is plausible and that he understood that he was a member of the UPC even if he also attended school. 346. The Chamber is unpersuaded by the defence arguments on the suggested weaknesses of this witnesss evidence, particularly concerning his military involvement and the fact that he described activities within the UPC/RP, along with a military structure and hierarchy, which it is alleged only existed from September 2002.1042 Viewed globally, the witness gave detailed and credible evidence on his activities both before and after the establishment of the FPLC. 347. The other significant criticism of the witness by the defence is that the Court funded a significant element of his expenditure from May 2007 to February 2009, and his school fees for a complete academic year.1043 P-0038 gave detailed evidence on the costs covered by the Court while he was under its protection leading up to his testimony between May 2007 and February 2009.1044 P-0038 stated that when he was recalled as a witness he did not make any requests to the OTP, or any other organ of the Court, for compensation, care or relocation and he did not stipulate any conditions before giving evidence. The Chamber is of the view that the costs during this period were paid in the context of the protection programme provided by the Court. He
1041 1042

T-114-Red2-ENG, page 55, lines 3 21. ICC-01/04-01/06-2773-Red-tENG, para. 459. 1043 ICC-01/04-01/06-2773-Red-tENG, para. 54. 1044 T-337-Red2-ENG, page 37, line 1 to page 40, line 5.

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received no more than the amount provided by the standard compensation and care scheme for witnesses. The evidence on this issue did not materially undermine the witnesss account. The fact that a witness is in the ICC protection program does not, without more, undermine his or her credibility. 348. This was a measured witness, whose account was internally consistent and he gave a wholly credible account. Discrete aspects of his testimony where this was not the case will be addressed below. Notwithstanding his connection with P-0316, the Chamber has concluded he was a reliable witness whose evidence is truthful and accurate. Indeed, P-0038 stated he and P-0316 never talked about what he was supposed to say to the OTP and P-0316 did not tell him to provide false stories to the prosecution, nor did P-0316 promise the witness rewards for giving particular information to the

investigators.1045 P-0038 added that the investigator had told him not to talk to P-0316 about the contents of the meetings with the OTP.1046 The Chamber accepts P-0038 may have prepared notes to assist during the meetings and it observes his explanation on providing the notes to the investigators is unclear, but in contrast to the situation regarding D-0016 described below, there is no evidence to support the assumption that he was prepared in order to give false testimony. 349. The defence challenges to the witnesss evidence on his recruitment and Thomas Lubangas visit to Mandro camp, as well as other identified areas of his evidence, will be addressed later in this Judgment.1047 The impact of this witnesss evidence is considered in the
1045 1046

T-336-Red2-ENG, page 78, lines 11 - 25. T-336-Red2-ENG, page 78, line 11 to page 78, line 25 to page 79, line 7; T-337-Red2-ENG, page 13, lines 4 9. 1047 ICC-01/04-01/06-2773-Red-tENG, paras 461 475.

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Chambers overall conclusions, set out below.

(3) D-0016 350. P-0316 told P-0583 that D-0016 (known by the prosecution as DRCOTP-WWWW-0035) was an officer in the UPC, a commander who had participated with his troops in a number of attacks,1048 and as a result he asked P-0316 to arrange a meeting with this potential witness.1049 351. D-0016, however, maintained in his evidence before the Court that P-0316 persuaded him to lie to the OTP. The lies are said to have included the suggestion that D-0016 was one of the children who had been enrolled into the armed wing of the UPC by Thomas Lubanga,1050 and that other children, including from his own family, had been enlisted into the army. 1051 D-0016 stated he and P-0316 agreed the witness was to allege falsely that young girls had given birth whilst in the army.1052 352. D-0016 met several times with P-0316, first in a caf and thereafter in an office of one of his friends, and P-0316 indicated he was looking for someone to say something about Mr Thomas Lubanga to the OTPs investigators.1053 D-0016 was introduced to the investigators at the Hellnique restaurant in Bunia, 1054 and later he met with them again in Kampala,1055 between 30 September and 5 October 2005 and

1048 1049

T-335-Red2-ENG, page 31, lines 14 20 (P-0583). T-335-Red2-ENG, page 31, lines 4 10 (P-0583). 1050 T-257-Red-ENG, page 2, lines 15 21 and page 3, line 11 to page 4, line 3. 1051 T-256-Red-ENG, page page 12, lines 2 8 and page 22, lines 1 4. 1052 T-256-Red-ENG, page 12, lines 8 10 and page 21, line 20 to page 22, line 1. 1053 T-256-Red2-ENG, page 9, lines 20 25 and page 11, lines 6-13. 1054 T-257-Red-ENG, page 41, lines 19 23. 1055 T-258-Red-ENG, page 10, lines 7 23.

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then in Bunia on 12 November 2005. 1056 353. D-0016 indicated he and P-0316 went over the subjects on which he was to lie whilst they were travelling over two days before the meetings in Kampala, as well as during the time he was in Kampala.1057 They met prior to every interview with the investigators, in order to discuss the false evidence he was to give1058 and they met again in the evening to prepare for the following day.1059 354. D-0016s evidence was that he had never served in the army, but he and P-0316 planned the lies that he was to repeat; and in the morning before he left for the interviews, he was given the answers to the questions.1060 355. D-0016 testified that during their preparatory meetings, they wrote down the names of people who were in the army as well as the names of villages where battles were fought, and he read these out.1061 It is to be noted in relation to this issue that in one of the interviews between the prosecution and D-0016 there is mention of a notebook he compiled shortly before the interviews in which he had noted down the names of the places he had visited during the war. 1062 P-0583 testified that the interview with D-0016 was a difficult one it was not easy to follow his account and P-0583 was not impressed by the

T-258-Red-ENG, page 10, lines 7 11; See transcripts of interviews: EVD-OTP-00533 to EVDOTP-00551. 1057 T-256-Red-ENG, page 28, lines 8 16; T-258-Red-ENG, page 12, lines 11 19. 1058 T-256-Red-ENG, page 28, lines 13 16. 1059 T-258-Red-ENG, page 8, lines 9 13. 1060 T-258-Red-ENG, page 15, line 19 to page 16, line 2. 1061 T-256-Red-ENG, page 15, line 21 to page 16, line 8. 1062 See extract of interview read out in court during the examination of P-0583, T-335-Red2-ENG, page 68, line 5 to page 69, line 25. T-335-Red2-ENG, page 68, line 5 to page 69, line 25 (P-0583); Notebook, pages: EVD-D01-00387, EVD-D01-00388, EVD-D01-00389 and EVD-D01-00390. This notebook is mentioned during the interview EVD-OTP-00546, page 1836, line 916 to page 1839, line 1009.

1056

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information he provided.1063 However, P-0583 did not suspect that D0016 had been rehearsed or prepared when he was interviewed.1064 356. D-0016s evidence was that P-0316 would buy him drinks and he gave him a small amount of money in return for these lies,1065 and promised he would go to the country of the white people. 1066 When D-0016 was subjected to pressure for allegedly having told lies about the accused, P-0316 wrote a fake threatening letter (which the witness suggested contains the latters fingerprint),1067 so as to help him leave Bunia. 1068 As instructed by P-0316, D-0016 gave this letter to a court official. 1069 The prosecution was unable to locate this document and it was uncertain whether the original had been in its possession.1070 The original was unavailable to the Chamber as a result of this uncertainty or negligence, although a copy and a translation were discussed in the course of P-0316s testimony.1071 357. The defence argues that D-0016 provided material in accordance with the agreed plan. 1072 He said he had been a UPC soldier; he referred on several occasions to the presence of child soldiers under the age of fifteen; and he indicated that at least one young girl child

T-335-Red2-ENG, page 81, line 18 to page 82, line 5. T-334-Red2-ENG, page 34, line 24 to page 35, line 4. 1065 T-256-Red-ENG, page 16, lines 9 14. 1066 T-256-Red-ENG, page 16, lines 17 21. 1067 EVD-D01-00120, discussed at T-257-Red2-ENG, page 29, line 21 to page 30, line 5. 1068 T-257-Red2-ENG, page 27, line 9 to page 28, line 8, page 30, lines 6 9 and page 32, lines 8 13. 1069 T-257-Red2-ENG, page 28, lines 4 8 and page 33, lines 6 15. 1070 The defence was never provided with the original of EVD-D01-00120, which the prosecution states cannot be located within its files. When questioned about this, the prosecution was also unable to say whether it had ever had possession of the original of this document. T-332-Red2-ENG, page 38, line 17 to page 39, line 25 and ICC-01/04-01/06-2678-Red, footnote 155. P-0316 denied ever having heard about such a letter (T-332-Red2-ENG, page 36, line 22 to page 37, line 1). 1071 See, for example, T-329-Red-ENG, page 14, line 3 to page 15, line 10; EVD-D01-00120 and EVDOTP-00612 (translation). 1072 ICC-01/04-01/06-2657-tENG-Red, paras 35 40.
1064

1063

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soldier had gone off to battle.1073 The defence additionally suggests that substantial inconsistencies in the statements D-0016 gave to the OTP demonstrate they were false.1074 The Chamber is of the view that the witness provided a confused account of the time when he purportedly joined the UPC1075 and, although he described himself as a UPC officer, he was unaware of the name of the groups armed wing (the FPLC).1076 358. In all the circumstances, the defence invites the Chamber to conclude that the statements given to the investigators in October and November 2005 by D-0016 were the result of P-0316s invitation to him to lie.1077 359. As set out above, P-0583 gave evidence that D-0016 was identified and introduced by P-0316, and was described by him as a former UPC officer who had participated with his troops in a number of attacks.1078 However, P-0316 denied having introduced potential witnesses to the OTP who were previously unknown to the prosecution, 1079 and he suggested that he was simply aware that D-0016 was among the demobilised children, and he looked for him on the basis of a photograph provided by the OTP. 1080 This conflicts directly with the evidence of P-0583.1081

EVD-OTP-00535, page 1407, lines 43-49, page 1430, line 788 to page 1431, line 810, EVD-OTP00540, page 1614, line 520 to page 1616, line 579 and EVD-OTP-00541, page 1645, line 52 to page 1647, line 93. 1074 ICC-01/04-01/06-2657-tENG-Red, paras 43 45. 1075 EVD-OTP-00535, page 1409, lines 104-121, page 1413, line 235 to page 1418, line 399, page 1421, line 500 to page 1422, line 518, page 1423, lines 566-573, page 1424, lines 575-592. 1076 EVD-OTP-00537, page 1492, lines 686-694. 1077 ICC-01/04-01/06-2657-Conf-tENG, paras 45 and 46. 1078 T-335-Red2-ENG, page 31, line 4 20 and EVD-OTP-00629, para. 41. As mentioned above, P0582 testified that introducing potential witnesses who were unknown to the prosecution was one of P0316s responsibilities, see Transcript of Deposition on 17 November 2010, ICC-01/04-01/06Rule68Deposition-Red2-ENG, page 63, lines 6 12. 1079 T-331-Red2-ENG, page 40, lines 9 11. 1080 T-332-Red2-ENG, page 30, lines 8 11, page 31, line 3 and page 33, line 22 page 34, line 3. 1081 T-335-Red2-ENG, page 31, lines 4 10.

1073

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360. Moreover, P-0583 agreed that from 25 September onwards, D-0016 and P-0316 were in Kampala together for several days prior to a number of days of interviews1082 (during which, as set out above, D0016 used notes).1083 P-0316 maintained that the interviews in Kampala marked the end of his contact with D-0016.1084 This was contradicted by D-0016.1085 361. P-0316 gave evidence that he was unaware of any security problems relating to D-00161086 and he had not told the Office of the Prosecutor that a threatening letter had been found at Witness D-0016s home.1087 By way of contradiction, in a telephone conversation with the investigators on 11 January 2008, P-0316 said D-0016 had found a letter containing death threats on his doorstep (this also contradicts the statement that P-0316 had no contact with D-0016 after the interviews). 1088 P-0316 explicitly denied having written the letter or having encouraged D-0016 to give false information about his security.1089 362. The prosecution argues that it has not been demonstrated that P0316 solicited D-0016 to provide false incriminating evidence against the accused.1090 The prosecution points to the statement by D-0016 that he did not personally receive money from the OTP whilst he was in Kampala for his interview in 2005, 1091 despite the fact that the

1082

T-335-CONF-ENG, page 53, line 24 to page 56, line 1; EVD-D01-00114; EVD-OTP-00629, para.

42. EVD-OTP-00546, page 1836, line 916 to page 1839, line 1002. T-332-Red2-ENG, page 35, lines 9 13; T-328-Red2-ENG, page 37, lines 15 17. 1085 T-257-Red2-ENG, page 27, line 9. 1086 T-329-Red2-ENG, page 16, lines 8 12 and T-332-Red2-ENG, page 35, line 24. 1087 T-332-Red2-ENG, page 36, line 25 to page 37, line 1. 1088 EVD-D01-01042, No. 31. 1089 T-329-Red2-ENG, page 13, line 12 to page 14, line 21 and page 16, lines 8 11. 1090 ICC-01/04-01/06-2678-Red, para. 52. 1091 ICC-01/04-01/06-2678-Red, para. 53, discussing testimony from D-0016, see: ICC-01/04-01/06-T257-Red2-ENG, page 20, lines 12 17 and T-258-Red-ENG, page 21, line 21 to page 22, line 15.
1084 1083

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prosecution later showed D-0016 a video in which he received cash from P-0583.1092 363. At paragraph 43 of P-0583s statement, he stated D-0016 complained that P-0316 had taken part of the money he had been given to pay for the hotel and his food. 1093 P-0583 explained D-0016 had used the money for purposes other than paying for the hotel and therefore P0316, on his own initiative, took this money to pay for the hotel and for food.1094 P-0583 indicated P-0316 provided a consistent and believable explanation regarding this incident.1095 364. The Chamber has approached the evidence of D-0016 with a degree of caution, given he provided a detailed and untruthful account to the prosecution with a view to financial gain. 1096 Whilst the witness denies that he was subjected to threats from either Dieudonn Mbuna1097 or the UPC, 1098 at several points in his evidence he indicated he felt pressure from members of the community and members of his family, 1099 because of the statement he had made to the OTPs investigators. However, it needs also to be observed that he gave a clear and broadly consistent account as to serious alleged wrongdoing on the part of P-0316. 365. When D-0016s account is coupled, first, with the evidence of P-0583 as regards the circumstances in which he was introduced to the OTP and, second, the involvement of P-0316 in the October and November 2005 interviews, there is a persuasive basis for concluding the latter
1092 1093

T-258-Red2-ENG page 28, lines 1 25; EVD-OTP-00532 at 01:10. T-335-Red2-ENG, page 49, lines 21 24. 1094 T-335-Red2-ENG, page 50, lines 7 11. 1095 T-335-Red2-ENG, page 51, lines 9 18. 1096 T-256-Red-ENG, page 16, lines 9 14. 1097 T-257-Red2-ENG, page 31, lines 19 20. 1098 T-257-Red2-ENG, page 31, lines 21 25. 1099 T-257-Red-ENG, page 27, lines 11 13.

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lied to the Chamber as regards his dealings with D-0016. For these reasons, the Chamber finds that D-0016 has given credible evidence supported by other material, as rehearsed above and in particular the Chamber accepts P-0316 went to significant lengths to persuade him to give a false account to the OTP, in part for financial gain. (4) P-0316s professional obligations towards the DRC government 366. As set out earlier, at all material times, the Prosecutor was aware that P-0316 had held a position of responsibility linked to his national government through his work for the Congolese intelligence services1100 and, moreover, at least one other member of staff from the same organisation assisted him with his work for the OTP.1101 367. P-0316 set out during his evidence the detail of the duties he performed within the intelligence services 1102 and his contacts with, and loyalty to, his government.1103 The witness said:
From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government in my service. However, there were sometimes perhaps circumstances in which I might have worked outside of this capacity, but I always remained loyal to my government.1104

368. The Chamber is particularly concerned that the prosecution used an individual as an intermediary with such close ties to the government
T-334-Red-ENG, page 17, line 17 to page 18, line 3 (P-0583); it was set out in his curriculum vitae (EVD-OTP-00597) and his personal history form (EVD-OTP-00598) when he applied. 1101 T-331-CONF-ENG, page 78, line 23 to page 79, line 23 (P-0316 insisted that his colleague merely acted as a driver); T-337-CONF-ENG, page 15, lines 10-24 (P-0038); T-335-CONF-ENG, page 16, line 20 to page 17, line 4 (P-0583) ; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06Rule68Deposition-CONF-ENG, page 63, line 18 to page 64, line 8 (P-0582); EVD-D01-00371 (Receipt covering costs for both P-0316 and P-0183); EVD-D01-01043 (Excerpt from the prosecutions table of communication). 1102 T-327-CONF ENG, page 12, line 7 to page 16, line 2; T-330-CONF ENG, page 21, lines 18 22; See also EVD-OTP-00597 and EVD-OTP-00598. 1103 T-327-CONF ENG, page 14, lines 20 23; T-327-Red2-ENG, page 15, lines 1 7; T-332-Red2ENG, page 49, lines 10 15. 1104 T-327-Red2-ENG, page 14, lines 20 23.
1100

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that had originally referred the situation in the DRC to the Court. He not only introduced witnesses to the investigators, but he was also involved in the arrangements for their interviews. Given the likelihood of political tension, or even animosity, between the accused and the government, it was wholly undesirable for witnesses to be identified, introduced and handled by one or more individuals who, on account of their work or position, may not have had, to a sufficient degree or at all, the necessary qualities of independence and impartiality. Whilst it is acceptable for individuals in this category to provide information and intelligence on an independent basis, they should not become members of the prosecution team. Moreover, any information and intelligence they provide should be verified and scrutinised by the prosecution, in order to avoid any manipulation or distortion of the evidence. (5) False information and credibility issues 369. In October 2008, P-0316 maintained to the prosecution that his assistant (Individual 183) and his family had been murdered, allegedly by a rebel movement. He suggested the dead mans fellow students had informed him of the death and that the killers were now pursuing him (P-0316).1105 When questioned on this matter in October 2009 and again in November 2010, P-0316 reiterated this claim. 1106 However, these assertions are false, given the prosecution has asserted

EVD-D01-01004 at DRC-OTP-0230-0460 and 0461. The account P-0316 gave to the prosecution at a later stage differs to the extent that he said his relatives informed him, and his parents had not been killed, EVD-D01-00372, page 0457, line 162 to page 0458, line 242. 1106 EVD-D01-00372, page 0457, line 162 to page 0458, line 242; See also T-332-Red2-ENG, page 12, line 20 to page 17, line 10; T-331-Red2-ENG, page 81, line 24 to page 82, line 10.

1105

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confidently that Individual 183 is alive.1107 370. An investigators note dated 18 June 2010 concerning events that had taken place between 2006 and 2009 in relation to P-0316 indicates that members of the prosecution investigation team had serious doubts about his credibility.1108 An entry for 16 May 2008 relates that a referral for protection for P-0316 was never submitted to the VWU because the threats (SMS messages and visits to houses) claimed by Intermediary 316 could not be proven and he and his family gave different versions of these incidents.1109 371. An entry from 30 May 2008 sets out that P-0316 was told that the OTP had found out about some financial issues which do not correspond to what Intermediary 316 initially said. It was reiterated that Intermediary 316 must be truthful about everything. 1110 The investigators note for 29 September 2008 indicates that OSU field officers reported that [P-0316] continued to play games and provide false information on available houses. [] The field staff reported being suspicious about [the intermediarys] intentions. 1111 On 14 April 2009, having received a set of invoices from P-0316 for medical expenses, OSU field officers considered that the expenses seemed exaggerated and that the receipts should be confirmed with the relevant medical centres and pharmacy.1112

EVD-D01-01004 at DRC-OTP-0230-0461; EVD-D01-01043 (Excerpt from the prosecutions table of contacts indicating that the OTP had been able to reach P-0183 by telephone); the prosecution confirmed in court that P-0183 is still alive: T-332-Red2-ENG, page 5, line 7 to page 6, line 12. 1108 EVD-D01-01004. 1109 EVD-D01-01004 at DRC-OTP-0230-0457. 1110 EVD-D01-01004 at DRC-OTP-0230-0458. 1111 EVD-D01-01004 at DRC-OTP-230-0460. 1112 EVD-D01-01004 at DRC-OTP-230-0464.

1107

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(6) Conclusions as to P-0316 372. During his testimony before the Court between 9 and 12 November 2010, P-0316 repeatedly contradicted the information in the

prosecutions records, the testimony of P-0582 and P-0583 and his own prior statements to the prosecution, most notably as regards his relationship with D-0016, P-0038 and P-0015, his knowledge of a threatening letter allegedly received by D-0016 and his activities on behalf of the investigative division. 373. Bearing in mind especially P-0316s lack of credibility, the Chamber is of the view that there are strong reasons to conclude he persuaded witnesses to lie as to their involvement as child soldiers within the UPC. 374. This conclusion potentially affects the Chambers attitude to the witnesses called by the prosecution at trial with whom P-0316 had contact (P-0015 and P-0038). As set out above, the Chamber has concluded that the evidence of P-0015 cannot be relied on as to the substance of the charges. However, the Chamber has determined that the evidence of P-0038 is not affected in the same way, having scrutinised his evidence (see above). 3. Intermediary P-0321 375. In its Decision on Intermediaries, the Chamber observed that several witnesses had given evidence to the effect that intermediary 321 possibly misused his position and may have persuaded or invited witnesses to give false testimony to the Court. 1113 The Chamber instructed the prosecution to call P-0321 as a witness in order to
1113

ICC-01/04-01/06-2434-Red2, para. 140.

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resolve this criticism, the relevant discrepancies in the evidence and the issue of contact between the intermediaries. 1114 376. The Chamber has considered below the evidence relating to the role and credibility of this intermediary, as well as the evidence of the other witnesses whose credibility may be affected. a) Background

377. P-0321 carried out various tasks for the prosecution, which began when a representative of the Office of the Prosecutor contacted P-0321 in January 2007 and asked him to re-establish contact with P-01571115 and to set up a meeting with the investigators. 1116 P-0321 received direct telephone instructions from the OTP for this initial mission.1117 378. Thereafter, P-0031 contacted P-0321, and he was asked to organise a meeting between several children and the OTP representative P-0581 in Bunia. 1118 P-0321 was initially contacted by telephone, 1119 and subsequently P-05811120 gave him instructions in person.1121 379. The OTP then asked P-0321 to organise further meetings with various children in another town.1122 P-0321 said that the investigators contacted him after each interview.1123 380. P-0321 was asked to give the children money once the interviews

ICC-01/04-01/06-2434-Red2, para. 141. T-308-CONF-ENG, page 47, lines 10 12 (P-0321); EVD-D01-01039, at DRC-D01-0003-5879; EVD-D01-01041, No 1. 1116 T-308-CONF-ENG, page 46, line 1 to page 47, line 12 (P-0321). 1117 T-308-Red2-ENG, page 46, line 11 to page 47, line 12 (P-321). 1118 T-308-CONF-ENG, page 62, lines 9 25 (P-0321). 1119 T-300-Red2-ENG, page 25, lines 6-16 (P-581). 1120 T-308-CONF-ENG, page 52, line 23 page 53 page 12. 1121 T-300-Red2-ENG, page 25, lines 6 22 (P-0581). 1122 T-309-CONF-ENG, page 2, lines 20 to page 3, line 6 (P-0321). 1123 T-309-Red2-ENG, page 21, lines 14 -20.
1115

1114

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were finished to enable them to return home. 1124 Following the interviews, the investigators instructed P-0321 to distribute mobile telephones to various witnesses.1125 381. In December 2007, at the request of the OTP, P-0321 talked to P0297 about the arrangements for the latters accommodation.1126 Soon after, again on the instructions of the investigators, P-0321 accompanied P-0297 and another individual to an airport. 1127 In January 2008, the investigators contacted P-0321 about P-0213, 1128 whose position is considered in detail below.1129 382. Thereafter, P-0321 remained in touch with one of the OTP investigators.1130 This continued once P-0321 was relocated in January 2008. P-0581 was in contact with P-0321 on at least two occasions in 2008 1131 and at least once in 2009. 1132 P-0581 gave evidence on how intermediaries working for the OTP were usually paid (but he could not recall if the relevant records were completed for P-0321). 1133 383. On this basis, it is suggested by the defence that for more than a year, P-0321 acted on the instructions of the OTP and under the latters supervision, as regards a number of potential witnesses in this case, and including trial witnesses P-0157, P-0213 (first contact via P-0321), P-0293 (first contact via P-0321), P-0294 (first contact via P-0321), P-

T-309-Red2-ENG, page 21, lines 22 23. T-309-Red2-ENG, page 2, line 20 to page 3, line 2 and page 21, line 24 to page 22, line 14; T-310Red2-ENG, page 18, lines 14 24 (P-0321). 1126 EVD-D01-01039, No 134. 1127 EVD-D01-01039, No 134 and P-0321: T-310-CONF-ENG, page 35, line 13 to page 36, line 14. 1128 T-322-CONF-ENG, page 23, lines 5-18 (P-0321). 1129 See paras 394-406. 1130 T-320-Red2-ENG, page 42, lines 6 8 (P-0321). 1131 EVD-D01-01039, No 134. T-302-CONF-ENG, page 6, lines 9 - 18. 1132 EVD-D01-01039, No 134. 1133 T-302-Red2-ENG, page 11, line 23 to page 12, line 13 (P-0581).
1125

1124

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0297 (first contact via P-0321) and P-0298 (first contact via P-0321).1134 b) The relevant witnesses 384. The Chamber has initially considered the evidence of the relevant defence witnesses before turning to the account of the prosecution witnesses whose reliability may be affected because they were first contacted by P-0321. (1) D-0003 and D-0004 385. The defence relies on the evidence of two defence witnesses, D-0003 and D-0004, in support of a submission that P-0321 encouraged young boys (including P-0213, P-0294, P-0297 and P-0298) to claim falsely to the OTP that they had been enlisted into the armed wing of the UPC.1135 386. The prosecution suggests that D-0003 and D-0004 succumbed to pressure exerted on them by a person named Cordo, other UPC officials and village chiefs in order to persuade them to testify in favour of the accused.1136 The prosecution submits that the substance of their evidence is flawed.1137 (a) D-0003 387. D-0003 maintained that P-0321 told children that an NGO would assist them to secure schooling and to learn a trade, and they would receive money.1138 According to D-0003, P-0321 told him that in order to be paid, he must lie and say one of the individuals who was later
1134 1135

ICC-01/04-01/06-2657-tENG-Red, paras 75 80. ICC-01/04-01/06-2657-tENG-Red, para. 81. 1136 ICC-01/04-01/06-2748-Red, paras 454, 456, 459 461. 1137 ICC-01/04-01/06-2748-Red, paras 462 469. 1138 T-239-Red2-ENG, page 23, lines 6 13 and page 34, lines 5- 10.

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called by the prosecution as a witness was a former child soldier whose mother had died.1139 As part of this plan, D-0003 accompanied him to a meeting with the prosecution investigators. 1140 D-0003 testified that P-0321 asked him to pretend to be related to the individual just mentioned. 1141 The witness said he signed several documents for the OTP using different names.1142 388. D-0003 admitted lying to the OTP investigators for financial gain. 1143 He also admitted attempting to secure a financial reward in return for giving evidence in favour of Thomas Lubanga (although his evidence was that his offer to assist was turned down by members of the UPC who said they did not want to buy his testimony).1144 It follows that D0003s contact with individuals within the UPC hierarchy1145 prior to testifying raises the risk that his testimony may be unreliable, given his desire to profit from any evidence he provided. Furthermore, the witness had come under pressure, including from his community1146 and members of his own family,1147 before he gave evidence. In the circumstances, the Chamber has focussed carefully on the risk that the evidence he gave may have been the result of his wish for personal financial gain (notwithstanding his account of the reaction of the UPC members) or following pressure or coercion.

1139 1140

T-239-Red2-ENG, page 31, lines 17 20. T-239-Red2-ENG, page 31, line 12 to page 32, line 12. 1141 T-239-CONF-ENG, page 52, line 1 to page 54, line 4. 1142 T-240-Red-ENG, page 4, line 12 to page 5, line 21. 1143 T-240-Red-ENG, page 6, lines 24 25. 1144 T-241-Red2-ENG, page 16, lines 10 15. 1145 T-241-Red2-ENG, page 13, line 9 to page 14, line 6 and page 14, line 23 to page 15, line 4. 1146 T-240-Red-ENG, page 13, line 23 to page 14, line 15. 1147 T-239-Red2-ENG, page 46, lines 14 22.

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(b) D-0004 389. D-0004 testified that P-0321 asked him and a number of others1148 from his neighbourhood to maintain falsely to the OTP that they had been enlisted into the UPCs army,1149 and to lie about issues such as their names,1150 where they lived and their ages.1151 D-0004 described the circumstances in which he suggested he met P-0321 in 2008.1152 The witness claims P-0321 said to him and others that if they wished to earn money and to study, and if they desired a good life, then they should state falsely that they had been child soldiers,1153 having been forcibly enlisted by the accused. 1154 D-0004 also testified that he

travelled using different names, with a false student card provided to him by the OTP that gave incorrect information as to his name, age and village.1155 390. The prosecution highlights another witnesss testimony that, contrary to D-0004s evidence about having made up stories at the instigation of P-0321, he underwent military training in the UPC and thereafter served in its army, at least for several weeks.1156 391. Questions as to the credibility of D-0004 are raised by a number of factors. First, he originally lied about having been a child soldier, given his later account was that he had never served in the military.1157

1148 He stated they were four in total and he provided the names of the other three individuals, T-242CONF-ENG, page 22, lines 6 7. 1149 T-242-Red2-ENG, page 21, line 5 to page 23, line 8; T-245-Red2-ENG, page 11, line 25 to page 12, line 25. D-0004 stated that although P-0321 sent him away at the first meeting when D-0004 told him that he had not been a child soldier, P-0321 came back and told them to lie. 1150 T-243-CONF-ENG, page 14, lines 1 7. 1151 T-243-Red2-ENG, page 17, lines 8 13. 1152 T-242-Red2-ENG, page 5, lines 23 24; T-245-CONF-ENG, page 5, lines 12 17. 1153 T-245-Red2-ENG, page 12, lines 18 20. 1154 T-242-Red2-ENG, page 7, lines 3 11. 1155 T-243-Red2-ENG, page 14, lines 8 16, page 15, line 21 to page 16, line 3 and page 16, line 23 to page 17, line 7 and T-245-Red2-ENG, page 58, line 22 to page 59, line 24. 1156 ICC-01/04-01/06-2678-Red, para. 97. 1157 T-245-Red2-ENG, page 12, line 5; T-242-Red2-ENG, page 21, lines 13 15.

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Second, the witness stated he was put under pressure by his community and individuals affiliated with UPC when they suspected he had given evidence against the accused.
1158

This raises the

possibility that his testimony was the result of coercion. 392. Finally, whilst the witnesss evidence is generally internally consistent, there are particular issues which are relevant to his credibility. D-0004 gave evidence about having been subjected to pressure from particular villagers because it was assumed that he was testifying against Thomas Lubanga for money, which led D-0004 and another individual to make up a story for the prosecution in order to be relocated.1159 At one stage the prosecution asked the witness if he was lying to the Court because of pressure from the villagers and members of the UPC. The witness replied Yes, I accept, although he also challenged the suggestion that he was lying. 1160 He later denied he had been coerced into testifying.1161 393. The Chamber has treated the serious suggested improprieties that this witness has alleged against P-0321 with particular care. (2) P-0213 394. Witness P-0213 is an alleged former child soldier who gave evidence he was born in 19911162 and he provided his place of birth to the Chamber. 1163 He suggested soldiers from the UPC abducted him on three occasions, 1164 although he gave inconsistent testimony on the
T-242-Red2-ENG, page 13, lines 1 21; T-245-Red2-ENG, page 28, lines 11 23, page 32, line 2 to page 36, line 18, page 42, lines 16 21 and page 43, lines 13 17. 1159 T-245-Red2-ENG, page 42, line 22 to page 43, line 2 and page 43, line 20 to page 44, line 4. 1160 T-245-Red2-ENG, page 57, line 21 to page 58, line 8. 1161 T-245-Red2-ENG, page 60, lines 7 10. 1162 T-132-Red2-ENG, page 6, lines 1213. 1163 T-133-CONF-ENG, page 17, lines 1419. 1164 T-132-Red2-ENG, page 9, lines 18-19.
1158

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circumstances surrounding these incidents.1165 Moreover, his interview with prosecution investigators in 2007 is inconsistent with his testimony before the Chamber on this issue.1166 395. He said that after his first abduction he was sent for training in the Lopa 1167 and Bule camps, 1168 and he took part in a battle against Ugandan troops in Bunia.1169 Previously, he had been assigned to the accuseds residence on security duty.
1170

With respect to his

demobilisation, he gave evidence about having gone to different organisations where he received kits (including clothing and shoes), and he spoke of his wish to receive training.1171 However, in an earlier statement to the prosecution the witness had stated he was never demobilised.1172 He explained in Court that he said this because he was frightened,1173 although the reasons for this alleged fear were never satisfactorily explained. 396. The defence suggests the testimony of P-0213 is false for a number of reasons. 1174 First, P-0213 gave his name to the Chamber and he indicated it was his only name and he did not use any other.1175 When the defence suggested another name, he said it was a nickname used by the children when they were playing, but he insisted it was not his

1165 Concerning his first abduction, see: T-132-Red2-ENG, page 9, line 20 to page 11, line 10, but see T-134-Red2-ENG, page 2, line 25 to page 14, line 9. Concerning the second abduction: T-132-Red2ENG, page 15, line 13 to page 16, line 4 and T-133-Red2-ENG, page 73, line 15 to page 76, line 24. Concerning the third abduction: T-134-Red2-ENG, page 43, line 21 to page 45, line 23. 1166 T-134-Red2-ENG, page 3, line 17 to page 10, line 21. 1167 T-132-Red2-ENG, page 11, lines 16 25. 1168 T-132-Red2-ENG, page 24, line 20 to page 25, line 10. 1169 T-132-Red2-ENG, page 47, lines 19 25. 1170 T-132-Red2-ENG, page 45, lines 8 11. 1171 T-133-Red2-ENG, page 30, line 24 to page 36, line 10. 1172 T-133-Red2-ENG, page 30, lines 1218. 1173 T-133-Red2-ENG, page 30, lines 1923. 1174 ICC-01/04-01/06-2773-Red-tENG, paras 226 259. 1175 T-133-CONF-ENG, page 15, line 25 to page 16, line 7.

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name.1176 397. A school register indicates P-0213 was born in 1989 at a different location to the one he gave to the Chamber.1177 However, it has been established by expert evidence that the entry for the year 1989 overwrites a previous entry which is partially visible underneath1178 (the underlying reference cannot be made out). This entry is potentially unreliable in these circumstances, and the Chamber has placed little reliance on it. 398. Second, P-0213 gave evidence that he attended a particular school where he was born, between the first and the fourth year,1179 although his schooling was interrupted at the end of third year when he was enlisted in the army.1180 He also said he attended the same school (save for the interruption just referred to) until the sixime, the end of elementary school.1181 He gave evidence that he began his fifth year at a school in Bunia, but he returned in the middle of the year to where he was born. He completed the fifth and sixth year at his former elementary school.1182 399. As mentioned above, D-0029, who has been a teacher for many years,1183 and now works as a school inspector for the town of Bunia (following his work as a school coordinator in the schools of the Anglican community in the DRC),1184 gave evidence on school records in the DRC. He indicated there was no primary school with the name
T-133-CONF-ENG, page 16, lines 8 15. EVD-D01-00054, page 0140, No 2297. 1178 EVD-OTP-00639, page 0324. 1179 T-133-CONF-ENG, page 25, line 22 to page 26, line 20. 1180 T-133-Red2-ENG, page 62, lines 2 21 and T-132-Red2-ENG, page 6, line 24 to page 7, line 9. 1181 T-132-Red2-ENG, page 6, line 16 page 7, line 9. 1182 T-133-CONF-ENG, page 26, line 21 to page 27, line 16. 1183 T-293-Red-ENG, page 7, line 5 and page 8, lines 19 20. 1184 T-293-Red-ENG, page 7, lines 8 10, page 8, lines 14 15 and lines 23 24 and page 10, lines 1 11.
1177 1176

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referred to by P-0213 (where he claimed he attended during his first few years of schooling).1185 His evidence was that the relevant school is in a different locality to the one referred to by P-0213.1186 400. In addition, D-0003 stated that of the nine children living in his immediate neighbourhood, including P-0297 and P-0213, none were child soldiers.1187 He conceded [i]t is true that we did make up stories for the money, but it is true that no child had been a child soldier.1188 D-0004 testified that P-0213 and P-0297 had agreed to give evidence in the Netherlands to the effect that Thomas Lubanga had enrolled them in the army, although neither of them had been soldiers.1189 Moreover, D-0036 testified he had known P-0213 from at least 1998 onwards,1190 and he never served as a soldier. 1191 Although the Chamber has approached D-0003 and D-0004s testimony with caution, they clearly support the evidence of D-0036 and certain other material that the Chamber has considered. In light of this other evidence, the Chamber has concluded that D-0003s and D-0004s testimony raises serious doubts about the credibility and reliability of P-0213. 401. D-0002
1192

also gave evidence that contradicted P-0213. He

recognised the latter in a photograph1193 and he indicated the name P0213 provided as his nickname was in fact part of his real name,1194 which he used to enrol in school.1195

1185 1186

T-293-Red-ENG, page 21, lines 19 24. T-293-Red-ENG, page 22, lines 2 5. 1187 T-239-Red2, page 48, lines 1 5 and 10 20. 1188 T-239-Red2, page 48, lines 3 5. 1189 T-242-Red2, page 11, lines 19 23 and page 12, lines 7 13. 1190 T-350-Red2, page 41, lines 15 20. 1191 T-350-Red2, page 43, lines 5 11. 1192 T-239-CONF-ENG, page 27, lines 14 19 and page 28, lines 15 23. 1193 T-236-CONF-ENG, page 29, lines 1 12; EVD-D01-00106. 1194 T-236-CONF-ENG, page 28, lines 19 23. 1195 T-236-CONF-ENG, page 34, lines 5 9.

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402. D-0002 gave evidence that P-0213 started primary school 1196 in a different location to the one the latter had indicated.1197 He testified that P-0213 moved town and changed schools, although his education was interrupted because the new school was destroyed in fighting in the spring of 2003. 1198 The witness said that there is documentary evidence,1199 which contradicts the evidence of P-0213, as to the schools he attended, although in the judgment of the Chamber this material has potentially been tampered with, rendering it unreliable.
1200

Otherwise, the Chamber has considered the detail of D-0002s evidence on the issue of P-0213s schooling1201 and whereabouts.1202 403. The prosecution suggests that elements of the evidence from D-0002 were weak and that the witness was evasive and argumentative, and may have been influenced by the kind of pressure that it is alleged has been directed at many of the witnesses.1203 However, the evidence does not support this suggestion, and the Chamber found him to be credible and reliable. No sustainable reason has been advanced as to why he would lie about P-0213. 404. This evidence, considered overall, raises serious questions as to the reliability of P-0213. The documentary and oral evidence strongly indicates he did not tell the truth about his age, his education and his military service. At the close of his evidence, the witness testified that
T-236-CONF-ENG, page 32, line 4. T-236-CONF-ENG, page 30, lines 8 20 (D-0002). 1198 T-236-Red2-ENG, page 32, lines 6 8. 1199 EVD-D01-00054, page 0140, No 2297; T-236-CONF-ENG, page 48, line 25 to page 49, line 2, page 49, line 22 to page 53, line 2 (D-0002). 1200 EVD-OTP-00639, page 0324. 1201 For the detail of this evidence see: T-236-CONF-ENG, page 32, lines 9 13. T-236-CONF-ENG, page 34, lines 5 8. T-236-CONF-ENG, page 34, lines 8 9. T-236-CONF-ENG, page 30, line 18 to page 31, line 18 and page 44, lines 20 22; T-237-CONF-ENG, page 8, line 11 to page 10, line 8. T237-CONF-ENG, page 12, lines 10 16 and page 13, lines 3 4. 1202 T-236-CONF-ENG, page 30, line 18 to page 31, line 18; T-237-CONF-ENG, page 12, lines 9 17. T-236-CONF-ENG, page 35, line 17 to page 36, line 22. 1203 ICC-01/04-01/06-2748-Conf, paras 489 and 490.
1197 1196

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he had not given the real name of his mother.1204 According to the witness:
It's something which we planned. We didn't want to give my identity, my date of birth, the names of my parents, and the place where I studied. These are things which I discussed with with my relatives. So what I said in Beni is the truth. And I told them that if they come here, that they need to know that the name that I gave is not my name. Its not my identity. 1205

405. P-0213 explained that his uncle was a member of the UPC and that his testimony had caused considerable problems within his family.1206 However, the witness also stated that he had given his mothers true name, and he said [i]ts my name, which wasnt given, because she thought that I would be put to harm here, and she was afraid, and so she gave an identity.1207 P-0213 stated he had told the truth during his testimony,1208 although it is unclear whether P-0213 had, in fact, used his true name in evidence. Conclusion as to P-0213 406. The extent of the inconsistencies and the other problems with this witnesss evidence supports the suggestion that he provided an account that was false, at least in part. Moreover, the fact he was introduced to the prosecution investigators by P-0321 raises additional concerns that the latter may have influenced his testimony. In light of all these circumstances, the Chamber concludes that P-0213 is not a witness who can safely be relied upon.

1204 1205

T-134-Red2-ENG, page 76, lines 2 3. T-134-Red2-ENG, page 76, lines 3 8. 1206 T-134-CONF-ENG, page 77, lines 2 15. 1207 T-134-Red2-ENG, page 76, line 15 to page 77, line 1. 1208 T-134-Red2-ENG, page 77, lines 16 18.

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(3) P-0294 407. P-0294 is an alleged former child soldier. He gave evidence as to his place and date of birth (the latter was in 1991).1209 In court he testified his mother told him the location1210 and the year of his birth, and his brother informed him of the precise date.1211 In a written statement, the witness explained that one of his brothers saw his birth certificate in hospital (he gave conflicting accounts as to the brother he was referring to).1212 P-0294 said he joined the APC in late 2000,1213 and in due course he met Commander Pepe, who asked him to go to Uganda,1214 where he was invited to train other recruits (although he said he had not undergone training himself because he had lied to the Commander about having already completed his training).
1215

Thereafter, he went to Mandro,1216 for approximately a month1217 for compulsory training. 1218 P-0294 testified that the group of Hema soldiers there later became known as the UPC. 1219 The witness succeeded in running away,1220 but later he returned to the army of the UPC1221 and became a guard for one of the commanders.1222 This role ended when the commander in question went to Mandro.1223 P-0294 said he took part in battles at Songolo,1224 Bule and Kasenyi,1225 and he

1209 1210

T-150-CONF-ENG, page 44, lines 13 14 and 23 25. T-151-CONF-ENG, page 63, lines 14 17. 1211 T-150-Red2-ENG, page 44, lines 13 19; T-151-Red2-ENG, page 53, line 21 to page 54, line 7. 1212 T-151-CONF-ENG, page 54, line 8 to page 55, line 2. 1213 T-150-Red2, page 46, line 9 to page 47, line 8, page 47, line 25 to page 48, line 8 and page 49, lines 24 25; T-151-Red2, page 88, lines 12 23 and page 92, lines 17 21 and page 93, lines 11 14. 1214 T-150-Red2-ENG, page 61, lines 23 24. 1215 T-150-Red2-ENG, page 63, lines 21 23 and page 66, lines 16 22. 1216 T-150-Red2-ENG, page 70, lines 5 24. 1217 T-152-Red2ENG, page 4, lines 12 18. 1218 T-150-Red2ENG, page 71, lines 7 17 and page 74, line 14 to page 75, line 19. 1219 T-150-Red2-ENG, page 71, lines 7 18. 1220 T-150-Red2-ENG, page 81, lines 2 8; T-152-Red2-ENG, page 4, lines 19 22. 1221 T-150-Red2-ENG, page 82, lines 4 6, page 83, lines 2 6 and lines 17 19; page 84, lines 3 10. 1222 T-150-CONF-ENG, page 84, line 22 to page 85, line 22. 1223 T-151-Red2-ENG, page 27, lines 11 9. 1224 T-151-Red2-ENG, page 21, line 20 to page 22, line 2; T-152-Red2-ENG, page 14, lines 4 13.

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served as one of the security guards at the residence of Thomas Lubanga.1226 At the time of the battle of Bunia (2003)1227 the witness suggested he was serving with a unit of the UPC.1228 After the battle, he ran away,1229 and joined PUSIC.1230 He stayed with PUSIC for about a month and a half,1231 and after having apparently rejoined the UPC for a short period (his testimony is unclear on this), 1232 he was demobilised.1233 408. There are significant grounds for suggesting that P-0294 provided an account that, in important respects, was untruthful. For instance, with respect to his age, the voter registration card bearing P-0294s name and photograph, along with the extract of the register of the independent electoral commission, give his date of birth as mid 1987. 1234 The certificate of family reunification indicates that in July 2004 P-0294 was 16 years old (meaning he was born in 1988).1235 When asked about the age on the certificate, P-0294 said he had not given his correct age and he did not really know how old he is. 1236 He maintained he made an agreement with the child he was then with to change his own age so as to pass himself off as the other boys little brother.1237 P-0294 then insisted he was born in 1991 and knew this because his mother had shown him the relevant document, 1238 although earlier he had testified that he had never seen any
1225 1226

T-151-Red2-ENG, page 26, lines 13 16. T-151-Red2-ENG, page 33, lines 8 24; T-152-Red2-ENG, page 18, lines 19 25. 1227 T-152-Red2-ENG, page 21, line 14. 1228 T-152-Red2-ENG, page 21, lines 15 17. 1229 T-151-Red2-ENG, page 38, lines 9 13; T-152-Red2-ENG, page 24, lines 6 9. 1230 T-151-Red2-ENG, page 38, line 21 to page 39, line 12. 1231 T-152-Red2-ENG, page 24, line 22 to page 25, line 3. 1232 T-151-Red2-ENG, page 41, line 13 to page 42, line 9. 1233 T-151-Red2-ENG, page 42, lines 10 13. 1234 EVD-D01-00764 and EVD-D01-01006. 1235 EVD-D01-00069 at page DRC-OTP-0160-0188. 1236 T-151-Red2-ENG, page 62, lines 6 8. 1237 T-151-Red2-ENG, page 62, lines 9 17. 1238 T-151-Red2-ENG, page 62, line 22 to page 63, line 2.

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documentation relating to his date of birth.1239 409. Another document shown to the witness (viz. the attestation in lieu of a primary school leaving certificate)1240 indicates he was born in the place he claimed in mid 1988.1241 The witness said he recognised the certificate and although some details were correct, the year of his birth (1988) was incorrect. This was because the individual who had registered him at school had entered an incorrect date, which was thereafter used on all of his school records.1242 D-0029, a teacher who is currently a school inspector, 1243 suggested in his testimony that the individual with responsibility for issuing this certificate would have referred to a register when filling in the necessary information.1244 As discussed above, D-0029 also indicated the school records were not always accurate.1245 The register of a particular school for the year 2000 provides details of an individual with the same name and place of birth as indicated by P-0294, with a date of birth in early 1988.1246 P0294 said he was unaware of this document and he insisted he had completed the 6th year of primary school in a different institution, located in another town.1247 410. P-0293, who is P-0294s mother,1248 gave evidence that P-0294 was born in 1991.1249 She testified he began primary school in the town of his birth, although he moved to the home of another of his fathers

T-150-Red2-ENG, page 44, lines 20 22. Attestation Tenant Lieu Du Certificat De Fin DEtudes Primaires. 1241 EVD-D01-00071. 1242 T-151-Red2-ENG, page 85, lines 20 25 and page 86, lines 2 12. 1243 T-293-Red-ENG, page 8, line 8 to page 10, line 11. 1244 T-296-Red-ENG, page 44, line 10 to page 45, line 1 and page 46, lines 1 6. 1245 T-296-Red-ENG, page 7, line 25 to page 8, line 20 and page 9, lines 4 17. 1246 EVD-D01-00072, page 2, No. 3. There are two entries with the number 3. P-0294 is listed under the second entry. 1247 T-151-CONF-ENG, page 86, line 19 to page 88, line 7. 1248 T-153-CONF-ENG, page 17, line 24 to page 18, line 3 and page 18, lines 11 14. 1249 T-153-Red2-ENG, page 34, lines 1 8.
1240

1239

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wives. In due course he returned to his home town to continue his studies.1250 She confirmed that he spent his sixth year at the primary school he had indicated.1251 411. The prosecution contends that the (inconsistent) school records and electoral documents are unreliable and that P-0294 and P-0293s evidence should be preferred over these documents.
1252

It is

suggested by the prosecution that this witness gave honest and sincere testimony and his mother (P-0293) and P-0031, along with the demobilisation and reunification certificates, corroborates his

testimony.1253 In all the circumstances, the Chamber has no doubt that the material rehearsed above, viewed cumulatively, casts considerable doubt over the witnesss evidence, particularly as regards his assertion that he was born in 1991. No sufficient explanation has been provided as to why the majority of the documentary records suggest that the year of his birth was 1987 or 1988. 412. It is suggested by the defence that P-0294 used the military career of his brother to invent part or all of his account of his service as a soldier.1254 The defence called a witness to support this contention.1255 The prosecution argues that this evidence is flawed1256 and it observes that the witness conceded at one stage that [] everyone said that he [P-0294] was a soldier. However, I really do not know, however, whether [P-0294] really was a member of any movement at all.1257 The prosecution also relies on the witnesss evidence that in Ituri there

1250 1251

T-153-CONF-ENG, page 35, lines 14 19. T-153-CONF-ENG, page 37, lines 1 11. 1252 ICC-01/04-01/06-2748-Red, paras 366 368. 1253 ICC-01/04-01/06-2748-Red, para. 369; ICC-01/04-01/06-2778-Red, para. 97. 1254 ICC-01/04-01/06-2773-Red-tENG, paras 260-261; ICC-01/04-01/06-2657-tENG-Red, para. 133. 1255 ICC-01/04-01/06-2773-Conf-tENG, para. 261. 1256 ICC-01/04-01/06-2748-Conf, paras 371 and 372. 1257 ICC-01/04-01/06-2748-Conf, paras 371 and 372. T-253-CONF-ENG, page 25, lines 12 15.

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was fighting and everyone said that he was a soldier.1258 The Chamber understands this to mean in Ituri there was fighting and everyone [claimed to be] a soldier, which is consistent with the witnesss account when considered overall. Before he made this statement the witness explicitly indicated P-0294 had not been a soldier, and when questioned on these particular words, the witness stressed the prosecution had not really understood.1259 413. It is striking that much of the information provided by P-0294 on his personal and military activities is identical to that of his brother.1260 At first he denied any knowledge of the armed group his brother belonged to.1261 Later, P-0294 accepted he was aware of some of the details of his brothers military activities but said he had not wanted to talk about him because he was afraid.1262 In all the circumstances, the Chamber is persuaded that P-0294 used his brothers circumstances to contribute to the account he provided the Chamber as to his own activities. 414. In addition, P-0294 accepted that the name he had provided as his mothers name in order to obtain a reunification certificate was not her real name but was instead the mother of a companion. 1263 P-0293 testified that it was the name of a different relative of P-0294.1264 P-0294 also admitted he lied to a centre that was involved with demobilisation, about his relationship to the person who had

ICC-01/04-01/06-2748-Conf, para. 371. See the transcript referenced in ICC-01/04-01/06-2748-Conf, footnotes 1026 and 1027. 1260 See for a description of the relevant circumstances ICC-01/04-01/06-2773-Conf-tENG, paras 260 261 with the corresponding transcript references. 1261 T-151-Red2-ENG, page 72, lines 8 11 and page 73, line19 to page 74, line 6. 1262 T-151-Red2-ENG, page 76, lines 11 19 and page 77, lines 11 23. 1263 T-151-CONF-ENG, page 66, line 20 to page 67, line 10. 1264 T-153-CONF-ENG, page 29, lines 4 13.
1259

1258

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accompanied him1265 and as regards his own age.1266 Conclusion as to P-0294 415. This evidence, considered cumulatively, raises serious questions as to the reliability of P-0294. The documentary and oral evidence establishes he did not tell the truth about his age, and there are real concerns he lied about his military service. Moreover, the fact that P0294 was introduced to prosecution investigators by P-0321 raises additional concerns because of the real possibility that he may have influenced this witnesss testimony. Given P-0294s credibility and the reliability of his evidence are seriously at issue, the Chamber is unable to rely on his account. (4) P-0297 416. Witness P-0297 is an alleged former child soldier. He gave evidence he was 20 years old in May 2010,1267 and he provided details of where he was born and lived, and the neighbourhood where his parents now reside in Bunia.1268 He suggested that UPC soldiers enlisted him on two occasions.1269 417. The defence submits that the evidence provided by two witnesses, as well as certain documentary evidence demonstrates he lived in a particular neighbourhood of Bunia from birth1270 and he had not been a
T-151-Red2-ENG, page 43, lines 2 12. T-151-Red2-ENG, page 62, lines 6 17. 1267 T-285-Red2-ENG, page 7, lines 8 9. 1268 T-285-CONF-ENG, page 7, line 18 to page 8, line 5. 1269 T-285-Red2-ENG, page 44, lines 5 6 and page 44, line 18 to page 45, line 18 (first time); T-286Red2-ENG, page 6, line 15 page 7 line 14, page 8, line 16 to page 13, line 15 (second time). 1270 T-242-Red3-ENG, page 6, lines 20 22 (D-0004 stated that P-0316 instructed them not to reveal that they lived in that particular neighbourhood); T-245-CONF-ENG, page 11, line 25 to page 12, line 1 (D-0004 stated that P-0297 was with him in Bunia when they met P-0321 for the first time). The defence suggests that the matriculation records of a primary school tend to indicate that in 1997 P-0297 was living in a particular neighbourhood of Bunia: EVD-D01-00145, page 3396, No 443/97.
1266 1265

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soldier in the armed wing of the UPC.1271 418. The head of an avenue in the Simbiliabo district,1272 D-0036, testified he had known P-0297 since about 1996,1273 and that P-0297 lived in the neighbourhood in 2002/2003 and did not leave until 2007 when a young man came and misled a certain number of young persons.1274 D-0036 testified that P-0297 was never a soldier.1275 D-0036 also gave evidence about a telephone conversation he had with P-0297 at the end of December 2010, during which the latter apparently asked him to refrain from saying that he had not been a soldier if he went to the Netherlands. 1276 D-0036 stated it was P-0321 who had taken these children, and its because of him that they went and narrated all of what they said. 1277 The prosecution suggests that D-0036s lack of detailed knowledge of the family circumstances of some of the witnesses, and his evidence that he had not prepared a list of the other children in P-0297s family because he had not realised that such a question would be asked, demonstrates he came prepared to address certain issues but could not answer questions when taken outside his script.1278 The Chamber rejects this assessment. The Chamber found D-0036s evidence to be detailed, generally consistent and persuasive. Given D-0036 admitted there were some errors as regards the notebook he introduced, it has disregarded this item,1279 but otherwise, the Chamber has relied on his testimony.

ICC-01/04-01/06-2773-Red-tENG, paras 301 306. T-350-Red2-ENG, page 39, lines 5 9. 1273 T-350-Red2-ENG, page 46, lines 2 11. 1274 T-350-Red2-ENG, page 46, line 12 to page 47, line 4. 1275 T-350-Red2-ENG, page 47, lines 10 16. 1276 T-350-Red2-ENG, page 47, line 25 to page 48, line 9. 1277 T-350-Red2-ENG, page 49, lines 4 6. 1278 ICC-01/04-01/06-2748-Red, paras 474 - 475. 1279 EVD-D01-01099 (notebook); T-351-CONF-ENG, page 35, lines 18 21 and page 37, line 9 page 39, line 3.
1272

1271

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419. P-0297 gave evidence on the schools he attended between 2004 and 2006, following his studies and his recruitment as a soldier. 1280 However, the documentary evidence tends to indicate that someone with his identity attended one of those schools in October or November 1997 1281 (when he was allegedly living elsewhere). The

prosecution argues document EVD-D01-00144 proves nothing because it is nothing more than several pages stapled together and because, in contrast to other pages, the school year is missing from the top of the page the defence contends is relevant for P-0297.1282 The Chamber does not accept these submissions. The relevant document contains the schools official stamp on each page and, although the school year does not appear on the material page, there is no credible evidence to support the contention that it is a forgery, and particularly that the relevant page (3315) was improperly inserted or that the relevant entry (number 24 on the list) is false. P-0297s name appears on the school list of prize-winners in 1999-2000,1283 and for the year 2000-2001 his name is entered under the heading unclassified on the same list.1284 Furthermore, as observed by the defence,1285 there was a possible contradiction between P-0297s testimony that his last service in the military was for about three months under Mathieu Ngudjolo in 2004/20051286 and his suggestion he resumed his schooling in 2004,1287

T-289-CONF-ENG, page 8, line 19 21, page 9, lines 1 9, page 18, lines 1 3 and 24, line 20 to page 25, line 24 and page 26, lines 13 18. 1281 EVD-D01-00144, page 3315, No 24 and EVD-D01-00145, page 3935 and 3936, No 443/97. The documents contain the witnesss name as well as his fathers name, T-285-CONF-ENG, page 7, line 23. 1282 ICC-01/04-01/06-2748-Red, para. 471. 1283 EVD-D01-00146, No 28. 1284 EVD-D01-00147, page 3255, No 20. 1285 ICC-01/04-01/06-2773-Red-tENG, para. 305. 1286 T-291-Red2-ENG, page 8, line 25 to page 9, line 8. 1287 T-289-Red2-ENG, page 18, lines 1 3 and page 25, lines 6 7.

1280

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continuing until 2006.1288 420. Another witness gave evidence that undermined P-0297s account. He stated that P-0297 was born in Bunia and had always lived in the Simbiliabo neighbourhood, which contradicted P-0297s evidence as to the various places he had lived. This witness gave evidence that P-0297 attended three particular primary schools, whilst P-0297 testified he commenced his primary education at an institution not referred to by the witness. He also gave detailed evidence about the members of P0297s family. He indicated P-0297 had not been a child soldier in the UPC.1289 421. It is of note that P-0297 suggested that two defence witnesses were sent to the Court by Cordo in order to state falsely that one of them and P-0297 had not served as child soldiers in the UPC.1290 422. Although the Chamber has approached the evidence on this issue with care, the school records, prima facie, tend to indicate that, contrary to P-0297s account, he was a student at a particular school between 1997 and 2001. 1291 P-0297 suggested the school records had been falsified at the behest of someone linked to the accused. 1292 D-0029 testified that during the war (as well as in other circumstances) school records were not always accurate. 1293 When shown document EVDD01-00145, D-0029 agreed it contained mistakes (two students had

T-289-Red2-ENG, page 25, lines 6 24. This witness is identified in ICC-01/04-01/06-2773-Conf-tENG, paras 294, 295, 298 and 301. The Chamber has considered the entirety of the witnesss testimony. 1290 T-285-CONF-ENG, page 15, line 16 to page 17, line 19. 1291 EVD-D01-00144, EVD-D01-00145, pages 3935 3936, No. 443/97, EVD-D01-00146 and EVDD01-00147, page 3255, No 20. 1292 T-289-CONF-ENG, page 16, line 22 to page 17, line 21, page 24, line 2 to page 25, line 7, and page 27, line 17 to page 30, line 7. P-0297 also challenged the birth date included in these documents, which indicate that he would have been over 15 years of age in 2002. 1293 T-296-Red-ENG, page 9, lines 4 17. The witnesss evidence contained in this transcript demonstrates that many school records contained discrepancies and irregularities.
1289

1288

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been assigned multiple registration numbers and there were discrepancies as regards dates of birth).1294 The Chamber accepts this document should be treated with caution, but given the other relevant documents equally raise questions about P-0297s testimony, and bearing in mind the two witnesses (D-0036 and the other individual referred to above) whose testimony tends to undermine P-0297s truthfulness and accuracy, the Chamber is satisfied there are serious doubts about P-0297s account as to where he lived and his schooling. 423. Focussing particularly on his age, although the school documents suggest that P-0297 was significantly over 15 years of age in 2002,1295 the prosecution strongly relies on the experts examination of P-0297s hand and wrist bones along with the dental records in support of the contention that he was under the age of 15 within the timeframe of the charges1296 (the experts concluded that P-0297 was between 16 and 17 years old in January 2008). 1297 However, as discussed above, these forensic assessments of age lack precision, and they provide an inadequate basis, taken alone, for determining an individuals age. 424. The account of P-0297 is also materially undermined by the contradictory statements he made concerning the death of his (biological) mother. He testified that she had been killed during the war in 2002 while fleeing a Lendu attack,1298 and he gave her name to the Court. 1299 However, in his interview in December 2009 with members of the defence team he said that although she had been

1294 1295

T-296-CONF-ENG, page 22, line 1 to page 24, line 25. EVD-D01-00145, pages 3935 3936, No. 443/97. 1296 ICC-01/04-01/06-2748-Red, paras 442 and 444. 1297 EVD-OTP-00618, page 0435. 1298 T-290-Red2-ENG, page 14, line 22 to page 15, line 3 and page 23, lines 13 19. 1299 T-290-CONF-ENG, page 18, lines 21 24.

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unwell, she recovered and returned home.1300 His explanation in court for this contradiction was that he was afraid of the investigators. 1301 425. In interview he further suggested he did not know anyone with the name of his stepmother,1302 yet in court a prior statement was read to him in which he had referred to this person as someone he also calls his mother. 1303 The Chamber is unpersuaded by the prosecutions suggestion1304 that these contradictions are satisfactorily explained by the fact that in the latter statement P-0297 may have been referring to his stepmother instead of his biological mother (his father married sisters and he referred to both of them as mother).1305 426. This witness was introduced to the OTP by P-03211306 and he denied the latter had encouraged him to lie.1307 However, in statements taken by the defence, he indicated: [P-0321] told me that if I go before the judges where Papa Thomas is in detention, I should say that I was forcibly recruited.1308 When this statement was read out to P-0297 in court he said he had been afraid and denied that P-0321 told him what to say. 1309 He also told the defence team that P-0321 said that were we to testify against Thomas and were he to be convicted, we would receive money.1310 P-0297 suggested the investigators told him that if he was willing to testify before the Court, the judges would be able to
T-290-Red2-ENG, page 19, line 23 to page 20, line 21. T-290-Red2-ENG, page 20, lines 20 24. 1302 EVD-D01-00150, pages 0064, lines 412 417; T-290-CONF-ENG, page 19, lines 12 13. 1303 T-290-CONF-ENG, page 16, line 13 to page 17, line 11. There is also a screening note which indicates that he gave the name of his stepmother and said she had been killed during the war, EVDD01-00296 at DRC-OTP-0190-0096. 1304 ICC-01/04-01/06-2748-Red, para. 472. 1305 T-290-Red2-ENG, page 17, line 12 to page 18, line 3 (P-0297). 1306 T-287-CONF-ENG, page 35, lines 7 9 (P-0297). 1307 T-288-Red2-ENG, page 21, lines 9 20. 1308 EVD-D01-00190, page 0117, line 661 to page 0118, line 696. 1309 T-288-Red2-ENG, page 23, line 10 page 25, line 5; See also T-288-Red2-ENG, page 18 to page 27, line 4. 1310 T-289-Red2-ENG, page 4, lines 14 21 (EVD-D01-00191, page 0126, line 133 to page 0127, line 152).
1301 1300

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help him.1311 427. P-0297 alleged that various individuals associated with the UPC and the accused were asking why he was testifying against Thomas Lubanga, and they were exerting pressure.1312 He said that someone affiliated to the accused told him and others to give evidence that they had not been child soldiers in the UPC and in that way Mr. Thomas Lubanga would be freed.1313 P-0297 indicated that some witnesses had come to the Court to deny they had been child soldiers.1314 This was a clear acknowledgment by the witness that, to a great extent, external factors had influenced his testimony. 428. The witness suggested he met P-0321 in 2002 whilst he was still in the UPC, although P-0321s evidence was that he met P-0297 for the first time at the Transit and Orientation Centre (CTO).1315 Conclusion as to P-0297 429. The Chamber recognises that this witness may have been confronted with difficult circumstances, but in light of the matters set out above, his account, overall, is unreliable. Notwithstanding the allegation made by P-0297 against some of the other witnesses in the case, it is likely that P-0321 persuaded or encouraged him to give false evidence. The Chamber is unable to rely on his account. (5) P-0298 430. P-0298 is an alleged former child soldier who was authorised to
1311 1312

T-289-Red2-ENG, page 4, line 24 to page 6, line 14. T-285-Red2-ENG, page 9, lines 21 25; T-288-Red2-ENG, page 27, lines 5 25. 1313 T-285-Red2-ENG, page 11, lines 2 14, page 12, lines 12 25 and page 15, lines 12 15. 1314 T-285-CONF-ENG, page 15, line 16 to page 16, line 11. 1315 T-322-CONF-ENG, page 26, lines 4 7; T-309-CONF-ENG, page 23, lines 21 23; T-308CONF-ENG, page 9, lines 11 17.

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participate in the proceedings (a/0002/06). He was the first witness called to give evidence on 28 January 2009, and when he reached the stage of describing his encounter with soldiers from the UPC, he said [n]ow, as I swore before God that I would tell the truth, the whole truth, your question puts me in a difficult position with regards to my truth, because I said that I must tell the truth.1316 After a break, the witness was reminded he had given evidence about UPC soldiers taking his friends when he was with them en route home from school, to which the witness replied [n]o, thats not the case1317 and [w]hat I said previously did not come from me. It came from someone else. They taught me that over three and a half years. I dont like it. I would like to speak my mind as I swore before God and before everyone.1318 He said that together with his friends he had been promised clothes and many other things; he had never been to a training camp; he had been taught the details of his account; and although he had told himself that he would do what they had asked, when he came to court he decided to speak the truth.1319 The judges then asked the witness the following question [t]his morning you told the Court about a time when you were going home from school when some soldiers from the UPC came and took you and your friends away. Was that story from you true or false? The witness replied Thats not true.1320 431. The legal representatives who represent the witness not only submit he is young, but it is also argued he was deeply perturbed when he testified during the first day of the trial, and his account was

1316 1317

T-110-Red2-ENG, page 35, lines 21 23. T-110-Red2-ENG, page 40, line 2. 1318 T-110-Red2-ENG, page 40, lines 10 12. 1319 T-110-Red2-ENG, page 40, lines 15 to 24. 1320 T-110-Red2-ENG, page 41, lines 19 22.

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influenced by the presence of the accused in the courtroom.1321 432. When the witness returned to give evidence two weeks later, his account was that he was enlisted by UPC soldiers as he was on his way home from school;1322 he was taken first to Bule camp where he was trained,1323 and then to Largu camp;1324 he took part in fighting in Bule and Fataki;1325 and he left the army in Largu with the help of his father, and thereafter he resumed his schooling in Bunia.1326 Later, he was stopped by the UPC and taken to the camp at Centrale (where he was beaten and imprisoned in a hole for two days), and from there he was transferred to the camp at Mabanga,1327 where his father found him (he arranged for his son to be collected and taken to Nizi). Finally, he returned to Bunia.1328 433. The legal representatives submit that on this second occasion, the witness testified without duress and he was able to give his account in considerable detail for an hour without any questions being put to him. It is argued that his testimony (as given at this stage) is credible and it is suggested it supplemented his previous statements (bearing in mind he was 11 at the time of the events and 18 at the time of his court appearance).1329 It is contended that the core of his testimony was confirmed by his father (P-0299), and other witnesses.1330 434. The evidence on P-0298s enlistment raises various difficult

1321 1322

ICC-01/04-01/06-2746-Red-tENG, para. 53. T-123-Red2-ENG, page 4, lines 15 25. 1323 T-123-Red2-ENG, page 5, lines 1 6. 1324 T-123-Red2-ENG, page 12, lines 17 22. 1325 T-123-Red2-ENG, page 15, line 6 to page 16, line 10 and page 16, line 22 to page 17, line 5. 1326 T-123-Red2-ENG, page 18, lines 6 22. 1327 T-123-Red2-ENG, page 19, line 5 to page 20 line 17. 1328 T-123-Red2-ENG, page 20, line 18 to page 21, line 9. 1329 ICC-01/04-01/06-2746-Red-tENG, para. 53. 1330 ICC-01/04-01/06-2746-Conf-tENG, para. 54.

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questions. P-0298 said he spent about four months at the camp 1331 while P-0299, his father, gave evidence that he left school and went to a training camp for two months.1332 Although this is only a two-month discrepancy, the evidence of D-0015 significantly contradicts the account of P-0298 on this issue. She said P-0298 fled from his school with other children,1333 and returned about a week later, carrying a weapon.1334 As opposed to suggesting that P-0298 obtained the weapon at a training camp, D-0015 gave evidence that P-0298 had stolen the weapon from a soldier1335 and she had heard that he had been working in the market.1336 She acknowledged that he had wanted to join the military and she accepted he may have spent a night at a camp, but she emphasised that he had not become a soldier. 1337 D-0015 gave evidence that P-0298 ran away once more, having spent two weeks at school,1338 and she discovered he went to see members of his family.1339 The prosecution has not advanced any submissions as to the credibility of witness D-0015. 435. The Chamber has considered the circumstances in which she was in a position to give evidence about P-0298, 1340 and it has reviewed a particular reason that arose during the evidence which may have led

T-124-Red2-ENG, page 25, lines 8 21. EVD-D01-00769, page 0295, line 270 to page 0296, line 285. 1333 T-279-Red2-ENG, page 7, lines 19 23 (D-0015). 1334 T-279-Red2-ENG, page 7, lines 6 11 (D-0015). 1335 T-279-Red2-ENG, page 8, lines 3 10. 1336 T-279-Red2-ENG, page 7, line 4. 1337 T-278-Red2-ENG, page 20, lines 2 6; T-279-Red2-ENG, page 19, line 8 to page 20, line 20. 1338 T-279-Red2-ENG, page 8, lines 19 22. 1339 T-279-Red2-ENG, page 8, line 22 to page 9, line 2. 1340 T-278-CONF-ENG, page 12, lines 11 12, page 13, lines 11 15 and page 14, line 14 to page 15, line 24; T-124-CONF-ENG, page 21, lines 15 21 and page 22, lines 10 11; T-119-CONF-ENG, page 39, lines 1 11; EVD-D01-00768, page 0272, line 909 to page 0274, line 992; EVD-D01-00771, page 0337, lines 88-94; T-278-CONF-ENG, page19, lines 14 15 and T-279-CONF-ENG, page 19, lines 10 15; EVD-D01-00769, page 0294, lines 222 233.
1332

1331

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D-0015 to lie about P-0298.1341 However, in all the circumstances, the Chamber found her evidence to be credible and reliable, and it casts significant doubt over the accuracy and reliability of the account of P0298. 436. Nonetheless, there were other concerns as to the accuracy and reliability of P-0298, including the contradictions and inconsistencies between P-0298 and his father, P-0299, over the death of P-0298s mother. P-0298 testified that his mother was dead,1342 but the Chamber heard evidence, which it accepted, that she is still alive and that P-0298 saw her after the war. P-0299 confirmed that P-0298s mother is alive although he said he had not told his son that this was the case.1343 437. Furthermore, D-0014 gave evidence which contradicts part of P0299s testimony.1344 438. There is a difficulty over the age of P-0298. P-0299, his father, said in evidence that P-0298 was born in 1991 and he was in possession of his birth certificate.1345 While P-0298 initially stated he could not remember his date of birth,1346 he later indicated he was born in 1989.1347 P-0299 confirmed this year (1989) in a re-interview 1348 and this is also corroborated by various school documents (allowing for a 2 day

EVD-D01-00768, page 0275, line 1038 to page 0276, line 1068; EVD-D01-00768, page 0277, lines 1090 to 1105; EVD-D01-00768, page 0275, lines 1055 1077; EVD-D01-00771, page 0337, lines 104 106. 1342 T-124-Red2-ENG, page 43, lines 17 21. 1343 T-119-CONF-ENG, page 25, 16 to page 26, line 9 and T-119-Red2-ENG, page 30, lines 3 4; T122-Red2-ENG, page 17, lines 3 24. 1344 See, e.g. references as identified in ICC-01/04-01/06-2773-Conf-tENG, para. 343. 1345 T-117-CONF-ENG, page 6, lines 4 8. The defence has not seen the birth certificate mentioned by the father, ICC-01/04-01/06-2657-tENG-Red, footnote 233. 1346 T-110-Red2-ENG, page 32, lines 3 6. 1347 T-123-Red2-ENG, page 53, lines 5 9. 1348 EVD-D01-00768, page 0270, lines 847 and 849; in a handwritten statement relating to victim participation, P-0298 indicated that he was born in 1989, EVD-D01-00340. P-0321 gave evidence to the effect that P-0298 had given this date of birth, and that he had not personally checked its veracity, T-320-CONF-ENG, page 39, line 18 to page 40, line 1.

1341

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variation).1349 439. The defence submits certain documents contradict the information provided by P-0298.1350 The school records indicate he completed his 5th year in primary school in the school year 2001/2002.1351 Initially, P0298 testified that he had finished the fifth year and had joined the sixth grade 1352 but later in evidence he suggested his schooling was interrupted while he was in the fifth rather than the sixth grade1353 (he said that he was abducted in 2002 just before Christmas, during the 5th year).1354 P-0298 said he meant that this occurred at the turn of the year (2002/2003).1355 P-0299 gave evidence that P-0298 went to school until the 5th grade but could not complete his schooling because he was abducted before Christmas 2002. 1356 He also testified that P-0298 resumed his studies, starting and completing his sixth year at primary school. 1357 Overall, the oral evidence accords with the available documentation save for the issue (just set out) that P-0298 was contradictory as to whether his schooling was interrupted in the fifth or sixth form. The school documents additionally indicate that P-0298 received a certificate of primary education in 2004 from a particular school.1358 Although P-0298 denied the certificate that was produced during his evidence related to him or that he had received it, he accepted he had studied at that school.1359 P-0299 confirmed he had

EVD-D01-00155, page 3185, No 8; EVD-D01-00043, No. 0788; EVD-D01-00156, page 3806, line 6368 and EVD-D01-00042. 1350 ICC-01/04-01/06-2773-Red-tENG, paras 346 and 347. 1351 EVD-D01-00049, No. 15; EVD-D01-00162, page 4325, line 15. 1352 T-123-Red2-ENG, page 46, lines 14 18. 1353 T-123-Red2-ENG, page 48, lines 19 21. 1354 T-123-Red2-ENG, page 4, lines 2 25 and page 48, lines 14 25. 1355 T-123-Red2-ENG, page 49, lines 1 4. 1356 T-117-Red2-ENG, page 6, lines 18 19 and page 9, line 20 to page 10, line 10. 1357 T-117-Red2-ENG, page 35, lines 4 7. 1358 Register of certificates of the school: EVD-D01-00155, page 3185, No 8; Results for the year 2004: EVD-D01-00043; certificate with the school stamp: EVD-D01-00042. 1359 T-124-CONF-ENG, page 11, lines 9 14 and lines 18 25.

1349

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enrolled his son at the school in question for his sixth year of primary school, although he also noted he had given up his studies because he didnt do well (rather than because he was abducted).1360 In all the circumstances, the Chamber concludes that although there were some contradictions in the evidence concerning P-0298s schooling, none were of real significance. 440. However, when P-0298s lies as regards his recruitment by the UPC are added to the evidence of D-0015 that he did not serve in the military or spend time at the training camps during the relevant period the uncertainty as to the reliability of this witness becomes clear. Although there may have been a reason for D-0015 to lie, P-0298 never explained why he said on oath that he had received material rewards and had been instructed as to the evidence he was to give. Although the Chamber accepts P-0298 may have been a soldier, there is a real possibility he was encouraged and assisted to give false testimony, and P-0321 alone has been identified as the person who was likely to have acted in this way (not least, he introduced P-0298 to the investigators). It is to be noted that P-0321s account of P-0298s demobilisation is irreconcilable with the accounts of P-0298 and P0299. P-0321 suggested P-0298 realised that he could not get anything further out of military service and in those circumstances he deserted and went to an organisation which delivered him to P-0321, who in turn persuaded P-0298s family to take him back.1361 However, P-0299 testified that P-0298 did not take the initiative and instead he was picked up in the street by members of an NGO.1362 P-0298 suggested he heard an NGO was looking for child soldiers to demobilise, and he
1360 1361

T-120-CONF-ENG, page 24, lines 7 12. T-310-Red2-ENG, page 45, line 14 page 46, line 20. 1362 T-122-Red2-ENG, page 19, line 23 to page 20, line 3.

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found a weapon to hand over before the NGO took charge of me and of many other children.1363 Conclusion as to P-0298 441. Notwithstanding the prosecutions suggestion that P-0298s initial testimony was merely the result of his anger,1364 the evidence overall before the Chamber creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence. P-0298 is not a witness on whom the Chamber is able to rely. c) The lists of children 442. A significant issue as regards this area of the case is how the various alleged former child soldiers were selected. P-0321 maintained he introduced P-0581 to all the children from a list provided to him by P0031 over the telephone,1365 and to those children alone. He testified that he did not have any difficulty in finding the children on P-0031s list and he brought them all to Bunia.1366 The only additions to the list were said to have been P-0157 and P-0298, who had previously been in contact with the ICC, 1367 but who (on his account) P-0581 did not meet.
1368

In due course, P-0321 changed his evidence, having

considered a table comparing the list given to P-0581 by an investigator, the list provided to P-0581 by P-0321 and the list of the

P-0299 confirmed that P-0298 was provided with instruction at the NGO, T-122-Red2-ENG, page 19, lines 16 21. 1364 ICC-01/04-01/06-2678-Red, para. 91 citing T-123-Red2-ENG, page 30, lines 24 25. 1365 T-308-CONF-ENG, page 53, lines 8 21 and T-308-Red2-ENG, page 61, lines 9 25 and page 63, lines 9 25; T-321-Red2-ENG, page 20, lines 1 23. 1366 T-308-Red2-ENG, page 63, line 23 to page 64, line 7; T-320-Red2-ENG, page 55, lines 6 10. 1367 T-308-CONF-ENG, page 64, lines 8 17; T-320-CONF-ENG, page 55, lines 11 18. 1368 T-308-Red2-ENG, page 64, lines 12 17.

1363

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children ultimately introduced to P-0581 by P-0321. 1369 Confronted with this evidence, P-0321 said P-0581 did not meet five children from the initial list because they were working and did not want to meet with the OTP.1370 443. P-0581 gave evidence that he noticed discrepancies between the list given to him by P-0321 and the list provided by the investigators. He sent P-0321s list to his superiors and thereafter he was provided with a final list of names by the OTP via email. The screening was conducted on the basis of this final list. 1371 P-0581 had received instructions to contact P-0321 who was to send the children to him for screening (P-0321 was to contact those who were on the list).1372 444. Focussing on the discrepancies between the list sent to P-0581, the list given to P-0581 by P-0321 and the children introduced for screening by P-0321,1373 eight of the eleven children who P-0581 met in November 2007 were not on the list he was sent by the OTP,1374 and the answers given by P-0321 on this issue were markedly unclear and confused.1375 He failed adequately to explain this anomalous evidence. The Chamber found P-0581 to be a generally reliable witness, and it is likely that P-0321 did not tell the truth when he said he simply introduced P-0581 to children from a list provided to him by P-0031.1376

EVD-D01-00328. T-321-CONF-ENG, page 25, lines 11 21 and page 26, lines 19 21. 1371 EVD-D01-00314 and EVD-D01-00315 (email with a list of names sent to P-0581 by an OTP investigator); EVD-D01-00316 (list of names provided to P-0581 by P-0321); T-317-Red2-ENG, page 11, line 4 to page 12, line 7 (P-0581). 1372 T-300-Red2-ENG, page 27, lines 4 - 11. 1373 There are no overlaps on lists EVD-D01-00315 and EVD-D01-00316; T-317-Red2-ENG, page 12, lines 11 14. 1374 EVD-D01-00328, comparative table based on EVD-D01-00315 and EVD-D01-00316. 1375 T-321-Red2-ENG, page 25 line 11 to page 28, line 6 and T-323-CONF-ENG, page 4, line 6 to page 18, line 23 (P-0321). 1376 This general issue has, in part, been addressed above in the context of the procedures adopted by the OTP for gathering evidence (see paras 143, 167-168, 190-192, and 197).
1370

1369

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445. An additional troubling element is that P-0321 stated that the children who he introduced to P-0581 did not come from Bunia,1377 and he gave extensive evidence of how, having paid for his own transport, he travelled by road from Bunia to other localities.1378 However, three of the children (P-0213, P-0297 and D-0004) gave evidence that tends to indicate they were living in Bunia in November 2007.1379 P-0321 also contradicted himself, testifying at one stage that in November 2007, P0297 was living at home in Bunia.1380 d) An organisation dealing with victims 446. Before and during the time he worked for the OTP, P-0321 (along with P-0031) acted as an intermediary for a particular organisation,1381 which helped victims to participate in these proceedings. P-0321 introduced P-0299 to this organisation following a request from P0031. 1382 Furthermore, children had been put in touch with this organisation (with the assistance of P-0031) prior to being introduced to the prosecution.1383 447. The impact of this evidence is considered in the Chambers overall conclusions, set out below.

T-308-Red2-ENG, page 63, lines 1 - 5. T-308-Red2-ENG, page 63, lines 9 22. 1379 T-133-Red2-ENG, page 28, lines 3 13 and page 43, lines 2 17 (P-0213); T-287-CONF-ENG, page 33, line 22 to page 36 line 2 and page 37, lines 12 18 (P-0297); T-242-Red3-ENG, page 6, lines 3 6 (D-0004). 1380 T-322-CONF-ENG, page 27, line 1 to page 28, line 22 (P-0321). 1381 T-320-CONF-ENG, page 7, lines 5 8 (P-0321); T-308-CONF-ENG, page 34, lines 8 12 (P0321). 1382 T-320-CONF-ENG, page 33, line 22 to page 34, line 6 and page 34, lines 19 24 (P-0321). 1383 T-320-CONF-ENG, page 11, lines 19 24 (P-0321).
1378

1377

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e) Assessment of Intermediary 321 448. On the basis of the all the matters set above, the Chamber is satisfied that P-0321 acted on the instructions of the OTP and under the latters supervision for more than a year. This is relevant to a number of witnesses who (save for the first) P-0321 was the original point of contact: P-0157, P-0213, P-0293, P-0294, P-0297 and P-0298. P0321 was also in contact with P-0299. 449. D-0003 admitted he lied to the prosecution for financial gain at the invitation of P-0321 and he said the latter instructed him as to the account he was to provide. P-0213, P-0294, P-0297 and D-0004, according to the latter, were instructed by P-0321 to give false accounts about their names and ages, where they lived and their alleged enrolment in the UPC. Taking into account the questions raised about D-0003s and D-0004s evidence, the Chamber stresses that it has not relied on their testimony standing alone, but it has examined the available material in its entirety, and in particular the accounts of the individual prosecution witnesses who claimed to be former child soldiers, as well as the documentary evidence and the other relevant witnesses. P-0297s evidence was unreliable and the Chamber has concluded there is a material risk that P-0321 persuaded or encouraged him to give false evidence. Similarly, the accounts of P0213 and P-0294 were generally unreliable. The Chamber does not accept the prosecutions argument that P-0298s initial testimony was merely the result of his anger, and it is of the view that the evidence relating to him, viewed overall, creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence.

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450. Although the Chamber does not criticise the fact that P-0321 assisted the prosecution and a victims organisation simultaneously, on the basis of the matters set out above the significant possibility has been established that P-0321 improperly influenced the testimony of a number of the witnesses called by the prosecution. Additionally, real doubt has been cast over the propriety of the way in which children were selected for introduction to the prosecution. 4. Intermediary P-0031 451. In the Decision on Intermediaries, the Chamber considered the evidence relevant to P-0031, who had also been called as a prosecution witness in June and July 2009. 1384 The Chamber decided that the evidence did not meet the criteria for ordering him to be re-called in the context of the abuse of process application.1385 a) Background 452. P-0031 was located in Bunia during the period relevant to the charges, dealing with children in particularly difficult situations who included child soldiers.1386 453. P-0143 put P-0031 in contact with the OTP, and he was recruited as an intermediary by the prosecution in 2005 (he continued in this role at least until 2008).1387 P-0031 was closely associated with P-0321, and he occasionally asked the latter to undertake work for the OTP.1388 During the course of his involvement with the OTP, P-0031 had contact with

1384 1385

ICC-01/04-01/06-2434-Red2, paras 13, 14, 17, 18, 20 and 24. ICC-01/04-01/06-2434-Red2, para. 144. 1386 T-198-Red2-ENG, page 86, line 5 to page 87, line 14 and page 91, lines 3 15. 1387 Table of contacts, EVD-D01-01039, No. 23; EVD-D01-00401 and EVD-D01-00576. 1388 T-308-CONF-ENG, page 62, lines 9 15.

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the following witnesses: P-0007, 1389 P-0008, 1390 P-0011, 1391 P-0012, 1392 P0046, 1393 P-0157 (first contact via P-0031), 1394 P-0293, 1395 P-0294 1396 P0297, 1397 P-0298, 1398 and P-0299, 1399 and potential witness DRC-OTPWWWW-0110 (first contact was via P-0031).1400 b) The evidence from P-0582 454. P-0582 gave evidence that he probably met P-0031 when he was accompanied by other investigators.1401 He did not trust P-0031 or have confidence that he would be of use to their investigations.1402 455. Throughout 2005, P-0031 furnished the prosecution with videos, photographs and documents, and therefore he came to be viewed as a willing and cooperative witness who was able to provide relevant evidence. He supplied the prosecution with information concerning the demobilisation of child soldiers.1403 456. P-0582 was referred to page 3, paragraph 1, of an internal prosecution report dated 23 February 2006 which sets out that:
Investigators returned his original documents after registration of the copies.
1389

T-201-CONF-ENG, page 72, lines 11 13 and page 74, lines 9-12 (P-0031); EVD-D01-01039, No

23. T-201-CONF-ENG, page 72, line 22 to page 73, line 2 and page 80, lines 17 20; T-202-CONFENG, page 70, lines 4 18 (P-0031); EVD-D01-01039, No 23. 1391 T-201-CONF-ENG, page 73, lines 3 7 and page 77, lines 12 13 (P-0031); EVD-D01-01039, No 23. 1392 EVD-D01-01039, No 11. 1393 EVD-D01-01039, No 23. 1394 T-202-CONF-ENG, page 79, lines 9 17 (P-0031); EVD-D01-01039, No 23. 1395 T-153-CONF-ENG, page 53, line 21 page 54, line 10; EVD-D01-01039, No 23. 1396 T-202-CONF-ENG, page 78, lines 22-25; EVD-D01-01039, No 23. 1397 EVD-D01-01039, No 23. 1398 T-202-CONF-ENG, page 76, lines 14-22 (P-0031). 1399 EVD-D01-01039, No 127. 1400 EVD-D01-01039, No 60. 1401 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 10, lines 15 17. 1402 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 10, line 18 to page 11, line 3. 1403 ICC-01/04-01/06-2656-Conf, para. 6.
1390

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However, [P-0031] failed to submit new additional documents that would allegedly be in his possession. After numerous occasions in which he failed to do so, major questions arose about his credibility and intentions to collaborate with the ICC. As a consequence investigators decided to suspend contacts for the time being.1404

457. P-0582 gave evidence that it was believed the documentary records referred to in the report would assist in shedding light on the potential problems with P-0031.1405 The latter provided a few documents to the investigators (of doubtful relevance) and although he promised additional material, nothing was forthcoming.1406 458. P-0582 believed it had been decided, with the agreement of Michel De Smedt, to discontinue working with P-0031 because of a lack of trust 1407 following the February 2006 incident. 459. However, this decision was reversed once P-0031 provided certain relevant information, and thereafter he was evaluated by the prosecution as being a credible trial witness. 1408 The prosecution called P-0031 as a witness to give evidence about child soldiers and demobilisation. 460. It is accepted that during the relevant period the OTP paid P-0031 at least $23,000. 1409 The prosecution suggests, with the exception of a single payment for travel, this money supported P-0031 within the OTPs protection programme and it does not represent remuneration

EVD-OTP-00641. Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 11, lines 13 18. 1406 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 12, lines 3 5. 1407 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 12, lines 15 18. 1408 ICC-01/04-01/06-2656-Red, paras 7 and 8. 1409 This is based on documents disclosed on 3 March 2010, ICC-01/04-01/06-2657-Red-tENG, para. 186. It is suggested by the defence that this is an underestimate, ICC-01/04-01/06-2773-Red-tENG, footnote 1331.
1405

1404

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for his services as an intermediary. 1410 The accounting documents disclosed by the prosecution demonstrate P-0031 received a monthly allowance from March 2007,1411 and as of 12 March 2010 he continued to receive allowances from the OTP for accommodation and subsistence.1412 c) The evidence of P-0157 461. P-0157 is an alleged former child soldier who was introduced to the Office of the Prosecutor by P-0031. The accounting documents relating to P-0157 demonstrate he was also in contact with P-0143 between August and October 2006. 1413 Additionally, P-0321 indicated he had dealings with P-0157.1414 462. P-0157 said he was born in 1991.1415 It is to be noted, however, the documentary evidence suggests that in 2002 and 2003, P-0157 was over 15 years of age. The IEC database demonstrates P-0157 had a voters card, bearing his photograph and a date of birth (in 1986). 1416 Moreover, his name appears on the enrolment register for a particular school, and, at what is seemingly his entry, it is recorded P-0157 was born on an identified date in 1986.1417 The 1991-2001 certificate award register for this school indicates that a certificate was awarded to P0157 (born on the same date in 1986).1418 The witness said he did not know his date of birth.1419 He was shown a document that came from the general inspectorate for secondary and professional education,
1410 1411

ICC-01/04-01/06-2678-Red, para. 132. EVD-D01-00547; EVD-D01-00529 and EVD-D01-00403. 1412 EVD-D01-00988. 1413 EVD-D01-00832 and EVD-D01-00833. 1414 T-320-CONF-ENG, page 41, lines 14 25. 1415 T-185-Red2-ENG, page 63, line 7. 1416 EVD-D01-01031. 1417 T-188-CONF-ENG, page 63, line 24 to page 65, line 14; EVD-D01-00170 and EVD-D01-00257. 1418 EVD-D01-0169, page 0506, #42. 1419 T-188-Red2-ENG, page 66, lines 1 6.

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which comprises a list of students in the sixth grade in the same primary school for the year 1998.1420 At line 9 it is recorded that he was born in 1986.1421 When the witness was asked whether it was possible that in 1998 he was in the sixth grade at this primary school, he answered, It could be true. Its a certified document, a document that states that.1422 463. The prosecution argues the school records are unreliable and they do not undermine P-0157s testimony as to his age,1423 and in particular the prosecution suggests that the documents appear to have been altered. The prosecution relies on the experts report, along with the evidence of D-0029, to the effect that different students were assigned the same matriculation number and the records contain errors as to numbering.1424 It is argued by the prosecution that it is not necessary for the Chamber to conclude that P-0157 was under the age of 15 at the time he was conscripted.1425 Rather, his evidence is of use as regards the recruitment and use of child soldiers by the UPC.1426 464. There are undoubted inaccuracies in the school records that have caused the Chamber to treat them with caution. As regards the present witness, however, all the relevant entries contradict the date of birth given by P-0157 during his evidence, and he accepted he may have been in the sixth grade of primary school in 1998. Although of limited value, the x-ray evidence tends to support the suggestion that P-0157

T-188-Red2-ENG, page 66, lines 7 14 and EVD-D01-00258. T-188-Red2-ENG, page 66, lines 15-22 and EVD-D01-00258. 1422 T-188-Red2-ENG, page 67, lines 7 11. 1423 ICC-01/04-01/06-2748-Red, para. 514. 1424 ICC-01/04-01/06-2748-Red, para. 514, referring to EVD-OTP-00639 and T-295-ENG, page 27, lines 3 7; T-296-CONF-ENG, page 10, line 17 to page 13, line 15 and page 16, line 18 to page 17, line 6. 1425 ICC-01/04-01/06-2748-Red, para. 515. 1426 ICC-01/04-01/06-2748-Red, paras 417 and 515.
1421

1420

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was over the age of 15 at the time of his alleged conscription.1427 In all the circumstances, the prosecution has not established that P-0157 was under the age of 15 at the time of his alleged recruitment and use in hostilities. 465. The prosecution argues P-0157 provided a significant and detailed account of the conscription, training and use of children by the UPC and it particularly relies on P-0157s evidence as to having been beaten, his description of daily life at Mandro and Thomas Lubangas visit to the camp. 1428 The defence sought to undermine P-0157s credibility,
1429

and in response the prosecution highlighted his

evidence that certain subjects remained painful for him, along with his frank acceptance that he was unable to remember every detail.1430 466. P-0157 gave potentially differing accounts about where he was enlisted by the UPC on his way home from school.1431 However, he gave a credible explanation that the name of the location where he was abducted in his initial statement to the investigators was wrongly transcribed.1432 467. He gave contradictory evidence as to the stage during his school career when this occurred. At paragraph 16 of the witnesss first statement to the investigators he indicated [a]t the time [of the abduction] I went to [a particular] Institute [] where I was in the sixth year of primary school.1433 It is of note that EVD-D01-002581434 indicates he finished his sixth year of primary school in 1998 and the
1427 1428

ICC-01/04-01/06-2748-Red, para. 512. ICC-01/04-01/06-2748-Red, paras 494 510. 1429 See, e.g., ICC-01/04-01/06-2657-Red-tENG, paras 190 194. 1430 ICC-01/04-01/06-2748-Red, paras 516 517. 1431 T-187-Red2-ENG, page 66, line 15 to page 67, line 13. 1432 T-187-CONF-ENG, page 29, line 8 to page 30, line 9. 1433 T-187-CONF-ENG, page 28, line 9 to page 29, line 1. 1434 EVD-D01-00258, page DRC-D01-0003-1749, No 49.

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Certificate Issue Register for 1991-20011435 sets out that the witness sat his national exams in 1998. P-0157 said in evidence that at the time of his abduction he was in his first year of secondary school,1436 having just finished his sixth year of primary school. 1437 468. D-0025, who is now a teacher,1438 knew P-0157 (he recognised him in a photograph). 1439 They went to school together 1440 in the academic year 2001/2002.1441 D-0025 was born on 12 July 1989,1442 and he said he was younger than P-0157 1443 although he conceded that he does not know P-0157s age.1444 D-0025 gave consistent evidence, which was not materially contradicted or undermined. In all the circumstances the Chamber has accepted his account. 469. D-0025 indicated that when the population of Bunia fled in May 2003, P-0157 went to a village, close to Bunia and joined an armed group. 1445 He heard P-0157 had joined the FRPI.1446 Although D-0025 was uncertain as to the exact date when he saw P-0157 dressed in a camouflage t-shirt, he was convinced this had happened.1447 470. P-0157 testified that he was taken in a Hilux vehicle to stadium in Bunia1448 and from there he was transferred to Mandro1449 for military
EVD-D01-00169, page DRC-OTP-0224-0506, No 42. T-187-CONF-ENG, page 29, lines 20-23. 1437 T-187-CONF-ENG, page 30, lines 2-9. 1438 T-259-Red2-ENG, page 11, line 1. 1439 T-259-Red2-ENG, page 11, line 17, page 12 lines 7 21 and page 15, lines 11 13, referring to EVD-D01-00121. 1440 T-259-Red2-ENG, page 12, line 22 to page 13, line 16. 1441 T-259-Red2-ENG, page 26, lines 15-17. 1442 T-259-Red2-ENG, page 10, line 3. 1443 T-259-Red2-ENG, page 13, line 23 to page 14, line 5. 1444 T-259-Red2-ENG, page 14, lines 6 7. 1445 T-259-Red2-ENG, page 19, lines 2 25. 1446 T-259-Red2-ENG, page 20, lines 4 21. Witnesses have referred to the FNI and the FRPI interchangeably. 1447 T-259-Red2-ENG, page 21, line 25 to page 22, line 9. 1448 T-185-Red2-ENG, page 68, line 25 to page 69, line 1 and page 74, lines 14 21; T-187-Red2ENG, page 36, line 14 to page 37, line 3. 1449 T-185-Red2-ENG, page 79, lines 17-20.
1436 1435

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training.1450 However, in 2006 the witness told the investigators that he walked to the stadium.1451 When questioned about this discrepancy, P0157 accepted there were errors in his earlier statement.1452 He said two particular commanders were with him throughout his time at Mandro.1453 However, he failed to mention one of these commanders during his interview with the investigators over 4 days in October 2006.1454 The witness said he was unable to recount all the details at that stage and instead he set out what he thought was important.1455 The witnesss evidence frequently lacked detail. For instance, he could not recall if he participated in combat during his training,1456 although he later indicated this had happened.1457 He suggested he spent time at Djugu,
1458

Bunia

1459

and Rwampara;

1460

he said he fought at

Nyankunde; 1461 and he indicated he was part of a group that was selected to fight the Ugandans.1462 However, he was unable to provide details of these events. 471. P-0157 testified that he deserted the UPC and joined the FNI, 1463 although during his first meeting with investigators from the OTP he failed to mention he had originally been in the UPC1464 (he said in evidence this was because of the hurt caused by his membership of the

T-186-Red2-ENG, page 18, lines 4-14. T-187-Red2-ENG, page 37, lines 4-21. 1452 T-187-Red2-ENG, page 37, lines 15-22. 1453 T-188-CONF-ENG, page 5, lines 18 21. 1454 T-188-Red2-ENG, page 4, line 24 to page 5, line 9. 1455 T-188-Red2-ENG, page 4 line 20 to page 5, lines 9. 1456 T-188-Red2-ENG, page 16, lines 2 7. 1457 T-188-Red2-ENG, page 33, lines 13 23. 1458 T-186-Red2-ENG, page 38, lines 15-16. 1459 T-188-Red2-ENG, page 26, lines 12-16. 1460 T-187-Red2-ENG, page 6, lines 8-12. 1461 T-187-Red2-ENG, page 4, lines 15-17. 1462 T-188-Red2-ENG, page 31, line 14 - 19. 1463 T-187-Red2-ENG, page 10, line 25 to page 11, line 4 and page 11, line 25 to page 12, line 3; T188-CONF-ENG, page 43, lines 6-7. 1464 T-188-Red2-ENG, page 47, lines 19-22.
1451

1450

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UPC).1465 472. P-0031, when asked about P-0157, simply described him as a child who had been a member of the FNI. 1466 The prosecution relies on P0321s statement that P-0157 had been a UPC/FPLC child soldier,1467 given he indicated that P-0157 told him about being a member of the UPC (however he failed to mention that he had also been a member of the FNI).1468 As mentioned above, D-0025 said he heard about P-0157s membership in the FRPI, and P-0157 testified that he had been a soldier in the FNI (he said that he joined the group in March 2003).1469 473. The Chamber is of the view that P-0157 did not provide a credible explanation for his failure to mention that he had been a member of the UPC to the investigators and generally his account was notable for its lack of detail as regards certain significant events. In all the circumstances, the Chamber has not relied on his account. d) Assessment of P-0031 474. The defence alleges that all of the witnesses with whom this intermediary had contact lied to the Court (P-0007, P-0008, P-0011, P0157, P-0293, P-0294, P-0298 and P-0299), and it is noted he was in touch with intermediaries 143 and P-0321.1470 The defence contends he is biased against Thomas Lubanga and tailored his account to match the charges against the accused.1471 The defence relies on the regular and considerable payments he received, and it is suggested the OTP

1465 1466

T-188-Red2-ENG, page 48, lines 4-9. T-202-Red2-ENG, page 79, lines 9 17. 1467 ICC-01/04-01/06-2748-Red, para. 518. 1468 T-320-Red2-ENG, page 41, lines 2 13. 1469 T-188-Red2-ENG, page 42, line 24 to page 43, line 20. 1470 ICC-01/04-01/06-2773-Red-tENG, paras 618 and 623 624. 1471 ICC-01/04-01/06-2773-Red-tENG, paras 619 622 and 629.

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failed to act on information that had been in its possession since February 2006 which raised doubts as to his integrity (it is suggested these concerns were corroborated by P-0582). 1472 It is argued the logbooks and other documents he produced are unreliable,1473 and the defence submits he accepted in evidence that children sometimes lied in order to benefit from the process of demobilisation. Furthermore, neither the intermediary nor the NGO attempted to corroborate their accounts.1474 475. The prosecution submits [n]o witness testified that P-0031 manipulated, coached or encouraged witnesses to lie to the Prosecution or to the Court.1475 It further suggests the defence has misrepresented the evidence and it has failed to establish that P-0031 was biased in his testimony.1476 476. There is insufficient evidence to support the suggestion that P-0031 persuaded, encouraged or assisted witnesses to give false testimony. Although P-0031 had contact with numerous witnesses whose evidence the Chamber has not accepted, this is insufficient, even on a prima facie basis, to lead to the conclusion that P-0031 encouraged any of them to lie. None of the alleged former child soldiers who P-0031 dealt with suggested he influenced their evidence and the Chamber does not accept the defence assertions that P-0031 was biased against Thomas Lubanga.1477 477. However, given his close cooperation with P-0321 and the doubts as to his reliability analysed above, the Chamber has treated P-0031s
1472 1473

ICC-01/04-01/06-2773-Red-tENG, paras 625 628. ICC-01/04-01/06-2773-Red-tENG, para. 633. 1474 ICC-01/04-01/06-2773-Red-tENG, paras 630 632. 1475 ICC-01/04-01/06-2778-Red, para. 119. 1476 ICC-01/04-01/06-2778-Red, paras 120 and 121. 1477 ICC-01/04-01/06-2773-Red-tENG, para. 629.

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evidence with particular care. F. CONCLUSIONS ON THE CHILD SOLDIERS CALLED BY THE PROSECUTION 478. The prosecution submits that the inconsistencies within and between the accounts of the alleged former child soldiers do not necessarily mean their testimony is unreliable, and in this regard the Chamber is invited to focus on the evidence of the expert witness Ms Schauer (CHM-0001). 1478 The OPCV submits any contradictions and difficulties in the testimony of P-0007, P-0008, P-0010 and P-0011 should be viewed in the context of the trauma they may have experienced, including the stress of giving evidence.1479 The defence also relies on part of Ms Schauers (CHM-0001) evidence, namely that Post Traumatic Stress Disorder can only be identified by way of a medical examination, and accordingly it is suggested it has not been demonstrated that any of these witnesses suffered from this disorder. The defence suggests Ms Schauer (CHM-0001) further testified that trauma does not affect an individuals memory, including his or her ability to tell the truth, but instead it may make it difficult for them to speak about relevant events (as opposed to other, non-traumatic matters), and therefore the potential impact of trauma should not be considered when assessing the credibility of the witnesses.1480 479. The Chamber has taken into account the psychological impact of the events that have been described in evidence, and the trauma the children called by the prosecution are likely to have suffered. The Chamber accepts that some or all of them may have been exposed to violence in the context of war, and this may have had an effect on their
1478 1479

ICC-01/04-01/06-2748-Red, paras 523 524. ICC-01/04-01/06-2744-Red-tENG, para. 46. 1480 ICC-01/04-01/06-2773-Red-tENG, paras 367 368.

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testimony. Additionally, they were often interviewed on multiple occasions following these events. Nonetheless, for the reasons identified in the relevant analysis for each witness, the inconsistencies or other problems with their evidence has led to a finding that they are unreliable as regards the matters that are relevant to the charges in this case. 480. On the basis of the entirety of the analysis set out above, the Chamber has not accepted the prosecutions submission that it has established beyond reasonable doubt that P-0007, P-0008, P-0010, P0011, P-0157, P-0213, P-0294,1481 P-0297 and P-02981482 were conscripted or enlisted into the UPC/FPLC when under the age of 15 years, or that they were used to participate actively in hostilities, between 1 September 2002 and 13 August 2003. It is relevant to note that these nine individuals were identified by the prosecution at an early stage in these proceedings1483 as demonstrating the way in which children were enlisted, conscripted and used by the FPLC.1484 481. The Chamber has concluded that P-0038 who was over 15 when he joined the UPC gave accurate and reliable testimony. Similarly, the Chamber has acted on the evidence relating to the videos addressed by P-0010 in her evidence. The effect of this evidence is considered in the Chambers overall conclusions. 482. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries in the
Given the mother of P-0294 (P-0293) was called to give evidence on the personal history of her son, which the Chamber is not relying on, the Chamber has not considered her evidence further. 1482 Given the father of P-0298 (P-0299) was called to give evidence on the personal history of his son, which the Chamber is not relying on, the Chamber has not considered his evidence further. 1483 Amended Document Containing the Charges, Article 61(3)(a), 22 December 2008, ICC-01/0401/06-1571-Conf-Anx, paras 41 98. A public redacted version was filed on 23 December 2008, ICC01/04-01/06-1573-Anx1. 1484 ICC-01/04-01/06-1573-Anx1, para. 101.
1481

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way set out above, notwithstanding the extensive security difficulties it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecutions negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chambers conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation. 483. As set out above, there is a risk that P-0143 persuaded, encouraged, or assisted witnesses to give false evidence; there are strong reasons to believe that P-0316 persuaded witnesses to lie as to their involvement as child soldiers within the UPC; and a real possibility exists that P0321 encouraged and assisted witnesses to give false evidence. These individuals may have committed crimes under Article 70 of the Statute. Pursuant to Rule 165 of the Rules, the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution. Investigations can be initiated on the basis of information communicated by a Chamber or any reliable source. The Chamber hereby communicates the information set out above to the OTP, and the Prosecutor should ensure that the risk of conflict is avoided for the

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purposes of any investigation. 1485 484. Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chambers Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules.1486 In the view of the Majority, given the Chambers present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his sons role as a child soldier. 1487 The Chambers conclusions as to the evidence of P-0298 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no longer meet the relevant criteria.

T-350-Red2-ENG, page 17, lines 14 19; see also Prosecutions Observations on Article 70 of the Rome Statute, 1 April 2011, ICC-01/04-01/06-2716, para 11; see also, The Prosecutor v. Katanga and Ngudjolo, Decision on the Prosecutions renunciation of the testimony of witness P-159, 24 February 2011, ICC-01/04-01/07-2731, para. 18. 1486 Decision on the applications of victims to participate in the proceedings, 15 December 2008, ICC01/04-01/06-1556. A corrigendum was issued on 13 January 2009, ICC-01/04-01/06-1556-Corr-Anx1. 1487 Decision on the supplementary information relevant to the applications of 21 victims, 21 July 2009, ICC-01/04-01/06-2063, paragraph 39 (c).

1485

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VIII. THE THREE VICTIMS WHO GAVE EVIDENCE

485. On 2 April 2009, one of the legal representatives for victims submitted an application for three victims, a/0229/06, a/0225/06, and a/0270/07, to participate in person in the proceedings against Thomas Lubanga.1488 The Chamber requested additional information,1489 and a further filing was submitted on 18 May 2009.1490 Mr Keta filed written submissions on 22 June 2009, following discussions with the VWU concerning questions of security. 1491 On 26 June 2009, the Chamber adjourned the applications on behalf of the victims to present their views and concerns in person (these applications have not been renewed) and granted their applications to give evidence. 1492 The defence refers to their submissions made in the context of the abuse of process application. 1493 In essence, it is alleged by the defence that victim a/0270/07 instigated victims a/0229/06 and a/0225/06 to steal the identities of Thonifwa Uroci Dieudonn (D-0032) and Jean-Paul Bedijo Tchonga (D-0033) in order to claim falsely that they had been abducted by the UPC and used as child soldiers. 486. The Chamber has considered the evidence of these three victims before discussing the contradictory evidence of the relevant defence

Requte soumise par le reprsentant lgal des victimes reprsentes, sur le dsir des victimes A/0225/06, A/0229/06 et A/210/01 de participer en personne la procdure, 2 April 2009 (notified on 3 April 2009), ICC- 01/04-01/06-1812-Conf. 1489 T-l71-Red2-ENG, page 37, lines 4-25 and page 38, lines 1-6. 1490 Informations complmentaires concernant la Requte soumise par le reprsentant lgal des victimes reprsentes, sur le dsir des victimes A/0225/06, A/0229/06 et A/270/07 de participer en personne la procdure dpose le 2 avril 2009, 18 May 2009, ICC-01/04-01/06-1883-Conf. 1491 Soumission, 19 juin 2009, ICC-01/04-01/06-1977-Conf. 1492 Decision on the request by victims a/ 0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, 26 June 2009, ICC-01/04-01/06-2002-Conf, para. 45. A public redacted version was issued on 9 July 2009 (ICC-01/04-01/06-2032-Anx). 1493 ICC-01/04-01/06-2773-Red-tENG, para. 679, referring to ICC-01/04-01/06-2657-Conf-tENG, paras 200 228 and ICC-01/04-01/06-2686-Conf.

1488

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witnesses. A. Victims a/0270/07 (V02-0001), a/0229/06 (V02-0003) and a/0225/06 (V02-0002) 487. Two individuals who claimed to be victims a/0229/06 (V02-0003) and a/0225/06 (V02-0002) testified as to their alleged recruitment by the UPC in the region of Mahagi, Ituri-Oriental province, DRC. Their evidence covered their alleged training and their active participation in hostilities. 488. The witness who identified himself as victim a/0229/06 (V020003)1494 stated that he was abducted on his way home from school1495 in April 2003. 1496 According to the date of birth he provided during his evidence, he was over the age of 15 at the time he claimed to have been abducted (April 2003). 1497 He stated that he underwent training at Bule camp1498 and that he participated in the battle in Bunia, 1499 when he was shot. 1500 489. The witness who identified himself as victim a/0225/06 (V020002)1501 said that UPC soldiers abducted him1502 whilst he was playing in a Mahagi village in 2003, 1503 and that he was taken to a transit camp. 1504 According to the date of birth he provided during his evidence, he was under the age of 15 at the time he claimed to have

T-230-Red2-ENG, page 34, line 15. T-230-Red2-ENG, page 35, line 12 to page 39 line 19. 1496 T-230-Red2-ENG, page 35, line 12. 1497 T-230-Red2-ENG, page 34, lines 17-19. 1498 T-230-Red2-ENG, page 36, line 22 to page 37, line 4. 1499 T-231-Red2-ENG, page 28, lines 10-11. 1500 T-230-Red2-ENG, page 37, lines 24-25 and page 45, lines 18-22; T-231-Red2-ENG, page 35, lines 11-17. 1501 T-227-Red2-ENG, page 50, line 23. 1502 T-227-Red2-ENG, page 51, lines 13 17; T-227-Red2-ENG, page 73, lines 16 19; T-227-Red2ENG, page 72, lines 11 16. 1503 T-227-Red2-ENG, page 52, lines 10 20. 1504 T-227-Red2-ENG, page 59, lines 15 16.
1495

1494

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been abducted.1505 The commanders used him for looting,1506 finding rich people and obtaining hashish. 1507 He subsequently underwent military training at a UPC camp.1508 He was involved in fighting1509and he was injured in his right calf by a bullet at Bunia.1510 490. Victim a/0270/07 (V02-0001) testified as to the alleged recruitment of children from a school in Mahagi, Ituri-Orientale Province, DRC and his efforts to prevent this from happening,1511 and his relationship with certain child soldiers when they returned home. He said he witnessed UPC soldiers enlisting students on 5 February 2003,1512 (four pupils were abducted).1513 He claimed he is the guardian of victims a/0229/06 (V02-0003) and a/0225/06 (V02-0002) and he explained his relationship with each child and how he came to take on the role of guardian. 1514 B. Defence witnesses D-0032 and D-0033 491. The defence relied on evidence that seriously undermined the suggested truthfulness and reliability of a/0225/06 (V02-0002), a/0229/06 (V02-0003) and a/0270/07 (V02-0001). The defence submitted that a/0225/06 and a/0229/06 gave false testimony at the instigation of a/0270/07, and that a/0270/07 was actively involved in encouraging pupils at the Institute where he worked to claim falsely that they had been child soldiers in order to participate in proceedings before the

T-227-Red2-ENG, page 50, line 25 to page 51, line 2. T-228-Red2-ENG, page 5, lines 20 23. 1507 T-228-Red-ENG, page 7, lines 1 3. 1508 T-227-Red2-ENG, page 57, lines 12 14. 1509 T-228-Red2-ENG, page 53, line 24 to page 54, line 17 and page 54, line 25 to page 55, line 6; T227-Red2-ENG, page 62, line 25 to page 63, line 2. 1510 T-229-Red2-ENG, page 15, lines 7 8. 1511 T-225-Red2-ENG, page 23, lines 2 25. 1512 T-225-Red2-ENG, page 22, lines 23 25. 1513 T-225-Red2-ENG, page 24, lines 6 8. 1514 T-226-Red2-ENG, page 48, line 11 to page 50, line 20.
1506

1505

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Court.1515 492. D-0032 testified that he (not a/0225/06) was Thonifwa Uroci Dieudonn. 1516 D-0032 said that together with the others in his class who had been in military service, he was told by a/0270/07 to pay a fee in order to register in Ndrele because those who were child soldiers would receive certain benefits and their studies would be paid for.1517 According to D-0032, a/0270/07 told them to claim that their parents had died in order to receive the benefits quickly.1518 D-0032 did not know the white people who conducted the registration process, although during his testimony he recognised an ICC victim participation form bearing his name along with (as he believed) his fingerprint. He had not filled it in and the signature was not his.1519 He said one of those accompanying him during the registration process was Jean-Paul Bedijo Tchonga. 1520 D-0032 testified that following registration they did not receive any of the benefits promised to them and while they were in Ndrele, a/0270/07 told him and Jean-Paul Bedijo that the white people had not come and they could go home.1521 The witness later learned that a/0270/07 was going to replace them (he was told this by one of those who had been brought by a/0270/07 to take their place).1522 493. D-0032 said he was born in 19881523 and his parents are Ukunya

Defence Application Seeking a Permanent Stay of the Proceedings ICC-01/04-01/06-2657-ConftENG, 4 February 2001, paras 200-228. A public redacted version was issued on 30 March 2011. 1516 T-275-Red2-ENG, page 5, line 10. 1517 T-275-Red2-ENG, page 12, line 21 to page 13, line 18. 1518 T-275-Red2-ENG, page 13, lines 9 11. 1519 T-275-Red2-ENG, page 15, line 11 to page 17, line 13. 1520 T-275-Red2-ENG, page 17, line 20 to page 18, line 1. 1521 T-275-Red2-ENG, page 13, line 19 to page 14, line 4. 1522 T-275-Red2-ENG, page 14, lines 4 11. 1523 T-275-Red2-ENG, page 5, lines 11 16.

1515

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Nyona Bertin1524 and Generose Francoise. 1525 a/0225/06 was unable to identify the individuals in photographs EVD-D01-001011526 and EVDD01-00102, 1527 whilst D-0032 identified them as his father 1528 and mother1529 respectively. It is unnecessary to go into the details of the evidence, but the accounts of D-0032 and a/0225/06 differ significantly regarding their family histories1530 and their schooling.1531 494. Critically, the testimony of D-0032 is supported by that of D-0034, who testified that he is the father of Thonifwa Uroci.1532 D-0034, who is also the father of D-0033, corroborated the evidence from D-0032 about his family,1533 and he confirmed D-0032s account as to his primary and secondary education.
1534

Moreover, D-0034 asserted that whilst

Thonifwa Uroci was forcibly1535 involved with the UPC as an errand boy, he never bore arms,1536 or underwent military training. 1537 D-0034 was unable to identify the person shown in photograph EVD-D01001301538 (a/0225/06).1539 495. The Chamber ordered a forensic test following D-0032s evidence

T-275-Red2-ENG, page 5, lines 17 23. T-275-Red2-ENG, page 5, line 24 to page 6, line 2. 1526 T-235-Red2-ENG, page 46, lines 21 24. 1527 T-235-Red2-ENG, page 46, lines 17 20. 1528 T-275-Red2-ENG, page 8, lines 1 11. 1529 T-275-Red2-ENG, page 8, line 13 to page 9, line 5. 1530 a/0225/06: T-227-CONF-ENG, page 41, lines 5 10, page 42, lines 4 12, and page 51, lines 3 12; T-230-CONF-ENG, page 10, lines 3 4; and T-235- CONF-ENG, page 41, lines 1 - 20, page 42, lines 16 25, and page 43, lines 1 7; D-0032: T-275- Red2-ENG, page 6, lines 3 7, page 9, lines 6 20, page 9, line 23, to page 10, line 1, page 53, lines 2 20, and page 56, lines 3 12. 1531 a/0225/06: T-228-CONF-ENG, page 29, line 19, and page 32, lines 1 9; and T-228-Red2-ENG, page 33, lines 5 6; D-0032: T-275- Red2-ENG, page 6, lines 17 19, page 7, lines 6 15, and page 48, lines 3 5. 1532 T-280-Red2-ENG, page 15, line 25 and page 18, lines 20 23. 1533 T-280-Red2-ENG, page 21, lines 4 22; page 18, lines 4 5 and page 22, lines 12 16. 1534 T-280-Red2-ENG, page 22, lines 20 to page 23, line 4. 1535 T-280-Red2-ENG, page 52, lines 14 to page 53, line 4. 1536 T-280-Red2-ENG, page 28, lines 7 13. 1537 T-280-Red2-ENG, page 28, lines 4 6. 1538 T-280-Red2-ENG, page 43, lines 3 6. 1539 T-280-Red2-ENG, page 43, lines 7 9.
1525

1524

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that his fingerprint was on the victim application form.1540 The results are that one of the fingerprints does not match the witness, while the other fingerprints were inconclusive. 1541 This evidence is therefore essentially equivocal. 496. D-0033 testified that he (not a/0229/06) was Jean-Paul Bedijo Tchonga.1542 He stated a/0270/07 worked for an Institute in Mahagi. The latter registered the children who were child soldiers because the white people were coming.1543 D-0033 also testified that a/0270/07 promised them that their studies would be paid for.1544 He did not recognise an application to participate carrying his name (along with related material) and he said the signatures were not his.1545 Similarly, he did not recognize a witness statement bearing his name dated 7 August 2009 or the signature on the last page.1546 He suggested the person who had signed the documents might have been an individual in photographs that were put to him during his examination.1547 D0033 stated that he could not precisely say who this person was, but he had been told that they had been replaced by other people at the instigation of a/0270/07.1548 D-0032 went on to identify the two people he had seen in the photographs and he said a/0270/07 had taken these two individuals in order to register them in their place. 1549 He supported D-0032s evidence that a/0270/07 took money in exchange for registration; that he told them they would receive material

T-280-Red2-ENG, page 5, lines 8 25. Submission of the Registrar of the results of the forensic analysis in relation to the fingerprints of Defence witness 32, 11 June 2010, ICC-01/04-01/06-2477-Conf, para. 9. 1542 T-276-Red2-ENG, page 25, line 24. 1543 T-276-CONF-ENG, page 29, line 19 to page 30, line 10. 1544 T-276-CONF-ENG, page 48, lines 17 23. 1545 T-276-Red2-ENG, page 39, line 6 to page 40, line 14 and page 41, line 24 to page 43, line 17. 1546 T-276-Red2-ENG, page 41, lines 1 23. 1547 T-276-Red2-ENG, page 45, lines 14 21. 1548 T-276-Red2-ENG, page 46, lines 15 22. 1549 T-276-CONF-ENG, page 47, lines 8 23.
1541

1540

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assistance and school fees; and he instructed them to say their parents had died.1550 D-0033 had gone with others to a/270/07s house within the preceding year and he had discussed with him the assistance they would receive and their service in the armed group.1551 The evidence of D-0034 supports this assertion, in that he stated that his son, D-0032, told him a/0270/07 invited D-0032 to his home. 1552 Furthermore, D0034 denies there is any family relationship between a/0270/07 and his son1553 and he asserted a/0270/07 was aware that D-0034 was the father of the real Thonifwa Uroci, namely D-0032. 1554 497. D-0033 testified he was born 17 May 19871555 and his parents are Thomas Ugeno1556 and Georgette Urymen. 1557 A/0229/06 was unable to identify the individuals in photographs 1558 who D-0033 said were Thonifwa Uroci1559 and Thomas Ugeno (Jean-Paul Bedijos father). 1560 D-0032 gave a significantly different account to that of a/0229/06 with respect to the family history. 1561 Additionally, a/0229/06 stated he undertook military training at an UPC camp,
1562

whilst, D-0033

indicated that although he received military training, it was a/0270/07 who suggested the name of Bule camp. 1563 498. a/0270/07 was unable to identify the individual in photograph EVDT-276-CONF-ENG, page 48, line 12 to page 49, line 8 and page 49, lines 15 19. T-276-CONF-ENG, page 49, line 20 to page 50, line 11. 1552 T-280-CONF-ENG, page 23, line 24 to page 24, line 2. 1553 T-280-CONF-ENG, page 32, lines 7 8. 1554 T-280-CONF-ENG, page 27, lines 19 21. 1555 T-276-Red2-ENG, page 26, line 1. 1556 T-277-Red2-ENG, page 40, lines 3 7; T276-Red2-ENG, page 26, lines 4 - 5. 1557 T-276-Red2-ENG, page 26, lines 6 7. 1558 T-234-CONF-ENG, page 2, lines 1-6, see EVD-D01-00096; T-234-CONF-ENG, page 7, lines 21 25, see EVD-D01-00097. 1559 T-276-Red2-ENG, page 29, lines 2 9. 1560 T-276-Red2-ENG, page 28, lines 19 24 to page 29, line 9. 1561 a/0229/06: T-231-CONF-ENG, page 12, line 22 and page, 13, lines 8-15; T-230-Red2-ENG, page 39, lines 14-19; D-0033: T-277-CONF-ENG, page 41, lines 5 6; T-276-Red2-ENG, page 26, lines 8 12. 1562 T-230-Red2-ENG, page 36, line 22 to page 37, line 4. 1563 T-276-Red2-ENG, page 75, lines 20 25.
1551 1550

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D01-00096 1564 which D-0033 subsequently identified as Thonifwa Uroci. 1565 a/0270/07 was also unable to identify the individuals in photographs EVD-D01-00101 1566 and EVD-D01-00102, 1567 who D-0032 later identified as his mother1568 and father1569 respectively. C. Conclusions on the three victims who gave evidence 499. The evidence of a/0225/06, a/0229/06, and a/0270/07 contains internal inconsistencies which undermine their credibility. a/0225/06s recollection of his abduction and military service lacked clarity, and he demonstrated uncertainty when questioned about the details of those events. The witness said he was abducted in both February 2002 and March 2003,1570 although he said he was confused and had problems with dates. 1571 a/0225/06 gave significantly unhelpful answers on occasion when questioned about the gaps and inconsistencies in his testimony; 1572 for example, he claimed to have received a bullet wound at Bogoro, and when asked why this was not mentioned in his August 2009 statement, he simply replied with the intelligence I have, I cant, I forget. 1573 500. a/0229/06 was inconsistent in his account of his abduction and military service. For instance, it was unclear whether his abduction occurred when he was in the first or second year of his secondary education.1574 He was often vague in his answers and he tended to
1564 1565

T-235-CONF-ENG, page 20, line 25 to page 21, line 6. T-276-Red2-ENG, page 29, lines 2 9. 1566 T-235-CONF-ENG, page 13, lines 3 4 and 19 20. 1567 T-235-CONF-ENG, page 15, lines 13 21. 1568 T-275-Red2-ENG, page 8, line 13 to page 9, line 5. 1569 T-275-Red2-ENG, page 8, lines 1 11. 1570 T-227-Red2-ENG, page 53, lines 18-22 and page 74, lines 19 23; T-228-Red2-ENG, page 2, lines 7 20. 1571 T-227-Red2-page 74, lines 19 23. 1572 T-229-CONF-ENG, page 32, line 23 to page 33, line 22. 1573 T-229-CONF-ENG, page 33, line 11. 1574 T-231-CONF-ENG, page 17, line 19 to page 18, line 10.

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respond by stating that he was unable to answer the questions. 1575 501. a/0270/07 was an evasive witness who, on occasion, was reluctant to respond when questioned or he provided inadequate answers. For example, he testified that the Institute had been subjected to a number of attacks, but when asked why the school archives did not contain a report of this event, the witness simply responded that this information might be biased. 1576 502. In all the circumstances, the Chamber has concluded that D-0033 and D-0034 were consistent, credible and reliable witnesses and it accepts that there is a real possibility that victims a/0229/06 and a/0225/06 (at the instigation or with the encouragement of a/0270/07) stole the identities of Thonifwa Uroci Dieudonn (D-0032) and JeanPaul Bedijo Tchonga (D-0033) in order to obtain the benefits they expected to receive as victims participating in these proceedings. The Chamber is persuaded there are significant weaknesses as regards the evidence of a/0225/06, a/0229/06, and a/0270/07, to the extent that their accounts are unreliable. Given the material doubts that exist as to the identities of a/0229/06 and a/0225/06, which inevitably affect the evidence of a/0270/07, the permission originally granted to a/0229/06, a/0225/06, and a/0270/07 to participate as victims is withdrawn. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no

T-231-CONF-ENG, page 47, lines 13-24; T-231-CONF-ENG, page 48, lines 9-12; T-231-CONFENG, page 45, lines 2-4; T-231-CONF-ENG, page 41, lines 16-18. 1576 T-226-Red-ENG, page 17, lines 5 14 and line 20 to page 18, line 14.

1575

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longer meet the relevant criteria.

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IX. THE ARMED CONFLICT AND ITS NATURE

A. INTRODUCTION 503. It is necessary to determine whether there was a relevant armed conflict, and if so, whether it was international or non-international in character. 504. The existence of an armed conflict, be it international or noninternational, is a fundamental requirement of the charges under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, which provide, inter alia:
2. For the purpose of this Statute, "war crimes" means: [] b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law [] c) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, []

It follows that if the prosecution has failed to prove the existence of a relevant armed conflict in Ituri from early September 2002 until 13 August 2003, it will have failed to prove the charges against the accused. B. SUBMISSIONS 1. Prosecution submissions 505. The prosecution submits it is undisputed that a significant and protracted armed conflict occurred in Ituri during the relevant

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period.1577 506. Relying on jurisprudence from the Pre-Trial Chambers and the International Criminal Tribunal for the former Yugoslavia (ICTY), the prosecution suggests an international armed conflict exists whenever there is resort to armed force between States. 1578 It is argued a non-international armed conflict is established when States have not resorted to armed force and i) the violence is sustained and has reached a certain degree of intensity, and ii) armed groups with some degree of organisation, including the capability of imposing discipline and the ability to plan and carry out sustained military operations, are involved. Additionally, Article 8(2)(f) of the Statute stipulates that the conflict must be protracted for these purposes.1579 507. It is argued non-international conflicts only cease with a peaceful settlement and that a mere reduction in the extent of the hostilities is insufficient. 1580 The prosecution submits the evidence demonstrates that a settlement of this kind did not exist prior to 13 August 20031581 because many organised armed groups continued to operate in Ituri during this period, including the FNI, which allegedly perpetrated massacres in June and July 2003; PUSIC, in its opposition to the UPC/FPLC in Tchomia in November 2003; and the Forces Armes du Peuple Congolais (FAPC), as regards its fight with the FNI and Forces Populaires pour la Dmocratie au Congo (FPDC) in order to take control

ICC-01/04-01/06-2748-Red, paras 21 24, relying on the jurisprudence of the Pre-Trial Chambers and the ICTY (see below). 1578 ICC-01/04-01/06-2748-Red, para. 21. 1579 ICC-01/04-01/06-2748-Red, para. 21. The ICTY jurisprudence relied upon is: Prosecutor v. Tadi, Case No. IT-94-1-T (trial judgment), Prosecutor v. orevi, Case No. IT-05-87/1-T (trial judgment), Prosecutor v. Limaj et al., Case No. IT-03-66-T (trial judgment), Prosecutor v. Haradinaj et al., Case No. IT-04-84-T (trial judgment), and Prosecutor v. Mrki et al., Case No. IT-95-13/1-T (trial judgment). 1580 ICC-01/04-01/06-2778-Red, para. 125. 1581 T-356-ENG, page 49, line 10 to page 50, line 9 (prosecution oral closing submissions).

1577

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of Mahagi in June 2003. 1582 It is the prosecutions contention that members of the UPC/FPLC attacked MONUC several times.1583 508. The prosecution alleges the UPC/FPLC fought the RCD-ML, the FNI and the FRPI, and that each of these groups was armed and had a sufficient degree of organisation (demonstrated by their leadership structure and participation in the political process). Furthermore, it is suggested these armed groups had the ability to undertake sustained operations, as revealed by their ability to train troops and participate in numerous battles.1584 509. The prosecution submits the conflict was non-international in character, notwithstanding the conclusion of the Pre-Trial Chamber that it was international until Uganda withdrew from Ituri on 2 June 2003.1585 510. It is the prosecution submission that there can be simultaneous conflicts within a particular territory that involve different forces, and that Ugandas involvement (even if it is found to have constituted occupation), would not automatically mean the armed conflict relevant to the charges was international in character.
1586

The

prosecution submits the key issue is the nature of the conflict to which the particular army or militia is a party (viz. the conflict to which Lubangas militia was a party during the relevant times).1587 511. The prosecution suggests that even if Uganda can be said to have

ICC-01/04-01/06-2778-Red, para. 126. ICC-01/04-01/06-2778-Red, para. 126. 1584 ICC-01/04-01/06-2748-Red, paras 22 24. 1585 ICC-01/04-01/06-2748-Red, para. 30 and T-356-ENG, page 43, line 20 to page 45, line 1 (prosecution oral closing submissions). 1586 ICC-01/04-01/06-2748-Red, paras 48-54 and T-356-ENG, page 45, line 12 to page 46, line 19 (prosecution oral closing submissions). 1587 ICC-01/04-01/06-2748-Red, para. 31.
1583

1582

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been occupying certain areas of Ituri, such as Bunia airport, there is insufficient evidence that it occupied Bunia as a whole during the relevant timeframe. 1588 In addition, the prosecution submits that although there is some evidence of assistance provided by Rwanda and Uganda, applying the overall control test, as adopted by the ICC and ICTY (see below), it falls short of the threshold for indirect intervention.1589 Equally, it is submitted that neither the presence of multi-national forces nor the direct intervention by Ugandan military forces were sufficient to constitute an international conflict, as the part played by these forces did not result in two states opposing each other.
1590

Finally, the prosecution argues that even if Ugandan

involvement did create an international armed conflict, the UPC/FPLC was involved in a distinct, simultaneous non-international armed conflict.1591 2. Defence submissions 512. The defence, as part of its analysis of armed conflicts that are noninternational in character, relies on the approach adopted by Pre-Trial Chamber I. 1592 Referring to the provisions of Article 8(2)(f) of the Statute, it submits the violence must reach a particular level of intensity. Armed conflicts not of an international character are conflicts that take place in the territory of a State when there is a protracted conflict between the government and organised armed groups, or

1588 ICC-01/04-01/06-2748-Red, paras 44 47 and T-356-ENG, page 46, line 20 to page 49, line 9 (prosecution oral closing submissions). 1589 ICC-01/04-01/06-2748-Red, paras 38 43. 1590 ICC-01/04-01/06-2748-Red, paras 36 37. 1591 ICC-01/04-01/06-2748-Red, paras 56 58. 1592 ICC-01/04-01/06-2773-Red-tENG, para. 27, referring to ICC-01/04-01/06-803-tEN, paras 227 234.

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between armed groups.1593 513. It is suggested by the defence that Additional Protocol II to the Geneva Conventions of 8 June 1977 operates to restrict this definition by stipulating that armed conflicts in this category take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.1594 514. The defence argues the prosecution has failed to demonstrate that the FNI, the FRPI, PUSIC, and the FAPC were organized armed groups under international humanitarian law.1595 It is submitted it has not been proven that these organisations were under responsible command or exercised sufficient control over a part of the relevant territory, thereby enabling them to carry out sustained and concerted military operations and to implement the provisions of international humanitarian law.1596 515. The approach of the Pre-Trial Chamber is referred to by the defence in this regard:
Thus, in addition to the requirement that the violence must be sustained and have reached a certain degree of intensity, Article I.I of Protocol Additional II provides that armed groups must: i) be under responsible command implying some degree of organisation of the armed groups, capable of planning and carrying out sustained and concerted military operations and imposing discipline in the name of a de facto authority, including the

ICC-01/04-01/06-2773-Red-tENG, paras 28 29. ICC-01/04-01/06-2773-Red-tENG, para. 30; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 1(1) (Additional Protocol II). 1595 ICC-01/04-01/06-2786-Red-tENG, para. 105. 1596 ICC-01/04-01/06-2786-Red-tENG, para. 105.
1594

1593

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implementation of the Protocol; and ii) exercise such control over territory as to enable them to carry out sustained and concerted military operations.1597

516. The defence supports the conclusion of the Pre-Trial Chamber that the conflict in Ituri in the period between September 2002 and June 2003 was an armed conflict of an international character (it is suggested that the conflict only extended until late May 2003).1598 The defence argues that whilst sporadic acts of violence occurred in Ituri after May 2003, these did not involve organised armed groups exercising territorial control and they should be treated as instances of internal disturbance and tension. It is suggested there was no conflict of any kind in Ituri between the end of May 2003 and August 2003. 1599 517. The defence emphasises the evidence of P-0041, who testified as to arms being provided to the FPLC by Rwanda, the involvement of Mr Mbusa Nyamwisi in the conflict in Ituri and the decision of the United Nations to maintain Ugandan troops in the DRC.1600 The defence also highlights the testimony of a number of other witnesses: P-0017, concerning alleged training given by Rwanda to the FPLC and his reference to the Ugandan army as an occupying force;1601 P-0055, as to the presence of the Ugandan army as an occupying force in Bunia and the provision of weapons and uniforms by Rwanda;1602 P-0012, relating to Ugandan arms deliveries to PUSIC; 1603 and the expert Grard Prunier (P-0360), on Ugandas role as an occupying force in Ituri, the involvement of the Kinshasa government in the conflict either directly or through the RCD-ML, and what he described as a war by proxy

1597 1598

ICC-01/04-01/06-2773-Red-tENG, para. 31, referring to ICC-01/04-01/06-803-tEN, para. 232. ICC-01/04-01/06-2773-Red-tENG, paras 689 - 693; ICC-01/04-01/06-2786-Red-tENG, para. 108. 1599 ICC-01/04-01/06-2773-Red-tENG, paras 694 699. 1600 ICC-01/04-01/06-2773-Red-tENG, paras 396 398. 1601 ICC-01/04-01/06-2773-Red-tENG, para. 440. 1602 ICC-01/04-01/06-2773-Red-tENG, paras 482 483. 1603 ICC-01/04-01/06-2773-Red-tENG, para. 559.

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between the states of the DRC, Uganda, and Rwanda.1604 However, the defence observes that Mr Prunier (P-0360) stressed that the available information on the events in Ituri in 2002-2003 is not particularly reliable. In addition, the defence submits that some of the views expressed in this witnesss report are partial, although it accepts he is reliable on certain identified subjects.1605 3. Victims submissions 518. The V01 group of legal representatives of victims contends it is undisputed that one or more armed conflicts occurred in Ituri between 1 September 2002 and 13 August 2003.1606 The V01 group submits that the conflict cannot properly be considered as a situation of internal disturbance or tension, given the duration and intensity of the hostilities, the number of victims and the manner in which the forces were organised and armed.1607 519. The V01 team argues that during the period between September 2002 and June 2003, an international armed conflict and a noninternational armed conflict existed simultaneously in the territory of Ituri.1608 520. The V02 group of legal representatives of victims contends that an armed conflict, with a degree of intensity and involving the UPC, PUSIC and the FNI (among others), occurred in Ituri from September 2002 to August 2003.1609 It argues the fight between the UPC and the

1604 1605

ICC-01/04-01/06-2773-Red-tENG, paras 668 673. ICC-01/04-01/06-2773-Red-tENG, paras 664 667. 1606 ICC-01/04-01/06-2746-Red-tENG, para. 4. 1607 ICC-01/04-01/06-2746-Red-tENG, para. 4. 1608 ICC-01/04-01/06-2746-Red-tENG, para. 14, referring to ICC-01/04-01/06-803-tEN, para. 209. 1609 ICC-01/04-01/06-2747-Red-tENG, para. 75.

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FNI over control of the gold-mining town of Mongbwalu, 1610 the UPC/FPLC military operations against the towns of Tchomia and Nizi and the village of Iga Barrire, as well as numerous other armed attacks, demonstrate the existence of an armed conflict. It advances by way of further evidence in this regard the Security Councils Resolution 1493 1611 (pursuant to Chapter VII of the United Nations Charter), and the latters decision to remain actively seized of the Ituri situation throughout the period of the charges. 521. The V02 team maintains that the armed conflict can be classified as international due to its intensity, duration and character. 1612 It is suggested the UPC/FPLC was an organised armed group within the meaning of Article 8(2)(f) of the Statute, as it was capable of carrying out large-scale military operations for a protracted period of time.1613 It also relies on the testimony of several witnesses as to the highly structured nature of the UPC and its chain of command.1614 522. The OPCV has not advanced submissions as to whether there was an armed conflict, arguing that the prosecution is better placed to address this issue.1615 Similarly, it has not presented arguments as to the appropriate characterisation of the conflict. Instead, the OPCV stresses that Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute criminalise the same conduct regardless of the characterisation of the armed conflict.1616 The V02 team advanced a similar submission.1617

1610 1611

ICC-01/04-01/06-2747-Red-tENG, para. 75. United Nations Security Council Resolution 1493, UN Doc. S/RES/1493, 28 July 2003, paras 26

27.
1612 1613

ICC-01/04-01/06-2747-Red-tENG, para. 74. ICC-01/04-01/06-2747-Red-tENG, para. 78. 1614 ICC-01/04-01/06-2747-Red-tENG, paras 79 82. 1615 ICC-01/04-01/06-2744-Red-tENG, para. 15. 1616 ICC-01/04-01/06-2744-Red-tENG, para. 15. 1617 ICC-01/04-01/06-2747-Red-tENG, para. 72.

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C. THE CHAMBERSS CONCLUSIONS 1. The law Characterisation of the armed conflict (international armed conflict vs. noninternational armed conflict) 523. In the Decision on the confirmation of charges, the Pre-Trial Chamber, having considered the evidence as to Rwandas involvement in the armed conflict, concluded there was insufficient evidence to establish substantial grounds to believe that Rwanda played a role that could be described as direct or indirect intervention in the armed conflict in Ituri.1618 524. In its final analysis, the Pre-Trial Chamber held:
On the evidence admitted for the purpose of the confirmation hearing, the Chamber considers 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 Ituri can be characterised as an armed conflict of an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.1619 [] there are substantial grounds to believe that between 2 June and late December 2003, the armed conflict in Ituri involved, inter alia, the UPC/FPLC, PUSIC and the FNI; that the UPC and FNI fought over control of the gold-mining town of Mongbwalu; that various attacks were carried out by the FNI in Ituri during this period; that a political statement was signed in mid-August 2003 in Kinshasa by the main armed groups operating in Ituri calling on the transitional government to organise [TRANSLATION] a meeting with us, current political and military actors on the ground, so as to nominate by consensus, new administrative officials for appointment; that at the very beginning of November 2003, the UPC carried out a military operation against the town of Tchomia, which was then under PUSIC control; and, finally, that the UPC/FPLC armed forces controlled the towns of Iga Barrire and Nizi at the very least in December 2003.1620

1618 1619

ICC-01/04-01/06-803-tEN, paras 221 226. ICC-01/04-01/06-803-tEN, para. 220. 1620 ICC-01/04-01/06-803-tEN, para. 236 (footnotes omitted).

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525. In determining that the relevant conflict was international between September 2002 and 2 June 2003 and non-international between 2 June 2003 and 13 August 2003, the Pre-Trial Chamber confirmed the charges against the accused on the basis of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, although the prosecution had only charged the accused with the conscription and enlistment of children under the age of fifteen years, and their use to participate actively in hostilities, within the context of a non-international armed conflict under Article 8(2)(e)(vii) of the Statute. 526. The prosecution 1621 and the defence 1622 applications for leave to appeal were refused by the Pre-Trial Chamber, which observed:
[P]ursuant to Regulation 55 of the Regulations of the Court, the Trial Chamber may "change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused." Indeed, there is nothing to prevent the Prosecution or the Defence from requesting that the Trial Chamber reconsider the legal characterisation of the facts described in the charges against Thomas Lubanga Dyilo and as confirmed by the Chamber.1623

527. Following submissions from the parties after the transfer of the case to the Trial Chamber, the latter gave notice, in accordance with Regulation 55 of the Regulations of the Court, that the legal characterisation of the facts may be subject to change. The Chamber instructed the parties and participants to:
[] prepare their cases on the basis that the Bench may decide that the first group of three charges encompass both international and internal armed conflicts.1624

528. Accordingly, the prosecution submitted as follows:

ICC-01/04-01/06-806. ICC-01/04-01/06-807-Conf. 1623 ICC-01/04-01/06-915, para. 44. 1624 Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, 13 December 2007, ICC-01/04-01/06-1084, para. 49.
1622 1621

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Consistent with the Trial Chambers decision of 13 December 2007 and the amended document containing the charges, the Prosecution will present the totality of its evidence relating to both international and non-international aspects of the conflict. The evidence will enable the Chamber to determine whether the Ugandan occupation of Ituri between the 1st of September 2002 and early June 2003 transformed the character of the conflict into an international armed conflict.1625

529. In its Order on the timetable for closing submissions, the Chamber invited submissions on the nature of the armed conflict and the factors that should be borne in mind if the Chamber were to modify the legal characterisation of the charges for the period from early September 2002 to 2 June 2003.1626 530. The parties and the participants have not challenged the procedure followed by the Chamber as regards a possible legal re-

characterisation of the facts under Regulation 55 of the Regulations of the Court, although they addressed in their submissions whether it would be appropriate for any modification to occur. Definition of armed conflict 531. The relevant Elements of Crimes require that the alleged criminal conduct took place in the context of and was associated with an [] armed conflict. 1627 There is no definition of armed conflict in the Statute or in the Elements of Crimes. The introduction to the Elements of Crimes sets out that:
The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict []

532. As with the Rome Statute, neither the Geneva Conventions nor their

1625 1626

T-107-ENG, page 22, lines 1-7; T-107-FRA, page 20, lines 16 19. ICC-01/04-01/06-2722, para. 4 (iii) and (iv). 1627 See Elements of Crimes, Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii), para. 4.

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Additional Protocols explicitly define armed conflict.1628 533. The definition of this concept has been considered by other international tribunals and the Chamber has derived assistance from the jurisprudence of the ICTY:
70. [] an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.1629

Armed conflict not of an international character 534. As to the definition of an armed conflict not of an international character, Article 8(2)(f) of the Statute provides:
Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.1630

Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 291; Hctor Olsolo, Ensayos sobre la Corte Penal Internacional (2009), pages 357 et seq. 1629 ICTY, Prosecutor v. Tadi, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (Tadi Interlocutory Appeal Decision). 1630 Common Article 3 to the Geneva Conventions of 12 August 1949 provides: In the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting parties, []; Article 1(1) of Additional Protocol II reads: This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Article 1(2) of Additional Protocol II provides as follows: This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of

1628

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535. Relying on Additional Protocol II to the Geneva Conventions and the ICTY Tadi Interlocutory Appeal Decision cited above, Pre-Trial Chamber I determined that the involvement of armed groups with some degree of organisation and the ability to plan and carry out sustained military operations would allow for the conflict to be characterised as an armed conflict not of an international character.1631 536. The Trial Chamber agrees with this approach, and notes that Article 8(2)(f) of the Statute only requires the existence of a protracted conflict between organised armed groups. It does not include the requirement in Additional Protocol II that the armed groups need to exercise such control over a part of [the] territory as to enable them to carry out sustained and concerted military operations. 1632 It is therefore unnecessary for the prosecution to establish that the relevant armed groups exercised control over part of the territory of the State.
1633

Furthermore, Article 8(2)(f) does not incorporate the

requirement that the organised armed groups were under responsible command, as set out in Article 1(1) of Additional Protocol II. 1634 Instead, the organized armed groups must have a sufficient degree of organisation, in order to enable them to carry out protracted armed

a similar nature, as not being armed conflicts. Whereas Common Article 2 is limited to international armed conflicts between signatories, Common Article 3 affords minimal protection to organised armed groups involved in any conflict not of an international character. See Gerhard Werle, Principles of International Criminal Law (2009), page 366 at marginal note 981; Andrew J. Carswell, Classifying the conflict: a soldiers dilemma, 91 International Review of the Red Cross (2009), page 150; Gary D. Solis, The Law of Armed Conflict, (2010), page 157. 1631 ICC-01/04-01/06-803-tEN, para. 233. It is to be noted that the extract of the Pre-Trial Chambers reasoning relied upon by the defence in its submissions (see para. 515) does not appear to reflect the ultimate conclusion of the Pre-Trial Chamber, set out in para. 233 of the Decision on the confirmation of charges. 1632 Additional Protocol II, Article 1(1). 1633 Pre-Trial Chamber II came to the same conclusion in ICC-01/05-01/08-424, para. 236. 1634 This appears to be the approach adopted by Pre-Trial Chamber I, ICC-01/04-01/06-803-tEN, paras 232 - 233; Pre-Trial Chamber II adopted a different interpretation, ICC-01/05-01/08-424, para. 234.

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violence.1635 537. When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or groups internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or groups ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. 1636 None of these factors are individually determinative. The test, along with these criteria, should be applied flexibly when the Chamber is deciding whether a body was an organised armed group, given the limited requirement in Article 8(2)(f) of the Statute that the armed group was organized. 538. The intensity of the conflict is relevant for the purpose of determining whether an armed conflict that is not of an international character existed,1637 because under Article 8(2)(f) the violence must be more than sporadic or isolated. The ICTY has held that the intensity of the conflict should be used solely as a way to distinguish an armed
1635 ICC-01/04-01/06-803-tEN, para. 234. The inclusion of the additional requirements set out in Additional Protocol II that the armed groups are under responsible command and exercise control over a part of the territory appears to have been deliberately rejected by the drafters of the Rome Statute. See Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 502 at marginal note 351; William A. Schabas, The International Criminal Court A Commentary on the Rome Statute (2010), pages 204-205; Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), pages 120 121; International Committee of the Red Cross (ICRC), Concerns on Threshold for War Crimes Committed in Non-international Armed Conflicts as Contained in the Bureau Proposal in Document A/CONF.183/C.1/L.59 and Corr. 1, UN Doc. A/CONF.183/INF/11. 1636 ICTY, Prosecutor v. Limaj et al., Case No. IT-03-66-T, Trial Chamber, Judgment, 30 November 2005, para 90; ICTY, Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, Trial Chamber, Judgment, 3 April 2008, para. 60 ; ICTY, Prosecutor v. Bokoski, Case No. IT-04-82-T, Trial Chamber, Judgment, 10 July 2008, paras 199 203. 1637 The requirement set out in Article 8(2)(f) is also a jurisdictional requirement because if the necessary level of intensity is not reached, the alleged crimes do not fall within the jurisdiction of the Court; see ICC-01/05-01/08-424, para. 225.

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conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.1638 In order to assess the intensity of a potential conflict, the ICTY has indicated a Chamber should take into account, inter alia, the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and, if so, whether any resolutions on the matter have been passed. 1639 The Chamber is of the view that this is an appropriate approach. The distinction between international and non-international armed conflicts 539. It is to be observed at the outset that some academics,
1640

practitioners,1641 and a line of jurisprudence from the ad hoc tribunals1642

1638

ICTY, Prosecutor v. orevi, Case No. IT-05-87/1-T, Trial Chamber, Public Judgment with Confidential Annex Volume I of II, 23 February 2011, para. 1522. 1639 ICTY, Prosecutor v. Mrki et al., Case No. IT-95-13/1-T, Trial Chamber, Judgment, 27 September 2007, para. 407. 1640 James Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 International Review of the Red Cross (2003); Dietrich Schindler, The Different Types of Armed conflicts according to the Geneva Conventions and Protocols, 163 Collected Courses of the Hague Academy of International Law (1979-II); W. Michael Reisman and James Silk, Which Law Applies to the Afghan Conflict?, 82(3) American Journal of International Law (1988); Hans Pieter Gasser, Internationalized Noninternational armed conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon, 33 Auckland University Law Review (1983), page 479; W. Michael Reisman, Application of Humanitarian Law in non-international armed conflicts: Remarks by W. Michael Reisman, 85 Proceedings of the Annual Meeting (American Society of International Law) (1991); Robert Cryer, An Introduction to International Criminal Law and Procedure (2010), page 586. 1641 In 1947, the ICRC proposed that a paragraph be added to Article 2 of the draft Geneva Conventions. This paragraph stated that [i]n all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each of the adversaries. Although this provision was not adopted, it demonstrates that concerns about the distinction between international and non-international armed conflicts existed early on: see Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary - Volume III: Geneva Convention relative to the Treatment of Prisoners of War (2002), page 31. More recently, a study undertaken under the auspices of the ICRC makes reference to a large body of customary rules, the majority of which are equally applicable

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have

questioned

the

usefulness

of

the

distinction

between

international and non-international armed conflicts, particularly in light of their changing nature. In the view of the Chamber, for the purposes of the present trial the international/non-international distinction is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Courts statutory framework. 540. The Appeals Chamber of the ICTY has recognised that, depending on the particular actors involved, conflicts taking place on a single territory at the same time may be of a different nature. 1643 The Chamber endorses this view and accepts that international and noninternational conflicts may coexist.1644 International armed conflict 541. The Rome Statute framework does not define an international

regardless of the classification of the relevant armed conflict: see JeanMarie Henckaerts, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, 87 International Review of the Red Cross (2005), pages 198 212. 1642 Tadi Interlocutory Appeal Decision, paras 96 98 and para. 119. The Chamber addressed the emerging issue of a blurred legal differentiation between international and non-international armed conflicts. The Chamber indicated that it is only natural that the aforementioned dichotomy should gradually lose its weight. 1643 Tadi Interlocutory Appeal Decision, paras 72-77; Otto Kimminich, Schutz der Menschen in bewaffneten Konflikten, Zur Fortentwicklung des humanitren Vlkerrechts (1979), page 126 et seq; Gerhard Werle, Principles of International Criminal Law (2009), page 372 at marginal note 997. 1644 ICTY, Prosecutor v. Tadi, Case No. IT-94-1-A, Appeals Chamber, Appeals Judgment, 15 July 1999 (Tadi Appeal Judgment), para. 84. The International Court of Justice (ICJ) also acknowledged the principle of coexistence in the Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, para. 219: The conflict between the contras forces and those of the Government of Nicaragua is an armed conflict which is not of an international character. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to noninternational conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict.

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armed conflict. Relying on Common Article 2 of the Geneva Conventions, the International Committee of the Red Cross (ICRC) Commentary thereto, and the ICTY Tadi Appeals Judgment, Pre-Trial Chamber I determined that an armed conflict is international:
if it takes place between two or more States; this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance. In addition an internal armed conflict that breaks out on the territory of a State may become international or depending upon the circumstances, be international in character alongside an internal armed conflict if (i) another State intervenes in that conflict through its troops (direct intervention), or if (ii) some of the participants in the internal armed conflict act on behalf of that other State (indirect intervention).1645

It is widely accepted that when a State enters into conflict with a nongovernmental armed group located in the territory of a neighbouring State and the armed group is acting under the control of its own State, the fighting falls within the definition of an international armed conflict between the two States.1646 However, if the armed group is not acting on behalf of a government, in the absence of two States opposing each other, there is no international armed conflict.1647 PreTrial Chamber II, when considering this issue, concluded that an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on
ICC-01/04-01/06-803-tEN, para. 209. See also ICC-01/05-01/08-424, paras 220-223. See Tadi Interlocutory Appeal Decision, para. 70 (cited above). See also ICTY, Prosecutor v. Delali et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, para. 183 and ICTY, Prosecutor v. Branin, Case No. IT-99-36-T, Trial Chamber, Judgment, 1 September 2004, para. 122. 1646 Sylvain Vit, Typology of armed conflicts in international humanitarian law : legal concepts and actual situations, 91 International Review of the Red Cross (2009), pages 70 71 and 90; see also Tadi Appeal Judgment, paras 84, 90, 131, and 137 145; Gary D. Solis, The Law of Armed Conflict (2010), pages 154 155; Jelena Peji, Status of Armed Conflicts in Elizabeth Wilmshurst (ed.) Perspectives on the ICRC Study on Customary International Humanitarian Law (2007), pages 92 93. 1647 Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary Volume I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2002), page 32 (Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2 []); Sylvain Vit, Typology of armed conflicts in international humanitarian law: legal concepts and actual situations, 91 International Review of the Red Cross (2009), pages 70 71; Jelena Peji, Status of Armed Conflicts, in Elizabeth Wilmshurst (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007), pages 92 93.
1645

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behalf of the State.1648 As regards the necessary degree of control of another State over an armed group acting on its behalf, the Trial Chamber has concluded that the overall control test is the correct approach. This will determine whether an armed conflict not of an international character may have become internationalised due to the involvement of armed forces acting on behalf of another State. A State may exercise the required degree of control when it has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. 1649 Pre-Trial Chamber I adopted this approach.1650 542. Moreover, footnote 34 of the Elements of Crimes stipulates that the term international armed conflict includes a military occupation, for all of the crimes coming within Article 8(2)(a) of the Statute. PreTrial Chamber I held that a territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.1651 The Chamber agrees with
ICC-01/05-01/08-424, para. 223. Tadi Appeal Judgment, para. 137 (emphasis in the original); see also: [C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). (ibid., para. 137, emphasis in the original). See also, ICTY, Prosecutor v. Aleksovski, Case No. IT-9514/1-A, Appeals Chamber, Appeals Judgment, 24 March 2000, paras 131 - 134; ICTY, Prosecutor v. Delali et al., Case No. IT-96-21-A, Appeals Chamber, Appeals Judgment, 20 February 2001, para. 26; ICTY, Prosecutor v. Kordi and erkez, Case No. IT-95-14/2-A, Appeals Chamber, Appeals Judgment, 17 December 2004, paras 306 307. 1650 ICC-01/04-01/06-803-tEN, para. 211. 1651 ICC-01/04-01/06-803-tEN, para. 212, relying on ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, 19 December 2005, I.C.J. Reports 2005 and Articles 42 and 43 of Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on land, 18 October 1907. Article 42 reads: Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. Article 43 reads: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. See also ICC-01/04-01/06-803-tEN, para. 205.
1649 1648

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this definition. The Chamber notes the reference in Article 8(2)(b) to the established framework of international law, which applies equally to the crimes set out in Article 8(2)(b). The crime of conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities as set out in Article 8(2)(b)(xxvi) of the Statute falls within the established framework of international law as one of the "other serious violations of the laws and customs applicable in international armed conflict". The prohibition is based on Article 77(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949. 1652 This Protocol applies to armed conflicts between States, as indicated by Common Article 2 of the Geneva Conventions.1653 It follows that for the purposes of Article 8(2)(b)(xxvi) of the Statute, international armed conflict includes a military occupation. 2. The facts 543. The evidence in the case demonstrates beyond reasonable doubt that during the entirety of the period covered by the charges there were a number of simultaneous armed conflicts in Ituri and in surrounding areas within the DRC, involving various different groups. Some of these armed conflicts, which included the UPC, involved protracted violence. The military wing of the UPC, known as the

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 (Additional Protocol I); see also Articles 38(2) and (3) of the UN Convention on the Rights of the Child; Knut Drmann, Elements of War crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), pages 376-377; Roy S. Lee (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), page 205; William A. Schabas, The International Criminal Court A Commentary on the Rome Statute (2010), page 252; Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), pages 467-468. See paras 600-628 of this Judgment. 1653 Article 1(3) of Additional Protocol I reads: This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

1652

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FPLC, was established by September 2002.1654 As already highlighted in the Chapter on the Background to the Conflict in Ituri (see above), from the beginning of September 2002 at the latest, the UPC/FPLC as a political and military organisation was in control of Bunia. 1655 The takeover of Bunia by the UPC/FPLC marked the turning point in the Ituri conflict. 1656 From then onwards, the rapidity of the alliance switches, the multi-directionality of the fighting and the nature of the violence against the civilian population reached unprecedented extremes.
1657

The UPC/FPLC was organised with a leadership

structure1658 that was capable of training troops1659 as well as imposing discipline,1660 and it carried out sustained military operations in Ituri during the relevant timeframe.1661 544. In addition to the FPLC, there were a number of significant political and military groups in operation in Ituri in 2002. The RCD-ML, whose army was the APC, was defeated in August 2002 in Bunia and thereafter it supported the Lendu militias and engaged in fighting against the UPC/FPLC.1662 As set out above, the Lendu formed a group called the FNI and the Ngiti created the FRPI. Other significant militias
See T-188-CONF-ENG, page 91, lines 20 21, page 94, lines 3 11 and T-189-CONF-ENG, page 4, line 10 to page 5, line 16 (P-0016). See discussion of the credibility of P-0016 in Section X(B)(2). 1655 T-179-Red-ENG, page 76, lines 5 17 (P-0014); T-342-ENG, page 5, line 22 to page 6, line 1 and page 9, lines 3 5 and T-343-Red-ENG, page 3, lines 16 24 (D-0019); T-348-ENG, page 44, lines 10 13 (D-0007); T-346-ENG, page 74, lines 6 12 (D-0011). See discussion of the credibility of D0011 and D-0019 in Section X(B)(2). 1656 The Ituri Conflict: A background study, prepared for the ICC by P-0360, EVD-OTP-00403 at DRC-OTP-0203-0106. Overall, the Chamber has relied on parts of the evidence of Mr Prunier which are not challenged by the defence (see para. 517). Where the Chamber relied on other parts of his evidence, it is satisfied that they are reliable or consistent with other evidence in the case. See also discussion of Mr Pruniers credibility in the Factual overview section above, paras 68-69. 1657 EVD-OTP-00403 at DRC-OTP-0203-0106 DRC-OTP-0203-0108. 1658 T-154-Red-ENG, page 21, lines 7 20 and page 23, line 24 to page 24, line 19 (P-0017). See discussion of the credibility of P-0017 in Section X(B)(2). 1659 See Section X(B) containing factual findings on conscription, enlistment and use. 1660 See Section X(B) containing factual findings on conscription, enlistment and use. 1661 See paras 547 and 550. 1662 Special Report on the events in Ituri, January 2002 December 2003, S/2004/573, EVD-OTP00623 at DRC-0074-0470.
1654

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at the time included, inter alia, PUSIC, headed by Chief Kahwa Panga Mandro after his departure from the UPC/FPLC near the end of 2002, and Jrme Kakwavus FAPC. 1663 545. On the basis of the evidence presented in this case, it has been established that the APC, the armed wing of the RCD-ML,1664 was an organised armed group capable of carrying out prolonged hostilities within the period of the charges. 1665 During this time, the RCDML/APC also supported various Lendu armed militias, including the FRPI, in combat against the UPC/FPLC.1666 546. From March 2003, at the latest, the FRPI was an organised armed group as it had a sufficient leadership and command structure, participated in the Ituri Pacification Commission, carried out basic training of soldiers and engaged in prolonged hostilities, including the battles in Bogoro and Bunia (between March and May 2003).1667 547. Extensive evidence has been given during the trial concerning the UPC/FPLCs involvement in the fighting involving rebel militias (namely the RCD-ML and Lendu militias, including the FRPI) that took place in Ituri between September 2002 and August 2003.1668 The
EVD-OTP-00623 at DRC-OTP-0074-0468 0469 (D-0019); T-340-ENG, page 48, line 21 to page 51, line 15 (D-0037); T-347-Red-ENG, page 16, lines 16 20 (D-0011) and T-162-Red-ENG, page 61, lines 9 11 (P-0002). See discussion of the credibility of P-0002 and D-0037 in Section X(B)(2). 1664 EVD-OTP-00405, page 16 and T-168-Red-ENG, page 34, line 2 to page 35, line 2 (P-0012). RCD-ML/APC is used herein when referring to both the APC and the RCD-ML. See discussion of the credibility of P-0012 in Section X(B)(2). 1665 The RCD-ML and the APC had an organised leadership and command structure and participated in the Inter-Congolese negotiations, see EVD-OTP-00623 at DRC-OTP-0074-0429 to DRC-OTP-00740430, DRC-OTP-0074-0451 and DRC-OTP-0074-0470; T-188-Red2-ENG, page 91, line 22 to page 92, line 11 (P-0016). 1666 EVD-OTP-00623 at DRC-OTP-0074-070 and DRC-OTP-0074-0480 - 0482; T-348-ENG, page 42, lines 4 13 (D-0007); T-125-Red-ENG, page 81, lines 12 14 and T-126-Red-ENG, page 16, lines 14 23 (P-0041). See discussion of the credibility of P-0041 in Section X(B)(2). 1667 EVD-OTP-00623 at DRC-OTP-0074-0434 and DRC-OTP-0074-0470; T-162-Red-ENG, page 78, lines 7 22 and T-164-Red-ENG , page 13, lines 6 16 (P-0002); EVD-OTP-0737 at DRC-OTP-01520263; T-156-ENG, page 74, lines 16 22 (P-0360). 1668 EVD-OTP-00623 at DRC-OTP-0074-0436 to DRC-OTP-0074-0437; T-182-CONF-ENG, page 8, line 15 to page 9, line 11 (P-0014). See discussion of the credibility of P-0014 in Section X(B)(2).
1663

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Chamber heard evidence that the UPC/FPLC, assisted by the UPDF, fought the RCD-ML in Bunia in August 2002.1669 In November 2002, the UPC/FPLC fought Lendu combatants and the APC in

Mongbwalu.1670 The UPC/FPLC fought the APC and Lendu militias in Bogoro (March 2003),1671 and it was in conflict with Lendu militias in Lipri, Bambu and Kobu (in February and March 2003), 1672 Mandro (March 2003),1673 and Mahagi,1674 among other areas. In early March 2003, fighting between the UPC/FPLC and the UPDF and several Lendu militias, including the FRPI, ended in the withdrawal of the UPC/FPLC from Bunia. 1675 However, in May 2003 the UPC/FPLC army returned to Bunia where it clashed with Lendu militias, again including the FRPI, resulting in a number of casualties.1676 548. Although Ugandan forces withdrew from Bunia in May 2003, the evidence indicates that there was no peaceful settlement prior to 13 August 2003. Documentary evidence establishes that in June 2003, the Hema village of Katoto was attacked twice by Lendu militia members,

See paras 90 and 1084-1114. However, several defence witnesses denied that UPC/FPLC soldiers were responsible for chasing the RCD-ML out of Bunia. 1670 EVD-OTP-00623 at DRC-OTP-0074-0451 to DRC-OTP-0074-0452; T-154-Red2-ENG, page 22, line 15 to page 23, line 14, page 25, lines 15 16 and page 79, lines 19 25; T-157-Red-ENG, page 71, lines 14 to page 73, line 20 (P-0017); T-174-Red2-ENG, page 50, line 9 to page 51, line 24 (P-0055); EVD-OTP-00623 at DRC-OTP-0074-0451 to DRC-OTP-0074-0452. See discussion of the credibility of P-0055 in Section X(B)(2). 1671 EVD-OTP-00623 at DRC-OTP-0074-0443 to DRC-OTP-0074-0444. 1672 EVD-OTP-00623 at DRC-OTP-0074-0444 and DRC-OTP-0074-00445; T-157-Red-ENG, page 90, lines 5 11 and page 96, lines 3 to page 97, line 22 (P-0017); EVD-OTP-00491, page 25, line 12 to page 27, lines 10 25 (transcript of testimony of P-0046 during the hearing on the Confirmation of the Charges). See discussion of the credibility of P-0046 in Section X(B)(2). 1673 EVD-OTP-00623 at DRC-OTP-0074-0445; T-190-Red-ENG, page 58, line 25 to page 59, line 6 (P-0016). 1674 T-348-ENG, page 42, lines 2 13 (D-0007) and EVD-OTP-00623 at DRC-OTP-0074-0433, DRCOTP-0074-0437, and DRC-OTP-0074-0479 0480. See discussion of the credibility of D-0007 in Section X(B)(2). 1675 EVD-OTP-00623 at DRC-0074-0445 to DRC-0074-0446; T-348-ENG, page 41, lines 14 - 18 and EVD-OTP-00403 at DRC-OTP-0203-0109 to DRC-OTP-0203-0110; T-178-Red2-ENG, page 18, line 13 to page 19, line 1 (P-0055) and T-160-Red2-ENG, page 70, lines 17 - 21 (testimony of P-0002). 1676 EVD-OTP-00623 at DRC-OTP-0074-0446 to DRC-OTP-0074-0447; T-164-Red2-ENG, page 12 lines 3 20 and T-164-Red2-FRA, page 12, lines 12 15 (testimony of P-0002); T-168-CONF-ENG, page 74, line 25 to page 75, line 8 and page 76, lines 23 25 (P-0012).

1669

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resulting in many casualties.1677 In addition, Lendu militia and APC soldiers attacked Tchomia in July 2003, killing up to eleven civilians.1678 Scores more civilians were killed in July 2003, when Lendu combatants carried out attacks on Fataki.1679 During the summer of 2003, the UN Security Council authorised the deployment to Ituri of a European Union led Interim Emergency Multinational Force (Operation Artemis) in order to restore security in the area, and on 28 July 2003 MONUC was given a Chapter VII mandate authorising it to take the necessary measures to protect civilians. 1680 Despite these and other efforts, the evidence clearly indicates that during the period between the end of May 2003 and 13 August 2003, a peaceful settlement had not been reached in Ituri. 549. Although the defence submits that between September 2002 and late May 2003 there was an international armed conflict taking place in Ituri, it is argued that there is insufficient evidence to establish the existence of any armed conflict between late May 2003 and 13 August 2003.1681 550. However, the Chamber finds that the evidence on this issue leaves no reasonable doubt that the UPC/FPLC, as an armed force or group, participated in protracted hostilities and was associated with an armed conflict throughout the relevant timeframe of the charges. 551. In situations where conflicts of a different nature take place on a

EVD-OTP-00623 at DRC-OTP-0074-0449. EVD-OTP-00623 at DRC-OTP-0074-0448 0449 and DRC-OTP-00482. 1679 The FAPC were also reportedly involved in one of the attacks. EVD-OTP-00623 at DRC-OTP0074-0449 - DRC-OTP-0074-0450 and Fourteenth report of the Secretary General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00625 at DRCOTP-0074-0215 to DRC-OTP-0074-0216. 1680 EVD-OTP-00623 at DRC-OTP-0074-0482 and EVD-OTP-00625 at DRC-OTP-0074-0215 to DRC-OTP-0074-0217. 1681 ICC-01/04-01/06-2773-Red-tENG, paras 668-674 and 681-699.
1678

1677

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single territory, it is necessary to consider whether the criminal acts under consideration were committed as part of an international or a non-international conflict. 1682 In these circumstances, the question

arises as to whether the military involvement by one or more of the DRCs neighbours on its territory internationalised the relevant conflict or conflicts. 552. In accordance with the test set out above, to determine whether the UPC/FPLC was a party to an international armed conflict in Ituri, the relevant inquiry is whether between September 2002 and 13 August 2003, the UPC/FPLC, the APC and the FRPI were used as agents or proxies for fighting between two or more states (namely Uganda, Rwanda, or the DRC). 553. As to the role of the DRC, there is some evidence that Kinshasa sent trainers and weapons to the APC.1683 The UN Special Report on the events in Ituri contains allegations that in the last three months of 2002, some military supplies may have also been sent directly to the Lendu militia in Rethy, within the Djugu territory.1684 However, the limited support provided by the Congolese government to the RCDML and potentially to Lendu militias during this time is insufficient to establish the DRC governments overall control over these armed groups. Critically, there is no sustainable suggestion that the DRC had a role in organising, coordinating or planning the military actions of the UPC/FPLC during the period relevant to the charges. 554. Regarding the role of Rwanda, there is ample evidence it provided
1682

See Gerhard Werle, Principles of International Criminal Law (2009), page 372 at marginal note 998. 1683 T-156-ENG, page 67, line 6 to page 68, line 14 and T-156-FRA page 64, lines 21 25 (P-0360) and EVD-OTP-00623 at DRC-OTP-0074-00435. 1684 EVD-OTP-00623 at DRC-OTP-0074-00435.

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support to the UPC/FPLC. There is evidence that Rwanda supplied uniforms 1685 and weapons 1686 to the UPC/FPLC, including dropping weapons by air to Mandro,1687 and it provided training to UPC/FPLC soldiers, in the DRC and in Rwanda.1688 P-0017, a former UPC/FPLC member,1689 testified that he went to Rwanda with a group of soldiers to receive heavy-weapons training in late 2002. 1690 Around January 2003, the UPC/FPLC reportedly signed an agreement with the RCD-G, which was supported by Kigali.1691 Documentary evidence establishes that after the UPDF expelled the UPC/FPLC from Bunia in March 2003, Thomas Lubanga and others were evacuated to Rwanda.1692 555. P-0055 testified that he had been told, with regard to the UPC/FPLCs objective of taking military control of the town of Mongbwalu, they had received orders from Rwanda and Rwanda had indicated if they took the town of Mongbwalu it would be a good thing and they were going to receive everything they needed. And so the objective of taking Mongbwalu was to obey an order issued by Rwanda, and in order to receive assistance from Rwanda as a

1685 T-181-Red2-ENG, page 88, line 21 to page 89, line 2 (P-0014). P-0055 testified that Rwanda supplied uniforms to the UPC/FPLC whilst Uganda supplied boots: T-175-Red2-ENG, page 64, line 25 to page to page 65, line 15 (testimony of P-0055). 1686 T-175-Red2-ENG, page 66, lines 6 19 (P-0055) and T-181-Red2-ENG, page 88, line 21 to page 89, line 4 (P-0014). 1687 EVD-OTP-00623 at DRC-OTP-0074-0435; T-181-Red2-ENG, page 90, lines 3 19 (P-0014). P0012 testified that Rwanda supplied Mr Lubanga with weapons and Mr Lubanga then passed some weapons to the Lendu: T-168-Red2-ENG, page 60, line 10 to page 61, line 11 and page 64, line 7 to page 65, line 15. 1688 Thirteenth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00624 at DRC-OTP-0131-0047; EVD-OTP-00623 at DRC-OTP-0074-0434; T-181-Red2-ENG, page 90, lines 16 23; T-182-CONF-ENG, page 13, lines 11 16; T-184-Red-ENG, page 26, lines 1 5 (P-0014) and T-209-ENG, page 77, line 4 to page 78, line 17 (P-0116). See discussion of the credibility of P-0116 in paras 1031 and 1036. 1689 T-154-Red-ENG, page 17, line 11 to page 18, line 9. 1690 T-154-Red-ENG, page 40, lines 4 12 and page 60, line 7 to page 67, line 2. 1691 T-168-Red-ENG, page 64, lines 13 18 (P-0002). See also interview with Chief Kahwa Panga Mandro, video EVD-OTP-00412 at 00:12:45 (Everyone is aware of this. This is why Mr. Lubanga, when he realised that he was losing, created alliances with RCD-Goma. And you know that RCDGoma is Rwanda) introduced during testimony of P-0002, T-162-Red-ENG, page 55, lines 14 16. 1692 EVD-OTP-00623 at DRC-OTP-0074-0434 DRC-OTP-0074-0435.

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result. 1693 As discussed below, there is no corroboration of this statement. 556. Furthermore, there is no evidence that Rwanda supported either the APC or the FRPI. Therefore, it is unnecessary for the Chamber to consider this issue further. 557. There is considerable material regarding the presence of Ugandan troops in Ituri between September 2002 and 13 August 2003, although the overall number involved was decreasing during the period covered by the charges. For instance, Grard Prunier (P-0360) indicated that although the UPDF once deployed 13,000 troops in the DRC, at the time the all-inclusive peace agreement was signed on 17 December 2002, 10,000 had been withdrawn.1694 Similarly, reports from the UN set out that between 10 September 2002 and 18 October 2002, 2,287 UPDF troops withdrew from Ituri, leaving a reinforced battalion in Bunia and troops patrolling the Ruwenzori Mountains.
1695

Notwithstanding that reduction, there was, on occasion, substantial activity on the part of Ugandan forces: for instance, the UPDF was in occupation of areas in Bunia, such as the airport, for considerable periods of time (in the latter case, from 1 September 2002 until 6 May 2003).1696 558. Additionally, there is evidence of Ugandan support for UPC/FPLC

T-178-CONF-ENG, page 10, lines 8 18. See discussion of the credibility of P-0055 in Section X(B)(2). 1694 The influence of Rwanda and Uganda inside the DRC in general and the Ituri in particular during the semi post war period, EVD-OTP-00405 at DRC-OTP-0203-0017- 0018. 1695 Twelfth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00620 at DRC-OTP-0131-0390. 1696 T-162-Red-ENG, page 53, lines 11 15; T-164-Red2, page 12, lines 3 20 (P-0002); T-154-RedENG, page 67, line 23 to page 68, line 13 (P-0017); T-174-Red2, page 25, lines 17 19 (P-0055).

1693

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troops in the form of training and providing weapons.1697 559. Documentary evidence demonstrates the FRPI was supported by individual UPDF commanders, and the FRPI (and other militias) assisted in removing the UPC/FPLC from Bunia in March 2003. 1698 560. Grard Prunier (P-360) testified that the DRC, Uganda, and Rwanda fought through proxies, 1699 and at one point in his evidence, he asserted that a proxy war between Kinshasa and Uganda continued until the final departure of Ugandan troops (which he suggested was in 2004).1700 However, as discussed above, the evidence in this case concerning the DRCs role in the relevant conflict has essentially been limited to the way it provided support to the APC.1701 As to Ugandas involvement, according to Grard Prunier (P-0360), the UPDF initially had supported the Hemas against the Lendu before switching sides and lending assistance to the Lendu.1702 As to Ugandas control over the FRPI and other militias, Mr Prunier (P-0360) testified that the Ugandans were unable to control their agents on the ground.1703 In his report to the Chamber, Mr Prunier (P-0360) asserted [a]fter August 2002 the UPDF obviously lost control of its proxies.1704 He also suggested that at some point Kampala may not even have had control of its own forces in the DRC.1705 561. During the period relevant to the charges (September 2002 to 13
EVD-OTP-00623 at DRC-OTP-0074-0433 DRC-OTP-0074-0434 (stating that Uganda was involved in the creation of the UPC/FPLC and helped to train and arm UPC/FPLC rebels but later turned against the UPC/FPLC and instead provided support to the FNI/FRPI). 1698 EVD-OTP-00623 at DRC-0074-0434 and EVD-OTP-00403 at DRC-OTP-0203-0109 to DRCOTP-0203-0110. 1699 T-156-ENG, page 52, lines 11 16. 1700 T-156-ENG, page 67, line 6 to page 68, line 21. 1701 T-156-ENG, page 67, line 6 to page 68, line 14. 1702 T-156-ENG, page 74, lines 2 9. 1703 T-156-ENG, page 75, line 17. 1704 EVD-OTP-00403 at DRC-OTP-0203-0115. 1705 T-157-Red-ENG, page 42, line 11 to page 43, line 7.
1697

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August 2003), the UPC/FPLC was primarily engaged in conflict with the RCD-ML/APC (which received support from the DRC) and Lendu militias, including the FRPI (which were sometimes assisted by individual UPDF commanders),1706 though the UPC/FPLC also fought against Ugandan forces, in particular in Bunia in March 2003. The Chamber has not heard any evidence that Uganda had a role in organising, coordinating or planning UPC/FPLC military operations. With regard to Rwanda, although P-0055 gave evidence that the UPC/FPLC wanted to take the town of Mongbwalu because it had been directed to do so by Rwanda, 1707 this statement has not been corroborated by other evidence and it is insufficient, taken alone or together with the other evidence above, to prove that Rwanda had overall control of the UPC/FPLC and the latter acted as its agent or proxy. Thus, there is insufficient evidence to establish (even on a prima facie basis) that either Rwanda or Uganda exercised overall control over the UPC/FPLC. 562. There is no evidence of direct intervention by Rwanda in Ituri during this time. Therefore, it is unnecessary for the Chamber to consider this issue further. 563. Similarly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned (viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC was a party was not a difference arising between two states1708 but rather protracted violence carried out by multiple non-state armed groups, it remained a

1706 1707

EVD-OTP-00623 at DRC-OTP-0074-0434. T-178-Red2-ENG, page 10, lines 8 18. 1708 See para.541.

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non-international

conflict

notwithstanding

any

concurrent

international armed conflict between Uganda and the DRC. 564. As discussed above, there is evidence that during the relevant timeframe the UPDF occupied certain areas of Bunia, such as the airport. However, it is unnecessary to analyse whether territory came under the authority of the Ugandan forces, thereby amounting to a military occupation, because the relevant conflict or conflicts concern the UPC and other armed groups.1709 565. Focussing solely on the parties and the conflict relevant to the charges in this case, the Ugandan military occupation of Bunia airport does not change the legal nature of the conflict between the UPC/FPLC, RCD-ML/APC and FRPI rebel groups since this conflict, as analysed above, did not result in two states opposing each other, whether directly or indirectly, during the time period relevant to the charges. In any event, the existence of a possible conflict that was international in character between the DRC and Uganda does not affect the legal characterisation of the UPC/FPLCs concurrent noninternational armed conflict with the APC and FRPI militias, which formed part of the internal armed conflict between the rebel groups. 566. For these reasons and applying Regulation 55 of the Regulations of the Court, the Chamber changes the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was noninternational in character. 567. The Trial Chamber therefore finds that the armed conflict between the UPC/FPLC and other armed groups between September 2002 and

1709

See paras 543-544.

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13 August 2003 was non-international in nature.

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X. CONSCRIPTION AND ENLISTMENT OF CHILDREN UNDER THE AGE OF 15 OR USING THEM TO PARTICIPATE ACTIVELY IN HOSTILITIES (ARTICLE 8(2)(e)(vii) OF THE STATUTE)
A. THE LAW

568. Given the Chambers conclusion that the UPC was engaged in a non-international armed conflict throughout the period of the charges,
1710

it is unnecessary to interpret or discuss Article

8(2)(b)(xxvi). Subject to one significant difference in wording (conscription or enlistment of children into national armed forces (Article 8(2)(b)(xxvi) of the Statute) as opposed to armed forces or groups (Article 8(2)(e)(vii) of the Statute), the elements of these two crimes are similar. 1711 Therefore, the extent to which the crimes of conscription, enlistment and use of children below the age of 15 under Article 8(2)(b)(xxvi) have previously been the subject of interpretation and consideration will be relevant to the Chambers analysis of Article 8(2)(e)(vii). 569. Article 8(2)(e)(vii) of the Statute, the first treaty to include these offences as war crimes, 1712 provides:
2. []

See paras 543-567. See wording of the respective elements of crime for Article 8(2)(b)(xxvi) and 8(2)(e)(vii). See also Knut Drmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 471; Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 206; William Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 252. 1712 See also Statute of the Special Court for Sierra Leone, Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000, article 4(c), which reads identically.
1711

1710

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(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: [] (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

[] The corresponding Elements of Crimes read as follows:

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. Such person or persons were under the age of 15 years. The perpetrator knew or should have known that such person or persons were under the age of 15 years. The conduct took place in the context of and was associated with an armed conflict not of an international character. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

570. The Chambers conclusions on Elements 3 and 5 are addressed separately in the context of Section XI(A)(5).1713 The Chamber has also discussed the definition of an [organised] armed group elsewhere in this judgment.1714 571. The Elements of Crimes require that the relevant conduct took place in the context of and was associated with an armed conflict not of an international character. 1715 Given the plain and ordinary meaning of this provision, it is unnecessary to discuss its interpretation in detail: it is sufficient to show that there was a

1713 1714

See paras 1014-1016. See paras 536-537. 1715 Elements of Crimes, Article 8(2)(b)(xxvi), para. 4.

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connection between the conscription, enlistment or use of children under 15 and an armed conflict that was not international in character. The remaining Elements and the relevant applicable law are analysed below. 1. Submissions a) Prosecution submissions Enlistment and conscription 572. The prosecution adopts the approach of the Pre-Trial Chamber, in defining conscription as forcible recruitment and enlistment as voluntary recruitment.1716 It is argued that the prohibition against both forms of recruitment of children is well established in customary international law, and that a childs consent does not constitute a valid defence. 1717 The prosecution refers to the Pre-Trial Chambers conclusion that these crimes are of a continuing nature, and only end when the children leave the relevant group or reach 15 years of age.1718 573. The prosecution notes the interpretation of the Appeals Chamber of the Special Court for Sierra Leone (SCSL) that enlistment (meaning in this context recruitment of a voluntary or compulsory nature) [] include[s] any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military

operations.1719

ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN. ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN, paras 242 248. 1718 ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN, para. 248. 1719 ICC-01/04-01/06-2748-Red, footnote 267; SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-A, Appeals Chamber, Judgement, 28 May 2008 (CDF Appeal Judgment), para. 144.
1717

1716

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Use of children to participate actively in hostilities 574. It is submitted by the prosecution that the term child soldiers includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group, for instance by working as a cook, porter, messenger or when individuals are used for sexual purposes, including by way of forced marriage.1720 575. The prosecution supports the Pre-Trial Chambers approach that active participation in hostilities includes direct participation in combat, as well as combat-related activities such as scouting, spying, sabotage and the use of children at military checkpoints or as decoys and couriers. In addition, it is argued the term includes the use of children to guard military objectives or to act as the bodyguards of military commanders.
1721

The prosecution accepts the Pre-Trial

Chambers ruling that activities that are clearly unrelated to hostilities, such as delivering food to an airbase and working as domestic staff in the officers quarters, are excluded.1722 576. The prosecution, as part of its submissions, focussed on the approach of the SCSL when it decided that using children as bodyguards, allowing children (armed with cutlasses, knives and guns) to be present in active combat zones, using children to monitor checkpoints and leading Kamajors, or dancing in front of them as
ICC-01/04-01/06-2748-Red, para. 139; referring to inter alia, UNICEF, Cape Town Principles and Best Practices, 27 - 30 April 1997 (Cape Town Principles) pages 2 3; UN, Integrated Disarmament, Demobilization and Reintegration Standards, 1 August 2006, pages 3 and 19. 1721 ICC-01/04-01/06-2748-Red, para. 140; ICC-01/04-01/06-803-tEN, paras 261 and 263. 1722 ICC-01/04-01/06-2748-Red, para. 140; ICC-01/04-01/06-803-tEN, para. 262.
1720

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they go into battle, constitute the use of children to participate actively in hostilities.1723 The prosecution notes that the SCSL has decided that the use of children to participate actively in hostilities occurs when their lives are put at risk in combat and if they are present when crimes are committed, irrespective of their particular duties. 1724 The SCSL concluded that participation in hostilities includes any work or support that gives effect to, or helps maintain, the conflict, and the interpretation note added to the draft ICC Statute by the ICC Preparatory Commission in 2002 contributed, at least to an extent, to that interpretation.1725 577. The prosecution also rehearses the broad approach taken by the UN Special Representative of the Secretary General on Children and Armed Conflict, Ms Radhika Coomaraswamy (CHM-0003, Ms Coomaraswamy or Special Representative) on this issue, who suggested that children who were given roles as cooks, porters, nurses and translators, together with those who were sexually exploited, should be viewed as providing essential support and that the Court should ensure that girls are not excluded in this context.1726 578. In summary, the prosecution submits that the Chamber ought to adopt a broad interpretation of the expression direct support function, in order to afford wider protection to child soldiers and to prevent any use of children in activities closely related to

ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, Trial Chamber, Judgment, 2 August 2007 (CDF Trial Judgment), para. 688. 1724 ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Trial Chamber, Judgment, 20 June 2007 (AFRC Trial Judgment), para. 1267. 1725 ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, CDF Trial Judgment, para. 193; SCSL, AFRC Trial Judgment, para. 736. 1726 ICC-01/04-01/06-2748-Red, para. 142; referring to Written submissions of Ms Coomaraswamy, ICC-01/04-01/06-1229-AnxA (EVD-CHM-00007), paras 17 26.

1723

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hostilities.1727 b) Defence submissions

Enlistment and conscription 579. The defence observes that the Pre-Trial Chamber and the Rome Statute framework have left the concept of enlistment undefined.1728 It is suggested that the broad approach taken in various international instruments, which were designed to afford children the widest possible protection, should not be imported into criminal proceedings before the ICC because tightly-defined criteria are to be applied.1729 In this regard, the defence relies on Articles 22(1) and (2) of the Statute.1730 580. It is, therefore, argued that the various international instruments governing the protection of children in this area, particularly when terms such as children associated with armed forces and groups are used, include children who, on account of their role, should not be treated as soldiers for the purposes of the criminal law.1731 The defence refers in this context to the Paris Principles.1732 581. Additionally, the defence relies on jurisprudence from the European Court of Human Rights to the effect that a criminal offence must be clearly defined in the relevant laws, and the criminal law should not be broadly interpreted to an accuseds detriment. 1733 Against this
ICC-01/04-01/06-2748-Red, para. 143. ICC-01/04-01/06-2773-Red-tENG, para. 32. 1729 ICC-01/04-01/06-2773-Red-tENG, para. 33. 1730 ICC-01/04-01/06-2773-Red-tENG, footnote 29. 1731 ICC-01/04-01/06-2773-Red-tENG, para. 33. 1732 The Paris Principles, The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, February 2007 (Paris Principles) Principle 2.1; ICC-01/04-01/06-2773-Red-tENG, footnote 28. 1733 ICC-01/04-01/06-2773-Red-tENG, footnote 29; European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 7(1); European Court of Human Rights (ECHR), Veeber v. Estonia (No. 2), Application No. 45771/99, Judgment (Merits and Just Satisfaction) 21
1728 1727

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background and in light of a possible lengthy sentence under Article 77 of the Statute, it is suggested that a stricter definition of the concept of military enlistment is necessary. The defence supports the following approach, namely the [] integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in the hostilities on behalf of the group,1734 and it relies on commentary from the ICRC for this suggested approach.1735 582. The critical distinction suggested by the defence is between those children who are integrated into an armed group as soldiers and who undertake military functions, and those who do not perform a military role and are not assigned any functions connected with the hostilities (although they are within the armed group). 1736 The latter, it is

submitted, should not be treated as having been enlisted. The defence relies on the Dissenting Opinion of Justice Robertson at the SCSL:
[] forcible recruitment is always wrong, but enlistment of child volunteers might be excused if they are accepted into the force only for non-combatant tasks, behind the front lines.1737

Use of children to participate actively in hostilities 583. The defence criticises the Pre-Trial Chambers interpretation of the concept of actively participating in hostilities because it only excludes those activities that are clearly unrelated to hostilities,
January 2003, para. 31; ECHR, Pessino v. France, Application No. 40403/02, Judgment (Merits and Just Satisfaction), 10 October 2006, para. 35. 1734 ICC-01/04-01/06-2773-Red-tENG, para. 34. 1735 ICC-01/04-01/06-2773-Red-tENG, footnote 30; ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, 90 International Review of the Red Cross (2008), page 1007. 1736 ICC-01/04-01/06-2773-Red-tENG, paras 35 and 36; ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law 90 International Review of the Red Cross (2008), pages 1007-1008. 1737 ICC-01/04-01/06-2773-Red-tENG, para. 36 and footnote 32; SCSL, The Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Dissenting Opinion of Justice Robertson, 31 May 2004 (Dissenting Opinion of Justice Robertson), para. 9.

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whilst including couriers, guards at military sites and the bodyguards of military commanders. 1738 It is argued that this interpretation is excessively broad and violates Article 22(2) of the Statute.1739 584. The defence suggests, particularly by reference to the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), that the concept of actively participating in hostilities should be interpreted as being synonymous with direct

participation which, it is argued, equates to acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.1740 585. The defence relies on the three cumulative criteria1741 for defining direct participation in hostilities as identified by the ICRC, and it argues that those who act as bodyguards or guard military installations (or similar), do not fulfil these criteria and should not be treated as having participated actively in the hostilities.1742 586. The defence submits that the broad interpretation applied by the Pre-Trial Chamber diminishes the meaning of the adjective active and its utility for distinguishing between direct and indirect forms of participation in hostilities (the latter, it is suggested, is not proscribed
ICC-01/04-01/06-2773-Red-tENG, para. 38; see ICC-01/04-01/06-803-tEN, paras 261 263. ICC-01/04-01/06-2773-Red-tENG, para. 39. 1740 ICC-01/04-01/06-2773-Red-tENG, para 40; citing ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, para. 99; reference is also made to ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgment, 2 September 1998, para. 629, 1741 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, 90 International Review of the Red Cross (2008), pages 995 996: 1. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus); cited in ICC-01/04-01/06-2773-Red-tENG, para. 41. 1742 ICC-01/04-01/06-2773-Red-tENG, paras 41 and 42.
1739 1738

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by the Statute).1743 In addition, it is argued that the Pre-Trial Chambers interpretation does not allow for a distinction between child soldiers based on whether they participated in the hostilities. 1744 It is

contended this is objectionable because the intention was to focus on children below the age of 15 who actively participate in hostilities, so as to punish those who endanger them.1745 587. The defence suggests that a footnote to the draft Statute of the Court provides a wholly insufficient basis for extending the concept of actively participating to cover all activities other than fighting with an indirect link to the hostilities.1746 By reference to the principle of legality, the defence argues that the decisions of the SCSL, delivered after the relevant events, should not be used in support of a broad interpretation and it suggests that at the time of the events which are the subject of the present charges, international criminal law only addressed the use of children to participate in military operations within fighting units.1747 c) Victims Submissions 588. The legal representatives of the V01 group of victims support the approach of Pre-Trial Chamber I in the Confirmation Decision, namely that enlistment refers to voluntary recruitment and conscription relates to forcible recruitment. However, it is argued this distinction has no bearing as regards minors, although it may be a factor in sentencing.1748

ICC-01/04-01/06-2773-Red-tENG, para. 43. ICC-01/04-01/06-2773-Red-tENG, para. 44. 1745 ICC-01/04-01/06-2773-Red-tENG, para. 44. 1746 ICC-01/04-01/06-2773-Red-tENG, para 45, referring to ICC-01/04-01/06-803-tEN, para. 261, footnote 339. 1747 ICC-01/04-01/06-2773-Red-tENG, paras 46 and 47. 1748 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 24.
1744

1743

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589. It is submitted the term child soldiers is increasingly being replaced by the expression children associated with armed forces or groups 1749 and the prohibition against the recruitment of children under the age of fifteen years includes any participation by a child in a military organisation. Accordingly, the argument is advanced that the protection afforded by the Statute extends to young girls who are recruited by armed forces and are then used primarily as servants or sexual slaves. The legal representatives note, however, that these girls also often participate directly in military activities.1750 590. The V01 group highlights the difference between the concepts of taking a direct part, as used in Additional Protocol I to the Geneva Conventions, and participating actively in hostilities. The legal representatives argue that those who drafted the Statute deliberately chose the latter formulation so as to encompass a wider range of activities.1751 591. The legal representatives refer to the approach adopted by Pre-Trial Chamber I in the Decision on the confirmation of charges on the definition of active participation.1752 592. The victim group V02 endorses the approach of Pre-Trial Chamber I and the expert witness Ms Coomaraswamy (CHM-0003), to the effect that conscription is to be defined as forcible recruitment, whereas enlistment covers voluntary recruitment (although the childs consent is not a valid defence). 1753 Furthermore, the legal representatives
1749 1750

ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 26; referring to EVD-CHM-00007, footnote 8. ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 26. 1751 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 27; see Roy S. Lee (eds.), The International Criminal Court: Elements of Crimes and Rules Of Procedure and Evidence (2001), pages 205-207. 1752 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 28, referring to ICC-01/04-01/06-803-tEN, paras 261 263. 1753 ICC-01/04-01/06-2747-Red-tENG, paras 34 36.

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support the approach of the expert witness that the Court must approach this distinction on a case-by-case basis, focussing on what was required of the children, together with the circumstances of their enrolment and the manner in which they were separated from their families and communities.1754 593. The legal representatives of the V02 group of victims submit that in order to establish active participation in hostilities, it is unnecessary to prove that the children were directly involved in combat, and that active participation in related activities (such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints, or to transport ammunition) is included.1755 594. The legal representatives rely on the SCSLs judgment in the case of the case of The Prosecutor v. Brima, Kamara and Kanu (AFRC case), in which the Court highlighted:
Using children to participate actively in the hostilities encompasses putting their lives directly at risk in combat [] [A]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.1756

595. The legal representatives note the approach of Pre-Trial Chamber I that using children to guard military sites, such as the quarters of the commanders, comes within these offences. 1757 However, it is also observed that Pre-Trial Chamber I excluded activities which are manifestly without connection to the hostilities, for instance by making deliveries or providing domestic help at the married officers

1754 1755

ICC-01/04-01/06-2747-Red-tENG, paras 38 39. ICC-01/04-01/06-2747-Red-tENG, para. 53. 1756 ICC-01/04-01/06-2747-Red-tENG, para. 57; SCSL, AFRC Trial Judgment, paras 736 and 737. 1757 ICC-01/04-01/06-2747-Red, para. 54.

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quarters.1758 596. The OPCV adopts the position of Pre-Trial Chamber I that conscripting and enlisting are both forms of recruitment, and that the former is forcible whilst the latter is voluntary (albeit the childs consent is not a valid defence). The legal representative suggests that the principle that children should not be recruited into the armed forces includes an absolute prohibition against the voluntary enlistment of minors.1759 597. It is contended by the OPCV that the offences of conscripting and enlisting are of a continuing nature, in that they are committed for as long as the children are under fifteen years of age and remain in the armed force or group.1760 598. It is submitted that active participation in hostilities covers both direct and indirect participation and there should be no distinction between the participation of child combatants and that of child non combatants in hostilities.1761 The OPCV relies on the submissions of Ms Coomaraswamy (CHM-0003), the Cape Town Principles, the Paris Principles and the African Unions Solemn Declaration on Gender Equality in Africa as support for the proposition that the expression to participate actively should be interpreted so as to protect girls recruited into the armed forces for sexual purposes. It is submitted this is usually the primary reason for their recruitment.1762 Moreover, the

ICC-01/04-01/06-2747-Red, para. 56, referring to EVD-CHM-00007, para. 19. ICC-01/04-01/06-2744-Red-tENG, para. 6, referring inter alia to ICC-01/04-01/06-803-tENG, paras 246-247, ICRC Commentary to the Additional Protocols to the Geneva Conventions, and EVDCHM-00007, para. 10. 1760 ICC-01/04-01/06-2744-Red-tENG, para. 7, referring inter alia to ICC-01/04-01/06-803-tENG, para. 248.
1759

1758

1761
1762

ICC-01/04-01/06-2744-Red-tENG, para. 9. ICC-01/04-01/06-2744-Red-tENG,paras 10-11; EVD-CHM-00007, paras 19, 21 and 26.

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legal representative suggests this interpretation is fully supported by Ms Coomaraswamy (CHM-0003) in her criticism of Pre-Trial Chamber Is ruling excluding activities that were manifestly unrelated to hostilities:
[t]he Court should deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the using [children in hostilities] crime [and] that during war, the use of girl children in particular includes sexual violence. 1763

599. It is said to be unnecessary for the Court to determine whether girls subjected to sexual abuse within the armed forces were used to participate actively in hostilities. The fact they were recruited when under the age of fifteen years is sufficient proof of enlistment, conscription or use under the Statute. The legal representative cites with approval a Decision of the Trial Chamber:
[i]t is not necessary [] for the Chamber to engage in the critical question that otherwise arises in this application as to whether the use of children for sexual purposes alone, and including forced marriage, can be regarded as conscription or enlistment into an armed force, or the use of that person to participate actively in the hostilities, in accordance with Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute. As just set out, the applicant has presented enough evidence to conclude, prima facie, that she was abducted in the broad context of the systematic conscription of children under the age of 15 into the military forces of the UPC.1764

2. The Chambers Analysis and Conclusions 600. Addressing the three relevant acts, namely conscripting, enlisting children under the age of 15 or using them to participate actively in hostilities, in each instance the conduct is not defined in the Statute, the Rules or the Elements of Crimes. Accordingly, the scope of the

ICC-01/04-01/06-2744-Red-tENG, para. 10, citing EVD-CHM-00007, para. 21. ICC-01/04-01/06-2744-Red-tENG, para. 12, citing Annex 1 to Decision on the applications by victims to participate in the proceedings, 15 December 2008, ICC-01/04-0l/06-1556-Corr-Anx1, para. 103.
1764

1763

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activities covered by Article 8(2)(e)(vii) of the Statute must be determined in accordance with Articles 21 and 22(2) of the Statute, which provide (as relevant):
Article 21 Applicable law 1. The Court shall apply: a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; 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; c. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Article 22 Nullum crimen sine lege [] 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

601. The Appeals Chamber has established that the interpretation of the Statute is governed by the Vienna Convention on the Law of Treaties,1765 as follows:

Vienna Convention on the Law of Treaties, adopted on 23 May 1969 and entered into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, Article 31(1).

1765

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The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.1766

602. The Appeals Chamber has also decided that Article 21(3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms.1767 603. The jurisprudence of the SCSL has been considered by the Trial Chamber. Although the decisions of other international courts and tribunals are not part of the directly applicable law under Article 21 of the Statute, the wording of the provision criminalising the conscription, enlistment and use of children under the age of 15 within the Statute of the SCSL1768 is identical to Article 8(e)(vii) of the Rome Statute, and they were self-evidently directed at the same objective. The SCSLs case law therefore potentially assists in the interpretation of the relevant provisions of the Rome Statute.

Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal", 13 July 2006, ICC-01/04-168, para. 33 (footnotes omitted). See also The Prosecutor v. Katanga and Ngudjolo, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07522, paras 38 and 39; Judgment 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 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", 21 October 2008, ICC-01/04-01/061486, para. 40; The Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, para. 49. 1767 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, para. 36.
1768

1766

Article 4(c) of the SCSL Statute: Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

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604. Article 4(3)(c) of Additional Protocol II to the 1949 Geneva Conventions includes an absolute prohibition against the recruitment and use of children under the age of 15 in hostilities (in the context of an armed conflict not of an international character):1769
children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

In addition, the Convention on the Rights of the Child, a widely ratified human rights treaty, requires the State Parties to take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities, and to refrain from recruiting any person who has not attained the age of fifteen years into their armed forces in all types of armed conflicts (armed conflicts which are relevant to the child).1770 605. These provisions recognise the fact that children are particularly vulnerable [and] require privileged treatment in comparison with the rest of the civilian population.1771 The principal objective underlying these prohibitions historically is to protect children under the age of 15
1769 The drafters of Additional Protocol II made provision for the consequences of any possible violation by including a provision (Article 4(3)(d)) requiring special protection for children under 15 if they take a direct part in hostilities and are captured: ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), page 1380. Article 77(2) of Additional Protocol I provides: 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.; ICC-01/04-01/06-803-tEN, paras 242 243; see also Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 467 at marginal note 227; Knut Drmann, Elements of War crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), pages 376 and 470. 1770 Convention on the Rights of the Child, adopted an opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; entered into force on 2 September 1990: Article 38, paras 2 and 3. See also Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, U.N.DOC.A/54/RES/263 (2000), Articles 1 to 3, and African Charter On the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), adopted on 11 July 1990 and entered into force on 29 November 1999, Article 22(2): [Armed Conflicts] State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child. 1771 ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), page 1377 at marginal note 4544; see also page 1379 at marginal note 4555.

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from the risks that are associated with armed conflict, and first and foremost they are directed at securing their physical and psychological well-being. This includes not only protection from violence and fatal or non-fatal injuries during fighting, but also the potentially serious trauma that can accompany recruitment (including separating children from their families, interrupting or disrupting their schooling and exposing them to an environment of violence and fear).1772 606. It is to be noted that the potentially broad concept of children associated with armed conflict was referred to throughout the trial.1773 This expression does not form part of the wording of any of the charges the accused faces, but instead as submitted by the defence it is clearly designed to afford children with the greatest possible protection. Although it is to be stressed that the Chamber has applied the provisions of the Statute as opposed to this more general concept, Ms Coomaraswamy gave relevant background evidence that children in this context frequently undertake a wide range of tasks that do not necessarily come within the traditional definition of warfare.1774 As a result, they are exposed to various risks that include rape, sexual enslavement and other forms of sexual violence, cruel and inhumane treatment, as well as further kinds of hardship that are incompatible with their fundamental rights.

Report of Ms Schauer (CHM-0001), The Psychological Impact of Child Soldiering, ICC-01/0401/06-1729-Anx1 (EVD-CHM-00001); Gregoria Palomino Surez, Kindersoldaten im Vlkerstrafrecht (2009), page 124; see also Graca Machel, Impact of Armed Conflict on Children, 26 August 1996, UN Doc A/51/306, para.30; Francois Bugnion, Les Enfants Soldats, le Droit International Humanitaire et la Charte Africaine des Droits et du Bien-tre de LEnfant, 12 African Journal of International & Comparative Law (2000), page 263. 1773 ICC-01/04-01/06-2748-Red, paras 142 143; ICC-01/04-01/06-2773-Red-tENG, para. 33; T-223ENG, page 14, line 24 to page 16, line 10; T-208-ENG, page 12, lines 16 et seq. 1774 T-223-ENG, page 14, lines 4 23.

1772

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a) Enlistment and conscription 607. The Chamber accepts the approach adopted by the Pre-Trial Chamber that conscription and enlistment are both forms of recruitment,1775 in that they refer to the incorporation of a boy or a girl under the age of 15 into an armed group, whether coercively (conscription) or voluntarily (enlistment).1776 The word recruiting, which is used in the Additional Protocols and in the Convention on the Rights of the Child, was replaced by conscripting and enlisting in the Statute. Whether a prohibition against voluntary enrolment is included in the concept of recruitment is irrelevant to this case,1777 because it is proscribed by Article 8. 608. This interpretation gives the relevant provisions of the Statute their plain and ordinary meaning. It is to be noted that enlisting is defined as to enrol on the list of a military body
1778

and

conscripting is defined as to enlist compulsorily.1779 Therefore, the distinguishing element is that for conscription there is the added element of compulsion.1780 Whether this distinction is of relevance in

Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, para. 4. ICC-01/04-01/06-803-tEN, para. 246, referring to SCSL, Dissenting Opinion of Justice Robertson; See also Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 205. 1777 See ICC-01/04-01/06-803-tEN, para. 244 and footnote 314 & 315; see also Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (1999), page 118; and Roy S. Lee (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), page 205; and SCSL, Dissenting Opinion of Justice Robertson, para. 5. 1778 Oxford Dictionary (2002, 5th ed.), page 831. See also Knut Drmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 472 at marginal note 231. 1779 Oxford Dictionary (2002, 5th ed), page 491; See also Knut Drmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court : Observers Notes (2008), page 472 at marginal note 231. 1780 Gregoria Palomino Surez, Kindersoldaten im Vlkerstrafrecht (2009), page 139.
1776

1775

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this case is considered below. 609. Bearing in mind the use of the word or in Article 8(2)(e)(vii), in the Chambers view the three alternatives (viz. conscription, enlistment and use) are separate offences.1781 It follows that the status of a child under 15 who has been enlisted or conscripted is independent of any later period when he or she may have been used to participate actively in hostilities, particularly given the variety of tasks that he or she may subsequently be required to undertake. Although it may often be the case that the purpose behind conscription and enlistment is to use children in hostilities, this is not a requirement of the Rome Statute. If Article 8(2)(e)(vii) is taken on its own, the position is potentially ambiguous, given it reads [c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities (emphasis added). However, the Elements of Crimes clarify the issue by requiring 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 (emphasis added). The Chamber therefore rejects the defence contention that the act of enlistment consists in the integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in hostilities on behalf of the group.1782 610. The expert witness, Elisabeth Schauer (CHM-0001), suggested in her report and during her evidence before the Chamber that from a psychological point of view children cannot give informed consent

1781

See SCSL, AFRC Trial Judgment, para 733; CDF Appeal Judgment, para. 139, and Dissenting Opinion of Justice Robertson, para. 5. 1782 ICC-01/04-01/06-2773-Red-tENG, para. 34.

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when

joining

an

armed

group,

because

they

have

limited

understanding of the consequences of their choices; they do not control or fully comprehend the structures and forces they are dealing with; and they have inadequate knowledge and understanding of the short- and long-term consequences of their actions. Ms Schauer (CHM0001) concluded that children lack the capacity to determine their best interests in this particular context.1783 611. In her written submissions, Ms Coomaraswamy (CHM-0003) notes that it can be difficult to differentiate between a conscripted and an enlisted child:
The recruitment and enlisting of children in [the] 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 stomachs. 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. [] 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.1784

612. The Special Representative (CHM-0003) further suggests that the line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict.1785 613. The Chamber endorses the conclusions of the expert witnesses, in the sense that it will frequently be the case that girls and boys under
1783 Report of Ms Schauer (CHM-0001), The Psychological Impact of Child Soldiering, EVD-CHM00001, pages 7 8; T-166-ENG, page 13, lines 10 19; page 90, lines 1 4. 1784 EVD-CHM-00007, paras 13 and 14. 1785 EVD-CHM-00007, para. 14.

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the age of 15 will be unable to give genuine and informed consent when enlisting in an armed group or force. 614. Against that background, the Chamber addresses the issue of whether the valid and informed consent of a child under 15 years of age provides the accused with a defence in these circumstances. 615. In Ms Coomaraswamys expert testimony before the Chamber she suggested that since children under the age of 15 cannot reasonably give consent, the accused should not be able to rely on the voluntary nature of their enlistment into an armed force or group as a defence.1786 616. The Pre-Trial Chamber in the present case adopted this approach, when it determined that a childs consent does not provide a valid defence to enlistment.1787 It is of note that the Appeals Chamber of the SCSL opined that where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.1788 In addition, the SCSLs Trial Chamber in the case of the Prosecutor v. Fofana and Kondewa (CDF case) concluded:
[T]he distinction between [voluntary enlistment and forced enlistment] is somewhat contrived. Attributing voluntary enlistment in the armed forces to a child under the age of 15 years, particularly in a conflict setting where human rights abuses are rife, is [...] of questionable merit.1789

617. In all the circumstances, the Chamber is persuaded that the Statute in this regard is aimed at protecting vulnerable children, including when they lack information or alternatives. The manner in which a child was recruited, and whether it involved compulsion or was voluntary, are circumstances which may be taken into consideration
1786 1787

T-223-ENG, page 11, lines 8 18. ICC-01/04-01/06-803-tEN, para. 248. 1788 SCSL, CDF Appeal Judgment, para. 139. 1789 SCSL, CDF Trial Judgment, para. 192.

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by the Chamber at the sentencing or reparations phase, as appropriate. However, the consent of a child to his or her recruitment does not provide an accused with a valid defence. 618. Therefore, the Chamber agrees with the Pre-Trial Chamber that under the provisions set out above, the offences of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. In the circumstances of this case, conscription and enlistment are dealt with together, notwithstanding the Chambers earlier conclusion that they constitute separate offences. These offences are continuous in nature. They end only when the child reaches 15 years of age or leaves the force or group.1790 b) Using children under the age of 15 to participate actively in hostilities 619. As with conscripting and enlisting children under the age of 15 into armed forces or groups, the prohibition against using them to participate actively in hostilities is generally intended to protect children from the risks that are associated with armed conflict, for the reasons described above. 620. The prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group. As set out in paragraph 609 above, if Article 8(2)(e)(vii) of the Statute is taken on its own, the position is potentially ambiguous, given it reads [c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to
ICC-01/04-01/06-803-tEN, para. 248; see also ICTR, Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Appeals Chamber, Judgement, 28 November 2007, para. 721.
1790

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participate actively in hostilities (emphasis added). However, the Elements of Crimes clarifies the issue by requiring 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 (emphasis added). Therefore, consistently with Article 22(2) of the Statute, a child can be used for the purposes of the Statute without evidence being provided as regards his or her earlier conscription or enlistment into the relevant armed force or group. 621. The Elements of the Crimes require that the conduct took place in the context of and was associated with an armed conflict. The travaux prparatoires of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required. 1791 The Preparatory Committees draft Statute had postulated a broader interpretation in one of the footnotes:
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 officers married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology. (emphasis added)1792

622. The Pre-Trial Chamber, by reference to the approach of the Preparatory Committee, decided that a child does not actively participate in hostilities if the activity in question was clearly
1791 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, page 21 and footnote 12. 1792 Ibid. See also Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 471 at marginal note 229; Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), page 206.

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unrelated to hostilities. 1793 The Pre-Trial Chamber distinguished between two categories of participation, first:
Active participation in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points. 1794

In the Pre-Trial Chambers formulation, guarding military objectives or acting as a bodyguard were also activities related to hostilities, inter alia, when they have a direct impact on the level of logistic resources and on the organisation of operations required by the other party to the conflict.1795 623. Second, the Pre-Trial Chamber considered that children who were engaged in activities clearly unrelated to hostilities1796 and carry out tasks such as food deliveries to an airbase or the use of domestic staff in married officers quarters do not actively participate in hostilities.1797 624. As indicated above, the SCSL has examined the scope of active participation in hostilities in a number of decisions when applying Article 4(c) of its Statute, which is identical to Article 8(e)(vii) of the Rome Statute. In the AFRC case, ostensibly relying on the approach of the Preparatory Committee, the SCSL determined that the use of children to participate actively in hostilities is not restricted to children directly involved in combat, noting:
An armed force requires logistical support to maintain its operations. Any labour or support that gives effect to, or helps maintain, operations in a

1793 1794

ICC-01/04-01/06-803-tEN, para. 262. ICC-01/04-01/06-803-tEN, para. 261. 1795 ICC-01/04-01/06-803-tEN, para. 263. 1796 ICC-01/04-01/06-803-tEN, para. 262. 1797 ICC-01/04-01/06-803-tEN, para. 262.

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conflict constitutes active participation. Hence carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat .1798

625. The SCSL therefore held that the concept of using children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations. 626. The Special Representative (CHM-0003) suggested that the Trial Chamber should focus in each case [] [on] whether the childs participation served an essential support function to the armed force and she referred to the SCSL jurisprudence in the AFRC Trial Judgment set out above.1799 The Trial Chamber in that case held that:
Using children to participate actively in the hostilities encompasses putting their lives directly at risk in combat.1800

627. The use of the expression to participate actively in hostilities, as opposed to the expression direct participation (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word direct.1801 628. The extent of the potential danger faced by a child soldier will often
SCSL, AFRC Trial Judgment, para. 737. The first sentence of the relevant footnote of the Preparatory Committees draft is quoted in para 736 of the Trial Judgment. 1799 Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, para. 21. 1800 SCSL, AFRC Trial Judgment, para. 736. 1801 Article 77(2) of Additional Protocol I provides that children under 15 shall not be allowed to take a direct part in hostilities (Article 38(2) of the Convention on the Rights of the Child contains identical wording); Article 4(3)(c) of Additional Protocol II provides that children under 15 shall not be allowed to take part in hostilities, which is broader; see Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers Notes (2008), page 470 at marginal note 229.
1798

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be unrelated to the precise nature of the role he or she is given.1802 Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. 1803 The decisive factor, therefore, in deciding if an indirect role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.1804 In the judgment of the Chamber these combined factors the childs support and this level of consequential risk mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chambers determination of whether a particular activity constitutes active participation can only be made on a case-by-case basis. 629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its

Report of Ms Schauer (CHM-0001), EVD-CHM-00001, page 9. Michael Wessells, Child Soldiers: From Violence to Protection (2006), page 57; see also Ilene Cohn and Guy Goodwin-Gill, Child Soldiers: the Role of Children in Armed Conflict (2003), pages 3132; Graa Machel, Impact of Armed Conflict on Children, 26 August 1996, UN Doc A/51/306, paras 44 48; Peter Warren Singer, Children at War (2005), pages 57-58. 1804 Gregoria Palomino Surez, Kindersoldaten im Vlkerstrafrecht, Berlin 2009, pages 166 to 168.
1803

1802

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opening and closing submissions,1805 it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request1806 led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence).1807 Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.1808 630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chambers Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them.1809 The Trial Chamber has earlier pointed out that [f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation
T-107-ENG, page 11, line 17 to page 12, line 22; T-356-ENG, page 9, lines 9 13 and, lines 22 25; page 52, line 16. 1806 Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, 22 May 2009, ICC-01/04-01/06-1891tENG. 1807 Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 14 July 2009, ICC-01/04-01/06-2049; Decision issuing a second corrigendum to the Minority opinion on the Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 31 July 2009, ICC-01/04-01/06-2069; Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 8 December 2009, ICC-01/04-01/06-2205. 1808 Prosecutions Application for Leave to Appeal the Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 12 August 2009, ICC-01/04-01/06-2074, paras 22 and 23. See also, Prosecutions Further Observations Regarding the Legal Representatives Joint Request Made Pursuant to Regulation 55, 12 June 2009, ICC-01/04-01/06-1966. 1809 See Appeals Chamber, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 8 December 2009, ICC-01/04-01/06-2205.
1805

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of Charges.1810 Regardless of whether sexual violence may properly be included within the scope of using [children under the age of 15] to participate actively in hostilities as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue. 631. In due course, the Chamber will consider whether these matters ought to be taken into account for the purposes of sentencing and reparations.

B. THE FACTS

1. Relevant Evidential Considerations 632. A number of witnesses called by the prosecution and the defence testified as to whether children were recruited and used by the UPC/FPLC, and evidence was given as to their age. The Chamber has considered the credibility and reliability of these witnesses, taking into account, inter alia, the challenges advanced during questioning and in the final briefs. It has assessed whether their individual accounts were consistent with the other relevant and reliable evidence in the case. The general approach adopted is that whenever a witness is first considered in this section, the Chamber has, at that stage, dealt with

Decision on the Legal Representatives Joint Submissions concerning the Appeals Chambers Decision on 8 December 2009 on Regulation 55 of the Regulations of the Court, 8 January 2010, ICC01/04-01/06-2223, para. 35. 1811 Ms Coomaraswamy suggested that the use for sexual exploitation of boys and girls by armed forces or groups constitutes an essential support function, Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, paras 23 and 24-26.

1810

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the witnesss overall credibility and reliability, against the background of the main contested aspects of their testimony. Any discrete issues relating to the witness and the evidence they provided to the Chamber are addressed within the relevant section.1812 633. In its closing brief, the prosecution rehearsed the histories of various alleged former child soldiers who gave evidence (P-0007, P-0008, P0010, P-0011, P-0157, P-0213, P-0294, P-0297 and P-0298). 1813 The Chamber, as analysed elsewhere, has concluded that it is unable to rely on the evidence of any of these witnesses.1814 634. Again, as discussed above, the Chamber has concluded that the three victims who were called to testify before the Court will not be relied on for the purposes of the Article 74 Decision. 635. Although the terms child and children encompass boys and girls under the age of 18 years, 1815 the charges specifically relate to children under the age of 15, in accordance with Article 8(2)(e)(vii) of the Statute. 636. Some witnesses used the term kadogo to describe small children. For instance, P-0055 suggested that in the UPC and Ugandan armies, indeed in Africa generally, small children from about the age of 13 up to the age of 16 are called kadogos. 1816 637. P-0038 testified that the expression kadogo means a child soldier in the UPC it was used above all to refer to children under the age of 15. The witness indicated that in certain armies it describes the
1812 1813

P-0031 is discussed in Section VII(E)(4). ICC-01/04-01/06-2748-Red, paras 356 522. 1814 See paras 478-484. 1815 See Convention on the Rights of the Child. 1816 T-174-Red2-ENG, page 40, line 5 to page 41, line 15.

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youngest individual in the group (as demonstrated when the witness went for training in Rwanda and was referred to as a kadogo even though he was 18).1817 638. For P-0024 the term kadogos generally means children below 18 years of age, right down to the lower end of the scale.1818 639. Various witnesses also referred to the term PMF. Witness P-0016 linked the term to female military staff or personnel militaire fminin.1819 Witnesses P-0055 and P-0089 said the term referred to a girl soldier1820 and P-0046 had also heard of this expression.1821 640. It follows that the term kadogo is sometimes used to refer to children over the age of 15 whilst PMF relates to females in the army, and it does not necessarily only relate to girls under 15. 2. Age assessments and determinations of witness credibility 641. The Chamber heard evidence from numerous non-expert witnesses as to the age of the alleged former child soldiers. For the most part, their assessments were based on the individuals physical appearance, including by way of comparison with other children;
1822

the

individuals general physical development1823 (e.g. whether a girl had developed breasts,1824 and factors such as height and voice);1825 and his

T-114-Red2-ENG, page 39, line 18 to page 40, line 3. T-170-Red2-ENG, page 76, lines 6 7. 1819 T-191-Red2-ENG, page 10, lines 21-23; T-189-Red2-ENG, page 34, lines 1-4. 1820 T-174-ENG, page 38, lines 14 21; T-196-Red-ENG, page 10, lines 8-10. 1821 T-209-ENG, page 12 lines 3 8. 1822 T-157-Red2-ENG, page 63, lines 20 21 (P-0017). 1823 T-154-Red2-ENG, page 41, lines 23 25 (P-0017); T-157-Red2-ENG, page 63, lines 17 18 (P0017);T-179-Red2-ENG, page 87, lines 15 18 (P-0014). 1824 T-154-Red2-ENG, page 41, lines 17 19 (P-0017); T-157-Red2-ENG, page 63, lines 18 20 (P0017). 1825 T-203-Red2-ENG, page 36, line 15 to page 37, line 23 (P-0116); T-154-Red2-ENG, page 41, lines 24 25 (P-0017); T-179-Red2-ENG, page 87, lines 17 18 (P-0014).
1818

1817

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or her overall behaviour.1826 642. The defence challenges the evidence given, inter alia, by P-0012, P0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046, P-0055, and P-0116 on the age of children in the UPC/FPLC.1827 The defence argues that their unverified, personal assessments are unreliable and it is suggested they do not establish beyond reasonable doubt the presence of children under the age of 15 in the UPC/FPLC. In this section the Chamber has addressed the various challenges advanced by the defence; it has reviewed the age assessments that were provided by a number of witnesses; and the Chamber has set out its general conclusions as to the credibility of the relevant prosecution witnesses, along with defence witnesses D-0007, D-0011, D-0019 and D-0037 (who also gave evidence on this issue). The relevant witnesses are addressed by category: first, the witnesses linked to the work of international organisations or NGOs; second the prosecution witnesses who testified primarily about military matters; third, the prosecution witnesses who principally gave evidence about selected video footage; and finally the relevant defence witnesses, in the order in which they testified. 643. Given the undoubted differences in personal perception as regards estimates of age and, most particularly in the context of this case, the difficulties in distinguishing between young people who are relatively close to the age of 15 (whether above or below), the Chamber has exercised caution when considering this evidence. Even allowing for a wide margin of error in assessing an individuals age, the Chamber

T-154-Red2-ENG, page 41, lines 20 23; T-157-Red2-ENG, page 63, lines 18 20 (P-0017). ICC-01/04-01/06-2773-Red-tENG, paras 587 589, 596, 737 756; ICC-01/04-01/06-2786-RedtENG, para. 67.
1827

1826

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has concluded that it is feasible for non-expert witnesses to differentiate between a child who is undoubtedly less than 15 years old and a child who is undoubtedly over 15. Furthermore, the sheer volume of credible evidence (analysed hereafter) relating to the presence of children below the age of 15 within the ranks of the UPC/FPLC has demonstrated conclusively that a significant number were part of the UPC/FPLC army. An appreciable proportion of the prosecution witnesses, as well as D-0004, testified reliably that children under 15 were within the ranks of the UPC/FPLC.1828 644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were visibly under the age of 15.1829 The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone.1830 The Chamber accepts that for many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15. a) P-0046 645. The testimony of P-0046 focussed on her professional knowledge of children recruited and used by the UPC/FPLC and her experience of the demobilisation process. This witness worked in MONUCs child protection programme during the period covered by the charges, and she went on her first mission to Bunia in this role during September

1828 1829

T-243-Red2-ENG, page 20, line 21 to page 22, line 6 (D-0004). ICC-01/04-01/06-2748-Red, paras 164 165. 1830 ICC-01/04-01/06-2773-Red-tENG, paras 703 707.

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2002. By the time she was officially based in Bunia in May 2003 she had undertaken a number of missions to the region. Previously, she had been involved in identifying child soldiers in Kenya and in northern Congo. 1831 P-0046 filed weekly reports addressing the

security and humanitarian situation of children associated with the armed groups,1832 which were based on the interviews conducted by MONUCs child protection section, as well as other sources.1833 The majority of the witnesss interviews with children took place between March 2003 and the end of her time in Ituri in 2004. 1834 P-0046 considered the situation of children associated with the armed conflict in Ituri, along with the work of MONUC and other NGOs who dealt with demobilised children, during the period covered by the charges. Her testimony was detailed, credible and reliable, particularly when it was based on her personal experience of working with demobilised children in the region. 646. The defence contends that P-0046 has insufficient personal knowledge of the events about which she testified, given she did not regularly visit Ituri until late May 2003. 1835 Since the witness was closely monitoring the situation in the area during the relevant period and she made a series of site visits to Ituri between January 2002 and March 2003, the Chamber is satisfied that she was able to testify about events that took place in the region during the period covered by the charges. 647. The defence further submits that the information provided to P1831 EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-EN, page 36, line 22 to page 37, line 12); T-205-Red2-ENG, page 23, line 14 to page 25, line 4. 1832 ICC-01/04-01/06-T-205-Red2-ENG, page 25, line 23 to page 26, line 20. 1833 ICC-01/04-01/06-T-208-ENG, page 24, lines 8 22. 1834 ICC-01/04-01/06-T-208-ENG, page 22, lines 14 22 ; EVD-OTP-00479, transcript of testimony of P-0046 before Pre-Trial Chamber I, T-37-EN, page 10, line 15 to page 12, line 12. 1835 ICC-01/04-01/06-2773-Red-tENG, paras 638 639; para. 646.

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0046 by MONUC was unreliable given the testimony of the prosecution expert witness, Gerard Prunier (P-0360).1836 Although Mr Prunier questioned the accuracy of certain aspects of the UN reports, he also referred to the general lack of reliable sources, particularly as regards events during the relevant period in the countryside surrounding Bunia, and he emphasised that of the available material the most reliable information came from the UN.1837 648. The defence submits that during the course of her testimony, P-0046 showed obvious bias in favour of the prosecution.1838 By way of example, the defence cites the witnesss reference to reports of very young children who were smaller than the Kalashnikovs they were carrying,1839 along with her assertion that she was sure [this] was an image which was exaggerated, but to reflect a reality which our informers wanted to get across, the fact that young children were associated with these groups.1840 Having reviewed the evidence of P0046 (aside from this statement, which the witness in any event conceded may not have been entirely accurate) the Chamber is sure the witness has not exaggerated any material facts or otherwise provided biased or unreliable evidence. In addition, as set out below, it is of note that P-0038 testified that some children were lighter than the weapons they carried. plausible. 649. It is suggested the account of P-0046 demonstrates that she and her Thus, P-0046s evidence is entirely

ICC-01/04-01/06-2773-Red-tENG, paras 640 641, referring to T-157-CONF-FRA, page 12, line 4 to page 14, line 20. 1837 ICC-01/04-01/06-T-157-Red-ENG, page 13, line 20 to page 14, line 17. 1838 ICC-01/04-01/06-2773-Red-tENG, para. 645. 1839 ICC-01/04-01/06-2773-Red-tENG, para. 645, referring to EVD-OTP-00479, transcript of testimony of P-0046 before Pre-Trial Chamber I, T-37-FR, page 23, lines 8-12. 1840 EVD-OTP-00490, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-ENG, page 83, lines 18 25).

1836

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colleagues at MONUC merely collected the statements of the children they interviewed and they failed to carry out further investigations.1841 The Chamber notes that P-0046 gave evidence that:
[I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. In fact, I never saw a child with an identity card in Ituri, so carrying out such a verification on the basis of administrative documents was not possible. So when you say independent verification, well, other than the information that the children gave regarding their schooling, that was one way we had to have an idea and to perhaps reinforce the information stated by the children.1842

650. It is significant, however, that P-0046 also testified that she used several methods to verify the information given to her by the children in interview, including comparing the dates they provided with a chronology created by military and political observers from MONUC.1843 When there were doubts about the age or affiliation of a particular child, she sought verification from the relevant NGOs.1844 Sometimes the NGOs supplied age assessments for the children that differed from the information the latter had supplied. This particularly applied to those who said they were older than they appeared to the witness (and the Chamber notes her evidence concerning the confirmation of her doubts by the NGOs).1845 651. P-0046 did not rely solely on the various processes of external verification in order to determine the age of the children she interviewed. Although she acknowledged the lack of any scientific procedure for assessing their ages whilst she was working as a child

1841 ICC-01/04-01/06-2773-Red-tENG, para. 642, referring to EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-FR, page 84, line 24 to page 85, line 8); T-206CONF-FRA, page 10, lines 3 7. 1842 T-206- ENG, page 9, lines 15 22. 1843 T-205-Red2-ENG, page 39, lines 3 10; page 40, lines 5 23; T-208-ENG, page 29, lines 8 17. 1844 T-205-Red2-ENG, page 39, line 14 to page 40, line 2. 1845 T-206-ENG, page 5, line 18 to page 6, line 6.

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protection officer in Bunia in 2003,1846 various different factors were taken into account, including information provided by the child (particularly given some had received an education and were able to provide their age or date of birth).1847 Trained social workers were used to conduct detailed interviews with the children, and the latter were asked questions about their families (including the order in which the children in the family had been born), and their academic records. 1848 P-0046 focussed on the childrens individual stories in order to establish certain key dates, and the latter were cross-checked against the information they had provided.1849 652. P-0046 stated that physical appearance was also taken into account, but it was not used as the main criteria to determine a childs age.1850 The age-assessment procedure for child soldiers was broadly similar to that used for unaccompanied children but it included the additional factor of their military experience.1851 The interviewers reviewed the childrens stories, their recruitment history and the battles in which they participated, in order to check their accounts.1852 653. Additionally, P-0046 testified that she evaluated children on the basis of what they said and how they acted.1853 Small children cried in her office1854 and the younger children had difficulty discussing their experiences, especially if one or both of their parents had died. 1855 Generally, the witness noticed that it was harder for younger children

1846 1847

T-205-Red2-ENG, page 37, line 23 to page 38, line 1. T-205 Red2-ENG, page 38, lines 1 4. 1848 T-205-Red2-ENG, page 38, lines 5 10. 1849 T-205-Red2-ENG, page 38, lines 10 13. 1850 T-205-Red2-ENG, page 38, lines 14 16. 1851 T-205-Red2-ENG, page 38, lines 14 24. 1852 T-205-Red2-ENG, page 38, line 25 to page 39, line 2 and page 40, lines 10 23. 1853 T-206-ENG, page 9, line 24 to page 10, line 3. 1854 T-206-ENG, page 10, lines 3 6. 1855 T-206-ENG, page 11, lines 10 17.

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to talk about the death of their parents as compared with older children. 1856 P-0046 recalled meeting two particular little boys (she thought in the summer of 2003), who had previously been with the UPC when they were arrested.1857 They were eleven and thirteen years old respectively, and had been frightened by the military. 1858 P-0046 thought they were very afraid because they did not know where they were being taken or what was to become of them, and when she began asking them questions one of them broke down in tears. 1859 P-0046 terminated the interview immediately and sent them to the CTO (a transit centre).1860 Given they were so upset, P-0046 merely took down the names of their parents and their ages before referring them.1861 P0046 recalled holding the hand of the younger child when crossing the street. Her evidence was that [h]e was so small.1862 654. P-0046 asked numerous questions in order to verify the identity of the children: for instance, whether they had a family or relatives in the area, the schools they attended and the armed groups to which they belonged.1863 She said it was important to identify the date on which the children had been conscripted or enlisted, in order to determine who was responsible for their recruitment and training; the centres they attended; the battles in which they fought; and the last commander under whom they served.1864 Thereafter, P-0046 would refer the child to one of the transit centres.1865

1856 1857

T-206-ENG, page 11, lines 17 20. T-206-Red2-ENG, page 10, line 12 to page 11, line 9. 1858 T-206-Red2-ENG, page 10, lines 11 24. 1859 T-206-Red2-ENG, page 10, lines 9 17. 1860 T-206-Red2-ENG, page 10, lines 17 18. 1861 T-206-Red2-ENG, page 11, lines 3 9. 1862 T-206-Red2-ENG, page 10, lines 18 21. 1863 T-205-Red2-ENG, page 71, lines 8 14. 1864 T-205-Red2-ENG, page 71, lines 14 19. 1865 T-205-Red2-ENG, page 70, lines 20 21.

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655. The Chamber is persuaded P-0046s professional history and personal experience with the children she interviewed enabled her to provide realistic age estimates. Given P-0046s experience and work methods, the Trial Chamber is satisfied that she is overall a reliable and credible witness. b) P-0024 656. P-0024 was employed from 2001 until November 20021866 as a social worker with SOS Grands Lacs, an NGO funded by the UN International Childrens Fund (UNICEF), and he testified about his work with the organisation during this time. 1867 The organisations mission in Bunia was the demobilisation and reintegration of child soldiers.1868 The witness gave evidence about what he called the sham demobilisation efforts by the UPC, and he provided information on the presence of child soldiers as well as the demobilised children he encountered during his work in Bunia, up to the end of 2002. 657. The defence challenges P-0024s evidence on the basis that to a significant extent he dealt with events outside the period of the charges,1869 and his evidence related, on occasion, to the RCD/ML as opposed to the UPC. 1870 It is to be stressed that the Chamber has focussed only on those parts of P-0024s testimony that are relevant to the charges brought against the accused. The witnesss evidence concerning the lack of demobilisation by the UPC is considered in Section XI(B)(3). 658. P-0024 testified that he saw children between 9 and 18 years of age
1866 1867

T-170-Red2-ENG, page 37, lines 6 12 and page 55, lines 15 21. T-170-Red2-ENG, page 40, lines 3 10 and page 96, line 22 to page 97, line 12. 1868 T-170-Red2-ENG, page 37, lines 15 21. 1869 ICC-01/04-01/06-2773-Red-tENG, paras 581and 584 585. 1870 ICC-01/04-01/06-2773-Red-tENG, para. 585.

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wearing military clothing, and carrying Kalashnikov machine guns and other weapons in various towns and cities in 2002, after the UPC took control of Bunia and following the broadcast of the first demobilisation programmes on television and Radio Candip.1871 He also gave evidence that by November 2002 the UPC was recruiting demobilised children.1872 He estimated they were aged between 8 and 18 years of age when they entered the demobilisation programme of his NGO in 2001, before they were later re-recruited.1873 659. The defence submits that P-0024 failed to provide sufficient details of the dates when, and circumstances under which, the children he worked with were allegedly re-recruited by the UPC. It is suggested his evidence was similarly lacking as regards their identities and ages (including how, apart from his personal impression, he established the latter).1874 660. The prosecution argues that the witnesss daily dealings with children enabled him to testify reliably as to their ages.1875 661. The Chamber considers that P-0024 gave honest, consistent and reliable evidence as regards his work with demobilised children. Although he did not train as a social worker, he spent over a year working with children (viz. from September 2001 until November 2002), including in Bunia until the end of October 2002. This enabled him to provide first-hand information on how children were rerecruited.1876

1871 1872

T-170-Red2-ENG, page 52, lines 17 to 53, line 5, page 53, lines 17 21 and page 54, lines 3 11. T-170-Red2-ENG, page 50, line 13 to page 51, line 11. 1873 T-170-Red2-ENG, page 46, lines 2 14 and page 47, lines 3 25. 1874 ICC-01/04-01/06-2773-Red-tENG, paras 587-589. 1875 ICC-01/04-01/06-2778-Red, para. 66. 1876 T-170-Red2-ENG, page 50, line 13 to page 51, line 11.

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662. The witness gave credible testimony about the children he closely worked with for a period of several months, and he was able to explain the basis of his suggestion that they were later re-recruited by the UPC. Although he did not give evidence as to how he assessed the childrens ages, his interaction with them during those months provides a solid and credible basis for his assessments. 663. Notwithstanding his lack of regular contact with the other children he saw on the streets, the Chamber accepts that on the basis of his professional background and experience, he was able to reach reliable assessments. Given the difference in appearance between, for instance, a 9-year-old child and a 15-year-old, the Chamber is persuaded that P0024 gave credible and reliable evidence that he saw children well below the age of 15, even if the ages of others may have been more difficult to assess. c) P-0012 664. P-0012 did not join the UPC/FPLC, 1877 but given his role as a highranking official within PUSIC at the relevant time, 1878 he had extensive contacts with armed groups in Ituri, including the UPC/FPLC, and he participated in monthly meetings to discuss problems relating to peace in Ituri. 1879 This witness gave evidence about the presence of child soldiers within the UPC/FPLC and other groups during the period of the charges. 665. The defence challenges this witnesss evidence in several

respects.1880 It is submitted that his former role in PUSIC should lead to

1877 1878

T-168-Red2-ENG, page 13, lines 20 24; T-169-Red2-ENG, page 6, line 6. T-168-CONF-ENG, page 11, lines 2 3. 1879 T-168-CONF-ENG, page 13, lines 3 6 and T-168-Red2-ENG, page 13, lines 7 17. 1880 ICC-01/04-01/06-2773-Red-tENG, paras 537 543.

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a cautious approach, because this group includes dissidents hostile to Thomas Lubanga.1881 In addition, the defence contends that P-0012 did not personally witness a large part of the events he addressed in his testimony, as he was absent from Bunia between April 2002 and the end of July 2002, and again between mid-August 2002 and 17 March 2003. 1882 It is said that in the course of his evidence the witness repeatedly acknowledged that he had not personally witnessed all of the events he dealt with, but instead he rehearsed what others had told him. Indeed, it is contended that he failed to reveal the dates when these conversations occurred or their circumstances.1883 666. The defence argues that although P-0012 testified about having seen children under the age of 15 in Ituri, he did not name the armed group or groups to which they belonged. 1884 When he did identify child soldiers as members of the UPC, it is argued there was no basis for his conclusion.1885 The defence also criticises what is said to be his failure to explain the factors that enabled him to estimate the ages of these children.1886 667. The Chamber finds that P-0012s evidence was, in the main, internally consistent and it is of note that the defence has not provided evidence to substantiate its claim that the witnesss testimony is compromised by virtue of his previous position in PUSIC. The

witness gave evidence concerning child soldiers within the UPC/FPLC, and he emphasised that during this period virtually every armed

1881 1882

ICC-01/04-01/06-2773-Red-tENG, para. 537. ICC-01/04-01/06-2773-Red-tENG, paras 538 541. 1883 ICC-01/04-01/06-2773-Red-tENG, para. 542. 1884 ICC-01/04-01/06-2773-Conf, paras 552 and 748. 1885 ICC-01/04-01/06-2773-Red-tENG, paras 553 554. 1886 ICC-01/04-01/06-2773-Conf, paras 553, 555 and 749.

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group in the region used children.1887 Although the witness was not continuously present in Ituri throughout the timeframe of the charges, he was there between March and August 2003. 668. Turning to the defence criticisms of the witnesss personal assessments of age, the Chamber finds that, wherever possible, P-0012 gave details as to how he reached a conclusion. For example, when describing seeing a tiny child with a weapon in Bunia in May 2003 (an event that is discussed in greater detail below),1888 P-0012 indicated that the child did not come up to his shoulder1889 or to the top of the computer screen in front of where he was sitting in court.1890 Although P-0012 was clearly only providing an estimate when he gave evidence that he was unable to say whether the child was even 12 years old,1891 the detail of his account demonstrates he had a clear basis for concluding that he was below 15. Nonetheless, the Chamber has adopted a cautious approach towards P-0012s other more general remarks about the age or size of children. 669. The Chamber is satisfied that P-0012 was overall a credible and reliable witness. d) P-0055 670. P-0055 was appointed a high-ranking official within the FPLC in 2002.1892 He gave evidence about the structure of the UPC/FPLC, which included children under the age of 15.

T-168-Red2-ENG, page 74, lines 4 6 and page 76, line 18. T-168-Red2-ENG, page 77, lines 6 10 and 78, lines 10 11. 1889 T-168-Red2-ENG, page 77, lines 22 24. 1890 T-168-Red2-ENG, page 78, lines 1 4. 1891 T-168-Red2-ENG, page 77, lines 9 10. 1892 T-174-CONF-ENG, page 32, line 25 to page 33, line 9, page 43, lines 4 13, page 47, lines 1 15, page 47, line 23 to page 48, line 7, page 49, lines 9 17 and page 50, line 25 to page 51, line 1; T-178CONF-ENG, page 15, lines 16 to page 16, lines 9 13.
1888

1887

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671. The defence submits that after having served in the army of the UPC/FPLC, until 2004 P-0055 was a member of the FAPC (an armed movement that was hostile to the UPC). 1893 It is suggested his testimony is unreliable on account of his close ties to the Ugandan government.1894 672. The defence also maintains that P-0055 acknowledged on several occasions that he was unable to assess the ages of young recruits, and he did not suggest that any of the kadogos who were recruits at the Rwampara training camp, or who worked as guards at Bosco Ntagandas residence or as bodyguards for Thomas Lubanga (or other UPC commanders), were under the age of 15.1895 673. The defence argues that notwithstanding P-0055s evidence that he did not know whether the enlistment register at the Rwampara camp included the childrens ages, he also testified that the ages of the recruits usually had to be given, thereby indicating there was a requirement to make this check:1896
[] I dont know whether the age was mentioned in that register. Actually I wasnt really interested in verifying their ages, but generally when somebody comes to enlist for training, theyre asked where they were born, when they were born, their age is mentioned, because this is an identifying element for the person, if the person has a problem, it is made easier for the parents to recognise the person.1897

In all the circumstances this somewhat contradictory evidence provides an insufficient basis for the contention that there was a rule that the ages of the recruits were to be checked.

1893 1894

ICC-01/04-01/06-2773-Red-tENG, paras 478 479. ICC-01/04-01/06-2773-Red-tENG, paras 480 481. 1895 ICC-01/04-01/06-2773-Red-tENG, paras 490, 492, 494 and 495. 1896 ICC-01/04-01/06-2773-Red-tENG, para. 493. 1897 T-175-Red2-ENG, page 80, lines 10 16.

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674. P-0055 indicated that although it was difficult to assess the agerange of those in the army, his conclusions in this regard were based on physical appearance.1898 675. The Chamber has relied on the details provided by this witness as to the ages of child soldiers he saw within the ranks of the UPC/FPLC, bearing in mind that he defined the age-range of kadogos as between 13 and 16 years of age.1899 676. P-0055s evidence was internally consistent, and although his testimony in court differed to an extent from his statements to the prosecution, these relatively minor discrepancies did not undermine the reliability of his evidence as a whole. Furthermore, the Chamber is unpersuaded that P-0055s connections with Uganda influenced his evidence (particularly to the detriment of the accused). P-0055 was a generally credible witness and the Chamber has relied on his evidence, save in relation to a discrete area identified below. e) P-0017 677. P-0017 joined the UPC the same week the latter took control of Bunia in 2002,1900 and he remained with the group until he left the city in August 2003. 1901 Previously, the witness had spent about four months with the RCD.1902 He led one of the UPC sections in 2003,1903 and he worked with heavy weapons within a field brigade.1904 P-0017 gave evidence about children under the age of 15 in, and the scale of their recruitment by, the UPC/FPLC, along with the latters military
1898 1899

T-175-Red2-ENG, page 59, lines 5 13. T-178-Red2-ENG, page 36, lines 12 16. 1900 T-154-Red2-ENG, page 16, lines 18 24. 1901 T-154-Red2-ENG, page 17, lines 11 15. 1902 T-160-Red2-ENG, page 32, lines 10 11. 1903 T-154-Red2-ENG, page 18, line 9. 1904 T-154-Red2-ENG, page 22, lines 15 17 and page 23, lines 8 11.

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structure. 678. The defence emphasises the evidence from P-0015 that he acted as an intermediary between P-0017 and the prosecution. 1905 It is also suggested that the accused has not been provided with the exact identity of the individual who first introduced P-0017 to the prosecution, thereby preventing the defence from conducting effective verification and investigation,1906 (the table of contacts indicates that contact with this witness was initially made through a prosecution investigator).
1907

The Chamber is invited to take these general

circumstances into account, along with what is said to be P-0015s involvement in a concerted operation aimed at presenting false testimony before the Chamber, when evaluating P-0017s account.1908 679. Notwithstanding these submissions, no evidence has been

introduced to the effect that P-0015 influenced the testimony of P-0017. Generally, there is no foundation for the suggested adverse inference that the defence asks the Chamber to draw as regards the credibility of P-0017, based solely on the nature of the contact between these two witnesses. 680. As discussed in greater detail below, P-0017 testified that he saw recruits as young as 12 years old, although the defence challenges this suggestion on the grounds that it was based solely on his personal assessment, which was founded on their physical appearance.1909 P0017s conclusions as to the age of girls derive from the assumption that those over the age of 15, as well as a number of those who are 13
ICC-01/04-01/06-2773-Red-tENG, para. 426, referring to T-265-CONF-Red-FRA, page 38, lines 3 15. 1906 ICC-01/04-01/06-2773-Red-tENG, paras 426 427. 1907 EVD-D01-01039, page 5852, No. 15, line 1. 1908 ICC-01/04-01/06-2773-Red-tENG, para. 428. 1909 ICC-01/04-01/06-2773-Red-tENG, para. 742.
1905

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or 14, have developed breasts.1910 P-0017 gave the names of two girls who were initially in the FPLCs kadogo unit, and he said one of them was small.1911 Although he had not asked them their age, he estimated that they were between 13 and 14 years,1912 and he wholly rejected the defence suggestion that one of them could have been 17.1913 681. As regards boys, P-0017 indicated you could see it from their behaviour. Some would cry for their mother when they were hungry. They would whine at night, and during the day they were playing games, childrens games, even if they had their weapon next to them. So you would see that these children werent even adolescents yet. Their voice hadnt yet broken, so they were children [] still.1914 682. Notwithstanding the undoubted difficulties that exist as regards personal, non-expert estimates of the age of children, the Chamber is satisfied P-0017s evidence concerning the ages of recruits, and particularly the youngest (those who were in the 12 year old bracket), is to be relied upon. The Chamber found him to be a credible,

consistent and reliable witness. f) P-0016 683. P-0016 was appointed as a high-ranking official within the FPLC in 2002 after Governor Lompondo had been forced out of Bunia.1915 He testified that children were part of the UPC/FPLC army. He also stated there were PMF recruits of all ages, including very young girls.1916

1910 1911

T-154-Red2-ENG, page 41, lines 14 20. T-158-Red2-ENG, page 26, line 8 to page 27, line 16. 1912 T-158-Red2-ENG, page 26, lines 20 23 and T-160-Red2-ENG, page 58, lines 16 21. 1913 T-160-Red2-ENG, page 58, line 12 to page 59, line 5. 1914 T-154-Red2-ENG, page 41, lines 20 25. 1915 T-189-Red2-ENG, page 3, lines 6 11; page 60, line 23 to page 61, line 4. 1916 T-189-Red2-ENG, page 34, lines 7-10.

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684. P-0016 remained with the UPC/FPLC until the end of November or early December 2002. 1917 His tasks included giving instructions to children, as well as talking about discipline and about military regulations.1918 When asked to explain what he meant by children in this context, the witness simply replied that he had to provide instruction to those undergoing military training,1919 but when further questioned about the ages of the soldiers he trained, he denied he had acted in that capacity.1920 The Chamber is of the view that the witness, in these answers, was attempting to minimise his own role, including by suggesting that he could not properly discharge his duties.1921 The Chamber has treated this aspect of his testimony with caution, given the clearly evasive nature of his evidence as to his own involvement. In addition, the Chamber had doubts as to the accuracy of another discrete area of his testimony, which is dealt with below in the section on the individual criminal responsibility of the accused. 685. The defence contends that there are reasonable grounds for concluding the witness has particularly close ties to the Congolese government, and as a result his testimony should be approached with particular care.1922 686. Notwithstanding these criticisms, on analysis, there is no evidence to support the contention that he provided false testimony out of loyalty to the DRC government, and the Chamber found him to be a generally consistent, credible and reliable witness who, in the main,

T-189-Red2-ENG, page 3, line 25 to page 4, line 9. T-189-Red2-ENG, page 65, lines 22 25. 1919 T-189-Red2-ENG, page 66, lines 3 6. 1920 T-189-Red2-ENG, page 74, lines 17 to page 75, line 8. 1921 See T-189-Red2-ENG, page 65, lines 18 22. He also stated he had no rights with regard to instructions and had no authorisation to go to the training centre in Mandro: T-189-Red2-ENG, page 74, line 23 to page 75, line 8. 1922 ICC-01/04-01/06-2773-Red-tENG, paras 405 407.
1918

1917

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testified about events he personally witnessed. However, as indicated, there is a qualification to this overall assessment. 687. The defence argues that P-0016s assessment of age was based solely on his personal impressions.1923 However, P-0016 was convincing on this issue. When asked how he was able to determine the ages of the young recruits,1924 P-0016 replied that you could always tell that they were children, because after training they would create groups and everything they did resembled what children do, such as playing games.1925 He said they would make toys for themselves and look for sticks in order to play at being soldiers, imitating the way soldiers went to war. 1926 Children put down their weapons and played marbles, 1927 and this, he suggested, demonstrated that they were immature.1928 He also gave evidence about a 13-year-old child at the camp in August 2002 that he described as a little one, who was really too small, and the witness often sent him on errands, for example for cigarettes from the village behind Mandro.1929 Overall, in the Chambers view, P-0016 provided a clear and credible explanation as to how he assessed the ages of the children he encountered in the ranks of the UPC/FPLC. g) P-0038 688. As already discussed above, P-0038 gave evidence that he was a member of the UPC army (the FPLC) between 2001 and 2005. 1930 During that time, he acted, inter alia, as a trainer in the Mandro centre,
1923 1924

ICC-01/04-01/06-2773-Red-tENG, paras 413 415. T-189-Red2-ENG, page 16, lines 20 22. 1925 T-189-Red2-ENG, page 16, lines 23 25. 1926 T-189-Red2-ENG, page 17, lines 3 5. 1927 T-189-Red2-ENG, page 17, lines 5 8. 1928 T-189-Red2-ENG, page 17, line 8. 1929 T-189-Red2-ENG, page 16, lines 7 19. 1930 T-113-Red2-ENG, page 31, lines 11 15.

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prior to becoming a bodyguard at Chief Kahwas residence (during the period April to September 2002). 1931 He addressed the structures within the FPLC, and he described the training for the recruits and various battles. There were some recruits below 15 years at the camp at Mandro when he worked there as a military trainer (before the period of the charges),1932 and he saw other children in the same age group during his time in the UPC, including many he noticed whilst he was training soldiers in Mongbwalu, who were between 13 and 16 years of age.1933 P-0038 was able to assess their ages by their physical appearance, including their height, and in his view it was easy to tell who was above and who was below 15 years.1934 Some of the children weighed less than their weapons, with the result that the smaller children could not carry their AK-47s for a long period of time.1935 Although his group of 12 soldiers, which used heavy weapons at the battle of Mongbwalu, did not include any children, 1936 he indicated that children below the age of 15 acted as bodyguards, escorts and soldiers during this battle.1937 689. In addition to the challenges already addressed above, 1938 the defence submits that P-0038 based his assessment of the ages of children on their appearance, and it is suggested he would only have been in a position to make this assessment for the soldiers in his immediate group (i.e. those with whom he had the most frequent

T-114-Red2-ENG, page 43, line 17 to page 44, line 3; page 46, lines 9 15; T-113-Red2-ENG, page 40, line 7 to page 41, line 1. 1932 T-113-Red2-ENG, page 40, line 7 to page 41, line 4; T-114-Red2-ENG, page 43, line 20 to page 44, line 3. 1933 T-113-Red2-ENG, page 35, line 11 to page 36, line 17. 1934 T-114-Red2-ENG, page 37, lines 15 21. 1935 T-114-Red2-ENG, page 37, lines 20 23. 1936 T-113-Red2-ENG, page 50, line 23 to page 51, line 4. 1937 T-113-Red2-ENG, page 51, line 22 to page 53, line 3. 1938 See paras 340-349.

1931

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contact).1939 The defence also relies on his evidence that at 18 years of age he was the youngest soldier sent for training in Rwanda, where he was referred to as the kadogo.1940 690. As already indicated, 1941 the Chamber finds that P-0038 was a generally reliable and credible witness. His account that he joined the army of the UPC in 2001 before its armed branch was formally established does not undermine his testimony, given D-0037 explained the group in Mandro (to which P-0038 belonged) later became the FPLC.1942 In this connection, the Chamber notes that D0006 testified that he joined the UPC at the end of May 2002.1943 691. The Chamber is persuaded he assessed age reliably, as

demonstrated by the details in his testimony which help explain his conclusion that certain children were below the age of 15 (e.g. the difficulties some had carrying weapons), and he was clearly able to evaluate soldiers outside his immediate group. P-0038 was in constant contact with many other soldiers for instance, during their training and therefore he was in a position to reach reliable conclusions as to age. 692. Furthermore, the reference to P-0038 as the kadogo during his training in Rwanda is not determinative of the age of those similarly referred to within the UPC/FPLC. As the witness himself indicated, the term kadogo was used in the UPC/FPLC above all to refer to those

1939 1940

ICC-01/04-01/06-2773-Red-tENG, para. 473. ICC-01/04-01/06-2773-Red-tENG, para. 473; T-114-Red2-ENG, page 8, lines 4 9. 1941 See paras 348 and 481. 1942 T-349-ENG, page 7, line 23 to page 8, line 20; page 20, line 22 to page 21, line 7.
1943

T-254-ENG, page 80, lines 5 13.

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below 15 years of age.1944 693. Although the Chamber has taken into account the fact that P-0038 initially acted as a trainer at Mandro prior to the period covered by the charges, this does not affect the weight of his evidence as a whole, and most particularly the reliability of his assessment that child soldiers formed part of the UPC/FPLC whilst he was within that group (viz. until 2005). h) P-0041 694. P-0041 was a member of a different group 1945 before Thomas Lubanga appointed him to a post within the UPC executive in September 20021946 and thereafter to another position in May 2003.1947 He has known the accused since childhood.1948 695. P-0041 gave evidence that he saw child soldiers within the UPC/FPLC bearing weapons, who were between 10 and 18 years old.
1949

He said Thomas Lubanga and others in the UPC/FPLC used child

soldiers as their bodyguards,1950 and he gave a detailed account of his own bodyguard, whom he believed was about 14 years old.1951 P-0041 also addressed the issue of recruitment, training and demobilisation. 696. The defence submits that although the witness claimed there were child soldiers in the UPC/FPLC, and he provided details particularly about the bodyguards of Thomas Lubanga, Floribert Kisembo, Bosco
T-114-Red2-ENG, page 39, line 15 to page 40, line 3. T-124-CONF-ENG, page 68, lines 6 24. 1946 T-124-CONF-ENG, page 69, lines 13 21. 1947 T-124-CONF-ENG, page 69, line 22 to page 70, line 6. 1948 T-124-Red2-ENG, page 71, line 12. 1949 T-125-Red2-ENG, page 48, lines 8 17. 1950 T-125-Red2-ENG, page 54, lines 17 to 25 and page 55, lines 12 to 57, line 7. 1951 T-126-Red2-ENG, page 55, line 7 to page 57, line 12. In this part of his testimony P-0041 also referred to having been assigned more bodyguards for a brief period of one week, whom he estimated to be between 14 and 16 years of age.
1945 1944

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Ntaganda and other commanders, 1952 he did not provide sufficient particulars as to how he was able to estimate their ages indeed, he conceded that this was a difficult exercise and he did not claim he was able to assess the age of the soldiers assigned to the fighting units.1953 697. Although P-0041 was unsure of the exact age of his own bodyguards and he frankly accepted it is difficult to assess the ages of children, he testified unequivocally that children from 10 years upwards were part of the armed forces.1954 698. The evidence of P-0041 was internally consistent and the Chamber considers that this former member of the UPC executive was a reliable source as to the decisions made within the UPC during the relevant period. He provided significant detail in his answers, whilst being frank as to the matters about which he was uncertain. By way of example, notwithstanding P-0041s assessment that his bodyguards were between 14 and 16 (given their physical appearance), he agreed that it is difficult to gauge the age of a young boy or child.1955 He suggested this particular evaluation depends on several factors and he accepted it was necessary to consider diet because children may have been underfed.1956 In all the circumstances, the Chamber is persuaded that P-0041 saw children who were clearly under the age of 15 in the UPC/FPLC and it found him to be a credible and reliable witness.

ICC-01/04-01/06-2773-Red-tENG, para. 390, referring to T-125-CONF-FRA, page 66, lines 12-17; para. 391, referring to T-125-CONF-FRA, page 59, lines 3-5. 1953 ICC-01/04-01/06-2773-Red-tENG, paras 385 386, 388 and 390 391. 1954 T-125-Red2-ENG, page 48, lines 8 17. 1955 T-126-Red2-ENG, page 55, lines 19 22. 1956 T-126-Red2-ENG, page 56, lines 3 8.

1952

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i) P-0014 699. P-0014, whose work required him to be up-to-date on political matters,1957 travelled to Ituri at least once a week prior to 31 January 2002, and although he was not based in the area after August 2002, he returned to Ituri sporadically.1958 He gave detailed evidence based on his personal knowledge and experience of the region about events and the key people in Ituri between 1999 and 2003. In particular, he focussed on the composition and aims of the UPC, along with its recruitment, training and use of child soldiers under the age of 15. The witness went to the UPC headquarters nearly every day for a limited period shortly before the timeframe of the charges, when he saw the recruits and their training.1959 700. P-0014 witnessed military training at the UPCs headquarters in Bunia immediately preceding the period of the charges in 2002.1960 He indicated the recruits were trained to fight the RCD-ML and the Lendu,1961 and they ranged from 5 years old to adulthood.1962 P-0014 estimated that 30% of approximately one hundred young recruits he saw were children aged 15 and under.1963 Excluding those who were 15, he estimated about 20% of the recruits were below that age.1964 701. The prosecution highlights P-0014s evidence that there was no lower age limit for the recruitment of children and the UPC/FPLC systematically pressured Hema families to provide children for
T-179-CONF-ENG, page 12, line 22 to page 17, line 16. T-179-Red2-ENG, page 13, lines 6 10, page 14, lines 11 14; T-179-CONF-ENG, page 17, lines 5 16. 1959 T-179-Red2-ENG, page 74, lines 4 8; T-185-Red2-ENG, page 6, lines 21 25. 1960 T-179-CONF-ENG, page 62, lines 15 25, page 66, line 19 to page 67, line 11 and page 74, lines 3 7. 1961 T-184-Red2-ENG, page 60, lines 5 13 1962 T-179-Red2-ENG, page 83, line 4 to page 84, line 2. 1963 T-179-Red2-ENG, page 86, lines 12 20. 1964 T-182-Red2-ENG, page 32, lines 1 10.
1958 1957

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military service, through mobilisation campaigns or recruitment drives. 1965 P-0014 gave evidence about the harsh punishment and other treatment inflicted on the child soldiers,1966 and he saw children under the age of 15 with gunshot wounds.1967 702. The defence is critical of the reliability and credibility of the witnesss evidence on issues relating to the presence of child soldiers within the UPC/FPLC, inter alia, because he was not in Ituri throughout the period covered by the charges. 1968 However, the Chamber is persuaded that the witnesss frequent trips to the region before and during this time, and his account of the way in which he received information about Ituri when he was absent, means his evidence is reliable. In particular, P-0014 took steps to ensure the information was accurate, and he sought to rely on several sources who were unknown to each other.1969 After the witness left Ituri, he had direct contact with various individuals who were personally involved in politics, and he spoke with people in the field.1970 P-0014 relied on the latter to obtain information on what was happening and the actions that were being prepared.1971 703. The defence challenges the witnesss evidence as to having seen children aged 5 to 18 in the UPC training camps in 2002. It is argued that his testimony lacked detail (particularly on how he assessed the age of the children).1972 704. As to a particular incident recounted by P-0014 that falls within the
1965 1966

ICC-01/04-01/06-2748-Red, paras 175, 176 and 179. T-181-Red2-ENG, page 17, lines 6 16 and page 19, lines 10 20. 1967 T-182-Red2-ENG, page 39, line 25 to page 40, line 3. 1968 ICC-01/04-01/06-2773-Red-tENG, para. 562. 1969 T-179-Conf-ENG, page 16, lines 20 25. 1970 T-181-Red2-ENG, page 53, lines 14 20. 1971 T-181-Red2-ENG, page 53, lines 18 20. 1972 ICC 01/04-01/06-2773-Red-tENG, paras 572, 575 and 743.

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period of the charges (viz. seeing a boy of 12 years among the troops of Commander Jerme Kakwavu in Aru in March or April 2003) the defence asserts his account was lacking in detail or any indication as to how he estimated the boys age.1973 Moreover, the defence maintains that Commander Kakwavu defected from the UPC in March 2003 and that the UPC was not in Aru at the relevant time.1974 This is addressed below. 705. The defence also questions P-0014s credibility as regards his evidence that he is able to differentiate between ethnic groups based on physical appearance.1975 This issue is essentially irrelevant to the Chambers Decision. 706. Assessing P-0014s evidence as a whole, the Chamber is of the view his account was credible and reliable. The witness testified in a straightforward and honest manner, distinguishing clearly between the events he had witnessed and those that were reported to him. 707. Regarding his assessments of age, the witness gave detailed evidence about the child soldiers he saw in Ituri between 1999 and 2003. As discussed below, the witness provided a precise account of the circumstances in which he saw particular individuals at various times and how he assessed their ages. 708. P-0014 observed there was no age limit as regards the children recruited into the UPC/FPLC, and he saw 8 15 year-olds who had been forcibly recruited.1976 He estimated the age of a particular fiveyear-old child at a training centre on the basis that a six-year-old
ICC-01/04-01/06-2773-Red-tENG, para. 575. ICC-01/04-01/06-2773-Red-tENG, para. 575, referring to T-178-CONF-FRA, page 19, lines 5 23 and page 34, lines 3 9. 1975 ICC-01/04-01/06-2773-Red-tENG, para. 576. 1976 T-182-Red2-ENG, page 36, line 5 to page 37, line 25.
1974 1973

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should be able to reach over his head and touch his opposite ear, and this child was unable to do this when asked. 1977 As to how he estimated the age of the other children he saw, the witness indicated that he used to be a teacher and he had been in daily contact with individuals within this age group; this helped him to identify the ages of young people he saw within the UPC/FPLC.1978 The witness took into account the childrens physical characteristics, including such things as the change in a boys voice when he reaches puberty.1979 709. As with other witnesses who also gave personal estimates of ages, the Chamber has reflected the difficulties in this area; however, in the context of P-0014s evidence as a whole, the Chamber is satisfied that his evidence on this subject was credible and reliable. j) P-0002 710. P-0002 testified about video evidence introduced during the trial. This witness worked for the UPC since it was created until May 2003.1980 During the period following March 2003, he went to Thomas Lubangas residence nearly every day.1981 The prosecution introduced a number of videos into evidence via this witness showing UPC political speeches, assemblies, rallies and interviews. Although the defence criticises the lack of precision in P-0002s evidence on the age and identity of young people in the UPC,1982 it does not challenge the authenticity of the underlying material. The Chamber is satisfied that the evidence of P-0002, in which he identified various people and

T-179-Red2-ENG, page 84, lines 1 7 and page 86, line 21 to page 87, line 9. T-179-Red2-ENG, page 87, lines 10 14. 1979 T-179-Red2-ENG, page 87, lines 15 21. 1980 T-160-Red2-ENG, page 69, line 19 to page 70, line 21 (stating that it was until March, which he corrected in a following transcript); T-162-Red2-ENG, page 5, lines 14 25. 1981 T-162-Red2-ENG, page 7, lines 3 11. 1982 ICC-01/04-01/06-2773-Red-tENG, para. 532.
1978

1977

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locations in the videos shown to him during his evidence, along with the dates of the relevant events, is credible, consistent and reliable. 711. P-0002 declined to elaborate on his estimate as to the ages of former UPC soldiers in a video excerpt some of whom he thought could be underage because he had not asked them their ages. 1983 Given P0002s evident caution as regards the ages of children, the Chamber is confident he only expressed an opinion on this issue when he had a proper basis for reaching a firm conclusion. Overall, P-0002 was a credible and reliable witness. The Chamber has independently assessed the ages of the children identified in the video footage, to the extent that it is possible to draw a safe conclusion based on their appearance. k) P-0030 712. P-0030 principally gave evidence about a number of videos concerning UPC-related political speeches, popular assemblies, press conferences and other meetings he attended. He provided an explanation of the events reflected in the video footage, and he identified various people and locations. 713. P-0030 testified that he noticed children under the age of 15 within the ranks of the UPC/FPLC,1984 including children as young as 9 years old who were part of Thomas Lubangas presidential guard. 1985 He commented on a number of video excerpts that show recruits and bodyguards belonging to the UPC, some of whom were clearly under

T-162-Red2-ENG, page 48, line 16 to page 49, line 5. See, for instance, T-128-Red2-ENG, page 24, lines 5 12, page 48, lines 6 14; page 63, lines 2 14; page 65, line 12 to page 66, line 4. 1985 T-128-Red2-ENG, page 20, line 14 to page 21, line 7.
1984

1983

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the age of 15.1986 714. The defence submits the evidence of P-0030 is limited in its scope, as he was essentially called to authenticate the video extracts played during his testimony.
1987

However, the witness was questioned

extensively about certain political events that were connected to the video footage he viewed in court, and the defence was provided with a fair opportunity to examine him on these issues. In the circumstances, the Chamber has not restricted its consideration of P-0030s evidence as suggested by the defence but instead it has taken the entirety of his testimony into account. 715. Although the defence maintains that P-0030s contact with Intermediary 143
1988

should be considered when evaluating his

credibility, 1989 there is no evidence to suggest that Intermediary 143 influenced P-0030 in the evidence he gave. Accordingly, there is no basis for drawing an adverse conclusion as to his testimony based solely on any contact between them indeed, the Chamber found the evidence of P-0030 to be consistent, credible and reliable. 716. The defence addressed his account of having seen young soldiers within the ranks of the UPC, whose age he estimated as between 9 years and adulthood. The defence emphasises this conclusion was based solely on his visual assessment. 1990 Similarly, the defence contends that P-0030 did not verify the ages of the bodyguards he saw at Thomas Lubangas residence, whom he also suggested were
EVD-OTP-00571, 02:47:15 02:47:19; EVD-OTP-00572, 00:28:42; EVD-OTP-00574, 00:36:21 and 01:49:02; EVD-OTP-00585, 00:40:08 onwards. The video excerpts will be addressed in the relevant sections below. 1987 ICC-01/04-01/06-2773-Red-tENG, para. 533. 1988 See table of contacts between intermediaries and trial witnesses, EVD-D01-01037 at DRC-D010003-5788, line 8. 1989 ICC-01/04-01/06-2773-Red-tENG, para. 534. 1990 ICC-01/04-01/06-2773-Red-tENG, paras 535 and 746.
1986

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between 9 years and adulthood. 1991 It is argued it is impossible to distinguish with sufficient certainty between a 12 or 13 year-old and a 15 or 16 year-old child on the basis of a photograph or video extract.1992 Therefore, the defence asserts the video excerpts provide an uncertain basis for concluding that the adolescents in them were below the age of fifteen. 1993 717. The Chamber notes that P-0030s estimate that the children guarding Mr Lubangas residence were 9 or 10 years of age was not based solely on a limited number of visits. His account, which the Chamber accepts, was that he visited the residence frequently (two or three times per week).1994 When questioned about the ages of certain 14 and 15 year-old child soldiers he had seen, the witness explained his assessment as follows:
A. Well, I can say, I can justify myself, but the images also speak. If you doubt what I say, I think that by looking at the image that the image can help you see that there were kadogos.1995

He added there might be differences in size depending on the ethnicity of the children.1996 718. The Chamber concludes that P-0030 based his assessment of age on the appearance of the individuals he saw, some of whom he encountered on a frequent, as opposed to a sporadic, basis. The

Chamber is satisfied that there are instances when a reliable distinction can be drawn between a 9 or 10 year-old child and a 14 or 15 year-old child, based solely on appearance. The Chamber has independently
1991 1992

ICC-01/04-01/06-2773-Red-tENG, paras 536 and 747. ICC-01/04-01/06-2773-Red-tENG, paras 703 704. 1993 ICC-01/04-01/06-2773-Red-tENG, paras 705 707. 1994 T-128-Red2-ENG, page 19, line 25 to page 20, line 6. 1995 T-131-Red2-ENG, page 8, line 2 to page 9, line 9. 1996 T-131-Red2-ENG, page 8, line 25 to page 9, line 9.

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assessed the ages of the children identified in the video footage and about whom this witness expressed a view, to the extent that it is possible to draw a safe conclusion based on their appearance. Overall, P-0030 was a credible and reliable witness. l) D-0011 719. D-0011 joined the UPC in about July of 2002 when he was living in Bunia. 1997 He served as Thomas Lubangas expert consultant and later as his private secretary until around September 2004.1998 In the latter role, D-0011 managed Mr Lubangas meetings, acted as his driver and prepared documents, and he was concerned with other aspects of the Presidents daily activities.1999 He assumed responsibility for procuring rations for the troops, which were purchased by the President.
2000

His office was located within Thomas Lubangas

premises and sometimes he attended meetings organised by the President. 2001 A significant part of the testimony of this witness concerned the demobilisation process allegedly implemented by the UPC, as addressed in Section IX(B)(3)(a)(1). This includes evidence concerning the Disarmament, Demobilisation, Repatriation,

Resettlement and Reintegration (DDRRR) programme and the letter of 12 February 2003.2002 720. D-0011 testified that between September 2002 and the end of May 2003 he did not see any child soldiers in the UPC and, if there were, perhaps they were in the interior. 2003 He explained that possibly

1997 1998

T-346-ENG, page 71, lines 12 19. T-346-ENG, page 69, line 21 to page 71, line 11 and page 74, line 13 to page 75, line 6. 1999 T-346-ENG, page 75, lines 9 21. 2000 T-346-ENG, page 75, lines 14 16. 2001 T-346-ENG, page 75, line 22 to page 76, line 15. 2002 T-347-ENG, page 45, line 17 to page 62, line 3. 2003 T-347-ENG, page 35, lines 19 22.

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there were children under the age of 15 within the umbrella of the FPLC in the interior (not in Bunia), who sought food or protection, and although on occasion they were asked to carry out minor task[s] such as transporting military equipment, they did not receive military training.2004 721. He did not know whether children under the age of 15 were used by the FPLC to fight in the front line at Lipri, Bambu and Kobu in February 2003. 2005 D-0011 also did not know whether children under the age of 15 were at the Rwampara military camp, and, given his absence, he was unable to give evidence about Thomas Lubangas visit to that camp in February 2003.2006 He was unaware of any procedures for verifying the ages of the recruits, although he stated that when the armed branch of the FPLC was set up, an order was issued prohibiting the enrolment of children who D-0011 defined as individuals below the age of 18 into the army.2007 D-0011 suggested it was possible to determine whether an individual was below the age of 18 by their physical appearance.2008 722. D-0011 testified that at the end of May 2003, Thomas Lubanga held a rally in Bunia, where they both saw a number of children carrying weapons, who appeared to be under the age of 18, amongst the group of FPLC soldiers. 2009 After he brought this to the attention of Mr Lubanga, the latter asked him to prepare an emergency decree to ensure the demobilisation of soldiers within the FPLC who were

2004 2005

T-347-ENG, page 36, line 9 to page 37, line 6. T-347-ENG, page 62, line 5 to page 63, line 23. 2006 T-347-ENG, page 57, line 22 to page 60, line 6 and page 20 23. 2007 T-347-ENG, page 40, line 7 to page 41, line 22. 2008 T-347-ENG, page 39, line 23 to page 40, line 1. 2009 T-347-ENG, page 12, lines 19 21 and page 15, line 7 to page 16, line 1.

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visibly child soldiers.

2010

D-0011s explanation for this new

phenomenon (viz. the presence of children) was that before the UPDF retreated from Bunia on or about 5 May 2003, it distributed weapons to those who wished to protect themselves. 2011 Children within the ranks of PUSIC, and those who had been abandoned, were armed as a result,2012 and he indicated this explained the abundant presence of child soldiers in the ranks of the FPLC.2013 D-0011 suggested that child soldiers were to be found in the FPLC after the end of May 2003 as a result of a period in which they werent in a position to manage affairs in the territory, but that by end of July 2003 they had been demobilised by various organisations, due to the efforts of the commanders of the FPLC.2014 723. The defence suggests that on account of the large number of armed groups present in Bunia in May 2003, which included armed forces that had split from the UPC, it was impossible to identify the various armed groups to which the children bearing arms belonged simply by looking at them.2015 D-0011 indicated that when he saw a large number of armed individuals amongst the soldiers providing security at a UPC rally in Bunia, who gave the impression of being under 18, he could not say with certainty whether they were all soldiers because some of them were dressed partially in civilian clothing.2016 Notwithstanding this possible difficulty, it is clear that the individuals wearing uniforms who were obviously providing security were easier to categorise. This witness only referred to children in the sense that there were soldiers

2010 2011

T-347-ENG, page 15, line 19 to page 16, line 8. T-347-ENG, page 16, line 13 to page 17, line 1. 2012 T-347-ENG, page 17, lines 1 8. 2013 T-347-ENG, page 17, lines 8 10. 2014 T-347-ENG, page 35, line 25 to page 36, line 8. 2015 ICC-01/04-01/06-2773-Red-tENG, para. 937. 2016 T-347-ENG, page 15, lines 12 16.

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who were below the age of 18. His testimony therefore does not assist as to whether there were children below the age of 15 in the FPLC. 724. The Chamber has taken into account the close professional relationship between this witness and the accused, and it has weighed his evidence in light of the other persuasive material that indicates there were children below 15 years of age in the FPLC. The Chamber considers that this witness was frequently evasive in his testimony, which the Chamber has approached with considerable caution. In the result, the Chamber has only relied on his account when supported by other credible evidence. m) D-0037 725. D-0037 is a former soldier who was with the APC army in 2001 and 2002. 2017 Later, he joined an armed group in Mandro which was organised to defend the Hema community under the leadership of Chief Kahwa and Commander Bosco Ntaganda. 2018 The witnesss evidence was that he recalled joining this group around the middle or end of June 2002 2019 and that it later became part of the FPLC, following the takeover of Bunia in 2002.2020 Within the FPLC, D-0037 became secretary to Commander Bosco Ntaganda. 2021 Thereafter, he was also appointed as the Chief of Administration in the UPC/FPLC (G1), around July or August 2003, following the defection of Floribert

T-349-ENG, page 4, lines 1 19. The witness later stated he joined the APC in 2000. However, the question and answer in this regard do not seem to correspond, which may be the result of interpretation or transcription difficulties, T-349-ENG, page 20, lines 11 21. 2018 T-349-ENG, page 5, lines 9 18. 2019 T-349-ENG, page 20, line 22 to page 21, line 12. The witness eventually said he joined the FPLC in June 2002, but from his evidence in this series of questions, it seems that he meant the group that later turned into the FPLC rather than the FPLC itself. 2020 T-349-ENG, page 7, line 22 to page 8, line 20 and page 20, line 25 to page 21, line 7. 2021 T-349-ENG, page 8, lines 21 23; page 9, lines 5 13; page 21, lines 8 15.

2017

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Kisembo.2022 726. He gave evidence about the rebellion against the RCD/ML and he supplied information concerning the self-defence forces, the structure of the FPLC and the alleged demobilisation of children. D-0037 said that although there were children below 18 years of age within the FPLC, there were none below 15.2023 The witness described how some individuals who arrived at FPLC training centres were refused training although others below the age of 18 were admitted if they were well built.2024 727. The Chamber has concluded that D-0037s evidence was, in most respects, credible, consistent and reliable although on certain discrete issues, that have been addressed to the extent necessary, his evidence was of less assistance. n) D-0019 728. D-0019 was an early member of the UPC (he helped draft the UPCs programme, dated 15 September 2000)2025 and he served as the UPCs national secretary for internal and customary affairs (following his original appointment as deputy national secretary).2026 He also acted as spokesman and, in August 2003, as the interim president of the UPC.2027 He remains a member of the UPC. D-0019 gave evidence on the origins and nature of the UPC and the FPLC; the events in Ituri during the period leading up to and including the charges; the relationship between the UPC/FPLC and the self-defence committees;

2022 2023

T-349-ENG, page 15, lines 7 20 and page 23, lines 2 21. T-349-ENG, page 61, lines 4 14. 2024 T-349-ENG, page 61, line 24 to page 62, line 4. 2025 T-342-ENG, page 16, line 16 to page 17, line 1, referring to EVD-OTP-00662. 2026 T-340-ENG, page 70, lines 14 24. 2027 T-342-ENG, page 51, line 24 to page 52, line 22; T-340-ENG, page 70, line 24.

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the UPC/FPLCs attempts at demobilisation; and the situation of children, as regards the UPC army. 729. Although the prosecution and the defence rely on the testimony of D-0019, the prosecution challenges significant portions of his evidence, particularly regarding the position of Thomas Lubanga within the UPC (and the nature of the organisation) prior to the period of the charges,2028 as well as his testimony as to the lack of young children within the FPLC.2029 730. The Chamber found D-0019 to be an evasive and contradictory witness on the issues that particularly concerned Thomas Lubanga, and in some instances during his testimony he demonstrated partiality towards the accused. Bearing these factors in mind, as well as his position within the UPC, the Chamber has exercised caution as regards certain aspects of his testimony. However, on issues that were not directly related to the accused, such as the structure of the UPC, his account tended to be more consistent, credible and reliable. In all the circumstances, the Chamber has accepted his testimony in these latter areas, particularly when corroborated by other credible evidence or if they were uncontroversial. o) D-0007 731. D-0007, who was the co-ordinator of the Hema self-defence committees in Ituri during the relevant period,2030 gave detailed and compelling evidence on the use of children under the age of 15 by the self-defence forces,2031 although he suggested the latter were separate

2028 2029

See paras 1093 et seq. ICC-01/04-01/06-2748-Red, paras 292, 332, 347 and footnote 830. 2030 T-348-ENG, page 23, line 4 to page 25, line 14. 2031 T-348-ENG, page 33, line 13 to page 34, line 6.

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from the UPC/FPLC.2032 The Chamber found his evidence, in the main, to be credible and reliable, notwithstanding certain notable exceptions. For instance, as discussed below, his evidence on the ages of the children who were sent to the UPC/FPLC for training (and who the villagers expected to return)2033 was implausible. His account, along with the prosecutions criticism of parts of it,2034 is considered hereafter in the section on the self-defence groups. 3. Documentary evidence on the presence of child soldiers within the UPC/FPLC 732. In this section, the Chamber considers particular items of documentary evidence that are challenged by the defence. a) Logbooks from a demobilisation centre (EVD-OTP00474, EVD-OTP-00476 and EVD-OTP-00739) 733. During the testimony of P-0031, the prosecution introduced several logbooks recording the entry and departure of child soldiers from a particular demobilisation centre in Bunia.2035 EVD-OTP-00474 is a list drawn up by social workers containing the names, ages and other details relating to children who were to be placed with host families. 2036 The prosecution referred to this logbook repeatedly in relation to the alleged former child soldiers who were called to give evidence.2037 734. The prosecution submits that logbook EVD-OTP-00476 concerns 12
T-348-ENG, page 42, line 14 to page 43 to page 46, lines 9 16. T-348-ENG, page 36, line 6 to page 38, line 9. 2034 ICC-01/04-01/06-2748-Red, paras 353 354. 2035 EVD-OTP-00474, T-200-Red2-ENG, page 89, lines 1 23; EVD-OTP-00739, T-201-Red2-ENG, page 38, lines 22 23 and page 39, lines 9 15; EVD-OTP-00476, T-201-Red2-ENG, page 25, lines 12 24 and T-245-Red2-ENG, page 8, line 5 to page 10, line 25. 2036 T-200-Red2-ENG, page 89, lines 5 20 (P-0031). 2037 ICC-01/04-01/06-2748-Red, paras 370 (in relation to P-0294), 391 (in relation to P-0011) and 429 (in relation to P-0007 and P-0008).
2033 2032

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former UPC/FPLC child soldiers under the age of 15 who were at the centre prior to 13 August 2003, along with an additional 15 UPC/FPLC child soldiers below the age of 15 who arrived between 13 August 2003 and 13 September 2003 (the latter group, it is submitted, were likely to have been conscripted, enlisted or used prior to 13 August 2003).2038 P0031 gave evidence on the identity of the individual who compiled this logbook.2039 735. EVD-OTP-00739 was a record that was made to assist in monitoring children who were reunited with their families. 2040 The prosecution submits that EVD-OTP-00476 and EVD-OTP-00739 demonstrate the systematic nature of the plan that children were to be conscripted and enlisted into, and used by, the UPC/FPLC.2041 736. The defence challenges the reliability of these logbooks. 2042 First, it is submitted that since P-0031 is alleged to have manipulated other evidence, the information provided by the organisations linked to this witness [] cannot be considered to be sufficiently reliable.2043 Second, it is argued that given many individuals lied at the demobilisation centres about their age and status as former child soldiers for material gain, notwithstanding the reliability of the people who collected the material, the content of the logbooks is not to be trusted. 2044 Further, it is submitted that the information was not adequately verified, and in this respect the defence observes that although P-0031 testified that a particular organisation was supposed to confirm that the individuals mentioned in EVD-OTP-00476 had
2038 2039

ICC-01/04-01/06-2748-Red, paras 162 163. T-201-CONF-ENG, page 25, line 23 to page 28, line 21. 2040 T-201-Red2-ENG, page 91, lines 9 15. 2041 ICC-01/04-01/06-2773-Red, para. 162. 2042 ICC-01/04-01/06-2773-Red-tENG, paras 709 716. 2043 ICC-01/04-01/06-2773-Red-tENG, para. 711. 2044 ICC-01/04-01/06-2773-Red-tENG, para. 712.

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belonged to an armed group, the testimony of D-0023 and P-0089 demonstrates that this did not occur. 2045 In an interview with the prosecution Commission following Nationale his de testimony, P-0089 stated that the et

Dsarmement,

Dmobilisation

Rinsertion (CONADER) accepted a number of children who had falsely claimed to be demobilised soldiers, and they recorded the information provided without any process of verification. 2046 D-0023 similarly stated that many civilians falsely registered as former soldiers with CONADER in order to obtain financial and other benefits from the demobilisation process. 2047 He also testified that many individuals did not use their real names when registering with CONADER in order to avoid later prosecution. 2048 The defence emphasises that the UPC/FPLC is not referred to in logbook EVDOTP-00739.2049 737. It is submitted that the list in document EVD-OTP-00474, which was prepared by MONUC along with another organisation, similarly fails to include a reference to the armed group to which the demobilised children belonged. 2050 Furthermore, the defence contends that the testimony of witness P-0031 that the UPC recruited the children referred to in the list in Mongwalu in August 2002 and they were discharged by Jerme Kakwavu on 1 April 2004 in Aru is implausible given the RCD/ML controlled the region up until November 2002.2051 In addition, the defence notes that the UPC lost control of the region of Aru in March 2003, the time when Mr

2045 2046

ICC-01/04-01/06-2773-Red-tENG, paras 713 714. EVD-D01-00986, page 0307, line 96 to page 0308, line 145. 2047 T-266-Red2-ENG, page 42, lines 4 10 and page 43, line 12 to page 47, line 25. 2048 T-266-Red2-ENG, page 59, lines 3 9. 2049 ICC-01/04-01/06-2773-Red-tENG, para. 715. 2050 ICC-01/04-01/06-2773-Red-tENG, para. 629. 2051 ICC-01/04-01/06-2773-Red-tENG, para. 629, referring to EVD-OTP-00710.

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Kakwavu defected from the UPC.2052 738. The defence submits that although witness P-0031 stated that in a general sense MONUC, UNICEF and other NGOs undertook the verification of the childrens ages,2053 P-0046 indicated that MONUC often relied on its partners for this purpose.2054 739. Assessing this evidence overall, the lack of information concerning the armed group or groups to which the children registered in logbook EVD-OTP-00739 and listed in EVD-OTP-00474 belonged, leads the Chamber to conclude that these two documents cannot be relied on in order to establish the presence of children within the UPC/FPLC. 740. Similarly, the Chamber is unable to rely on the contents of logbook EVD-OTP-00476, notwithstanding the fact that it contains information about the armed groups with which the children were associated, along with their dates of birth, 2055 because of the potential unreliability of the information when it was originally provided and the apparent lack of sufficient (or any) verification. b) Letter of 12 February 2003 from the National Secretary for Education to the G5 Commander of the FPLC (EVD-OTP-00518) 741. The prosecution relies on a letter dated 12 February 2003 from the National Secretary for Education and Youth, addressed to the G5 in

ICC-01/04-01/06-2773-Red-tENG, para. 629, referring to T-178-CONF-FRA, page 34, lines 3 4 (P-0055); T-177-CONF-FRA, page 5, lines 7 19 and T-178-CONF-FRA, page 18, line 20 to page 19, line 10 (P-0055); T-341-CONF-FRA, page 23, lines 18 28 (D-0019). 2053 ICC-01/04-01/06-2773-Red-tENG, para. 632, referring to T-199-CONF-FRA page 21, lines 16 20 and T-201-CONF-FRA, page 19, line 20 to page 20, line 1 (P-0031); T-200-CONF-FRA, page 86, lines 4 6, T-199-CONF-ENG, page 23, lines 21 22 and T-201-CONF-FRA, page 18, lines 5 16 and page 19, lines 13 14 (P-0031). 2054 ICC-01/04-01/06-2773-Red-tENG, para. 632, referring to EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-FRA, page 84, line 24 to page 85, line 8) and T206-CONF-FRA, page 18, lines 5 16 and page 19, lines 13 14 (P-0046). 2055 EVD-OTP-00476, page 0194.

2052

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the UPC/FPLC and copied to Thomas Lubanga, concerning the selection of thirteen officers from the army who were to be trained in a DDRRR programme.2056 The letter states that the programme is to be applied to those soldiers aged 10 to 15 or 16 who are willing to return to civilian life,2057 which the prosecution submits confirms, first, the presence of children under the age of 15 or 16 years in the FPLC during the relevant period and, second, the accuseds awareness that this was occurring.2058 742. The prosecution argues that the testimony of D-0011 demonstrates that this letter referred to children within the FPLC. 2059 It is

emphasised that it is a report from a UPC national secretary, addressed to the G5 who was in charge, inter alia, of recruitment.2060 743. The defence argues that the letter does not prove that child soldiers below the age of 15 were part of the FPLC. It emphasises that it refers to a DDRRR programme without specific mention of the FPLC. 2061 Rather, the reference to child soldiers (specifically between 10 and 15 or 16 years) is said to include all children targeted by the DDRRR programme, and was not restricted to those from the UPC/FPLC.2062 The defence also refers to D-0011s evidence that the programme was not solely concerned with the UPC/FPLC because he said that it also related to Rwanda and Burundi.2063 In further support of its argument

ICC-01/04-01/06-2748-Red, paras 303 304, referring to EVD-OTP-00518. EVD- OTP-00518; The French original states: [] a initi un programme de Dmobilisation, Dsarmment, Rducation, Rinstallation et de Rinsertion (DDRRR) en faveur des Enfants-Soldats, gs de 10 15/16 ans, qui acceptent volontiers leur retour la vie civile pour une rorientation conforme de leur avenir. []. 2058 ICC-01/04-01/06-2748-Red, para. 304. 2059 ICC-01/04-01/06-2748-Red, para. 304, referring to T-347-ENG, page 53, lines 16 19. 2060 ICC-01/04-01/06-2748-Red, footnote 830. 2061 ICC-01/04-01/06-2773-Red-tENG, para. 728. 2062 ICC-01/04-01/06-2773-Red-tENG, paras 726 730. 2063 ICC-01/04-01/06-2773-Red-tENG, para. 728, referring to T-347-CONF-FRA, page 41, lines 17 21.
2057

2056

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the defence relies on the testimony of P-0046 that the DDRRR was a MONUC project to repatriate Rwandese soldiers from the DRC, and the testimony of D-0019 that it was a programme aimed at others from the east of the Congo.2064 744. D-0011 suggested that the 12 February 2003 letter (EVD-OTP-00518) concerned a nationwide DDRRR programme aimed at children in all the armed forces.
2065

Although the witness agreed that it was

addressed to the G5 commander of the FPLC and referred to the selection of thirteen FPLC officers who were to participate in demobilisation training,2066 he strongly resisted the suggestion that it solely related to children within the UPC/FPLC.2067 He maintained that the UPC/FPLC was addressed because it was the political arm that was in charge of this region, and that, along with Save the Children, it was able to implement the DDRRR programme of demobilising children from the village self-defence committees and the other armed groups, such as PUSIC.2068 D-0011 suggested that soldiers in the region were exclusively assimilated into the FPLC because it was the only power in place, 2069 although he also gave evidence that everyone under 18 was involved and not just those enlisted in the FPC [sic.] once we came back from the bush.2070 However, he did not agree with the assertion that the document addressed the position of child soldiers in the FPLC or those assimilated into pro-FPLC units.2071 745. The Chamber has placed little reliance on D-0011s evidence
ICC-01/04-01/06-2773-Red-tENG, para. 729, referring to EVD-OTP-00493, T-38-FRA, page 12, lines 18 23 and page 13, lines 8 11 (P-0046); T-347-CONF-FRA, page 41, lines 17 21. 2065 T-347-ENG, page 46, line 3 to page 47, line 8. 2066 T-347-ENG, page 53, line 23 to page 54, line 2. 2067 T-347-ENG, page 52, line 3 to page 53, line 11. 2068 T-347-ENG, page 46, line 12 to page 47, line 14 and page 49, line 14 to page 51, line 24. 2069 T-347-ENG, page 51, lines 17 20 and page 53, lines 12 22. 2070 T-347-ENG, page 51, lines 20 24. 2071 T-347-ENG, page 52, line 25 to page 53, line 5.
2064

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concerning EVD-OTP-00518, a document about which he was frequently evasive and argumentative. As an example, he suggested that the letter does not include any reference to the FPLC, 2072 notwithstanding the fact that the G5 commander of the FPLC was the addressee. 746. Although the issue of child soldiers may well have been a concern for the entire region, the document implies that there were children between the ages of 10 and 15 or 16 within the FPLC (regardless of their nationality). PUSIC and the self-defence forces were not referred to, and D-0011 agreed that Eric Mbabazi was not PUSICs commander and he had no control over those troops. 2073 Furthermore, D-0019 indicated that [t]he programme concerned minors who wanted to leave the UPC (although he added that there were minors who were also active in the self-defence forces).2074 747. As addressed in greater detail above, D-0011 suggested there were no minors among Thomas Lubangas bodyguards (or, more generally, in the UPC/FPLC until May 2003, save possibly in the interior), a contention that is contradicted by other witnesses and the video evidence. Therefore, the Chamber discounts his evidence about the 12 February 2003 letter to the extent that he suggests it did not concern child soldiers within the ranks of the FPLC. 748. Given this letter of 12 February 2003 was sent by the UPC/FPLCs national secretary for education to the UPC/FPLCs G5 (whose key responsibilities were training, morale and recruitment),2075 its reference
2072 2073

T-347-ENG, page 50, lines 2 4. T-347-ENG, page 51, lines 12 14. 2074 T-346-ENG, page 45, lines 11 18. 2075 T-345-ENG, page 74, lines 1 3 (D-0019); T-154-Red-ENG, page 24, lines 4; lines 12 13 (P0017); T-189-Red2-ENG, page 77, lines 11 19; page 82, lines 1 2 (the witness testifed that the G5

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to the demobilisation of child soldiers aged 10 to 15 or 16 years old and the testimony of D-0019 that the demobilisation programme concerned child soldiers in the UPC, the Chamber considers that regardless of whether it could also be interpreted as referring to children in the selfdefence forces or other armed groups, it was clearly directed principally at the position of children in the UPC/FPLC. It follows that on this issue the Chamber found the evidence of D-0019 to be reliable namely that the letter also concerned child soldiers within the FPLC. Therefore, this document significantly corroborates other evidence before the Chamber that child soldiers under the age of 15 were part of the UPC/FPLC during the period of the charges. c) Logbook of radio communications (EVD-OTP-00409) 749. The prosecution relies on a UPC/FPLC logbook with the entry chez nous un seul enfant a reu une balle mais il est encore vivant et il nest pas gravement bless to demonstrate that children under 15 were within the ranks of the UPC/FPLC.2076 750. The defence submits the true meaning of the word children in the UPC/FPLC military context is demonstrated by video footage of the Governor of Ituri making a speech in support of FPLC soldiers,2077 which includes the following extract:
[Translation] Our march today demonstrates the support we are providing for our children and, let me quote, the patriotic force for the liberation of the Congo, FPLC. They should be congratulated today.2078

was in charge of morale, but he never saw him involved in recruitment) (P-0016); T-175-Red2-ENG, page 75, lines 9 12; page 76, lines 1 21 (P-0055). 2076 ICC-01/04-01/06-2748-Red, para. 216, referring to EVD-OTP-00409 at DRC-OTP-0017-0093 (Swahili) and EVD-OTP-00622 at DRC-OTP-0171-0987 (French translation). 2077 ICC-01/04-01/06-2773-Red-tENG, para. 723. 2078 EVD-OTP-00410/EVD-OTP-00678, 00:10:29 00:11:30; T-346-ENG, page 56, lines 5 7.

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The defence also refers to the testimony of D-0019 who stated that in this speech the Governor of Ituri was referring to the soldiers of the FPLC as a whole and not only to those who were minors.2079 751. The defence submits the word child as it is used in the logbook is a synonym for soldier, and it therefore does not refer to those who were minors.2080 The accused cites several examples in support of this contention, such as Fataki the children hit the target.2081 It is also contended that the logbook is merely a log of radio communications between various FPLC officers and it is not a record of the individuals wounded or killed in combat.2082 752. There is an absence of evidence demonstrating that when the word children was used in logbook EVD-OTP-00409 it referred to individuals under the age of 15. P-0055, when questioned about an entry in the logbook referring to an injured child, recalled the incident and indicated this is what is written, that within our forces there is a child who is injured.2083 However, he did not remember the relevant part of the message, which in any event was incomprehensible to him, and he was unable to verify the details. 2084 He did not assist as to whether the message referred to a child below the age of 15. Given the lack of any reliable guide as to the meaning attributed to the word children in this particular context, the Chamber declines to rely on this document as support for the contention that there were children

ICC-01/04-01/06-2773-Red-tENG, para. 724; T-346-ENG, page 56, lines 12 16. To illustrate its point in a different context, the defence suggests it would be absurd to maintain that the first words of the French national anthem, La Marseillaise (Allons enfants de la patrie ), are specifically addressed to children below the age of 18, ICC-01/04-01/06-2773-Red-tENG, footnote 1497. 2080 ICC-01/04-01/06-2773-Red-tENG, para. 722. 2081 ICC-01/04-01/06-2773-Red-tENG, para. 722, referring to, inter alia, EVD-OTP-00409 at DRCOTP-0017-0071 (Swahili) and EVD-OTP-00622 (French translation) at DRC-OTP-0171-0965. 2082 ICC-01/04-01/06-2773-Red-tENG, para. 721. 2083 T-176-Red2-ENG, page 77, line 14 to page 78, line 16. 2084 T-176-Red2-ENG, page 78, lines 6 17.

2079

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under the age of 15 within the ranks of the UPC/FPLC armed forces. d) Monthly report by Eric Mbabazi (EVD-OTP-00457) 753. The prosecution relies on EVD-OTP-00457, a monthly report from Bureau 5 dated 2 November 2002, along with the testimony of P-0038, to support the allegation that within the structure of the FPLC the G5, Eric Mbabazi, oversaw awareness-raising campaigns to persuade villagers to send their children for training.2085 An excerpt from the monthly report was read aloud in court during the testimony of D0019:
We note that in general the FPLC troops like each other quite well, and they have a good relationship and collaborate in a frank manner, but in a certain sense there is also tension between troops and officers as a result of the mismanagement of troops [] this mismanagement has the following results: the deserters go back home, demoralised. Their friends and these deserters are discouraged, and therefore we no longer have the means of obtaining more children for the army.2086

754. A second excerpt included the following:

Often when one takes charge of recruits from a village, try and find the means of returning a quarter of these children in order to fill in certain gaps, because they provide security for the population in the bush. The latter have allegedly stated that they will no longer send children, because they are experiencing a feeling of complete insecurity.2087

755. The prosecution contends that this document reveals the full picture of the recruitment drives for children early on in the armys existence as the FPLC.2088 It also relies on the testimony of D-0037, the secretary to Bosco Ntaganda,2089to the effect that the use of the term children in FPLC documents relating to demobilisation was a
2085 ICC-01/04-01/06-2748-Red, para. 181, referring to T-114-Red2-ENG, page 27, line 22 to page 28, line 7 (P-0038s testimony does not refer to Eric Mbabazi in particular, but he explained the functions of the G5 within the FPLC structure), and para. 290. 2086 EVD-OTP-00457, T-346-ENG, page 16, line 17 to page 17, line 3. 2087 T-346-ENG, page 20, lines 13 18, EVD-OTP-00457. 2088 ICC-01/04-01/06-2748-Red, para. 291. 2089 T-349-ENG, page 8, lines 22 23 and page 9, lines 5 7.

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reference to children under the age of 18.2090 756. The defence disputes the prosecutions interpretation of EVD-OTP00457, arguing the document does not refer to an FPLC awarenessraising campaign in the villages, and that the term children refers to soldiers in general and not to minors.2091 In support of this submission, the defence refers to the testimony of D-0019 that the word children as used in this document simply means FPLC soldiers. 2092 It is suggested the prosecutions interpretation that the term is meant to distinguish children from adults would lead to the conclusion that the FPLC recruited only minors, to the exclusion of any adult recruits. 2093 Finally, the defence submits the prosecution has not

demonstrated that the report was ever sent to the accused, arguing the use of the plural in relation to No. 01 in the original appears to rule out any reference to the accused.2094 757. The Chamber observes that EVD-OTP-00457 was shown to witness D-0019 to give him an opportunity to reconsider his evidence as regards the role of Eric Mbabazi in recruiting children for the UPC. The prosecution did not suggest the witness had previously seen the document or that he was involved in its compilation.2095 Accordingly, the Chamber has approached his interpretation of the word children in this document with considerable caution. 758. The Chamber is of the view the prosecutions reliance on the

ICC-01/04-01/06-2748-Red, para. 291, referring to T-349-ENG, page 29, lines 4 10. ICC-01/04-01/06-2773-Red-tENG, paras 717 719. 2092 ICC-01/04-01/06-2773-Red-tENG, para. 719, referring to T-346-FRA, page 14, line 20 to page 16, line 12. 2093 ICC-01/04-01/06-2773-Red-tENG, para. 719. 2094 ICC-01/04-01/06-2786-Red-tENG, para. 42; EVD-OTP-00457 at DRC-OTP-0109-0142: [] Demandez aux N01 []. It is to be noted that No. 1 is the calling sign of the accused, T-175-Red2ENG, page 25, lines 18 19 (P-0055). 2095 T-345-ENG, page 77, line 8 to page 78, line 25 and T-345-ENG, page 13, lines 10 18.
2091

2090

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testimony of D-0037 in this connection is unsustainable, because the witnesss testimony only concerned documents that were related to demobilisation, 2096 and these exclude the monthly reports. The

evidence on this issue, viewed as a whole, insufficiently demonstrates that the word children in this report referred to those under the age of 15. Therefore, irrespective of whether the reference to more than one No. 01 excludes the accused as an addressee, the Chamber declines to rely on this material as supporting the alleged presence of minors in the UPC/FPLC. The Chamber has, however, taken this document into consideration as regards the extent of the UPC/FPLCs recruitment work. 4. Conscription and enlistment between September 2002 and 13 August 2003 a) The age range of children recruited and related issues 759. As set out above, the crimes of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. In the circumstances of this case, conscription and enlistment are dealt with together, notwithstanding the fact that they constitute separate offences.2097 These offences are continuous in nature. They end only when the child reaches 15 years of age or leaves the force or group. 2098 760. A number of witnesses testified that there were kadogos in the UPC/FPLC training camps, and in many cases these children were below 15 years of age. P-0055 gave evidence that sometimes children

2096 2097

T-349-ENG, page 29, lines 4 10. The word recruitment herein is thus used to refer to both conscription and enlistment. 2098 See para. 618.

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who were too young would try to join the army and some of them were chased away, although it was for the individual commanders to take the final decision.2099 As a result some commanders took children who were too young, and they were kept at the headquarters.2100 The witness confirmed part of a statement he had made to the investigators, to the effect that some small children joined the army when their parents were killed, and they were either sent away or they stayed at the headquarters where they were cared for and fed without being sent off to war. 2101 761. In an earlier statement, which he confirmed in evidence,2102 P-0055 had indicated that if 14 year olds were able to carry and fire a weapon, they were eligible to serve as soldiers.2103 He indicated that given his lack of involvement he did not know whether this was a criterion for recruitment.2104 He said there were several types of kadogos, but those used in the army, including those who were young, were able to bear weapons.2105 762. It was suggested by P-0055 that there were some children who were ineligible to be enlisted in the army because you could see that they really were children, you couldnt possibly allow them to join up.2106 However, there were other children who were capable of it.2107 763. P-0055 saw small children at the main staff headquarters at Bosco

T-177-Red2-ENG, page 52, lines 5 22; T-178-Red2-ENG, page 69, line 12 to page 70, line 5 and page 70, lines 15 19. 2100 T-178-Red2-ENG, page 69, line 14 to page 70, line 8. 2101 T-177-Red2-ENG, page 53, line 15 to page 54, line 24. Only the excerpts of this statement that were read during the trial are in evidence. 2102 EVD-OTP-00681, page DRC-OTP-0191-0541, lines 177 185. 2103 T-178-Red2-ENG, page 67, lines 1 7 and page 68, line 8 to page 69, line 11. 2104 T-178-Red2-ENG, page 69, line 2 20. 2105 T-178-Red2-ENG, page 68, lines 22 25. 2106 T-177-Red2-ENG, page 52, lines 15 22. 2107 T-177-Red2-ENG, page 52, lines 15 22.

2099

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Ntagandas camp and he suggested they were the ones who could not join the army.2108 One mother in particular protested about her childs recruitment.2109 P-0055 asked the child why he had enlisted and the child responded: Well, I was with my friends and they asked us to come along. They came, they took the whole group. 2110 P-0055 decided he should be returned to his mother because he was too young for military training.2111 764. The Chamber concludes from the testimony of P-0055 (as corroborated by D-00372112) that irrespective of whether children under 15 were actively recruited into the FPLC the evidence on this is addressed in detail below the age of the children was not taken into consideration when deciding to recruit them. Instead, criteria such as the size of the children and their ability to hold a weapon and to participate in training were significant factors in determining whether or not they were recruited, regardless of their ages. 765. As set out above, P-0024 gave evidence that a number of children originally taken to be trained in Kyankwanzi in 2000 were between 8 and 18 years old when, in 2001, they entered the demobilisation programme of SOS Grands Lacs, the NGO that employed him. 2113 Later, they were re-recruited by the UPC.2114 The witness said that the situation in Bunia deteriorated once the UPC drove out the RCD.2115 Their leaders, generally speaking, were from the Hema community and pretty well all of those children went back to the (UPCs) armed
T-177-Red2-ENG, page 54, lines 15 24; T-178-Red2-ENG, page 69, lines 17 18 and page 69, line 25 to page 70, line 8. 2109 T-177-Red2-ENG, page 54, line 25 to page 55, line 1. 2110 T-177-Red2-ENG, page 55, lines 20 22, page 56, line 21 to page 58, line 1. 2111 T-177-Red2-ENG, page 55, line 13 to page 56, line 3. 2112 T-349-ENG, page 61, line 24 to page 62, line 4. 2113 T-170-Red2-ENG, page 47, lines 3 25. 2114 T-170-Red2-ENG, page 47, lines 3 25; page 50, line 13 to page 51, line 11. 2115 T-170-Red2-ENG, page 51, lines 4 8.
2108

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forces. 2116 P-0024 indicated that by November 2002 only a few children remained in the vocational training centres or at school, and in general the mission had been a failure.2117 Moreover, the children who returned to the armed groups threatened those who remained in the programme, saying: If you do not join us, we will come and get you from your homes. You wouldnt be able to hide from us.2118 P0024 suggested that although it began gradually, as time passed, the UPC became more powerful, and it occupied an increasingly large area of territory.2119 According to the witness, from 2002 to 2003 when Thomas Lubanga was the leader of the UPC, the risk for those who did not rejoin the army was that they or their families would be threatened or attacked.2120 It was a highly militarised environment, and those who returned were armed and knew how to locate the individuals who had not followed them into the army.2121 The children P-0024 saw in the towns and cities after the UPC pretended to demobilise certain children when it had control over Bunia in 2002, 2122 wore military clothing, and they carried Kalashnikovs and other weapons. 2123 The witness stated that these children were between 9 and 18 years old, and they were pretty well all carrying weapons. 2124 As discussed above, the Chamber is persuaded by P-0024s assessment of the ages of the children he worked with, as well as those he saw in the towns and cities. This evidence, viewed overall, strongly supports the contention

2116 2117

T-170-Red-ENG, page 50, lines 20 21; page 51, lines 2 11. T-170-Red2-ENG, page 50, line 22 to page 51, line 1. 2118 T-171-Red2-ENG, page 10, lines 7 21. 2119 T-171-Red2-ENG, page 10, lines 21 22. 2120 T-170-Red2-ENG, page 51, lines 9 19. 2121 T-170-Red2-ENG, page 51, lines 21 24. 2122 T-170-Red2-ENG, page 52, line 17 to page 53, line 21. 2123 T-170-Red2-ENG, page 54, lines 3 6. 2124 T-170-Red2-ENG, page 54, lines 7 11.

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that children were re-recruited. 2125 766. P-0046 testified that 167 children, whose cases she had recorded prior to May 2004 as part of MONUCs child protection service, had been associated with the UPC,2126 and that 71 of them were below the age of 15 when they were recruited or used between mid-2002 and mid-2003.2127 P-0046 was provided with information about recruitment by the UPC/FPLC in the area near Ndrele around 15 February 2003.2128 This was on a market day and the armed men involved, wearing uniforms and carrying Kalashnikovs, were speaking in Swahili and Lingala.2129 They recruited between 50 and 60 individuals, some of whom spoke with P-0046.2130 They included three children who were taken to Mount Awa because the person who recruited them was aware that they were from Uganda. 2131 Adults and children were amongst the individuals recruited, and although adult women were not taken, P-0046 stated that young girls were included.2132 P-0046 also spoke to a child who had returned from Uganda prior to his second mobilisation by the UPC/FPLC.2133 They met on 21 October 2003, when he was 14 years old.2134 The child told P-0046 that he had joined the UPC/FPLC following the fighting in Bogoro in March 2003.2135 767. D-0004 testified that street children from his neighbourhood in Bunia, who included children between 12 and 15 years of age,

2125 2126

See paras 656-663, 1322 et seq. T-205-Red2-ENG, page 71, line 20 to page 72, line 24. 2127 T-206-Red2-ENG, page 2, line 22 to page 3, line 2. 2128 T-206-Red2-ENG, page 45, line 1 to page 46, line 11. 2129 T-207-Red2-ENG, page 44, lines 8 13. 2130 T-207-Red2-ENG, page 44, lines 12 15. 2131 T-207-Red2-ENG, page 44, lines 16 19. 2132 T-207-Red2-ENG, page 44, lines 20 22. 2133 T-205-Red2-ENG, page 55, lines 9 13. 2134 T-206-Red2-ENG, page 3, line 22 to page 4, line 3. 2135 T-206-Red2-ENG, page 4, lines 3 5.

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voluntarily enrolled as child soldiers in the UPC/FPLC. evidence suggests this must have been in 2002. 2137

2136

His

This witness

emphasised that it was not [Thomas Lubanga] who came to forcibly recruit.2138 He explained he did not see Mr Lubanga during the war and he heard Mr Lubanga had been in Bunia and in Fataki, whereas the training was in Mandro. 2139 As set out in detail in Section VII(E)(3)(b)(1) above, significant and extensive questions have arisen as to the reliability of D-0004, and as a result the Chamber has approached this witnesss testimony with considerable caution. 768. D-0019 strongly denied that there were any cases of forced conscription during the period he occupied a position within the UPC (from December 2002 onwards). 2140 However, when he was asked whether it was his account that during the period from September 2002 to September 2003 there were no children under the age of 15 serving in the UPC/FPLC, he replied: one cant exclude that some might have got through the net. When you go fishing, you can have a certain net and some fish can get through [] and he suggested the possibility could not be excluded that some children got through the net and ended up in a centre and were subsequently demobilised.2141 D-0019 rejected the suggestion that the UPC/FPLC had a policy of recruiting and using children under the age of 15.2142 769. Given the consistent and cumulative evidence set out above, the Chamber is satisfied that children below the age of 15 were integrated
T-242-Red3-ENG, page 18, lines 2 18; T-243-Red2-ENG, page 20, line 12 to page 22, line 6; page 23, lines 5 16. 2137 T-243-Red2-ENG, page 20, lines 17 23 and page 21, line 25 to page 22, line 3. 2138 T-242-Red3-ENG, page 18, lines 17 18; T-243-Red2-ENG, page 23, lines 2 16. 2139 T-243-Red2-ENG, page 23, lines 17 23. 2140 The witness occupied a position within the UPC executive during this time: T-340-ENG, page 67, line 18 to page 68, line 10; T-341-ENG, page 10, line 23 to page 11, line 22. 2141 T-345-ENG, page 39, lines 5 15. 2142 T-345-ENG, page 39, lines 8 15.
2136

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into the armed wing of the UPC (the FPLC). This issue is addressed further below. b) Rallies, recruitment drives and mobilisation campaigns 770. The Chamber heard evidence concerning the recruitment of young people (including children under the age of 15) into the UPC/FPLC by the party cadres and the FPLC army. In the course of this process, pressure was exerted on communities that did not want to surrender their children. 771. P-0055 gave evidence on the mobilisation procedure as described to him by a high-ranking official within the UPC/FPLC.2143 P-0055 was told that the elder Gegere wise men persuaded the population to make young people available to the UPC, for enlistment in the armed forces in order to contribute to the protection of their ethnic group against the Lendu.2144 P-0055 testified that there was consultation between the elders of the UPC from various villages, and their role was to support the UPC and to mobilise young people and enlist them in the army.2145 There were elders or wise men, along with others referred to as the cadres or senior officials of the party, who raised awareness in the villages and explained the purpose of the UPC, so as to ensure the civilian populations support. 2146 The elders were also involved in collecting funds and other goods in order to help the movement.2147 These wise men allegedly included a Gegere elder known as Old

T-174-CONF-ENG, page 25, lines 3 25 and page 31, line 21 to page 32, line 11; T-175-CONFENG, page 57, line 22 to page 58, line 1. 2144 T-174-Red2-ENG, page 30, lines 20 24 and page 32, lines 5 11. 2145 T-175-Red2-ENG, page 58, lines 2 18. 2146 T-175-Red2-ENG, page 58, lines 15 18; T-177-Red2-ENG, page 46, lines 5 25. 2147 T-175-CONF-ENG, page 58, line 23 to page 59, line 4.

2143

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Mafuta, 2148 who did not visit the villages himself, but instead delegated others to mobilise the young people. 2149 The defence

challenges the evidence of P-0055 as regards Eloy Mafuta, as this witness testified that the latter was one of the founding members of the UPC2150 whereas it is suggested that there was no one by that name within the organisation.2151 772. The defence also relies on suggested contradictions in the testimony of P-0055,2152 including his statement that I never took part in any meeting between [Mr Mafuta] and Lubanga. I cannot confirm what was said during such meetings.2153 Moreover, when asked by the prosecution whether Mr Mafutas role involved encouraging young men to join the UPC/FPLC, P-0055 replied, [a]ctually, I dont know whether that was his role.2154 773. P-0055s statement that he did not know whether it was the role of Eloy Mafuta to encourage young men to join the UPC/FPLC suggests that he was unsure whether this was an official or unofficial function. On the basis of the entirety of the witnesss testimony, the Chamber is persuaded that P-0055s evidence on this issue is reliable. 774. The Chamber has also considered a video recording introduced during P-0030s evidence showing a speech at the UPC/FPLC training camp in Katoto by Eloy Mafuta, 2155 which included the following:
You can see the current situation concerning your children and we would like to thank them for the work theyve carried out [] And its because of
2148 2149

T-174-Red2-ENG, page 33, line 10 to page 34, line 3. T-174-Red2-ENG, page 34, lines 4 12. 2150 T-174-Red2-ENG, page 35, lines 3 5. 2151 ICC-01/04-01/06-2773-Red-tENG, para. 502. 2152 ICC-01/04-01/06-2773-Red-tENG, para. 502. 2153 T-174-Red2-ENG, page 35, lines 15 18. 2154 T-174-Red2-ENG, page 36, lines 5 12. 2155 EVD-OTP-00582; T-130-Red2-ENG, page 11, line 8 to page 12, line 18 and page 15, lines 2 9.

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these children, its thanks to these children that we are living here. We could not live here otherwise [] My name is Eloy Mafuta. Im the presidential advisor. Im also military advisor to the UPC.2156

P-0030 said that the speaker was Eloy Mafuta, the special advisor to the President and the military advisor to the UPC. 2157 The prosecution indicated that the speech was delivered on 31 July 2004,2158 i.e. after the period of the charges. The Chamber is persuaded that it demonstrates that Mr Mafuta played a significant role within the UPC, notwithstanding the defence suggestion there was no UPC member by that name. In addition, the Chamber notes that Eloy Mafuta was apparently one of the signatories to the document creating the UPC, dated 15 September 2000. 2159 In all the circumstances, P-0055 was a credible and reliable witness, and the Chamber has relied on his evidence relating to the process for mobilisation, as explained to him by an official within the UPC/FPLC. 775. P-0055 testified that the members of the cadres (who are to be distinguished from the wise men or elders) were involved in recruitment,
2160

and the cadres were trained in preparation for

mobilisation whenever the UPC/FPLC was deployed in Ituri.2161Young people were enlisted and conscripted whenever they were

encountered and the elders delivered them to the closest battalion or brigade.2162 Some commanders sent groups of young people to the

training camps, but others who were responsible for recruitment provided the training themselves in order to increase the size of their

2156 2157

EVD-OTP-00582, 00:34.25, interpretation in Court: T-130-Red2-ENG, page 14, lines 3 18. ICC-01/04-01/06-T-130-Red2-ENG, page 15, lines 2 9. 2158 ICC-01/04-01/06-2748-Conf-Anx2, page 20. 2159 EVD-OTP-00517. 2160 T-175-Red2-ENG, page 62, lines 11 15. 2161 T-175-Red2-ENG, page 77, lines 2 12. 2162 T-175-Red2-ENG, page 62, lines 16 22.

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forces.2163 When additional recruits were needed, the commanders at battalion level sought out young people to train; indeed, they did all they could to secure the greatest number of soldiers. 2164 P-0055 indicated that the soldiers training in the camps was organised by Mr Lubanga.2165 However, as set out above, he also suggested the battalion commanders did not necessarily report these recruitment activities to their superiors 2166 for fear that they (viz. the responsible battalion commanders) might be arrested or detained.2167 776. The defence argues P-0055s testimony above concerning the cadres is unreliable, as he never participated in the awareness-raising activities he describes.2168 Moreover, the defence contends that P-0055 failed to disclose the source of his information in this connection.2169 P0055 accepted he was not present during the awareness-raising campaigns, although he knew about them, and he said he did not witness the training of the cadres, although he received information about this from a commander.2170 He indicated his work focussed on soldiers as opposed to the cadres,2171 and he was unaware as to how the latter approached recruitment. He suggested although he was unsure on the issue that they may have reported to the elders.2172 The Chamber found P-0055 to be a credible witness, but it has exercised caution as regards his testimony concerning the involvement of the UPC/FPLC cadres in recruitment, given the extent to which he

T-175-Red2-ENG, page 62, line 23 to page 63, line 2. T-176-Red2-ENG, page 63, lines 12 19. 2165 T-175-Red2-ENG, page 77, lines 13 19. 2166 T-175-Red2-ENG, page 63, lines 3 8. 2167 T-175-Red2-ENG, page 63, lines 8 13. 2168 ICC-01/04-01/06-2773-Red-tENG, paras 504 506. 2169 ICC-01/04-01/06-2773-Red-tENG, para. 506. 2170 T-177-CONF-ENG CT, page 47, lines 11 21 and T-177-Red2-ENG, page 48, line 19 to page 49, line 3. 2171 T-177-Red2-ENG, page 47, line 22 to page 48, line 2. 2172 T-175-Red2-ENG, page 63, line 21 to page 64, line 6.
2164

2163

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depended on information from others. 777. P-0055 also gave evidence on the involvement of the army in recruitment. P-0055 testified that Eric, the G5 member within the

UPCs main staff,2173 was in charge of all issues relating to recruits and he was the central person controlling the cadres. 2174 Amongst his various duties, Eric Mbabazi 2175 was involved in recruiting young people for the army, and the cadres supported him in this activity. He mobilised the community with the help of other senior figures.2176 P0055 suggested that this enabled him to meet the Chief of Staff and President Lubanga.2177 778. D-0037 agreed that Eric Mbabazi, in his role as the UPC/FPLC G5, was trying to rally young people to go to the training centre and although he was unable to provide further details on this or to confirm whether the G5 was recruiting children, he said that Mr Mbabazi was responsible for routing people to go to the training centres.2178 779. P-0002 gave evidence about video footage, 2179 which shows a UPC/FPLC rally on 26 February 2003 at the stadium in the centre of Bunia, opposite the Ituri Hotel,
2180

during which Eric Mbabazi

addressed the crowd.2181 At counter 00:52:14, a single young man in camouflage fatigues can be seen in the middle of the frame who is plainly under the age of 15. The Chamber considers that the fact that
T-175-Red2-ENG, page 75, line 21 to page 76, line 1. P-0055 stated that he did not know the full name. 2174 T-175-Red2-ENG, page 75, lines 9 11; page 76, lines 10 11. 2175 T-189-Red2-ENG, page 77, lines 11 12 (P-0016). 2176 T-175-Red2-ENG, page 75, lines 11 12 and page 76, lines 15 25. 2177 T-175-Red2-ENG, page 76, lines 22 24. 2178 T-349-ENG, page 64, lines 7 18. 2179 T-162-Red-ENG, page 27, lines 21 24 and T-162-CONF-ENG, page 28, line 18 to page 30, line 7; EVD-OTP-00410/EVD-OTP-00676. 2180 T-162-Red-ENG, page 31, lines 11 13; page 33, lines 4 17. 2181 EVD-OTP-00410/EVD-OTP-00676, 00:38:12; T-162-CONF-ENG, page 37, lines 23 25 and page 39, lines 3 4.
2173

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he is not carrying a weapon is irrelevant, since it is clear from the overall evidence that many recruits did not have weapons or even uniforms, particularly if they had been recently recruited.2182 Although P-0002 did not indicate whether he was a member of the UPC/FPLC, given this footage was taken at a UPC/FPLC rally, the Chamber is satisfied that the child in uniform belonged to the UPC/FPLC. 780. P-0014 testified that child solders were recruited after Mr Lubangas return to Bunia from Kinshasa in 2002,
2183

and this continued

undiminished. 2184 The defence argues that this witnesss evidence is contradicted by the testimony of P-0041 that there was no visual regular or systematic recruitment after 2 September 2002; 2185 indeed, it is contended that P-0041s evidence demonstrates that the majority of the FPLC soldiers were enlisted between the witnesss departure from Bunia in May 2002 and his return in late August 2002.2186 The defence relies on the lack of any mention by P-0041 that the FPLC was involved in enforced enlistment.2187 Equally, the defence refers to P0041s acknowledgment that the information he provided on the FPLC enlistment procedures was based on hearsay, for which he failed to identify his source. 2188 In these circumstances it is argued that his testimony is insufficiently reliable.2189 781. P-0041 also testified that some families acted under an obligation, in the sense that nearly all the groups in Ituri asked parents to give one of

See paras 847 and 1242. T-182-Red2-ENG, page 11, line 22 to page 12, line 7. 2184 T-179-Red-ENG, page 60, lines 10 20. 2185 ICC-01/04-01/06-2773-Red-tENG, paras 375, 384 and 743, referring to testimony of P-0041: see T-125-Red2-ENG, page 65, line 17 to page 66, line 2. 2186 ICC-01/04-01/06-2773-Red-tENG, para. 375, referring to T-125-CONF-FRA, page 70, lines 19-24. 2187 ICC-01/04-01/06-2773-Red-tENG, para. 743. 2188 ICC-01/04-01/06-2773-Red-tENG, para. 382, referring to T-125-CONF-FRA, page 67, lines 15 16. 2189 ICC-01/04-01/06-2773-Red-tENG, para. 382.
2183

2182

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their sons for work, although he was unable to say who made this request. 2190 While P-0041 did not witness the suggested systematic recruitment, he was able to give evidence about the pressure on families. Furthermore, P-0041 does not maintain that there was no recruitment of children by the UPC after August 2002, but merely that it was not obviously regular or systematic. He added that there was training.2191 In these circumstances, the Chamber concludes that there is no contradiction between the evidence of P-0014 and P-0041 on this issue. 782. In the first half of August 2002, during the celebration marking the departure of the RCD-ML, a high-ranking UPC official told P-0014 this had been obtained thanks to these little children, and another individual associated with the UPC indicated that it was important for him to contribute and to go and develop awareness of children in [his] village and bring them.2192 783. P-0017 testified that after the battle of Mongbwalu, which he said took place at the end of 2002 or the beginning of 2003, he went to Kilo,2193 where the Chief of Staff, Floribert Kisembo, also stayed for two or three days.2194 Whilst there, Mr Kisembo apparently informed the old wise man that in order to bring peace and to avoid future problems, the community needed to contribute to the UPC forces and to provide individuals for training.2195 They were asking those who

T-125-Red2-ENG, page 65, lines 5 12. T-125-Red2-ENG, page 65, lines 17 20. 2192 T-181-CONF-ENG, page 23, lines 13 24. 2193 T-154-Red2-ENG, page 25, lines 13 16 and page 23, lines 14 15; T-157-Red2-ENG, page 80, lines 17 22. P-0038 agreed that the battle of Mongbwalu took place between the end of November 2002 and the beginning of December 2002, T-113-Red2-ENG, page 48, line 25 to page 49, line 5. 2194 T-157-Red2-ENG, page 82, line 22 to page 83, line 3. 2195 T-157-Red2-ENG, page 83, line 11 to page 84, line 3.
2191

2190

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were willing and able to join the army to enlist with the UPC/FPLC.2196 The witness was unaware of any age limit set by the Chief of Staff, but after Mr Kisembo had talked with the old man and others, he saw recruits arriving at the camp from Kilo and the surrounding areas.2197 Although the average age of the recruits was between 16 and 18, some were younger.2198 784. D-0019 testified that the UPC did not have a policy of systematically recruiting children into the FPLC.2199 In addition, P-0016 gave evidence that recruitment was not necessary because a lot of recruits came to get revenge for their families who had been killed and so they were very keen volunteers. 2200 The Chamber notes that from P-0016s account it appears he considers that voluntary enlistment is not a form of recruitment or a crime. However, in accordance with the Chambers approach to this issue,2201 recruitment does not necessarily involve the conscription of children by force, given the many alternative, non-forceful ways of persuading children to join the military voluntarily that were available. Similar pressure could be applied to their families. Notwithstanding the evidence of P-0016 and D-0019, the Chamber heard compelling evidence that awareness raising campaigns were conducted by the UPC/FPLC during the relevant timeframe. 785. Although D-0019 testified that the UPC did not have a policy of

2196 2197

T-157-Red2-ENG, page 84, lines 5 8. T-157-Red2-ENG, page 84, lines 11 14. 2198 T-157-Red2-ENG, page 84, line 16 to page 85, line 6. 2199 T-345-ENG, page 18, lines 18 21. 2200 T-189-Red2-ENG, page 81, line 9 to page 82, line 2. P-0046 also gave evidence that some children, particularly older children, joined the UPC/FPLC to take revenge because their villages had been attacked or members of their families killed: T-207-Red2-ENG, page 26, lines 7 13. P-0016 provided additional similar testimony: T-189-Red2-ENG, page 15, lines 21 25. 2201 See para. 608.

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systematically recruiting children into the FPLC,2202 on the basis of the evidence called during the trial as to the steps taken by the UPC/FPLC leaders (including Floribert Kisembo and Eric Mbabazi) and Hema elders as regards recruitment and mobilisation, the Chamber is sure that considerable pressure was exerted on various communities to send young people, including children under the age of 15, to join the UPC/FPLC army during the time frame of the charges. c) UPC/FPLC training centres 786. P-0055 gave evidence about specific UPC/FPLC camps where training occurred, in Bunia, Rwampara, Bule, Fataki and Khari. He testified that members of the main staff visited the training camps, including the Chief of Staff, and that he personally visited the camps at Rwampara and Khari. 2203 P-0055 said President Lubanga went to Rwampara, which was not a great distance from Bunia. 2204 P-0055 testified that once the UPC was in control of Bunia he travelled to a UPC camp to deliver weapons to the soldiers, although he was not yet a member.2205 He indicated many children were at the military camp, the great majority of whom were adults.2206 Whilst P-0055 said he did not know their ages,2207 he nonetheless testified that there were some PMFs amongst the troops.2208 787. The Chamber heard evidence on the presence of children in a number of UPC/FPLC training camps. Although D-0019 testified that the UPC/FPLC had only three training camps: Mandro, Rwampara

2202 2203

T-345-ENG, page 18, lines 18 21. T-175-Red2-ENG, page 68, lines 2 25 and page 82, lines 6 11. 2204 T-175-Red2-ENG, page 82, lines 12 14. 2205 T-174-CONF ENG, page 25, line 17 to page 26, line 23. 2206 T-174-Red2-ENG, page 39, lines 10 14. 2207 T-174-Red2-ENG, page 39, lines 2 9. 2208 T-174- Red-ENG, page 38, lines 10 21.

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and Bule 2209 (he suggested Mandro closed at the end of October 2002), 2210 other witnesses described training occurring elsewhere, including at the UPC/FPLC headquarters and at camps in Mongbwalu and Kilo. The Chamber has considered this issue in more detail below. (1) The UPC/FPLC headquarters in Bunia 788. As mentioned above, P-0014 saw children being trained at the UPC headquarters in Bunia during the summer of 2002.2211 When P-0014 asked Richard Lonema about a particular five-year-old child, he was told if they get in early then they are going to grow up as real soldiers and that young children of this age were trained to become informers, by selling water and groundnuts on the streets.2212 789. The defence challenges the credibility of P-0014s account that he saw children aged 5 to 18 in the training camps between 30 July and 20 August 2002, on the basis that D-0019 testified that the UPC did not have a military wing at this time.2213 However, a number of witnesses gave a significantly different account. P-0014 broadly agreed with P0041, who suggested many FPLC soldiers had been trained prior to his return from Kinshasa in August 2002 (or were undergoing training at that time),2214 and D-0037 asserted that the force under Chief Kahwa, which was re-named the FPLC in August 2002, was in existence by June 2002.2215 The Chamber accepts the testimony of P-0014 that the UPC was providing military training to children under the age of 15

T-345-Red2-ENG, page 20, line 24 to page 23, line 17. T-345-Red2-ENG, page 21, lines 18 23. 2211 T-179-CONF-ENG, page 65, lines 13 24 and T-179-Red2-ENG, page 83, line 8 to page 84, line 18; T-184-CONF-ENG, page 60, lines 7 11. 2212 T-179-Red2-ENG, page 84, lines 1 18. 2213 ICC-01/04-01/06-2773-Red-tENG, paras 572 573, referring to T-342-FRA, page 4, line 25 to page 5, line 4. 2214 T-125-Red2-ENG, page 67, lines 20 23 and page 11, lines 1 2. 2215 T-349-ENG, page 20, line 20 to page 21, line 12.
2210

2209

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between 30 July and 20 August 2002 and that recruitment continued thereafter. 2216 790. P-0016 recounted an occasion when President Lubanga visited the UPC/FPLC staff headquarters to talk to the troops in order to boost their morale. Critically, he noted that children under the age of 15 were present.2217 He could not recall the date of this event, but he indicated that it was at the beginning of the time we came out of Mandro.2218 P-0016 arrived in Mandro a few days after the attack on Bunia when Governor Lompondo was forced to flee the city,2219 and he remained there for 10 days.2220 P-0016 must therefore have left Mandro at the end of August or beginning of September 2002. This coincides with Thomas Lubangas return to Bunia around 1 September 2002.2221 On the basis of all the relevant evidence, the Chamber concludes that this visit by Thomas Lubanga to the headquarters to talk to the troops must have taken place in September 2002. Whether Thomas Lubanga was aware that children below the age of 15 were present during this particular visit will be addressed below. 791. In all the circumstances, the Chamber is satisfied that children under the age of 15 were trained by the UPC/FPLC at its headquarters from July 2002 and this continued after September 2002. (2) The Rwampara training camp 792. Video footage shown during P-0030s evidence records a visit by Mr

2216 2217

T-182-Red2-ENG, page 11, line 22 to page 12, line 7 and T-179-Red-ENG, page 60, lines 10 20. T-190-Red2-ENG, page 13, line 11 to page 17, line 9. 2218 T-190-Red2-ENG, page 17, lines 5 9. 2219 T-190-Red2-ENG, page 57, lines 5 11; T-189-Red2-ENG, page 10, line 1 to page 11, line 6. 2220 T-190-Red2-ENG, page 58, lines 17 19. 2221 T-181-Red2-ENG, page 54, lines 2 7 (P-0014).

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Lubanga to the Rwampara training camp on 12 February 2003,2222 and the defence does not dispute that this visit took place. 2223 The film shows recruits who were clearly under the age of 15. In particular, the Chamber considers that the child shown at counter 00:06:57 wearing military clothing and carrying a weapon is under the age of 15. The footage also shows a number of other children who are under the age of 15, 2224 carrying weapons or wearing military uniforms. P-0030 explained that these children were recruits but there were not even sufficient sticks for all of them to carry (as a substitute for firearms).2225 The Chamber has accepted this evidence, particularly given the children were addressed at a military camp by the President of the UPC. 793. In the same video, the accused, wearing a military uniform and accompanied by armed soldiers, spoke to the recruits and encouraged them in their military training, and he said that as soon as it was completed, they would be provided with weapons, prior to being deployed to protect the population. 2226 He indicated they would be useful soldiers in the field. 2227 The Chamber has dealt with the particular arguments advanced by the defence on this video in the chapter on individual criminal responsibility. It is sufficient in this context to observe that the accused saw UPC/FPLC recruits under the age of 15 at the camp in Rwampara in February 2003.

EVD-OTP-00570, T-128-CONF-ENG, page 28, line 25 to page 29, line 8 and T-128-Red2-ENG, page 37, lines 2 6. 2223 ICC-01/04-01/06-2773-Red-tENG, para. 828. 2224 EVD-OTP-00570 at 00:06:57, 00:04:13 to 00:04:18, 00:10:53 to 00:11:14, 00:13:41 to 00:13:54 and 0016:04 to 00:17:10. 2225 T-128-Red2-ENG, page 30, line 22 to page 31, line 20 and page 35, line 2 to page 36, line 11. 2226 T-128-Red2-ENG, page 38, lines 19 20. 2227 T-128-Red2-ENG, page 41, lines 12 19.

2222

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794. P-0055 recalled he visited the Rwampara camp in 2003. 2228 The witness heard Bosco Ntaganda encourage the recruits, 2229 who were paraded in straight lines and in three rows. 2230 They were mostly adults, and although there were some children, P-0055s account was there were very few kadogos.2231 795. Once the new recruits were registered, they began their military training.2232 P-0055 did not know whether their ages were included in the register, and he stated actually, I wasnt really interested in verifying their ages.2233 796. In March 2003,2234 P-0046 and her colleagues spoke to about twelve children in Rwampara who were former UPC/FPLC child soldiers. They gave their names, ages, origins and membership in this particular military group. Around half of them were below 15 years old.2235 797. When P-0046 met with demilitarised children in Bunia, she spoke with them for a few minutes (or longer, if the child was particularly talkative) in order to clarify his or her status as a child who had become separated from an armed group.2236 798. The defence challenges the evidence of P-0046 as to her interviews with young people at the Rwampara training camp in March 2003.2237

T-175-CONF-ENG CT, page 69, line 2 to page 70, line 14. T-175-Red2-ENG, page 70, line 13 to page 71, line 5. 2230 T-175-Red2-ENG, page 71, lines 9 22. 2231 T-175-Red2-ENG, page 73, line 16 to page 74, line 3. P-0055 testified that the term kadogo was generally applied to those between 13 and 16 years of age: T-174-Red2-ENG, page 40, line 5 to page 41, line 15. 2232 T-176-ENG, page 24, lines 13 17. 2233 T-175-Red2-ENG, page 80, lines 9 16. 2234 EVD-OTP-00489, page 55, lines 20 21 and page 58, lines 10 11. 2235 EVD-OTP-00489, page 58, line 18 to page 64, line 21. 2236 T-205-Red2-ENG, page 70, lines 17 21. 2237 ICC-01/04-01/06-2773-Red-tENG, para. 649.
2229

2228

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It is submitted that Rwampara was under the control of the Ugandan forces and as a result it is extremely questionable that she would have met minors from the FPLC at the camp at that time. 2238 The defence further submits it was unable to conduct any investigations into the information collected by P-0046 because the report she prepared was withdrawn from the record of the case and the identities of the minors she interviewed were not disclosed.2239 The Chamber has approached this evidence with particular care, given the risk of prejudice to the accused because the defence was unable to conduct relevant investigations. 799. In this regard, the Chamber notes P-0046s evidence that the UPDF was occupying Rwampara at the time, and the children although no longer under the control of an armed group had previously been in the UPC. The witness explained she met UPDF commanders and a UPC commander named Commander Barongo. The latter was in

charge of the camp and facilitated contact with the children. 2240 Notwithstanding the restrictions on defence investigations referred to above, the testimony of P-0046 concerning her interviews with former UPC/FPLC child soldiers in Rwampara was credible, consistent and reliable. 800. On the basis of the evidence set out above, the Chamber is satisfied that children under the age of 15 were trained at Rwampara camp during the period of the charges. (3) Mandro 801. P-0038 stated that before April 2002 whilst he worked as a military
2238 2239

ICC-01/04-01/06-2773-Red-tENG, paras 649 and 745. ICC-01/04-01/06-2773-Red-tENG, para. 650. 2240 EVD-OTP-00491, page 30, line 18 to page 33, line 33 and page 59, lines 4 19.

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trainer at the Mandro camp, some of the recruits were under the age of 15.
2241

P-0038 was able to assess their ages by their physical

appearance, including their height, and he considered it was easy to tell who was above and who was below 15 years. 2242 The smaller recruits could not carry a Kalashnikov for a long period.2243 Although the evidence of P-0038 regarding training at Mandro relates specifically to the period prior to April 2002, 2244 it is nonetheless relevant to the charges because, as established by the evidence of D0037, the recruits who trained there under Chief Kahwa were thereafter incorporated into the FPLC, during the summer of 2002. In addition, as developed below, P-0016 testified that training took place before he arrived in Mandro in August and continued after he left.2245 802. P-0038 gave evidence that military training, including target practice, was undertaken in the UPC camp at Mandro.2246 Moreover, even when the training was complete, the rules of the military (including as regards behaviour and discipline) were taught at each parade. 2247 P-0016 gave evidence that at Mandro the recruits learnt basic drill and how to use a firearm,2248 although a piece of wood was substituted for a real weapon,2249 at approximately the same weight.2250 They stood in front of each other and pretended to shoot, but it wasnt enough training.2251 All the recruits men, women, boys and

2241 2242

T-113-Red2-ENG, page 40, line 7 to page 42, line 4. T-114-Red2-ENG, page 37, lines 15 21. 2243 T-114-Red2-ENG, page 37, lines 20 23. 2244 T-114-Red2-ENG, page 43, line 13 to page 44, line 3. 2245 T-189-Red2-ENG, page 25, lines 8 15. 2246 T-189-Red2-ENG, page 40, lines 16 21. 2247 T-189-Red2-ENG, page 41, lines 7 13. 2248 T-189-Red2-ENG, page 41, lines 14 18. 2249 T-189-Red2-ENG, page 41, lines 19 22. 2250 T-189-Red2-ENG, page 41, lines 22 23. 2251 T-189-Red2-ENG, page 41, lines 23 25.

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girls were involved.2252 803. P-0038 was familiar with the final stages of training,2253 which the commander conducted with the new arrivals; this included children under 15, as well as adults.2254 All the recruits were taught how to use AK-47s and light arms, and how to fight the enemy. 2255 They were instructed as to the appropriate way to welcome the President. 2256 Children wore the same uniforms as the older soldiers, which were adjusted by the tailor if they were too big.2257 The uniforms were green camouflage, with green boots.2258 The children were armed with AK47s2259 and they were deployed throughout the armed forces on the basis of their training.2260 804. P-0016 testified that he was at the Mandro training camp for about 10 days2261 in August or early September 2002, after the battle of Bunia, by which time Thomas Lubanga had become president.2262 There were over a hundred recruits and others at the camp, three quarters of whom were children. 2263 Many of these children had lost their parents. 2264 There were a considerable number of attacks before the FPLC was established, and the witness indicated that many children used those attacks as an opportunity to join the army, in order to take

T-189-Red2-ENG, page 42, lines 7 11. T-114-Red2-ENG, page 11, lines 2 4. 2254 T-114-Red2-ENG, page 11, lines 3 7. 2255 T-114-Red2-ENG, page 11, lines 12 13. 2256 T-114-Red2-ENG, page 11, lines 8 12. 2257 T-114-Red2-ENG, page 38, lines 5 7. 2258 T-114-Red2-ENG, page 38, lines 12 18. 2259 T-114-Red2-ENG, page 38, line 7. 2260 T-114-Red2-ENG, page 11, lines 7 8. 2261 T-189-Red2-ENG, page 13, lines 14 23. 2262 T-189-Red2-ENG, page 3, lines 6 11, page 9, line 22 to page 11, line 24 and page 17, lines 9 14. 2263 T-189-Red2-ENG, page 15, lines 7 21. 2264 T-189-Red2-ENG, page 15, lines 20 22.
2253

2252

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revenge.2265 The ages of the children ranged from 13 to 17 years old.2266 805. P-0016 was asked how many of the children were aged 14 and below during his training at Mandro.2267 He said he did not know the exact number,2268 but it was less than 50 percent.2269 Training was an ongoing activity, 2270 and when he arrived two or three batches of children were already at Mandro, and others had already been assigned to other places, such as Tchomia, Nizi, Iga-Barrire and Kasenyi.2271 According to P-0016, none of the children at Mandro in August or early September 2002 were younger than 13 years.2272 806. The defence criticises the witnesss evidence as to the proportion of the children he saw at Mandro who were under 15 years, describing the evidence as extremely confused.2273 The Chamber does not agree with this assessment. 807. P-0016 testified that he knew a number of very young girls2274 who cooked at Mandro camp.
2275

When P-0016 was asked how he

concluded there were only young girls at Mandro,2276 he indicated that [a]s a parent and as a man of experience, he could tell by the appearance of the person, as well as by their behaviour and actions.2277 On his account, there were no girls at the camp who were above the

2265 2266

T-189-Red2-ENG, page 15, lines 22 25. T-189-Red2-ENG, page 16, line 3. 2267 T-189-Red2-ENG, page 23, lines 18 21; page 24, lines 6 13. 2268 T-189-Red2-ENG, page 24, line 10. 2269 T-189-Red2-ENG, page 24, lines 17 18; page 25, lines 12 13. 2270 T-189-Red2-ENG, page 25, lines 14 15. 2271 T-189-Red2-ENG, page 25, lines 8 11; page 24, lines 3 5. 2272 T-189-Red2-ENG, page 16, lines 4 7. 2273 ICC-01/04-01/06-2773-Red-tENG, para. 415. 2274 T-189-Red2-ENG, page 26, lines 11 15. 2275 T-189-Red2-ENG, page 26, lines 13 14. 2276 T-189-Red2-ENG, page 26, lines 16 17. 2277 T-189-Red2-ENG, page 26, lines 18 22.

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age of 17.2278 He did not give an exact indication of their ages, but said that they must have been very young as they behaved like girls who were still at home.2279 He said their manner of playing, and the way they lived in the community, demonstrated that they were very young.2280 He indicated they braided a particular type of grass in the way that young girls who have not reached the age of maturity tend to do, as if they are braiding the hair of a doll.2281 808. The Chamber has already discussed the defence challenge to P0016s assessment of the age of the children he saw and it has concluded he provided a reliable explanation as to how he estimated their ages. 809. When P-0017 went to the Mandro training camp in late 2002 he saw a number of recruits, including boys and girls between 12 and 14 years old. 2282 The recruits, who were dressed in civilian clothes, did not carry weapons, but boys and girls in service had weapons with them.2283 When P-0017 returned to Mandro in March 2003, it had been attacked and the recruits had left, leaving only soldiers who had taken up combat positions in the camp, including one young soldier who was a bodyguard for one of the commanders.2284 810. P-0041 suggested that Bosco Ntaganda indicated he was responsible for training the soldiers at Mandro.2285 811. Given the consistency and credibility of these witnesses, the

2278 2279

T-189-Red2-ENG, page 27, line 1. T-189-Red2-ENG, page 27, lines 4 7. 2280 T-189-Red2-ENG, page 27, lines 9 10. 2281 T-189-Red2-ENG, page 27, line 10 to page 28, line 1. 2282 T-154-Red2-ENG, page 40, line 16 to page 41, line 13. 2283 T-154-Red2-ENG, page 41, line 21 to page 42, line 7. 2284 T-154-Red2-ENG, page 42, line 8 to page 44, lines 7 18. 2285 T-125-Red2-ENG, page 52, lines 4 7.

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Chamber is satisfied there were a significant number of children under the age of fifteen who were trained by the UPC/FPLC at Mandro camp during the period of the charges.

(4) Mongbwalu 812. The Chamber has heard evidence that children under the age of 15 years were trained at the UPC camp in Mongbwalu. Two witnesses, P-0016 and P-0038, gave credible, reliable and consistent evidence to this effect. As discussed above, the Chamber is of the view that it can rely on the age estimates of these witnesses. 813. P-0017 visited the training camp in Mongbwalu during his time with the UPC, between late August/early September 2002 and August 2003.2286 He saw between 380 and 420 recruits there, including children under the age of 15.2287 814. During the final military training at Mongbwalu that involved P0038, around the end of 2002,2288 many of the trainee child soldiers were within the age range of 13 to 16, although the witness was unable to estimate the exact number.2289 815. On the basis of this evidence, the Chamber concludes that children under the age of 15 were trained by the UPC/FPLC at Mongbwalu during the period of the charges.

2286 P-0017 joined the UPC when it took over Bunia, which was in late August / early September 2002. T-154-Red2, page 16, lines 18 24. He remained in the UPC until August 2003, T-154-Red2, page 17, line 11 15. 2287 T-154-Red2-ENG, page 41, lines 12 13 (stating that children means those from 12 14 years of age); page 44, line 21 to page 46, line 3. 2288 T-114-Red2-ENG, page 6, line 22 to page 14, line 21. 2289 T-113-Red2-ENG, page 35, line 15 to page 36, line 10.

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(5) Kilo 816. P-0017 worked in Kilo at the beginning of 2003,

2290

and on one

occasion a child soldier was killed when they were ambushed.2291 The witness did not know his age, although they found his body. 2292 It follows that the Chamber is unable to rely on this particular piece of testimony. 817. According to P-0017, an appreciable number of recruits came to the camp at Kilo at this time,2293 who in the main were between 16 and 20.2294 There were pygmies who were short but older.2295 The average age was between 16 and 18 and no one was older than 30.2296 818. However, this witness also indicated that although most recruits were above 16 years, 2297 on one occasion there was a problem with a child whose mother came to the camp to complain. 2298 She was crying,2299 and the battalion commander spoke with her.2300 The woman said that her child was only 12 and she wanted him back.2301 She cried at the camp entrance for days. She repeatedly said: Give me my son back, hes only 12.2302 This was the youngest child the witness saw at the camp.2303 The UPC soldiers eventually chased his mother away.2304

P-0017 testified that after the battle of Mongbwalu, which he stated took place at the end of 2002, close to the beginning of 2003, he went on to Kilo. T-154-Red2-ENG, page 25, lines 13 16 and page 23, lines 14 15; T-157-Red2-ENG, page 80, lines 17 22. P-0038 stated that the battle of Mongbwalu took place between end of November 2002 and the beginning of December 2002, T-113Red2-ENG, page 48, line 25 to page 49, line 5. 2291 T-157-Red2-ENG, page 86, lines 16 19; page 88, lines 3 8. 2292 T-157-Red2-ENG, page 87, lines 24 25. 2293 T-157-Red2-ENG, page 84, lines 14 15. 2294 T-157-Red2-ENG, page 84, line 19. 2295 T-157-Red2-ENG, page 84, line 20. 2296 T-157-Red2-ENG, page 85, lines 3 5. 2297 T-157-Red2-ENG, page 85, lines 5 6. 2298 T-157-Red2-ENG, page 84, lines 20 22. 2299 T-157-Red2-ENG, page 85, line 16. 2300 T-157-Red2-ENG, page 85, lines 16 17. 2301 T-157-Red2-ENG, page 84, lines 21 23; page 85, line 8. 2302 T-157-Red2-ENG, page 84, lines 21 22; page 85, lines 6 8. 2303 T-157-Red2-ENG, page 84, lines 23 24.

2290

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The Chamber has taken this evidence into account, although it is unable to conclude on the basis of this single incident that children under the age of 15 were trained at Kilo.

(6) Conclusion 819. Given the consistency of these witnesses, the Chamber is sure that between September 2002 and 13 August 2003 children under the age of 15 were recruited into the UPC/FPLC, and they were taken either to the UPC headquarters in Bunia or to the military camps at Rwampara, Mandro, and Mongbwalu for training. The submission of the

prosecution that the UPC had 20 training camps has not been substantiated. 5. Use of child soldiers 820. As set out above, those who actively participated in hostilities included a wide range of individuals, from those on the front line, who participated directly, through to those who were involved in a myriad of roles supporting the combatants. The decisive factor in deciding whether an indirect role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger by becoming a potential target. The ages of the children are dealt with in the Chambers

consideration of the detailed evidence relating to each of them, as set out below.

2304

T-157-Red2-ENG, page 85, line 7, lines 9 - 10; page 86, lines 5 6.

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a) Participation in battles and presence on the battlefield 821. P-0038 stated that once the children had completed their training they were deployed across the UPC/FPLC military structure. 2305 According to P-0016 they were provided with equipment (e.g. weapons and uniforms) at Mandro,2306 although there were insufficient uniforms for all the recruits once they were fully integrated. 2307 Thereafter, the children were sent to Bunia prior to being posted.2308 P0038 stated that they fought in battles, 2309 either as soldiers or as bodyguards for the commanders,2310 and some were deployed in this way on a permanent basis. 2311 822. P-0038 saw adults and children (including some under the age of 15),2312 whilst he was serving in his brigade within the UPC during late 2002.2313 823. The Chief of Staff provided children below 15 years of age with weapons when their training was completed, and some were assigned to P-0038s brigade.2314 The latter indicated that children in this age group primarily fought as soldiers, although the commanders also used them as bodyguards.2315 They fought in battles,2316 and P-0038 saw children under instructions from the commanders shooting at the enemy along with the adults,2317 in circumstances that exposed them to
2305 2306

T-113-Red2-ENG, page 44, lines 16 17. T-189-Red2-ENG, page 57, lines 12 13 and 18 and page 58, lines 1 2. 2307 T-189-Red2-ENG, page 57, line 22 to page 58, line 1 (P-0016). 2308 T-189-Red2-ENG, page 57, lines 13 14 and 18 19 (P-0016). 2309 T-113-Red2-ENG, page 44, lines 21 24 (P-0038). 2310 T-113-Red2-ENG, page 44, lines 18 20. 2311 T-114-Red2-ENG, page 14, lines 9 12 (P-0038). 2312 T-113-Red2-ENG, page 35, lines 5 20. 2313 T-114-Red2-ENG, page 6, line 22 to page 24, line 21. 2314 T-114-Red2-ENG, page 14, lines 2 14. 2315 T-113-Red2-ENG page 44, lines 18 20. 2316 T-113-Red2-ENG, page 44, lines 21 24. 2317 T-113-Red2-ENG, page 44, line 25 to page 45, line 3.

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enemy fire.2318 Indeed, P-0038 was aware that children were killed.2319 They were not as strong as adults, and since they could not run as fast when fleeing some were caught or came under fire from the enemy.2320 P-0038 particularly referred to children being wounded or killed whilst fighting for the UPC during the second liberation of Bunia in May 2003 and he noted that one of the bodyguards of the Chief of Staff received fatal shrapnel wounds.2321 Furthermore, some children were shot and killed when they entered Mongbwalu in November 2002,2322 and others who were under the age of 15 took part in the battle of Kobu in February or March 2003.2323 824. P-0038 testified that two brigades were involved in a battle against the Lendu in Mongbwalu at the end of November 2002 and the beginning of December 2002.2324 The first brigade was Salumus, which was reinforced by other soldiers, and the second was Jerme Kakwavus from Aru and Mbidjo.2325 There were numerous soldiers in Salumus brigade, including adults and children.2326 The witness gave evidence that children of 13 and 14 years old were used in this battle, acting as bodyguards, escorts and as front-line soldiers.2327 825. P-0016 did not accept the recruits were sent to different sites depending on whether they were adults or children.2328 He said that once the recruits left the centre, they were soldiers and they were all
T-113-Red2-ENG, page 45, lines 4 12. T-113-Red2-ENG, page 45, lines 13 15. 2320 T-113-Red2-ENG, page 45, lines 17 20. 2321 T-114-Red2-ENG, page 17, line 13 to page 18, line 1. 2322 T-114-Red2-ENG, page 18, lines 1 4. 2323 EVD-OTP-00623 at DRC-OTP-0074-0481 (stating that the UPC/FPLC attacked the Lendu in Kobu in February/March 2003); T-114-Red2-ENG, page 14, lines 13 23 (confirming that his entire brigade, including children, fought at Kobu); page 21, line 1 to page 22, line 25 (describing the battle in Kobu). 2324 T-113-Red2-ENG, page 48, line 24 to page 50, line 22. 2325 T-113-Red2-ENG, page 50, lines 13 22. 2326 T-113-Red2-ENG, page 51, line 25 to page 52, line 2. 2327 T-113-Red2-ENG, page 52, line 13 to page 53, line 3. 2328 T-189-Red2-ENG, page 60, lines 10 17.
2319 2318

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similarly deployed, irrespective of age.2329 Accordingly, youth did not bestow any particular advantage in this context.2330 826. P-0012 gave evidence that he saw child soldiers, many of whom were under 15, 2331 in the armed groups in Bunia in 2003. 2332 He described how some from the UPC/FPLC were in the front line at the battle of Bunia on 12 May 2003.2333 827. At about this time in Bunia, a child soldier from the UPC/FPLC in civilian clothing, who was carrying a Kalashnikov,2334 asked P-0012 for his telephone.2335 The child did not come up to the witnesss shoulder as they stood beside each other,2336 and P-0012 could not say whether he was even 12 years old.2337 P-0012 knew his UPC/FPLC commander, whom he had met two days earlier.2338 828. The defence maintains that each soldier in the FPLC had a uniform, and therefore this childs civilian clothing casts serious doubt as to whether he was a member of that particular armed group. 2339 It is further contended that the statements of P-0012 fail otherwise to demonstrate the link between the child and the UPC/FPLC indeed it is suggested they tend to indicate that he was within the troops of Commander Tchaligonza.2340 829. D-0037 and D-0019 both testified that conditions in Bunia in May
T-189-Red2-ENG, page 60, lines 14 16. T-189-Red2-ENG, page 60, lines 16 17. 2331 T-168-Red2-ENG, page 75, line 22 to page 76, line 1. 2332 T-168-Red2-ENG, page 73, lines 9 11. 2333 T-168-Red2-ENG, page 76, line 19 to page 77, line 16; page 74, lines 1 3. P-0012 corrected the date (12 May 2003) of the attack in Bunia: T-168-Red2-ENG, page 75, lines 4 6. 2334 T-168-Red2-ENG, page 76, line 19 to page 78, line 11. 2335 T-168-Red2-ENG, page 77, lines 7 9. 2336 T-168-Red2-ENG, page 77, lines 22 24. 2337 T-168-Red2-ENG, page 77, lines 9 10. 2338 T-168-Red2-ENG, page 79, line 22 to page 80, line 15. 2339 ICC-01/04-01/06-2773-Red-tENG, para. 554. 2340 ICC-01/04-01/06-2773-Red-tENG, para. 554.
2330 2329

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2003 were chaotic and it was very difficult to distinguish between the FPLC and other military forces.2341 D-0019 gave evidence that FPLC soldiers abandoned their uniforms after 6 March 2003, and that fighters from other groups had also collected them from the warehouses at the Chief of Staffs offices, so that pretty much everyone wore these particular FPLC uniforms, and there was a state of total confusion.2342 According to D-0037, the only way to identify the force to which a soldier belonged was by identifying his commander.2343 830. The Chamber is satisfied that the testimony of P-0012 concerning the young UPC/FPLC soldier he saw in May 2003 is accurate. Furthermore, due to the prevailing circumstances in Bunia at that time (as described by various witnesses), it was not uncommon for soldiers, including from the FPLC, to wear civilian clothing. The Chamber is equally satisfied that the witness was well placed to give evidence about the matters set out above, given he was inside the MONUC zone in Bunia where he was able to photograph UPC/FPLC soldiers and he could talk with the relevant UPC/FPLC commander.2344 831. The youngest child that P-0046 personally referred to the demobilisation centres in Bunia was 11 years old. 2345 The witness interviewed this child in October or November of 2003.2346 He had been with the UPC for a year, having been recruited when he was 10 years old.2347 He participated in battles and had been a bodyguard for

T-349-ENG, page 16, line 12 to page 17, line 2 (D-0037); T-341-ENG, page 33, line 10 to page 34, line 17 (D-0019). 2342 T-341-ENG, page 34, lines 4 17. 2343 T-349-ENG, page 17, lines 10 12. 2344 T-168-Red2-ENG, page 76, line 19 to page 80, line 15. 2345 T-205-Red2-ENG, page 68, lines 15 17; page 69, lines 7 12. 2346 T-205-Red2-ENG, page 69, lines 15 21. 2347 T-205-Red2-ENG, page 69, lines 15 24.

2341

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Mr Kisembo in Bunia.2348 The witness stated that it was possible that the centres received even younger children of whom she was unaware.2349 832. P-0014 also gave specific examples of having seen or having met child soldiers, including two children aged 14 or younger, among the injured in Kampala in October 2002, who the witness said were Gegeres and Hemas who were fighting for the UPC.2350 833. Based on notes of meetings with children in Rwampara and Bunia, P-0046 testified that 26 of them who were under 15 years served with the UPC/FPLC army, including by participating in combat, between mid-2002 and mid-2003.2351 834. On the basis of the evidence analysed above, the Chamber is satisfied that children under the age of 15 were used by the UPC/FPLC between September 2002 and 13 August 2003, in order to participate in combat in Bunia, Kobu and Mongbwalu, amongst other places. b) The use of child soldiers as military guards 835. P-0016, who joined the UPC in late August 2002,2352 gave evidence that children deployed in Bunia after being trained at Mandro acted as guards at the military headquarters, the presidency or Camp Ndromo. 2353 Outside Bunia, it was easiest to deploy children to Tchomia, Kasenyi, Bogoro and Nyamavi, where it was generally quiet.2354 Additional soldiers were sometimes used to guard the border
T-205-Red2-ENG, page 69, line 23 to page 70, line 1. T-205-Red2-ENG, page 69, lines 12 14. 2350 T-182-Red2-ENG, page 41, lines 4 16. 2351 T-207-Red2-ENG, page 12, lines 18 22; T-206-Red2-ENG, page 48, line 24 to page 49, line 13. 2352 P-0016s evidence was that he joined in the UPC around late August 2002 and left in November 2002. T-189-Red2-ENG, page 3, line 6 to page 4, line 9. 2353 T-189-Red2-ENG, page 58, lines 17 19. 2354 T-189-Red2-ENG, page 58, lines 22 24.
2349 2348

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area between the Congo and Uganda, 2355 and soldiers were sent to other places such as Katoto, Iga-Barrire and Centrale.2356 These were very sensitive zones where the Lendu made trouble. 2357 As a result, it was necessary to send soldiers to calm things down,2358 who had to be ready for any eventuality.2359 Soldiers were posted at the port at Mahagi and along the lake to prevent the Ugandans from coming to do misdeeds in the Congo.2360 836. After his arrest in October 2002 by the UPC/FPLC, P-0024 was beaten by armed UPC militiamen and left in a pit near the EPO School, and child soldiers guarded him.2361 These guards were about 10, 11, or 12 years old no more than that2362 and other kadogos aged 10 to 12 were nearby.2363 837. The defence relies on the fact that these estimates as to age were based solely on the witnesss personal assessment.2364 However, as set out above, the Chamber has accepted that it is generally possible to identify children who are clearly below 15 years of age, and the witnesss evidence that he was guarded by children aged between 10 and 12 is credible and reliable, particularly given he had worked for more than a year with demobilised child soldiers in Ituri, and was accordingly familiar with children within this age range. 838. The Chamber concludes, on the basis of the testimony of P-0016 and P-0024, that a significant number of children under the age of 15 were
2355 2356

T-189-Red2-ENG, page 58, line 23 to page 59, line 20. T-189-Red2-ENG, page 59, lines 10 12. 2357 T-189-Red2-ENG, page 59, lines 17 18. 2358 T-189-Red2-ENG, page 60, lines 3 4. 2359 T-189-Red2-ENG, page 60, lines 8 9. 2360 T-189-Red2-ENG, page 59, lines 23 25. 2361 T-170-Red2-ENG, page 72, line 13 to page 75, line 14. 2362 T-170-Red2-ENG, page 76, lines 1 3. 2363 T-170-Red2-ENG, page 76, lines 3 4. 2364 ICC-01/04-01/06-2773-Red-tENG, para. 588.

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used by the UPC/FPLC as military guards during the period of the charges. c) Bodyguards and escorts of commanders and other high-ranking UPC/FPLC officials 839. P-0055 testified that all the members of the main staff had escorts, and these included kadogos.2365 During his visits to the commanders in the field, P-0055 saw kadogos acting as their bodyguards.2366 Given P0055s testimony that the kadogos ranged in age from 13 to 16 years old, the Chamber is unable to conclude on the basis of his evidence alone that the children at the various places he mentioned in his testimony were necessarily younger than 15, and has only drawn conclusions from his evidence when it was corroborated by the testimony of other witnesses. 840. P-0014 also testified about a 14 year old child who worked as a bodyguard with the express permission of Thomas Lubanga. 2367 841. On 6 March 2003, P-0017 saw Commander Bosco Ntagandas aidede-camp, known as 6-1 Sierra, in Bunia. The witness thought that his bodyguards included two child soldiers who were below 15 years of age. 2368 One of these boys was dressed in civilian clothes with a military hat, whilst the other wore a civilian t-shirt, and military trousers and boots. 2369 They were carrying Kalashnikovs. 2370 At one point, the children ran from their positions because shells, fired from the airport, were falling close by, and one of the boys lost his boots

2365 2366

T-176-Red2-ENG, page 46, lines 19 22; page 47, lines 5 6; page 47, line 25 to page 48, line 3. T-177-CONF-ENG, page 32, lines 10 19. 2367 T-185-CONF-ENG, page 12, line 25 to page 13, line 2 and page 26, line 21 to page 27, line 8. 2368 T-158-CONF-ENG, page 17, line 8 to page 19, line 2. 2369 T-158-Red2-ENG, page 19, lines 4 7. 2370 T-158-Red2-ENG, page 19, lines 15 18.

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because they were too large for him.2371 842. After this incident, the soldiers travelled towards Mongbwalu,2372 but the route thereafter (they took the road to Baku, Mamedi and Maitulu)2373 was in total chaos.2374 P-0017 was with his unit,2375 and en route to Mamedi he saw the Chief of Staff, Floribert Kisembo, along with other members of the general staff, such as the G4 (known by the name Papa Romeo Charlie), the G5 Eric Mbabazi and various commanders and staff members, along with representatives of the various brigades. 2376 He gave evidence that there were children amongst the soldiers.2377 843. The Chief of Staff tried to establish how many soldiers had arrived in Mamedi,2378 but the situation was in disarray and some had fled.2379 The Chief of Staff wanted to reorganise in order to set up a new structure, 2380 and given the commanders had a large number of bodyguards and there was a lack of soldiers for the units, the Chief of Staff asked the bodyguards to join the troops.2381 P-0017 gave evidence that this explained why young children who acted as bodyguards for the commanders joined the troops.2382 844. D-0019 and P-0017 both testified that they spent approximately a month in Mamedi. 2383 D-0019 said that on 11 March 2003 he left

2371 2372

T-158-Red2-ENG, page 19, lines 7 10. T-158-Red2-ENG, page 19, lines 21 22. 2373 T-158-Red2-ENG, page 19, lines 23 25. 2374 T-158-Red2-ENG, page 19, lines 22 23; page 20, line 4. 2375 T-158-Red2-ENG, page 20, lines 14 15. 2376 T-158-Red2-ENG, page 20, line 22 to page 21, line 11. 2377 T-158-Red2-ENG, page 21, lines 12 15. 2378 T-158-Red2-ENG, page 22, lines 3 4. 2379 T-158-Red2-ENG, page 22, lines 6 7 and 10. 2380 T-158-Red2-ENG, page 22, lines 10 11. 2381 T-158-Red2-ENG, page 22, lines 12 14. 2382 T-158-Red2-ENG, page 22, lines 14 16. 2383 T-344-Red-ENG, page 42, line 20 to page 43, line 1; T-158-Red2-ENG, page 21, lines 21 25.

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Mongbwalu together with a group of FPLC soldiers led by Floribert Kisembo following attacks by the UPDF and the Lendu, and several days later they reached Mamedi where they remained for a month.2384 Some of the FPLC commanders arrived at Mamedi with their bodyguards, whose ages D-0019 described as follows: quite possibly they were under 18, but that doesnt mean they were under 15 [] you did have commanders with small bodyguards, but being small in Ituri does not mean youre a child. 2385 D-0019s suggestion that the bodyguards who arrived at Mamedi were under the age of 18, but not necessarily under the age of 15, coupled with the testimony of P-0017, is insufficient to contradict the statements that commanders used bodyguards under the age of 15. 845. The Chamber is of the view that P-0017 provided an honest and accurate account, particularly as regards the ages of the children he saw and their roles in connection with the armed forces. He witnessed children under the age of 15, including girls, amongst the UPC/FPLC troops in Lalo, some of whom were in the military units but the majority, particularly the girls, acted as bodyguards. 2386 P-0038 also gave evidence that certain commanders used girls as their bodyguards.2387 P-0017 testified, in general at the UPC it was easy for a young child to end up being a bodyguard. They were not very demanding, they were not asking for money to buy what they wanted, they didnt have a girlfriend, they couldnt drink, whereas older young soldiers had other troubles as well. A child as long as he can wash and eat, thats all he needs, while adults, elder soldiers, want more
2384

T-341-ENG, page 25, line 16 to page 27, line 16; T-344-Red-ENG, page 43, line 2 to page 44, line

11.
2385 2386

T-345-ENG, page 3, line 24 to page 6, line 6. T-154-Red2-ENG, page 29, lines 15 18; page 81, line 18 to page 83, line 15. 2387 T-114-Red2-ENG, page 24, line 1.

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than that.2388 P-0017 indicated that as regards the children at Lalo, you can see the difference with other older children that might be there, and its something you could really see. You saw they were less than 15.2389 His evidence was that their ages may have been in the range of 10 to 12 they varied but they were younger than 15.2390 846. When P-0041 was first appointed to his position in the UPC/FPLC, a commander assigned him approximately 12 bodyguards.
2391

The

witness assessed they were between 13 or 14 to about 16 years of age and, in any event, none of the guards had reached the fourth year of primary school. Therefore, they were very young2392 and each of them was still a boy.2393 The witness lived in a hotel where the bodyguards waited for him at the front. When P-0041 left the hotel, he was accompanied by one of the guards, leaving the others at the hotel.2394 After several days2395 a single bodyguard replaced the twelve,2396 and the commander told the witness that he had returned them to the front.2397 847. P-0041s replacement bodyguard was a small child he gave his age as 14 who had been trained at Mandro after 8 August 2002.2398 P-0041 said that he thought he was 14 or 15 years old.2399 The younger brother of the new bodyguard, who was also serving as a bodyguard in

T-154-Red2-ENG, page 83, lines 7 12. T-154-Red2-ENG, page 63, lines 12 22. 2390 T-154-Red2-ENG, page 82, lines 1 and 2. 2391 T-125-Red2-ENG, page 50, line 5 to page 54, line 14. 2392 T-125-Red2-ENG, page 50, lines 15 21. 2393 T-125-Red2-ENG, page 52, lines 14 16. 2394 T-125-Red2-ENG, page 52, lines 20 25. 2395 The witness later agreed that the 12 bodyguards worked for him for one week. T-126-Red2-ENG, page 55, lines 11 13. The Chamber has concluded that this slight variance in his testimony on this subject does not affect his credibility. 2396 T-125-Red2-ENG, page 50, lines 4 12; T-126-Red-ENG, page 48, lines 12 15. 2397 T-125-Red2-ENG, page 53, line 8 to page 54, line 14. 2398 T-125-Red2-ENG, page 48, line 24 to page 49, line 11. 2399 T-125-Red2-ENG, page 56, lines 8 10.
2389

2388

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Mongbwalu, frequently visited P-0041s residence. 2400 bodyguard began working with P-0041 in

The new 2002,

December

immediately after his training (he had been given a uniform but not a weapon).2401 He was with the witness between January and March.2402 The witness gave him a weapon although he did not appreciate this meant he was committing a crime.2403 848. The witness took this child as his bodyguard because he knew his family.2404 Whenever the police saw these young guards (the kadogos) they seized their weapons, saying to them you cant carry out guard service. On these occasions, the witness spoke with the commander in charge in order to recover the confiscated weapon.2405 849. P-0041 said that all those who held a similar position in the UPC had bodyguards, and that [u]sually bodyguards were young persons. We were not taking adults. We were using young persons. His

evidence was that the majority of the soldiers serving in the UPC were over 22 years of age but some were 10 to 13, and above.2406 850. P-0041 gave evidence that younger soldiers (those in the region of 14 to 16 years of age) were selected because they were obedient. They needed little care because they did not have children or family responsibilities.2407 851. P-0038 testified that child soldiers, both girls and boys, were more used as body guards (acting as escorts for several of the

2400 2401

T-125-Red2-ENG, page 56, lines 11 14. T-125-Red2-ENG, page 49, lines 15 19. 2402 T-126-Red-ENG, page 56, line 16 to page 57, line 5. 2403 T-126-Red2-ENG, page 57, lines 6 18. 2404 T-125-Red2-ENG, page 49, lines 18 19. 2405 T-125-Red2-ENG, page 49, lines 21 25. 2406 T-125-Red2-ENG, page 54, line 15 to page 55, line 8. 2407 T-125-Red2-ENG, page 56, lines 17 25.

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commanders), because children were fearless in contrast with adults and they did not ask a great deal of their commanders.2408 There was no particular criteria applied when assigning children, save that some commanders preferred to have young children as they were more desirable. 2409 The younger children followed their orders more diligently than older children.2410 852. According to P-0038, General Kisembo, Bosco Ntaganda and Chief Kahwa each had children under the age of 15 working as their bodyguards and escorts. 2411 Although he was not sure of the exact number of bodyguards used by General Kisembo, they were divided into two separate platoons one for children and one for adults.2412 853. The children, whilst acting as bodyguards, watched over their commanders and protected their residences. They controlled access by visitors to the commanders,2413 and they followed them everywhere, including to war.2414 P-0038 indicated that the child bodyguards wore military uniforms and they carried arms: indeed, according to the witness, all UPC personnel bore arms. 2415 Bodyguards accompanied commanders such as Abelanga when they went to war.2416 854. Video footage taken on 14 January 20032417 and introduced during the evidence of P-0030 shows a group from the UPC meeting with Lendu representatives near the city of Lipri.2418 The UPC delegation

2408 2409

T-113-Red2-ENG, page 36, lines 11 23. T-114-Red2-ENG, page 14, line 24 to page 15, line 6. 2410 T-114-Red2-ENG, page 15, lines 16 17. 2411 T-113-Red2-ENG, page 36, line 24 to page 37, line 5. 2412 T-114-Red2-ENG, page 16, lines 6 11. 2413 T-113-Red2-ENG, page 37, lines 11 17. 2414 T-113-Red2-ENG, page 37, lines 17 18. 2415 T-113-Red2-ENG, page 37, lines 21 23. 2416 T-114-Red2-ENG, page 24, lines 9 11 (P-0038). 2417 T-129-Red2-ENG, page 4, lines 20 23. 2418 EVD-OTP-00572 and T-128-Red2-ENG, page 60, line 18 to page 61, line 6.

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included Commander Ali,2419 John Tinanzabo and Mathieu Amboko Bebetu. They were escorted by armed UPC/FPLC soldiers wearing uniforms, some of whom are clearly below the age of 15.2420 855. P-0014 also said he saw several children serving under Commander Jerme Kakwavu in Aru in March or April 2003. 2421 One child was acting as an escort to Commander Kakwavu, whilst another was punished for having made a mistake (this particular child refused to give up his weapon when he was imprisoned).2422 856. As set out above, the defence has challenged this evidence,2423 which the Chamber has not relied on because it is not clear whether Mr Kakwavus forces were under the control of Thomas Lubanga at the relevant time.2424 857. Based on the entirety of the evidence, the Chamber is satisfied that a significant number of children under the age of 15 were used by the UPC/FPLC as escorts and bodyguards for the main staff and the commanders, between September 2002 and 13 August 2003. d) Thomas Lubangas bodyguards 858. As discussed above, P-0030 testified that he went to Thomas Lubangas residence in Bunia about two or three times a week at certain periods during the timeframe of the charges when Mr Lubanga visited the town. On these occasions he noticed bodyguards as young as nine or ten years old, wearing uniforms and bearing weapons,
T-128-Red2-ENG, page 61, line 15 to page 62, line 4. EVD-OTP-00572, 00:00:50; 00:02:47; 00:28:42; T-128-Red2-ENG, page 63, lines 2- 9 and page 65, line 9 to page 66 line 1; T-129-Red2-ENG, page 28, line 20 to page 29, line 17. 2421 T-182- Red2-ENG, page 25, line 20 to page 26, line 1. 2422 T-182-Red2-ENG, page 26, lines 1 22. 2423 ICC-01/04-01/06-2773-Red-tENG, para. 575. 2424 Commander Kakwavus departure from the UPC was discussed in T-178-CONF-ENG, page 19, line 16 to page 20, line 5 (P-0055).
2420 2419

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guarding the accuseds residence.2425 It follows that his assessment of their ages is not based on an isolated visit. As discussed elsewhere in this Judgment, there is video footage of a MONUC delegation visiting Mr Lubangas office on 24 February 2003 (an occasion when P-0030 played with the kadogos who formed part of the military guard) that shows a UPC bodyguard who is clearly under the age of 15.2426 859. The defence observes that during his examination in court, P-0030 agreed he told prosecution investigators that the kadogos he saw at the UPC headquarters in Bunia appeared to be between 14 and 15 years of age.2427 The witness gave similar evidence in Court as regards the ages of the bodyguards of Mr Ntaganda and Mr Kisembo (he said that they were aged 13 and upwards)2428 He stated additionally that Mr Lubanga had bodyguards as young as 9 years old.2429 The witness therefore did not contradict himself on this issue. 860. P-0030 testified about video footage taken during a presidential rally at the city stadium on 11 January 20022430 which was held for Mr Lubanga when he returned from a trip to Goma.2431 Children wearing uniforms and carrying machine guns guarded the accused. It is clear some of these children were under the age of 15.2432 861. Other video footage, taken on 23 January 2003, shows a public event

T-128-CONF-ENG, page 8, line 5 to page 9, line 20 and T-128-Red2-ENG, page 19, line 11 to page 21, line 19. 2426 EVD-OTP-00574, 01:49:02 and T-129-Red2-ENG, page 57, line 13 to page 58, line 4. 2427 T-131-Red2-ENG, page 8, lines 2 6. 2428 T-128-Red2-ENG, page 24, lines 3 12 and page 55, line 2 6. 2429 T-128-Red2-ENG, page 19, line 11 to page 21, line 19. 2430 T-128-Red2-ENG, page 51, lines 19 20. 2431 T-128-Red2-ENG, page 51 lines 15 20. 2432 EVD-OTP-00571, 02:47:15 02:47:19. In addition the Chamber observes that at 02:22:52 02:22:54 there are children who could be under the age of 15 but they appear too briefly to enable a definite finding.

2425

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attended by Mr Lubanga,2433 along with other UPC leaders such as the military commander, Eric Mbabazi.2434 A young man, evidently under the age of 15, is filmed wearing camouflage clothing and carrying weapons.2435 P-0030 testified that he belonged to the same group as the other soldiers in the footage, namely the UPC/FPLC.2436 862. Mr Lubanga is also filmed returning to his residence after an event at the Hellenique Hotel on the same day (23 January 2003), 2437 travelling in a vehicle accompanied by members of the presidential guard. 2438 Two young individuals in camouflage clothing, who are clearly under the age of 15, are to be seen sitting with armed men wearing military clothing.2439 The size and general appearance of these two young individuals, when compared with other children and the men who are with them in the vehicle, leads to the conclusion that they are under the age of 15. 863. P-0055 gave evidence that the Presidents escort protected his convoy when he was travelling.2440 The witness was unsure as to the exact size of this escort but he suggested it was considerable,2441 and included adults and children. 2442 He testified about two particular PMFs who were part of the accuseds convoy.2443 In addition, he said

2433 T-129-Red2-ENG, page 16, line 20 to page 19, line 19 and EVD-OTP-00571, 02:04:22 (Mr Lubangas delegation arrives at the scene). 2434 EVD-OTP-00571, 02:03:41, T-129-Red2-ENG, page 18, lines 18 20. 2435 EVD-OTP-00571, 02:02:44. 2436 T-129-Red2-ENG, page 18 lines 4 14. 2437 EVD-OTP-00574, 00:34:52, T-129-Red2-ENG, page 27, lines 22 25. 2438 EVD-OTP-00574, 00:35:44, T-129-Red2-ENG, page 28, lines 3 25. 2439 EVD-OTP-00574, 00:36:21. 2440 T-176-Red2-ENG, page 49, lines 8 15. 2441 P-0055 stated that the escort was like a battalion and he specified that in the UPC, a battalion comprised between 150 and 200 soldiers: T-176-Red2-ENG, page 48, lines 10 13; page 49, lines 4 7. 2442 T-176-Red2-ENG, page 48, lines 23 24. 2443 T-176-Red2-ENG, page 49, lines 16 18.

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the kadogos in the main staff, including the PMFs2444 and those who accompanied the President, wore uniforms and carried arms.2445 864. P-0016 testified that there were ten children under the age of 17 in the Presidential Protection Unit (PPU), acting as the Presidents personal bodyguards.2446 Initially he indicated the youngest of these children could have been 14,2447 and then he stated there were no more than four children who were 13 and 14 years of age within the PPU. 2448 The defence submits the witness did not explain how he assessed the ages of these guards with this degree of accuracy, and in any event it is argued it is impossible to make a sufficiently accurate visual distinction between teenagers in this age group.2449 However, as discussed above, this witness gave a persuasive explanation as to how he generally assessed the ages of children. Although he did not specify how he came to the conclusion that the youngest members of the PPU were 13 or 14, and notwithstanding the Chambers recognition that differentiating between the ages of children can be difficult, on the basis of his detailed evidence the Chamber is satisfied that he was in a position to make a precise evaluation in this regard. Given he was in the vicinity of the PPU on a daily basis, the Chamber is satisfied that he saw children who were under the age of 15 years amongst the guards within the PPU. 865. P-0041 gave evidence about President Thomas Lubangas

bodyguards, who were located not far from the witnesss place of

2444 2445

T-178-Red2-ENG, page 77, lines 9 15. T-176-Red2-ENG, page 50, lines 2 6. 2446 T-189-Red2-ENG, page 28, lines 19 25 and page 30, line 22 to page 31, line 14. 2447 T-189-Red2-ENG, page 30, line 15 to page 31, line 19. 2448 T-189-Red2-ENG, page 30, line 15 to page 31, line 19; page 35, line 22 to page 36, line 2. 2449 ICC-01/04-01/06-2773-Red-tENG, para. 417.

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work2450 (150 200 metres away),2451 and who comprised a mixture of adults and young people.
2452

The bodyguards of the National

Secretaries2453 were dressed and armed in a similar manner to those assigned to the witness (unlike the guards of the military commanders who had different weapons and were dressed differently).2454 866. D-0019 testified that he went to Thomas Lubangas office regularly between September 2002 and 6 March 2003 and he never saw children under the age of 18 within the presidential guard. 2455 However, as discussed above, the Chamber has approached the testimony of D0019 that directly relates to Thomas Lubanga with caution and in light of the contradictory evidence provided by other witnesses, does not rely on this statement. 867. D-0011 also gave evidence that between September 2002 and March 2003 and again from May 2003 until Mr Lubangas departure from Kinshasa, he was at Mr Lubangas side on a daily basis and he did not, on any occasion, see minors in the accuseds bodyguard.2456 868. The Chamber notes D-0011 somewhat qualified this evidence during examination by the prosecution, when he indicated he was not with Mr Lubanga in Rwampara on 12 February 2003, and although he mostly accompanied the accused, in reality he usually remained in Bunia when the President travelled, which he suggested was a rare event. 2457 The Chamber also notes that D-0011 was unaware of any

2450 2451

T-125-Red2-ENG, page 55, lines 21 23. T-125-Red2-ENG, page 55, line 24 to page 56, line 1. 2452 T-125-Red2-ENG, page 56, lines 2 5. 2453 T-125-Red2-ENG, page 55, lines 14 20. 2454 T-125-Red2-ENG, page 57, lines 1 7. 2455 T-341-ENG, page 12, lines 2 18. 2456 T-347-ENG, page 29, line 19 to page 30, line 11; page 69, lines 15 19. 2457 T-347-ENG, page 57, line 22 to page 58, line 25.

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official procedures for verifying the ages of the recruits.2458 869. As set out above, the Chamber has determined that P-0016, P-0030, P-0041 and P-0055 were consistent, credible and reliable witnesses, and when their accounts are considered alongside the video footage described above which clearly portrays children amongst Mr Lubangas bodyguards the Chamber discounts the essentially irreconcilable evidence of D-0011 and D-0019 on this issue. On the basis of the accounts of P-0016, P-0030, P-0041 and P-0055 as well as the video footage, the Chamber is satisfied that between September 2002 and 13 August 2003, Thomas Lubanga, as President and Commander-in-Chief of the UPC/FPLC, used a significant number of children under the age of 15 within his personal escort and as his bodyguards. e) The Kadogo Unit 870. D-0019 saw nineteen children staying near Floribert Kisembo in the compound at Mamedi. They were assumed to be orphans who had sought the safety of the military camp, and they included former soldiers.2459 D-0019 denied they were engaged in military activities.2460 His evidence was that the children he saw were under the age of 18 but not necessarily under the age of 15,2461 and D-0019 rejected the suggestion that Mr Kisembo decided to create a Kadogo Unit in Mamedi.2462 871. However, P-0017 testified that the Chief of Staff instituted the

T-347-ENG, page 41, lines 17 22. T-341-ENG, page 29, line 12 to page 30, line 15 and T-345-ENG, page 6, line 7 to page 7, line 19. 2460 T-345-ENG, page 8, lines 4 12, page 10, line 24 to page 11, line 2 and page 12, line 23 to page 13, line 16. 2461 T-345-ENG, page 5, lines 12 20 and page 7, line 25 to page 8, line 3. 2462 T-345-ENG, page 12, line 12 to page 13, line 16.
2459

2458

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Kadogo Unit2463 at Mamedi and Maitulu.2464 He said it was nearly the size of a whole platoon (there were slightly fewer than 45 members),2465 and the members were less than 15 years old.2466 The witness thought that the youngest member must have been around 12 years old.2467 The Chief of Staff transferred these individuals to the general staff in order to take care of them, 2468 and P-0017 suggested they were protected on account of their vulnerability. 2469 During this period, some of the children acted as bodyguards for the Chief of Staff,2470 although it was stipulated that they were not to be the first to go into the town; indeed, they became almost untouchable.2471 872. The defence contends that P-0017 failed to give an accurate account of the ages of the children in the Kadogo Unit, and instead he simply made an estimate that the youngest child was around 12 without conducting any process of verification.2472 Given that the UPC/FPLC generally failed to establish the ages of children within the armed forces, the evidence of P-0017 that children under 15 years of age were within the Kadogo Unit (particularly those as young as 12) was consistent, credible and reliable. 873. P-0017 testified that a child soldier, who had been a member of the Kadogo Unit, died in battle just before the Artemis force arrived in June 2003.2473 The Unit was still at the General Staff when a MONUC

2463 2464

T-158-Red2-ENG, page 22, lines 17 18. T-158-Red2-ENG, page 22, lines 19 22. 2465 T-158-Red2-ENG, page 22, line 23 to page 23, line 2. 2466 T-158-Red2-ENG, page 23, line 6. 2467 T-158-Red2-ENG, page 23, lines 7 9. 2468 T-158-Red2-ENG, page 23, lines 19 21; page 23, line 24 to page 24, line 5. 2469 T-158-Red2-ENG, page 23, lines 22 23. 2470 T-158-Red2-ENG, page 24, lines 6 12. 2471 T-158-Red2-ENG, page 45, lines 18 19. 2472 ICC-01/04-01/06-2773-Red-tENG, paras 444 and 742. 2473 T-158-Red2-ENG, page 46, lines 15 16; page 56, lines 21 24.

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representative visited the general headquarters during that month.2474 The witness stated that at [] this time Ete was the commander of the kadogo platoon.2475 874. P-0017 indicated that two girls were part of the Unit when it was first established, and in due course he saw them with the commander. 2476 The witness assessed 2477 they were around 13 or 14 years old.2478 875. It was P-0017s account that at an early stage the commanders ordered the kadogos to take property from certain local villages.2479 Later, they were followed when they came under the care of the general staff (see above). As a result, it was more difficult to leave the camp to visit the villages,2480 and the trainers monitored them to ensure they did not behave improperly.2481 876. The defence submits the testimony of P-0017 demonstrates that grouping the kadogos within a unit was intended to protect them.2482 It is emphasised that when P-0017 was asked if members of the kadogo unit undertook military duties, he said [d]uring that period of time they had no special responsibility 2483 and [s]ome people were bodyguards for the Chief of Staff. These were in charge of following him around [] but about military tasks, Im not sure that they went to patrol or to fetch water or anything else they were asked to do.2484

2474 2475

T-158-Red2-ENG, page 45, lines 5 8. T-158-Red2-ENG, page 45, lines 8 15. 2476 T-158-Red2-ENG, page 26, lines 8 11. 2477 T-160-Red2-ENG, page 58, lines 19 25. 2478 T-158-Red2-ENG, page 26, lines 20 23. 2479 T-158-Red2-ENG, page 28, line 24 to page 29, line 2. 2480 T-158-Red2-ENG, page 29, lines 2 5. 2481 T-158-Red2-ENG, page 29, lines 13 14. 2482 ICC-01/04-01/06-2773-Red-tENG, para. 442. 2483 ICC-01/04-01/06-2773-Red-tENG, para. 443, T-158-Red-ENG, page 24, lines 6 9. 2484 T-158-Red2-ENG, page 24, lines 10 16.

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He indicated Loringa, a member of Floribert Kisembos general staff, was in charge of the kadogos. 2485 The children were made to sing military songs, and Loringa taught them how to march and he took care of them. suffering.2487 877. The Chamber concludes from the evidence of P-0017 that approximately 45 child soldiers within the ranks of the UPC/FPLC, some of them under the age of 15, were grouped together in the spring of 2003 in a Kadogo Unit. Save for his denial that Floribert Kisembo created a Kadogo Unit, of which the Chamber is unpersuaded because D-0019 demonstrated partiality on this matter during his testimony, the details of D-0019s evidence on the children in Mamedi largely supports the testimony given by P-0017. The existence of this unit further demonstrates the presence of children within the UPC/FPLC during the period of the charges. f) Domestic work 878. P-0055 testified that although PMFs acted as bodyguards and served within the companies, their most important role was to assist the commanders by cooking, along with other feminine tasks, routine tasks carried out by women.2488 Nonetheless, PMFs also participated in combat, they acted as guards and went out with the patrols, and in this sense they undertook the same routine duties as the other soldiers.2489 879. D-0019 gave evidence that he saw a young girl between 14 and 16
2485 2486

2486

The songs helped the children forget their

T-158-Red2-ENG, page 24, line 22 to page 25, line 2. T-158-Red2-ENG, page 24, line 11 to page 25, line 22. 2487 T-158-Red2-ENG, page 25, lines 12 22. 2488 T-178-Red2-ENG, page 77, line 24 to page 78, line 3. 2489 T-178-Red2-ENG, page 78, lines 6 -10.

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years of age2490 assisting the Chief of Staffs wife with domestic work at Mamedi.2491 880. P-0017 stated that girl soldiers were usually assigned household tasks. 2492 As analysed above, P-0016 stated that a number of very young girls cooked at the camp at Mandro. 2493 881. When P-0038 was asked about the functions performed by the girls, and whether cooking was their only responsibility,2494 he replied that the girls (also) did everything undertaken by the others,2495 and they cooked twice each day.2496 882. The Chamber has taken into account the evidence concerning domestic work undertaken by girls under the age of 15 when the support provided by the girl exposed her to danger by becoming a potential target. On the basis of the evidence overall, the Chamber concludes that during the period of the charges a significant number of girls under the age of 15 were used for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers, such as involvement in combat, joining patrols and acting as bodyguards. g) Conditions of use of child soldiers (1) Punishment 883. P-0016 indicated that there were many different types of punishment at Mandro camp, and some recruits died as a result.2497

2490 2491

T-345-ENG, page 8, line 13 to page 10, line 23. T-345-ENG, page 8, lines 13 14 and page 9, lines 2 4; T-341-ENG, page 29, lines 17 18. 2492 T-160-Red2-ENG, page 60, lines 14 25 2493 See para. 807. 2494 T-189-Red2-ENG, page 28, lines 2 4. 2495 T-189-Red2-ENG, page 28, lines 5 6. 2496 T-189-Red2-ENG, page 28, lines 6 9. 2497 T-189-Red2-ENG, page 44, lines 13 14.

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The witness described a punishment referred to as kafuni. 2498 Typically, a type of cane with a small bulge at the end was used for this purpose, called a gongo.2499 Sometimes those punished received in the region of 300 strokes and if hit on the nape of the neck they could die easily from that.2500 Indeed, two individuals at Mandro died in this way,2501 one of whom was more or less an adolescent and the other was aged about 14 years.2502 At first nobody talked about these deaths because they were afraid, but in due course some of them raised the issue because they could not stomach it any more.2503 P0016 learnt what was happening from the children, 2504 and one individual who provided this information was flogged until he lost the use of his right arm, which remains defective. 2505 The two deaths occurred approximately four days before P-0016s return to Bunia from Mandro, in late August or early September 2002.2506 884. Another punishment was called kiboko which involved a whip.2507 This was administered on parade, during training or in places that were out of sight in the camp.2508 Torture was used,2509 such as whipping people who were tied up,2510 and a wide range of objects featured during punishment2511 (as administered by the commander of

2498 2499

T-189-Red2-ENG, page 44, lines 16 17; page 45, lines 2 3. T-189-Red2-ENG, page 45, lines 6 9. 2500 T-189-Red2-ENG, page 44, lines 18 19; page 45, lines 3 4. 2501 T-189-Red2-ENG, page 46, lines 18 21. 2502 T-189-Red2-ENG, page 47, lines 14 18. 2503 T-189-Red2-ENG, page 46, lines 21 23. 2504 T-189-Red2-ENG, page 46, line 25 to page 47, line 3. 2505 T-189-Red2-ENG, page 47, lines 3 4 and 7 10. 2506 T-190-Red2-ENG, page 65, lines 8 10. 2507 T-189-Red2-ENG, page 44, line 18; page 45, line 13. 2508 T-189-Red2-ENG, page 45, lines 19 20. 2509 T-189-Red2-ENG, page 44, lines 19 20. 2510 T-189-Red2-ENG, page 46, lines 13 14. 2511 T-189-Red2-ENG, page 45, lines 4 5.

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the centre).2512 885. P-0014 also saw recruits punished at the headquarters if they committed certain errors.2513 Their buttocks were whipped, for instance whilst they were lying on the ground or when their hands and legs were held.2514 886. P-0014 also gave evidence about seeing an apparently hungry child, who was crying and calling for his mother.2515 P-0014 stated:
[] the reaction of those who were with me [] was to say, you see, that is good. They are going to grow up as true soldiers.2516

887. While there is the possibility that some of the incidents described by P-0016 occurred in September 2002, P-0014s evidence immediately precedes the timeframe of the charges. However, as analysed above, there is no indication that there was demobilisation in August 2002, before the period of the charges. Therefore, the Chamber relies on this evidence as demonstrating practices that would have continued into the period of the charges, and it supports the testimony of other witnesses as to the type of punishment that was administered to the recruits during the relevant timeframe. 888. P-0017 testified that it was common in the UPC for individuals to be whipped2517 and imprisoned (although the latter less frequently).2518 He described a particular occasion when he witnessed some young soldiers being punished. He was told that having smoked cannabis,

2512 2513

T-189-Red2-ENG, page 45, lines 15 16. T-179-Red2-ENG, page 83, lines 16 17. 2514 T-181-Red2-ENG, page 17, lines 6 10. 2515 T-181-Red2-ENG, page 19, lines 9 12. 2516 T-181-Red2-ENG, page 19, lines 13 15. 2517 T-158-Red2-ENG, page 31, lines 20 21. 2518 T-158-Red2-ENG, page 31, lines 21 22.

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they became insubordinate and threatened to use a gun. 2519 They were arrested and whipped, whilst lying on the ground.2520 He said the trainers were responsible for this punishment.
2521

Sanctions for

violations of UPC regulations or orders were generally the responsibility of the senior person present, 2522 although on occasion someone further up in the hierarchy took the decision as to punishment.2523 P-0017 described a further punishment that involved putting those concerned in a trench.2524 889. Based on this evidence, the Chamber concludes that a number of recruits would have been subjected to a range of punishments during training with the UPC/FPLC, particularly given there is no evidence to suggest they were excluded from this treatment. These punishments are described as part of the context in which children under the age of 15 were conscripted, enlisted and used by the UPC/FPLC. (2) Sexual Violence 890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. 2525 Some fell pregnant, resulting in abortions;2526 and there were instances of multiple abortions. 2527 The witness gave

evidence that the psychological and physical state of some of these

2519 2520

T-158-Red2-ENG, page 32, lines 5 8. T-158-Red2-ENG, page 32, lines 7 9. 2521 T-158-Red2-ENG, page 32, lines 10 11. 2522 T-158-Red2-ENG, page 67, lines 20 21. 2523 T-158-Red2-ENG, page 67, lines 21 23. 2524 T-158-Red2-ENG, page 32, lines 15 23. 2525 T-207-Red2-ENG, page 30, line 14 to page 31, line 1. 2526 T-207-Red2-ENG, page 31, lines 2 4. 2527 T-207-Red2-ENG, page 38, lines 11 14.

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young girls was catastrophic.2528 891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old.2529 The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia.2530 Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support.2531 It was difficult to reintegrate them into their families because the girls were stigmatised, and significant mediation was necessary. 2532 The witness stated that the children provided her with a clear account of systematic sexual violence in the camps.2533 892. In answer to a question as to whether sexual violence was committed against the PMFs during training,2534 P-0016 indicated the trainers and the other guards in the centre took advantage of the situation and raped the recruits, and that the perpetrators included the commander of the centre. 2535 The female recruits at Mandro were raped, irrespective of their age and notwithstanding a strict prohibition in this regard. 2536 P-0016 gave evidence of the common practice amongst some high-ranking UPC officials of using young girl recruits as domestic servants in their private residences. 2537 The commander of the centre at Mandro had four such individuals, and the other instructors used girls for housework, as well as sexually

2528 2529

T-207-Red2-ENG, page 31, lines 16 18. T-207-Red2-ENG, page 35, lines 17 23. 2530 T-207-Red2-ENG, page 37, lines 12 20. 2531 T-207-Red2-ENG, page 37, lines 20 23. 2532 T-207-Red2-ENG, page 39, lines 3 19. 2533 T-207-Red2-ENG, page 31, lines 4 6. 2534 T-191-Red2-ENG, page 15, lines 15 18. 2535 T-191-Red2-ENG, page 15, lines 19 21 and page 30, line 4 to page 31, line 8. 2536 T-191-Red2-ENG, page 16, lines 1 13. 2537 T-191-Red2-ENG, page 16, lines 14 17.

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abusing them. 2538 However, P-0016 also said that it was difficult to determine the age of the recruits who were raped from their appearance.2539 893. P-0055 gave evidence that when he visited the camps he received complaints along those lines that there was sexual violence against girl soldiers, sexual slavery and forced impregnation, although he indicated these events were infrequent.2540 894. The evidence from P-0038 was that although girls acted as bodyguards, they were often used to prepare food and to provide sexual services for the commanders.2541 The commanders particularly treated the girls as if they were their women or their wives.2542 895. P-0038 said Commander Abelanga kept a girl under 15 years old at his home, and Commander Ndjabu retained another as his bodyguard (she later became pregnant by the brigade commander). 2543 P-0038 noticed that Commander Abelanga had a particular girl with him for a considerable period of time, in Mongbwalu and in Bunia.2544 It was commonly known and commented on that this girl was Commander Abelangas wife.
2545

She prepared the commanders food and

notwithstanding her saying I dont want to,2546 her cries were heard at night.2547 896. In the view of the Majority, given the prosecutions failure to

2538 2539

T-191-Red2-ENG, page 16, line 18 to page 17, line 4. T-191-Red2-ENG, page 29, lines 20 25. 2540 T-178-Red2-ENG, page 78, line 11 to page 79, line 7. 2541 T-114-Red2-ENG, page 23, lines 16 18. 2542 T-114-Red2-ENG, page 23, lines 18 19. 2543 T-114-Red2-ENG, page 23, lines 21 25. 2544 T-114-Red2-ENG, page 24, lines 17 to page 25, line 4. 2545 T-114-Red2-ENG, page 25, lines 8 11. 2546 T-114-Red2-ENG, page 27, lines 2 7. 2547 T-114-Red2-ENG, page 26, lines 21 25.

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include allegations of sexual violence in the charges, as discussed above, this evidence is irrelevant for the purposes of the Article 74 Decision save as regards providing context. Therefore, the Chamber has not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused. In due

course, the Chamber will hear submissions as to whether the issue assists as regards sentence and reparations. h) The self-defence forces2548 897. The Chamber heard evidence about the local self-defence forces that allegedly included children below the age of 15. D-0007, who was the co-ordinator of the Hema self-defence committees in Ituri during the relevant period, 2549 gave extensive evidence on the creation and the circumstances of these groups. 2550 He said they included children under the age of 15.2551 Indeed, he suggested age was not taken into account and anyone able to fight could become a member: 2552 [i]f somebody could fight with a machete or with a spear, and if there were weapons, if he could carry a firearm, we would give it to him.2553 D-0019 confirmed that children below the age of 15 were included in these groups.2554 The Chamber is only able to consider this evidence for the purposes of the charges if the self-defence forces were under the control of the UPC/FPLC. 898. The prosecution submits that the self-defence forces were in existence prior to the period of the charges and they were incorporated
The terms self-defence forces, self-defence groups and self-defence committees have been used interchangeably by the witnesses before the Chamber. 2549 T-348-ENG, page 25, lines 1 3. 2550 T-348-ENG, page 23, line 4 to page 31, line 5. 2551 T-348-ENG, page 34, lines 3 6. 2552 T-348-ENG, page 24, lines 8 15. 2553 T-348-ENG, page 24, lines 13 15. 2554 T-340-ENG, page 70, lines 5 13.
2548

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into the UPC/FPLC when that organisation was created. 2555 It is submitted the UPC/FPLC had control over these former village forces,2556 and that children of all ages were sent to be trained by the UPC/FPLC, including children under the age of 15.2557 899. The defence argues these groups maintained their independent existence after September 2002,
2558

and they continued acting

autonomously during and well beyond the period of the charges.2559 900. Although D-0007 gave evidence to the effect that children under the age of 15 were used by the self-defence forces,2560 he suggested they were separate from the UPC/FPLC indeed, the UPC threatened to disarm the self-defence fighters.2561 He testified that his self-defence committee was created at a meeting of commanders of the APC in Fataki in 1999; every village in which the Hema lived had self-defence committees; and they continued to exist until 2004.2562 D-0007 indicated young boys were sent to train with the UPC/FPLC in Mandro,2563 but they never returned and instead remained with the UPC troops.2564 However, D-0007 denied that the self-defence groups sent boys under the age of 15 to be trained by the UPC, and he emphasised that adults alone were involved and the boys below the age of 15 stayed at home.2565 He stated that age was taken into account because you cant send a child to follow military training.2566 It is significant there was

2555 2556

ICC-01/04-01/06-2748-Red, paras 349 and 350. ICC-01/04-01/06-2748-Red, para. 352. 2557 ICC-01/04-01/06-2748-Red, para. 355. 2558 ICC-01/04-01/06-2773-Red-tENG, paras 929 and 930. 2559 ICC-01/04-01/06-2773-Red-tENG, paras 931 933. 2560 T-348-ENG, page 33, line 13 to page 34, line 6. 2561 T-348-ENG, page 42, line 14 to page 43, line 18; page 46, lines 9 15. 2562 T-348-ENG, page 23, line 12 to page 24, line 3 and page 24, lines 24 25. 2563 T-348-ENG, page 36, lines 6 11 and page 36, line 20 to page 37, line 1. 2564 T-348-ENG, page 36, lines 12 19. 2565 T-348-ENG, page 37, lines 5 11. 2566 T-348-ENG, page 38, lines 4 9.

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no challenge during the trial as regards D-0007s testimony that young people from the self-defence forces who were sent to train with the UPC/FPLC never returned. 901. Regarding D-0007s evidence as to age,2567 the prosecution argues it is inconceivable that the self-defence forces would restrict the age of the recruits who were sent to train with the UPC/FPLC in order to enhance protection for the Hema villages.2568 The prosecution submits that given D-0007 did not meet with the accused or receive any orders from him or the FPLC until February 2003 when he was first advised that children under 15 should not be armed it is unlikely the selfdefence groups would have imposed an age restriction which was limited to those who were sent to train with the UPC/FPLC.2569 The prosecution argues that D-0007 would have been unaware whether children under the age of 15 were trained or used by the UPC/FPLC because he did not visit all the villages.2570 902. Given the inconsistency between D-0007s testimony that children of all ages were included in the self-defence groups and that young boys were sent to the UPC for training, and his later account that only those above 15 were sent, the Chamber has disregarded his evidence on this issue. In any event it is implausible to suggest that the selfdefence forces made special arrangements (based on age) as regards the recruits who were sent for training with the UPC/FPLC, when they did not verify the ages of the children who were given weapons and who they allowed to fight. On this basis, there is a strong inference to be drawn that some of the young people sent by the self-defence forces
T-348-ENG, page 60, lines 1 6. ICC-01/04-01/06-2748-Red, para. 353. 2569 ICC-01/04-01/06-2748-Red, para. 354, referring to T-348-ENG, page 60, lines 10 14 and page 39, lines 7 16. 2570 ICC-01/04-01/06-2748-Red, para. 354.
2568 2567

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to train with the UPC/FPLC were under the age of 15. 903. D-0037 described the self-defence forces as organisations that were set up within the villages, and he emphasised that they were separate entities that had not been incorporated into, and did not belong to, the FPLC.2571 He indicated that even when FPLC structures were adopted, the self-defence forces remained independently active, and (in contrast) those who were trained as soldiers remained with the FPLC.2572 D-0037 distinguished the self-defence force in Mandro he had belonged to, which had been integrated into the FPLC, 2573 from the other self-defence forces in the villages that remained independent of the FPLC.2574 Although D-0037 stated that [a]t the training centre in Mandro, everyone went there. It was a time when the war against the Hemas targeted the entire community, hence everyone came to join the group, 2575 he indicated that when his group joined the FPLC structure, other independent self-defence forces remained active.2576 D0037 further emphasized that people often confused the self-defence forces with the FPLC, notwithstanding their separate command structures.
2577

Despite

D-0037s

acceptance

that

the

FPLC

demobilisation orders2578 referred to the self-defence forces, he stated they were not part of its chain of command, and he suggested the orders issued by the Chief of Staff were perhaps directed at commanders who were located close to where self-defence fighters might have been operating.2579 D-0037 additionally gave evidence that

2571 2572

T-349-ENG, page 58, lines 1 6 and page 59, lines 6 8. T-349-ENG, page 59, lines 4 11. 2573 T-349-ENG, page 58, line 12 to page 59, line 6. 2574 T-349-ENG, page 59, lines 4 6. 2575 T-349-ENG, page 7, lines 12 14. 2576 T-349-ENG, page 59, lines 8 11. 2577 T-349-ENG, page 60, lines 5 12. 2578 EVD-D01-01096 and EVD-D01-01097. These will be addressed in detail in Section IX(B)(3). 2579 T-349-ENG, page 59, line 25 page 60, line 16.

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demobilisation was to be enforced regardless of the hierarchy of the self-defence groups everywhere and wherever [child soldiers] are found.2580 D-0037 further testified that the demobilisation orders were perhaps directed at commanders in the area where self-defence groups were active. This, however, was only an assumption on his part. Nonetheless, D-0037s evidence on these issues was credible and reliable. 904. In addition, a report dated 16 February 2003 addressed to the UPCs general administrator of security refers to the demobilisation instructions of 21 October 2002 and 27 January 2003, and it indicates they had been correctly disseminated to all the major units. Guidance was requested, given the opposition from the self-defence forces to demobilise and disarm the children in their groups.2581 D-0037 testified that he had drafted and signed this document on the orders of Bosco Ntaganda.2582 It follows that even though the FPLC had control of the region at the time and interacted with the self-defence groups, many of the latter remained independent of the FPLC. 905. D-0019 also gave evidence about the self-defence committees, indicating that the issue of children within those groups was discussed within the executive.2583 He suggested the UPC resisted sharing power with other groups.2584 Moreover, D-0019 testified that the self-defence groups did not necessarily follow the policies of the UPC at the time, and because there were children amongst them who needed to be reintegrated within their communities, they had to be disarmed first and foremost, regardless of the age of the militants in those
2580 2581

T-349-ENG, page 60, lines 16 20. EVD-D01-01097. 2582 EVD-D01-01097; T-349-ENG, page 12, lines 5 12 and page 13, lines 22 24 (D-0037). 2583 T-341-ENG, page 4, lines 13 15. 2584 T-341-ENG, page 4, lines 15 17.

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groups.2585 He added the UPC had established a mechanism to assist with the reintegration process and to take responsibility for children under the age of 18 from all the armed groups, including the vigilante forces.2586 Although the Chamber has approached D-0019s testimony with caution, other credible evidence supports his account on this issue, and the Chamber accepts his testimony that the self-defence groups remained separate entities. 906. The Chamber is therefore persuaded the evidence given by D-0007, D-0037 and D-0019, along with the report referred to above, demonstrates that some of the self-defence forces remained

independent of the FPLC. D-0037s statement that everyone came to join the group must be viewed in the context of the entirety of his evidence, and it is clear he was not asserting that all the village selfdefence groups were trained at Mandro prior to incorporation into the FPLC. 907. Given their independent existence, the UPC/FPLC was not responsible for any children below the age of 15 who were recruited or used by these groups, save that the Chamber accepts the evidence of D-0007 demonstrates that some children below the age of 15 were sent to the UPC/FPLC for training and never returned. 908. The Chamber sought to call D-0005 as a Court witness, to explore whether children under the age of 15 were included in some of the Hema self-defence groups and whether the accused took any steps to facilitate their demobilisation.
2587

Although this witness did not

T-341-ENG, page 4, lines 18 24 T-341-ENG, page 5, lines 4 17. 2587 Redacted Decision on the Prosecutions Application to Admit Rebuttal Evidence from Witness DRC-OTP-WWWW-0005, 28 April 2011, ICC-01/04-01/06-2727-Red, paras 62-67.
2586

2585

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testify, 2588 there is sufficient reliable evidence on this issue for the Chamber to reach any necessary conclusions on this issue.

6. Overall Conclusions as regards conscription, enlistment and use of children under the age of 15 within the UPC/FPLC 909. It is alleged that the accused conscripted and enlisted children under the age of 15 years into the armed forces of the UPC/FPLC and that he used them to participate actively in hostilities between 1 September 2002 and 13 August 2003. 910. The Chamber has already set out its conclusion that the UPC/FPLC was an armed group.2589 a) Conscription and enlistment in the UPC/FPLC 911. The Chamber finds that between 1 September 2002 and 13 August 2003, the armed wing of the UPC/FPLC was responsible for the widespread recruitment of young people, including children under the age of 15, on an enforced as well as a voluntary basis. The evidence of witnesses P-00055, P-0014 and P-0017, coupled with the documentary evidence establishes that during this period certain UPC/FPLC leaders, including Thomas Lubanga, Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were particularly active in the mobilisation drives and recruitment campaigns that were directed at persuading Hema families to send their children to serve in the UPC/FPLC army.2590

2588 2589

T-355-ENG, page 3, line 13 to page 6, line 16. See paras 546-547. 2590 See paras 770 and 785.

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912. P-0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046 and P0055 testified credibly and reliably that children under 15 were voluntarily or forcibly recruited into the UPC/FPLC and sent to either the headquarters of the UPC/FPLC in Bunia or its training camps, including at Rwampara, Mandro, and Mongbwalu. Video

evidence introduced during the testimony of P-0030 clearly shows recruits under the age of 15 in the camp at Rwampara.2591 The letter of 12 February 2003, (EVD-OTP-00518) further corroborates other evidence that there were children under the age of 15 within the ranks of the UPC. 913. The evidence of P-0016, P-0014 and P-0017 demonstrates that children in the camps endured a harsh training regime and they were subjected to a variety of severe punishments. The evidence of P-0055, P-0017 and P-0038 establishes that children, mainly girls, were used for domestic work for the UPC commanders. The Chamber heard evidence from witnesses P-0046, P-0016, P-0055 and P-0038 that girl soldiers were subjected to sexual violence and rape. P-0046 and P-0038 specifically referred to girls under the age of 15 who were subjected to sexual violence by UPC commanders. As discussed above, in the view of the Majority, sexual violence does not form part of the charges against the accused, and the Chamber has not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused. 914. In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted and enlisted into the UPC/FPLC forces between 1 September 2002 and

2591

EVD-OTP-00570.

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13 August 2003. b) Use of children under 15 to participate actively in hostilities 915. The testimony of P-0002, P-0016, P-0017, P-0024, P-0030, P-0038, P0046, P-0055, D-0019 and D-0037 and the documentary evidence has demonstrated that children under the age of 15 were within the ranks of the UPC/FPLC between 1 September 2002 and 13 August 2003. The evidence of P-0038, P-0016, P-0012, P-0046, P-0014, D-0019 and D-0037 proves that children were deployed as soldiers in Bunia, Tchomia, Kasenyi, Bogoro and elsewhere, and they took part in fighting, including at Kobu, Songolo and Mongbwalu. 2592 The evidence of witnesses P-0016 and P-0024 establishes that the UPC used children under the age of 15 as military guards. The evidence of P-0017 reveals that a special Kadogo Unit was formed, which was comprised principally of children under the age of 15. The evidence of P-0014, P0017, D-0019, P-0038 and P-041, as well as the video footage EVD-OTP00572, demonstrates that commanders in the UPC/FPLC frequently used children under the age of 15 as bodyguards.2593 The accounts of P-0030, P-0055, P-0016 and P-0041, along with the video evidence, clearly prove that children under the age of 15 acted as bodyguards or served within the presidential guard of Mr Lubanga. 2594 916. In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted, enlisted and used by the UPC/FPLC to participate actively in hostilities between 1 September 2002 and 13 August 2003.

2592 2593

See Section VIII(B)(2). See Section VIII(B)(2) and (5). 2594 EVD-OTP-00571, 02:47:15 02:47:19; EVD-OTP-00574, 00:36:21 and 01:49:02.

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XI. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THOMAS LUBANGA (ARTICLE 25(3)(a) OF THE STATUTE)
A. THE LAW 1. The Mode of Liability Charged 917. The prosecution charged Thomas Lubanga as a co-perpetrator under Article 25(3)(a) of the Statute, and the Pre-Trial Chamber confirmed the charges on this basis.2595
Article 25 Individual criminal responsibility 1. 2. The Court shall have jurisdiction over natural persons pursuant to this Statute. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. In accordance with this Statute, 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, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (emphasis added) []

3.

2. The Decision on the Confirmation of Charges 918. In its Decision on the Confirmation of Charges, Pre-Trial Chamber I held that liability as a co-perpetrator under Article 25(3)(a) attaches only to individuals who can be said to have control over the crime.2596 919. The Confirmation Decision outlined three main approaches to
2595 2596

ICC-01/04-01/06-803-tEN, para. 410. ICC-01/04-01/06-803-tEN, paras 326338.

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distinguish between principals and accessories if a crime is committed by a number of individuals: the objective approach, the subjective approach and the control over the crime approach.2597 920. The Pre-Trial Chamber held that under the control over the crime approach, in contrast to the objective approach,2598 the principals to a crime are not limited to those who physically carry out the objective elements of the offence. Rather, principals also include those individuals who, in spite of their absence from the scene of the crime, control or mastermind its commission because they decide whether and, if so, how the offence will be committed.2599 921. The Pre-Trial Chamber described the subjective approach as mov[ing] the focus from the level of contribution to the commission of the offence as the distinguishing criterion between principals and accessories and plac[ing] it instead on the state of mind in which the contribution to the crime was made.2600 It was said that [a]s a result, only those who make their contribution with the shared intent to commit the offence can be considered principals to the crime, regardless of the level of their contribution to its commission. 2601 Declining to follow the subjective approach, the Pre-Trial Chamber held that the level or degree of the contribution to a crime was a central element in determining the liability of principals.2602

ICC-01/04-01/06-803-tEN, paras 326330. ICC-01/04-01/06-803-tEN, para. 328. 2599 ICC-01/04-01/06-803-tEN, para. 330. 2600 ICC-01/04-01/06-803-tEN, para. 329. 2601 ICC-01/04-01/06-803-tEN, para. 329. 2602 ICC-01/04-01/06-803-tEN, para. 329. An additional argument rejecting the subjective approach was made in paragraphs 334 and 335 of the Confirmation Decision: in the Pre-Trial Chambers view, those who know of the intent of a group of persons acting with a criminal purpose to commit a crime, or who aim to further the criminal activity by intentionally contributing to its commission (Article 25(3)(d) of the Statute) would be considered principals rather accessories to a crime, had the drafters of the Statute opted for a subjective approach for distinguishing between principals and accessories.
2598

2597

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922. Applying this interpretation of Article 25(3)(a), the Pre-Trial Chamber held that co-perpetration is rooted in the notion of the division of essential tasks for the purpose of committing a crime by two or more persons acting in a concerted manner.2603 As a result although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task.2604 923. In the Decision on the Confirmation of Charges, the Pre-Trial Chamber set out what it described as the objective elements of coperpetration as follows: (i) the existence of an agreement or common plan between two or more persons; 2605 and (ii) the co-ordinated essential contribution made by each co-perpetrator resulting in the realisation of the objective elements of the crime.2606 As regards the subjective elements of co-perpetration, it stated that [t]he Chamber [] requires above all that the suspect fulfil the subjective elements of the crime with which he or she is charged []. 2607 These subjective elements are said to be: (i) the suspect and the other co-perpetrators [] must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime; 2608 and (ii) the suspect must be aware of the factual circumstances enabling him or her to jointly control the crime.2609

2603 2604

ICC-01/04-01/06-803-tEN, para. 342. ICC-01/04-01/06-803-tEN, paras 342 and 347. 2605 ICC-01/04-01/06-803-tEN, para. 343. 2606 ICC-01/04-01/06-803-tEN, para. 346. 2607 ICC-01/04-01/06-803-tEN, para. 349. 2608 ICC-01/04-01/06-803-tEN, para. 361. 2609 ICC-01/04-01/06-803-tEN, para. 366.

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a) The Pre-Trial Chambers Conclusions on the Objective Elements 924. Addressing the first objective element (the existence of an agreement or common plan between two or more persons), the PreTrial Chamber held that the plan must include an element of criminality, although it does not need to be specifically directed at the commission of a crime.2610 The Chamber decided that it suffices:
(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or (ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a noncriminal goal) will result in the commission of the crime, and (b) accept such an outcome. 2611

925. Turning to the second objective element (a co-ordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime), the Pre-Trial Chamber indicated that only those to whom essential tasks have been assigned and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks can be said to have joint control over the crime.2612 b) The Pre-Trial Chambers Conclusions on the Subjective Elements 926. The Pre-Trial Chamber addressed the mental element of the crimes under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute. First, it noted that the general subjective element(s) for all crimes within the jurisdiction of the Court set out in Article 30 of the Statute apply

2610 2611

ICC-01/04-01/06-803-tEN, para. 344. ICC-01/04-01/06-803-tEN, para. 344. 2612 ICC-01/04-01/06-803-tEN, paras 342 and 347.

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unless otherwise provided.2613 In particular, the Pre-Trial Chamber indicated that intent and knowledge can only be established:
i) if the person is [aware] that a circumstance exists or a consequence will occur in the ordinary course of events; and ii) if the person means to engage in the relevant conduct and means to cause the relevant consequences or is aware that it will occur in the ordinary course of events.2614

927. It suggested that the cumulative reference to intent and knowledge requires the existence of a volitional element on the part of the suspect. This volitional element was described as encompassing three situations (dolus directus of the first degree, dolus directus of the second degree and dolus eventualis).2615 928. As the Pre-Trial Chamber observed, Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Elements of Crimes provide that the offence under consideration is committed if it is established that the accused knew or should have known that the relevant individual was under 15 years. 2616 It concluded that this is one of the exceptions to the requirement of intent and knowledge under Article 30.2617 929. Notwithstanding that conclusion, the Pre-Trial Chamber

determined that the should have known standard within the relevant Elements of Crimes was not applicable in the present case, given that co-perpetration based on joint control over the crime requires that all the co-perpetrators, including the suspect, be mutually aware of, and mutually accept, the likelihood that implementing the common plan would result in the realisation of the objective elements

2613 2614

ICC-01/04-01/06-803-tEN, para. 350. ICC-01/04-01/06-803-tEN, para. 350. 2615 ICC-01/04-01/06-803-tEN, paras 351-352. 2616 ICC-01/04-01/06-803-tEN, para. 357. 2617 ICC-01/04-01/06-803-tEN, para. 359.

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of the crime.2618 930. The Pre-Trial Chamber decided that mutual awareness and acceptance on the part of the co-perpetrators that the plan may result in the realisation of the objective elements of the crime justifies the conclusion that the individual contributions may be attributed to each participant and that each of them is to be held criminally responsible as principals to the whole crime.2619 931. The Pre-Trial Chamber distinguished between two scenarios as regards dolus eventualis: first, when there is a substantial risk the objective elements of the crime will occur (i.e. in the ordinary course of events), and second, when the risk is low. In the first scenario, mutual acceptance can be inferred from: (i) the awareness by the suspect and the other co-perpetrators of the substantial likelihood that implementing the common plan would result in the realisation of the objective elements of the crime; and (ii) the decision by the suspect and the other co-perpetrators to implement the common plan despite such awareness.2620 As to the second scenario, the participants must have clearly or expressly accepted the idea that implementing the common plan would result in the realisation of the objective elements of the crime.2621 932. The Pre-Trial Chamber further observed, with respect to the existence of an armed conflict, that the Elements of Crimes require only that [t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict, without going as far as to require that he or she conclude[s], on the basis of a legal assessment
2618 2619

ICC-01/04-01/06-803-tEN, para. 365. ICC-01/04-01/06-803-tEN, paras 361 and 362. 2620 ICC-01/04-01/06-803-tEN, para. 363. 2621 ICC-01/04-01/06-803-tEN, para. 364.

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of the said circumstances, that there was an armed conflict.2622 933. The Pre-Trial Chamber considered that an element of joint control over the crime is that the suspect was aware of the factual circumstances enabling him to jointly control the crime. It found this requires the suspect to be aware (i) that his or her role is essential to the implementation of the common plan, and hence in the commission of the crime, and (ii) that he or she can by reason of the essential nature of his or her task frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to perform the task assigned to him or her.2623 3. The Submissions a) The Prosecution Submissions on the Objective Elements of the Crime 934. In its closing submissions, the prosecution accepts that under coperpetration the accused, in the function or role assigned to him, needs to exercise control over the crime.2624 It is submitted that this can be established either because (i) he was assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed (emphasis added);2625 or (ii) the role assigned to the accused ex ante was central to the implementation of the plan, [but] it appears in retrospect that his or her contribution was substantial though not essential, to the

2622 2623

ICC-01/04-01/06-803-tEN, para. 360. ICC-01/04-01/06-803-tEN, para. 367. 2624 ICC-01/04-01/06-2748-Red, para. 64. 2625 ICC-01/04-01/06-2748-Red, para. 64.

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implementation of the common plan (original emphasis).2626 935. As to (i) above, the central role will be made out where an accused has actually made an essential contribution to the implementation of the common plan2627 (i.e. an ex post facto essentiality analysis). 936. As to (ii), the prosecution submits that [a] contribution is substantial where the crime might still have occurred absent the contribution of the Accused, but not without great difficulty.2628 The prosecution argues that functional control remains a requirement for this second scenario, as it is determined ex ante and on the basis of the role assigned to the Accused and not on the basis of the actual contribution.2629 937. Therefore, by the prosecutions formulation, the accused can be said to have had control over the crime either because his actual contribution at the execution stage was essential to the commission of the crime or the role assigned to the accused was central to the implementation of the plan but it appears in retrospect that his actual contribution was substantial though not essential.2630 938. The prosecution further asserts that it is not necessary to establish that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene. It is suggested it is unnecessary to prove that the objective elements of an offence have been personally perpetrated by the co-perpetrators. Instead, it is argued in accordance with the Confirmation Decision that it is sufficient for the prosecution to establish that the objective elements
2626 2627

ICC-01/04-01/06-2748-Red, para. 65. ICC-01/04-01/06-2748-Red, para. 65. 2628 ICC-01/04-01/06-2748-Red, para. 65. 2629 ICC-01/04-01/06-2748-Red, para. 65. 2630 ICC-01/04-01/06-2748-Red, para. 65.

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of (the) offence (were) carried out by a plurality of persons acting within the framework of a common plan.2631 939. The prosecution relies on the Pre-Trial Chambers finding that although the common plan need not be specifically directed at the commission of a crime, it must include an element of criminality.2632 Submissions on the Subjective Elements of the Crime 940. The prosecution submits that, in order to establish that the accused acted with intent, it must prove that he meant to engage in the relevant conduct and meant to bring about the objective elements of the crimes or was aware that they would occur in the ordinary course of events (Articles 30(2)(a) and (b) of the Statute).2633 As to knowledge, the prosecution suggests it must prove that the accused was aware of the existence of the circumstances relevant to the underlying crimes, and that, in the ordinary course of events, his conduct would bring about the objective elements of the crimes.2634 941. It is argued by the prosecution that in order to establish proof of the relevant circumstances of co-perpetration, it must establish (i) the Accused was aware that the common plan amounted to or involved the commission of a crime; and (ii) he was aware of the factual circumstances that enabled him to exercise functional control over the crime.2635 942. The prosecutions submissions on the impact of the Elements of Crimes on the mental element of the relevant offences are particularly

2631 2632

ICC-01/04-01/06-2748-Red, para. 66. ICC-01/04-01/06-2748-Red, footnote 105. 2633 ICC-01/04-01/06-2748-Red, para. 68. 2634 ICC-01/04-01/06-2748-Red, para. 69. 2635 ICC-01/04-01/06-2748-Red, para. 70.

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significant. For the crimes established under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), the Elements of Crime provides as regards the issue of age [t]he perpetrator should have known that such persons were under the age of 15 years. The prosecution suggests that since the accused has been charged as a co-perpetrator, [] in light of the general requirements for co-perpetration [], this special subjective element may not be applicable in this case (emphasis added).2636 This is further elaborated in the relevant footnote:
See the requirements of a common plan and of awareness by the accused that the plan involves the commission of a crime and that the implementation of the plan will bring about the objective elements of the crime in the ordinary course of events. In this case, the Prosecution argues that the Accused knew that children under the age of 15 would be conscripted, enlisted or used to participate actively in hostilities as a result of the implementation of the Common Plan.2637

943. This stance was confirmed in the Prosecutions Reply to the Conclusions finales de la Dfense:
The specific mens rea required for the crime of enlistment, as stipulated in Article 8 of the Rome Statute, is inapplicable in this case where the Accused is charged with co-perpetration based on joint control over the crimes. That the Accused, and all co-perpetrators, must be mutually aware of and accept the likelihood that implementing the common plan would result in the execution of the objective elements of the crimes, renders the should have known standard redundant. 2638

944. It follows that the prosecution does not invite a conviction of the accused on the basis that he should have known that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. Rather, it submits the Chamber should only convict the accused if the Chamber finds he knew that children under 15 years of age were being conscripted or enlisted into the national armed

2636 2637

ICC-01/04-01/06-2748-Red, para. 72. ICC-01/04-01/06-2748-Red, para. 72, footnote 123. 2638 ICC-01/04-01/06-2778-Red, para. 39.

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forces or were being used to participate actively in hostilities. 945. Finally, the prosecution submits that, while it must prove that the accused was aware of the factors that establish the existence of a relevant armed conflict, it does not have to prove that the accused was aware that those factors amounted to an armed conflict, whether international or non-international in character.2639 b) The Defence Submissions on the Objective Elements of the Crime 946. The defence suggests that under Article 67(1)(a) of the Statute, the accused is [to] be informed promptly and in detail of the nature, cause and content of the charge and, under Article 74(2), the Trial Chambers decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. It is argued against this statutory framework, his liability is to be assessed solely on the basis of the charges confirmed by the Pre-Trial Chamber. The defence relies on certain jurisprudence from the ad hoc tribunals to the effect that an accused should not be at risk of a conviction on a basis that differs from the mode of responsibility alleged when the proceedings were instituted. 2640 It is submitted that the indictment must concisely specify the crimes and the supporting facts, and identify the legal basis and the form of liability. Any ambiguity in this context is to be avoided.2641 It is argued the other modes of liability provided for in Articles 25(3)(b), (c), (d) and 28 of the Statute, as well

ICC-01/04-01/06-2748-Red, para. 73. ICC-01/04-01/06-2773-Red-tENG, paras 48 and 49; referring to ICTY, The Prosecutor v. Staki, Case No. IT-97-24-A, Appeals Chamber, Judgement, 22 March 2006, para. 62; ICTR, The Prosecutor v. Rukundo, Case No. ICTR-2001-70-A, Appeals Chamber, Judgement, 20 October 2010, para. 37. 2641 ICC-01/04-01/06-2773-Red-tENG, para. 50; referring to ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeals Chamber, Judgement, 17 September 2003, para. 138.
2640

2639

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as indirect involvement under Article 25(3)(a), are unavailable in this case, particularly given the absence of any application under Regulation 55 of the Regulations of the Court to modify the legal characterisation of the facts. 2642 Therefore, the defence argues the accused can only be guilty of an offence committed jointly with another person rather than committed through another person.2643 947. The defence takes issue with the Pre-Trial Chambers formulation of co-perpetration based on control over the crime, submitting it represents an excessively broad interpretation of Article 25(3)(a) and is in breach of Article 22(2).2644 948. Indeed, the defence suggests it is insufficient for the prosecution to prove that the accused had the power to frustrate the crimes or to punish the perpetrators. 2645 Instead, it is contended the prosecution must establish a positive, personal and direct contribution without which the crime would not have existed.2646 The defence argues that the responsibility of those who do not participate directly in the execution of a crime can only be based on Article 25(3)(b).2647 949. The defence advocates a more restrictive co-perpetration test than that set out by the Pre-Trial Chamber. In particular, the defence asserts Article 25(3)(a) requires a positive act of participation that is personally and directly undertaken by the accused himself. 2648 The defence argues the use of the verb commits means that by his personal acts the accused must have made a contribution without

2642 2643

ICC-01/04-01/06-2773-Red-tENG, paras 5056. ICC-01/04-01/06-2773-Red-tENG, para. 57. 2644 ICC-01/04-01/06-2773-Red-tENG, para. 65; ICC-01/04-01/06-803-tEN, para. 341. 2645 ICC-01/04-01/06-2773-Red-tENG, para. 65. 2646 ICC-01/04-01/06-2773-Red-tENG, para. 65. 2647 ICC-01/04-01/06-2773-Red-tENG, para. 67. 2648 ICC-01/04-01/06-2773-Red-tENG, para. 68.

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which the crime would not have occurred.2649 950. Moreover, the defence submits that under Article 25(3)(a), the contribution of the accused must have been essential, in the sense the crime would not have been committed absent his contribution. In other words, the contribution must have been a conditio sine qua non for the commission of the crime.2650 951. The defence contends that the determination of whether the accuseds role was essential must be made in light of the established facts and it should not be based on the role assigned to him within the overall plan, in the abstract. The defence puts the matter thus:
It follows that responsibility under article 25(3)(a) requires direct participation in the crime itself in the form of a contribution of greater magnitude than that required for complicity, that is to say, an essential contribution to the commission of the crime. The contribution required under article 25(3)(a) must be such that the crime would not have been committed had there been no such contribution. It must be a conditio sine qua non for the commission of the crime. Contrary to the argument advanced by the Prosecutor, the essential character of this contribution must be assessed in the light of the events as they actually occurred and not, abstractly, having regard to the role assigned to the accused within the framework of a prior concerted plan.2651

952. In support of this position, the defence relies on the Pre-Trial Chambers decision confirming the charges in the Katanga and Ngudjolo case.2652 953. Furthermore, the defence submits the approach adopted by the ad hoc tribunals whereby the alleged participation of aiders, abettors and accomplices must substantially contribute to the crime, while coperpetration requires an essential contribution, further reinforces the
ICC-01/04-01/06-2773-Red-tENG, para. 65; ICC-01/04-01/06-803-tEN, para. 341. ICC-01/04-01/06-2773-Red-tENG, para. 64. 2651 ICC-01/04-01/06-2773-Red-tENG, para. 64. 2652 The Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, para. 525; ICC-01/04-01/06-2773-Red-tENG, para. 64, footnote 59.
2650 2649

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contention that responsibility under Article 25(3)(a) involves a significantly greater contribution than that required for complicity.2653 954. It follows the defence takes issue with the prosecutions contention that a substantial contribution to the execution of a plan is sufficient. 955. The defence argues that to establish criminal liability on the basis of co-perpetration, the common plan must be intrinsically criminal. It is submitted that participation in a plan which in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration. 2654 Therefore, it is suggested mere knowledge of the risk that implementing the common plan will result in the commission of the crime is insufficient to engage criminal responsibility by way of co-perpetration.2655 Submissions on the Subjective Elements of the Crime 956. The defence submits the prosecution must prove that the accused had the relevant level of intent and knowledge when carrying out the material elements of the crime (Article 30(1) of the Statute). The defence argues an accused can only be considered to have had the requisite intention if he meant to engage in the conduct and, as to consequences, he either meant to cause them or was aware that they would occur in the ordinary course of events (Article 30(2)(a) and (b)). 2656 Similarly, Article 30 provides that intent and knowledge [] mean an awareness that a circumstance exists or a consequence

2653 2654

ICC-01/04-01/06-2773-Red-tENG, paras 63 and 64. ICC-01/04-01/06-2773-Red-tENG, para. 77. 2655 ICC-01/04-01/06-2773-Red-tENG, para. 78. 2656 ICC-01/04-01/06-2773-Red-tENG, paras 858, 865.

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will occur in the ordinary course of events.2657 957. The defence challenges the approach of the Pre-Trial Chamber that mens rea is established if the accused is aware of the risk that the objective elements of the crime may result from his or her actions or omissions and accepts such an outcome by reconciling himself or herself with it or consenting to it [also known as dolus eventualis]. The defence observes the Pre-Trial Chamber based its conclusions on the first instance Decision in The Prosecutor v. Milomir Staki.2658 It contends awareness that something will happen in the ordinary course of events is not to be equated with the accuseds awareness of a risk that the crime will occur, particularly if that result is improbable. In essence, the defence suggests the concept of dolus eventualis, an indirect intention that arises when the possibility of a certain consequence is appreciated by the accused, but he or she proceeds with a reckless disregard as to whether it will occur, does not form any part of Article 30.2659 To this extent, the defence adopts the approach of Pre-Trial Chamber II when it concluded:
[] the suspect could not be said to have intended to commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a virtually certain consequence of the implementation of the common plan.2660 The text of article 30 of the Statute does not encompass dolus eventualis, recklessness or any lower form of culpability.2661

958. Finally, the defence refers approvingly to the conclusion of Pre-Trial Chambers I and II that one of the requirements is that:

ICC-01/04-01/06-2773-Red-tENG, para. 79. ICTY, The Prosecutor v. Staki, Case No. IT-97-24-T, Trial Chamber, Judgement, 31 July 2003, para. 587; ICC-01/04-01/06-2773-Red-tENG, para. 80, referring to ICC-01/04-01/06-803-tEN, para. 352, which quotes this ICTY judgement. 2659 ICC-01/04-01/06-2773-Red-tENG, paras 81-82. 2660 ICC-01/04-01/06-2773-Red-tENG, para. 83. 2661 ICC-01/04-01/06-2773-Red-tENG, para. 82; ICC-01/05-01/08-424, para. 369.
2658

2657

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[] the suspect must be "aware of his essential role in the implementation of the crime" and must be aware, "due to such essential role, [that he is] capable of frustrating its implementation and accordingly, the commission of the crime".2662

959. This requirement has been similarly described by Pre-Trial Chamber II, namely that a co-perpetrator must be aware of his essential role in the implementation of the crime; and [] due to such essential role, [] be capable of frustrating its implementation and accordingly the commission of the crime.2663 960. Focussing on the mental element for crimes under Article 8(2)(b)(xxvi) and 8(2)(e)(vii) as expressly set out in the Elements of Crimes that the perpetrator knew or should have known that such person or persons were under the age of 15 years the defence accepts this is a statutory exception to the requirement under Article 30 that the accused must have had knowledge of the material elements, together with the necessary intent. However, it is submitted that, as an exception, it should be interpreted most strictly. 2664 Therefore, it is argued that the expression should have known requires the finding that the accused was legally obliged, either under domestic or international law, to establish the age of the recruits and that a lesser, loosely-formulated obligation simply based on his involvement in recruitment is insufficient.2665 Further, it is submitted this legal obligation must be assessed in the context of the circumstances of the case. For instance, it would be relevant if the accused was unable to check the age of the recruits.2666

ICC-01/04-01/06-2773-Red-tENG, para. 85, referring to ICC-01/04-01/06-803-tEN, paras 366-367 and ICC-01/05-01/08-424, para. 371. 2663 ICC-01/05-01/08-424, para. 371. 2664 ICC-01/04-01/06-2773-Red-tENG, para. 87. 2665 ICC-01/04-01/06-2773-Red-tENG, para. 88. 2666 ICC-01/04-01/06-2773-Red-tENG, para. 89.

2662

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c) The Legal Representatives of Victims The OPCVs Submissions on the Objective Elements of the Crime 961. The OPCV supports, in its entirety, the approach adopted by the Pre-Trial Chamber in the Confirmation Decision as regards the elements of co-perpetration based on joint control over the crime.2667 962. The OPCV additionally endorses a particular aspect of Pre-Trial Chamber Is decision in the confirmation of charges in the Katanga and Ngudjolo case, namely that the commission of a crime through another person can be based on the notion of control over an organisation and it is suggested that this is a widely accepted legal concept.2668 963. The OPCV submits that the forms of individual criminal responsibility set out in Articles 25(3)(b), 25(3)(c), 25(3)(d) and 28 of the Statute are subordinate to those in article 25(3)(a), and it is suggested that although they may be applicable under the crime[s] defined in article[s] 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, they can only be taken into account if the Chamber decides that the accused person cannot be considered as the principal to the crime imputed to him either individually or as co-perpetrator.2669 The OPCVs Submissions on the Subjective Elements of the Crime 964. Addressing the mental element of the war crimes established by Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), the OPCV submits that although the prosecution must prove that the accused met the intent and knowledge requirements of Article 30, as regards the age of the child
2667 2668

ICC-01/04-01/06-2744-Red-tENG, paras 22-26. ICC-01/04-01/06-2744-Red-tENG, paras 27-28. 2669 ICC-01/04-01/06-2744-Red-tENG, para. 29.

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or children, the requirement is that of negligence: the perpetrator should have known that the person or persons were under the age of 15 years.2670 As to the mental element of Article 30, the OPCV interprets it as follows:
[] the individual concerned (i) knows that his or her actions or omissions will bring about the objective elements of the crime, and (ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree).2671

965. However, it is suggested that intention on the part of the accused can also be established in the following two ways:
The aforementioned intentional element also encompasses other manifestations of dolus such as (i) those situations in which the individual in question, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary result of his or her actions or omissions (also known as dolus directus of the second degree), and (ii) those situations in which the individual concerned (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts this result by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).2672

966. As regards the should have known test for the age of the child or the children, the OPCV submits this is met if the accused:
(i) did not know that the victims were under the age of fifteen years at the time they were enlisted, conscripted or used to participate actively in hostilities; and (ii) lacked such knowledge as a result of having failed to act with due diligence in the circumstances in question (it can only be said that the individual should have known if the individuals lack of knowledge is due to a failure to comply with his or her duty to act with due diligence).2673

967. The OPCV observes this is an exception to the intent and knowledge requirement established in Article 30 that is to be applied as regards the age of the person or the persons concerned. Otherwise, the Article 30 requirement is applicable to the elements of the war
2670 2671

ICC-01/04-01/06-2744-Red-tENG, para. 16. ICC-01/04-01/06-2744-Red-tENG, para. 16. 2672 ICC-01/04-01/06-2744-Red-tENG, para. 17. 2673 ICC-01/04-01/06-2744-Red-tENG, para. 19.

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crimes under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), and including the existence of an armed conflict and the nexus between the acts charged and the armed conflict.2674 Submissions of the Legal Representatives of the V01 and V02 Groups of Victims on the Objective Elements of the Crime 968. The legal representatives of the V01 and V02 groups of victims did not address the objective requirements. Submissions of the Legal Representatives of the V01 and V02 Groups of Victims on the Mental Element of the Crime 969. The legal representatives of the V01 group of victims accept that Article 30 requires that the material elements of a crime must be committed with intent and knowledge.2675 However, they argue if the accused was in doubt as to the age of the children, this would not preclude a conviction. 2676 It is suggested this issue should be approached on the basis of the true context of the case, namely that Thomas Lubanga is accused of having recruited an entire army consisting mainly of minors, many of whom were children under the age of 15 years. It is argued that the Court should consider, in light of the extent of the recruitment in Ituri, a militia of several thousand people, whether he knew or should have known that that would necessarily entail the recruitment of children under the age of 15 years.2677 The legal representatives note in a country or region where the majority of births are not registered in a civil status registry, where minors do not hold an identity document stating their age, and where many children and even adults do not know their own age, the issue

2674 2675

ICC-01/04-01/06-2744-Red-tENG, para. 19. ICC-01/04-01/06-2746-Red-tENG, para. 39. 2676 ICC-01/04-01/06-2746-Red-tENG, paras 40 and 43. 2677 ICC-01/04-01/06-2746-Red-tENG, para. 43.

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arises as to how a recruiter must act when faced with a child whose age is unknown.2678 970. It is argued the use of child soldiers in the DRC is a phenomenon that stretches back to the mid-1990s2679 and that when the UPC army was created the use of child soldiers in armed groups was the rule, not the exception. 2680 In those circumstances, it is submitted Mr Lubanga must have known that in order to avoid recruiting child soldiers into this new armed group, strict instructions prohibiting their conscription or enlistment were necessary.
2681

Finally, the legal

representatives suggest the accused could not have been unaware of the unlawful and criminal nature of this practice.2682 971. The legal representatives of the V02 group of victims adopt a broadly similar position to the OPCV as regards the mental element the prosecution is required to establish. They submit that Pre-Trial Chamber I correctly identified Article 30, with its requirement of intent and knowledge, as providing the applicable mental element for the crimes charged, 2683 with the exception of the should have known level of knowledge about the ages of children who were recruited.2684 The Chamber notes the V02 legal representatives did not advance any submissions on the Pre-Trial Chambers final conclusions that this lower standard does not apply in the circumstances of this case, on the basis that the accused is charged as a co-perpetrator.

2678 2679

ICC-01/04-01/06-2746-Red-tENG, para. 41. ICC-01/04-01/06-2746-Red-tENG, para. 44. 2680 ICC-01/04-01/06-2746-Red-tENG, para. 47. 2681 ICC-01/04-01/06-2746-Red-tENG, paras 44-48. 2682 ICC-01/04-01/06-2746-Red-tENG, para. 50. 2683 ICC-01/04-01/06-2747-Red-tENG, paras 90-91. 2684 ICC-01/04-01/06-2747-Red-tENG, paras 92-95.

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4. Relevant provisions 972. In accordance with Article 21 of the Statute, the Chamber has considered the following provisions. 973. Article 25 of the Statute establishes the modes of individual criminal responsibility under the Statute, as follows:
Article 25 Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, 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, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

974. Article 30 establishes the general mental element required for all the

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crimes under the jurisdiction of the Court:

Article 30 Mental element 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. 2. For the purposes of this article, a person has intent where: a) In relation to conduct, that person means to engage in the conduct; 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. 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.

975. The mental element and the application of Article 30 is addressed in the Elements of Crimes in the General Introduction and the section concerning crimes under Article 8:
Elements of Crimes General Introduction [] 2. As stated in article 30, 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. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below. 3. Existence of intent and knowledge can be inferred from relevant facts and circumstances. []

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Article 8 War crimes Introduction The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, paragraph 2 (d) and (f), which are not elements of crimes. The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea. With respect to the last two elements listed for each crime: (a) There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or noninternational; (b) In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or noninternational; (c) There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms took place in the context of and was associated with. Article 8 (2) (e) (vii) War crime of using, conscripting and enlisting children Elements [] 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

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5. Analysis a) The Objective Requirements 976. In the view of the Majority, both the Romano Germanic and the Common Law legal systems have developed principles about modes of liability. However, at their inception, neither of these systems was intended to deal with the crimes under the jurisdiction of this Court, i.e. the most serious crimes of concern to the international community as a whole. The Statute sets out the modes of liability in Articles 25 and 28 and, they should be interpreted in a way that allows properly expressing and addressing the responsibility for these crimes. 977. Articles 25(3)(a) to (d) establish the modes of individual criminal responsibility under the Statute, other than the [r]esponsibility of commanders and other superiors, which is addressed in Article 28. Under Article 25(3)(a), an individual can be convicted of committing a crime: (i) individually; (ii) jointly with another; or (iii) through another person. Under Articles 25(3)(b) to (d), an individual can be convicted of: (i) ordering, soliciting or inducing a crime; (ii) acting as an accessory to a crime; or (iii) contributing to a crime committed by a group acting with a common purpose. 978. The Pre-Trial Chamber decided, pursuant to Article 61(7) of the Statute, there was sufficient evidence to establish substantial grounds to believe that Mr Lubanga committed the crimes charged, under Article 25(3)(a), as a direct co-perpetrator. The Chamber will limit its analysis of Mr Lubangas responsibility to this mode of liability. 979. In considering the scope of liability under Article 25(3)(a) of the

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Rome Statute, the Chamber notes, as set out above,2685 that the Appeals Chamber has stated that the provisions of the Statute are to be interpreted in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties. 2686 Hence, the relevant elements of Article 25(3)(a) of the Statute, that the individual commits such a crime [] jointly with another [] person, must be interpreted in good faith in accordance with the ordinary meaning to be given to the language of the Statute, bearing in mind the relevant context and in light of its object and purpose.2687 (1) The Common Plan or Agreement 980. Article 25(3)(a) stipulates that a crime can be committed not only by an individual acting by himself or through another person, but also by an individual who acts jointly with another. To establish liability as a co-perpetrator under Article 25(3)(a), it is necessary there are at least two individuals involved in the commission of the crime. This is evident from the use of terms jointly with another in Article 25(3)(a). 981. As the Pre-Trial Chamber concluded, co-perpetration requires the existence of an agreement or common plan between the coperpetrators. This provides for a sufficient connection between the

See paras 601-602. See Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal", 13 July 2006, ICC-01/04-168, para. 33; The Prosecutor v. Katanga and Ngudjolo, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07-522, paras 38 and 39; Judgment 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 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", 21 October 2008, ICC-01/04-01/06-1486, para. 40; The Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, footnote 74. 2687 Vienna Convention on the Law of Treaties, adopted on 23 May 1969 and entered into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, Article 31(1).
2686

2685

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individuals

who

together

commit

the

crime

and

it

allows

responsibility to be established on a joint basis.2688 982. As set out above, the Pre-Trial Chamber decided that the plan must include an element of criminality, although it does not need to be specifically directed at the commission of a crime. 2689 In the Confirmation Decision, it was held to be sufficient:
(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or (ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a noncriminal goal) will result in the commission of the crime, and (b) accept such outcome. 2690

983. While the prosecution supports this interpretation,2691 the defence argues that in order to establish criminal liability on the basis of coperpetration, the common plan must be intrinsically criminal. It is argued that participation in a plan which in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration.
2692

Therefore, it is suggested mere

knowledge of the risk that implementing the common plan will result in the commission of the crime is insufficient to engage criminal responsibility by way of co-perpetration.2693 984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing

2688 2689

ICC-01/04-01/06-803-tEN, para. 343. ICC-01/04-01/06-803-tEN, para. 344. 2690 ICC-01/04-01/06-803-tEN, para. 344. 2691 ICC-01/04-01/06-2748-Red, footnote 105. 2692 ICC-01/04-01/06-2773-Red-tENG, para. 77. 2693 ICC-01/04-01/06-2773-Red-tENG, para. 78.

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the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed. 985. In order to establish the statutory scope of this first objective requirement, the Majority of the Chamber finds guidance in the manner that the plan is mirrored in the mental element. A combined reading of Articles 25(3)(a) and 30 leads to the conclusion that committing the crime in question does not need to be the overarching goal of the co-perpetrators. 986. The conscription, enlistment and use of children under the age of 15 and using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of the common plan.2694 Under Article 30(2)(b), intent is established if the person is aware that a consequence will occur in the ordinary course of events. Similarly, Article 30(3) provides that knowledge of a consequence means awareness that it (the consequence) will occur in the ordinary course of events. Hence, in the view of the Majority, the mental requirement that the common plan included the commission of a crime will be satisfied if the co-perpetrators knew that, in the ordinary course of events, implementing the plan will lead to that result. Knowledge, defined as awareness by the co-perpetrators that a consequence will occur (in the future), necessarily means that the co-

2694

ICC-01/04-01/06-2748-Red, paras 74 and 75.

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perpetrators are aware of the risk that the consequence, prospectively, will occur. This interpretation is discussed in greater detail below in the section dealing with the mental element. 987. The Majority of the Chamber concludes that as to the objective part of this requirement, this means that the agreement on a common plan leads to co-perpetration if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed. 988. Furthermore, co-perpetration does not require that the agreement or the common plan is explicit in order for the individual conduct of each co-perpetrator to be connected.2695 Finally, although direct evidence of the plan is likely to assist in demonstrating its existence, this is not a legal requirement. The agreement can be inferred from circumstantial evidence. (2) The Essential Contribution 989. The Pre-Trial Chamber concluded that the contribution of the alleged co-perpetrator must be essential. 2696 It stated its conclusion as follows:
In the view of the Chamber, when the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks can be said to have joint control over the crime.2697

990. The prosecution submits that co-perpetration requires that the accused has functional control over the crime:
This means that, when conceiving the common plan, the Accused must have
2695 2696

ICC-01/04-01/06-803-tEN, para. 345. ICC-01/04-01/06-803-tEN, paras 342 and 347. 2697 ICC-01/04-01/06-803-tEN, para. 347.

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been assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed. This concept has been labelled as functional control. 2698

991. However, the prosecution qualifies this suggested requirement by submitting that as long as the accused was assigned a central role in the implementation of the plan, it will suffice if in retrospect it appears his or her contribution was substantial, rather than essential. A substantial contribution is said to be established when the crime might still have occurred absent the contribution of the Accused, but not without great difficulty.2699 992. The defence contends that a substantial contribution is

insufficient. It argues the contribution should be conditio sine qua non of the crime and this requirement must be assessed in light of the facts as they actually occurred, rather than assessed on the basis of the role assigned to the accused within the framework of a pre-agreed plan.2700 993. An analysis of the accuseds contribution gives rise to two interrelated questions. The first question is whether it is necessary for the prosecution to establish a connection between the accuseds contribution, taken in isolation, and the crimes that were committed. The second question relates to the nature of the contribution that gives rise to joint responsibility: should it be described as either more than de minimis, substantial or essential? 994. In the view of the Majority of the Chamber, the wording of Article 25(3)(a), namely that the individual commits such a crime [] jointly with another, requires that the offence be the result of the combined

2698 2699

ICC-01/04-01/06-2748-Red, para. 64. ICC-01/04-01/06-2748-Red, para. 65. 2700 ICC-01/04-01/06-2773-Red-tENG, para. 64.

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and coordinated contributions of those involved, or at least two of them. None of the participants exercises, individually, control over the crime as a whole but, instead, the control over the crime falls in the hands of a collective as such.2701 Therefore, the prosecution does not need to demonstrate that the contribution of the accused, taken alone, caused the crime; 2702 rather, the responsibility of the co-perpetrators for the crimes resulting from the execution of the common plan arises from mutual attribution, based on the joint agreement or common plan. 995. Article 25(3)(a) must be read in the context of the section establishing the modes of liability, in accordance with the Appeals Chambers jurisprudence set out above.2703 996. Both Articles 25(3)(a) and (d) address the situation in which a number of people are involved in a crime. In the judgment of the Majority, the critical distinction between these provisions is that under Article 25(3)(a) the co-perpetrator commits the crime, whilst under Article 25(3)(d) the individual contributes in any other way to the commission of a crime by a group of individuals acting with a common purpose. The Majoritys view is that a systematic reading of these provisions leads to the conclusion that the contribution of the coperpetrator who commits a crime is necessarily of greater significance than that of an individual who contributes in any other way to the commission of a crime. 997. Article 25(3)(c) establishes the liability of accessories those who aid, abet or otherwise assist in the commission or attempted
2701 Stratenwerth, Schweizerisches Strafrecht, Allgemeiner Teil I, Die Straftat (2011), 13/49; Maurach/Gssel/Zipf, Strafrecht, Allgemeiner Teil, second volume (1989), page 288. 2702 Claus Roxin, Strafrecht Allgemeiner Teil, volume II (2003), 25/213. 2703 See paras 601-602.

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commission of the crime. In the view of the Majority, principal liability objectively requires a greater contribution than accessory liability. If accessories must have had a substantial effect on the commission of the crime2704 to be held liable, then co-perpetrators must have had, pursuant to a systematic reading of this provision, more than a substantial effect. 998. The conclusion that principal liability must require more than accessory liability is supported, in the view of the Majority, by the statutory provision on attempt liability (Article 25(3)(f) of the Statute). Only those individuals who attempt to commit a crime, as opposed to those who participate in a crime committed by someone else, can be held liable under that provision. The same conclusion is supported by the plain language of Articles 25(3)(b) and (c), which require for secondary liability that the perpetrator at least attempt to commit the crime. As such, secondary liability is dependent on whether the perpetrator acts. Conversely, principal liability, which is closer to the violation of the legal interests protected by the norm, is not the subject of such dependence. Hence, the Majority concludes that this confirms
ICTY, The Prosecutor v. Tadi, Case No. IT-94-1-T, Trial Chamber, Opinion and Judgment, 7 May 1997, paras 688 692; ICTY, The Prosecutor v. Delali et al., Case No. IT-96-21-T, Trial Chamber, Judgement, 16 November 1998, paras 325 329; ICTY, The Prosecutor v. Naletili & Martinovi, Case No. IT-98-34-T, Trial Chamber, Judgement, 31 March 2003, para. 63; ICTY, The Prosecutor v. Blagojevi & Joki, Case No. IT-02-60-T, Trial Chamber, Judgement, 17 January 2005, para.726; ICTY, The Prosecutor v. Muci et al., Case No. IT-96-21-A, Judgement, Appeals Chamber, 20 February 2001, para. 352; ICTY, The Prosecutor v. Furundija, Case No. IT-95-17/1-T, Trial Chamber, Judgement, 10 December 1998, paras 226, 229, 231, 233 235; ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Trial Chamber, Judgement, 25 June 1999, para. 61; ICTY, The Prosecutor v. Tadi, Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, para. 229; ICTY, The Prosecutor v. Vasiljevi, Case No. IT-98-32-A, Appeals Chamber, Judgement, 25 February 2004, para. 102; ICTY, The Prosecutor v. Blaki, Case No. IT-95-14-A, Appeals Chamber, Judgement, 29 July 2004, paras 46, 48; ICTY, The Prosecutor v. Branin, Case No. IT-99-36-T, Trial Chamber, Judgement, 1 September 2004, para. 271; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, para. 43; ICTR, The Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, Judgement and Sentence, 27 January 2000, para. 126; ICTR, The Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Chamber, Judgment, 22 January 2004, para. 597; ICTR, The Prosecutor v. Ntakirutimana & Ntakirutimana, Case No. ICTR-96-10 & ICTR96-17-T, Trial Chamber, Judgment, 21 February 2003, para. 787; SCSL, CDF Appeal Judgment, para. 73.
2704

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the predominance of principal over secondary liability, which, in turn, supports a notion of principal liability that requires a greater contribution than accessory liability. 999. The Majority is of the view that the contribution of the coperpetrator must be essential, as has been consistently and invariably established in this Courts jurisprudence.2705 The Statute differentiates between the responsibility and liability of those persons who commit a crime (at Article 25(3)(a)) and those who are accessories to it (at Articles 25(3)(b) to (d)). It would be possible to expand the concept of principal liability (or commission or perpetration), to make it more widely applicable, by lowering the threshold that the accuseds contribution be essential. However, lowering that threshold would deprive the notion of principal liability of its capacity to express the blameworthiness of those persons who are the most responsible for the most serious crimes of international concern. Instead, a notion of coperpetration that requires an essential contribution allows for the
ICC-01/04-01/06-803-tEN, paras 346-348; The Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of the charges, 30 September 2008, ICC-01/04-01/07-717, paras 524 to 526; The Prosecutor v. Bemba, Decision pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009, ICC-01/05-01/08-424, para 350; The Prosecutor v. Banda and Jerbo, Corrigendum of the "Decision on the Confirmation of Charges, ICC-02/05-03/09-121Corr-Red, 7 March 2011, paras 136-138; The Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, 8 February 2010, ICC-02/05-02/09-243-Red, para. 153; The Prosecutor v. Callixte Mbarushimana, Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, 28 September 2010, ICC-01/04-01/10-1, para. 30, and Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/10-465-Red, paras 273 and 279; The Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3, para. 212; The Prosecutor v. Ruto, Kosgey and Sang, Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March 2011, ICC-01/09-01/11-01, para. 40, and Decision on the Confirmation of Charges against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 23 January 2012, ICC-01/09-01/11-373, para. 40; The Prosecutor v. Muthaura, Kenyatta and Ali, Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011, ICC-01/09-02/11-01, para. 36, and Decision on the Confirmation of Charges against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 23 January 2012, ICC-01/09-02/11-382-Red, paras 297, 401404 and 419; The Prosecutor v. Gbagbo, Warrant of Arrest for Laurent Koudou Gbagbo, 23 November 2011, ICC-02/11-01/11-1, para. 10; the Chamber established that by implementing the plan, the coperpetrators exercised joint control over the crimes. Given the position of each member and their role as regards the plan, they made a coordinated and essential contribution to its realisation [emphasis added].
2705

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different degrees of responsibility to be properly expressed and addressed. 1000. The determination as to whether the particular contribution of

the accused results in liability as a co-perpetrator is to be based on an analysis of the common plan and the role that was assigned to, or was assumed by the co-perpetrator, according to the division of tasks.2706 In the view of the Majority what is decisive is whether the co-perpetrator performs an essential role in accordance with the common plan, and it is in this sense that his contribution, as it relates to the exercise of the role and functions assigned to him, must be essential. 1001. Furthermore, the co-perpetrators role is to be assessed on a

case-by-case basis. This assessment involves a flexible approach, undertaken in the context of a broad inquiry into the overall circumstances of a case. 1002. The defence submits that co-perpetration requires personal and

direct participation in the crime itself,2707 and that the responsibility of those who do not participate directly in the execution of a crime is reflected in Article 25(3)(b) rather than Article 25(3)(a).2708 It contends that Article 25(3)(a) requires direct participation in the crime.2709

2706

Thomas Weigend, Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges, Journal of International Criminal Justice 6 (2008), page 480; Stratenwerth/Kuhlen Allgemeiner Teil I, Die Straftat (2011), 12/83. See also Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, Journal of International Criminal Justice 5 (2007), page 962; Gerhard Werle, Principles of International Criminal Law (2009), paras 466 to 468 and 472; Roger S. Clark, Drafting a general part to a penal code: some thoughts inspired by the negotiations on the Rome Statute of the International Criminal Court and by the Courts first substantive law discussion in the Lubanga Dyilo confirmation proceedings, Criminal law forum (2008), pages 545 et seq; William A. Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 429; Kai Ambos, La parte general del derecho penal internacional (2005), page 189. 2707 ICC-01/04-01/06-2773-Red-tENG, para. 66. 2708 ICC-01/04-01/06-2773-Red-tENG, para. 67. 2709 ICC-01/04-01/06-2773-Red-tENG, para. 73.

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1003.

However, the Chamber agrees with the conclusions, firstly, of

the Pre-Trial Chamber that criminal liability in this context is not limited to those who physically carry out the objective elements of the offence, but also include(s) those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed. 2710 Secondly, the Chamber agrees with the prosecution that [i]t is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene.2711 1004. Those who commit a crime jointly include, inter alia, those who

assist in formulating the relevant strategy or plan, become involved in directing or controlling other participants or determine the roles of those involved in the offence. This conclusion makes it unnecessary for the prosecution to establish a direct or physical link between the accuseds contribution and the commission of the crimes. 1005. Hence, the Chamber is of the view that the accused does not

need to be present at the scene of the crime, so long as he exercised, jointly with others, control over the crime. 1006. The Majority therefore concludes that the commission of a crime

jointly with another person involves two objective requirements: (i) the existence of an agreement or common plan between two or more persons that, if implemented, will result in the commission of a crime; and (ii) that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime. These two requirements must be assessed on the basis of all the

2710 2711

ICC-01/04-01/06-803-tEN, para. 330. ICC-01/04-01/06-2748-Red, para. 66.

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evidence related to the alleged crime. b) The Mental Element 1007. Article 30 defines the requirement of intent by reference to

three particular factors: conduct, consequence and circumstance. First, pursuant to Article 30(2)(a), a person has intent if he or she means to engage in the conduct. Second, under Article 30(2)(b) and in relation to a consequence, it is necessary that the individual means to cause that consequence or is aware that it will occur in the ordinary course of events. Third, by Article 30(3) knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. 1008. As noted earlier, the Pre-Trial Chamber decided that the

subjective elements that the suspect must fulfil2712 are the following: (i) [t]he suspect and the other co-perpetrators [] must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and [] must all mutually accept such a result by reconciling themselves with it or consenting to it; 2713 and (ii) the awareness by the suspect of the factual circumstances enabling him or her to jointly control the crime.2714 1009. The Pre-Trial Chamber decided that the cumulative reference

to intent and knowledge in Article 30 means there must be a volitional element on the part of the accused. This encompasses not only situations in which the suspect:

2712 2713

ICC-01/04-01/06-803-tEN, para. 349. ICC-01/04-01/06-803-tEN, para. 361. 2714 ICC-01/04-01/06-803-tEN, para. 366.

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i) knows that his or her actions or omissions will bring about the objective elements of the crime, and ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree) 2715

but also the other forms of the concept of dolus. 2716 The Pre-Trial Chamber was of the view that these include:
i) situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree);2717 and ii) situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).2718

1010.

The Pre-Trial Chamber considered that within dolus eventualis

two kinds of scenarios are distinguishable. First, if the coperpetrator was aware of a substantial risk that his conduct will bring about the objective elements of the crime, his intent can be inferred from the fact that he acted in the manner agreed in spite of this level of awareness.2719 Second, if there was a low risk of bringing about the objective elements of the crime, the suspect must have clearly or expressly accepted the idea that such objective elements may result from his or her actions or omissions.2720 1011. The conscription or enlistment of children under the age of 15 or

using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of a common

2715 2716

ICC-01/04-01/06-803-tEN, para. 351. ICC-01/04-01/06-803-tEN, para. 352. 2717 ICC-01/04-01/06-803-tEN, para. 352. 2718 ICC-01/04-01/06-803-tEN, para. 352. 2719 ICC-01/04-01/06-803-tEN, para. 353. 2720 ICC-01/04-01/06-803-tEN, paras 354 and 364.

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plan.2721 The drafting history of the Statute suggests that the notion of dolus eventualis, along with the concept of recklessness, was deliberately excluded from the framework of the Statute (e.g. see the use of the words unless otherwise provided in the first sentence of Article 30).2722 The plain language of the Statute, and most particularly the use of the words will occur in Article 30(2)(b) as opposed to may occur, excludes the concept of dolus eventualis.2723 The Chamber accepts the approach of Pre-Trial Chamber II on this issue.2724 1012. In the view of the Majority of the Chamber, the awareness that

a consequence will occur in the ordinary course of events means that the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future. This prognosis involves consideration of the concepts of possibility and probability, which are inherent to the notions of risk and danger. Risk is defined as danger, (exposure to) the possibility of loss, injury or other adverse circumstance. 2725 The co-perpetrators only know the consequences of their conduct once they have occurred. At the time the co-perpetrators agree on a common plan and throughout its implementation, they must know the existence of a risk that the consequence will occur. As to the degree of risk, and pursuant to the wording of Article 30, it must be no less than awareness on the
ICC-01/04-01/06-2748-Red, paras 74 and 75. Roger S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the elements of offences, Criminal Law Forum (2001), page 301; Roger S. Clark, Drafting a General Part to a Penal Code: some thoughts inspired by the negotiations on the Rome Statute of the International Criminal Court and by the Courts first substantive law discussion in the Lubanga Dyilo confirmation proceedings, Criminal Law Forum (2008), page 529; War Crimes Research Office, Modes of Liability and the Mental Element: Analyzing the early jurisprudence of the International Criminal Court, Washington College of Law, American University (September 2010), page 69 et seq. 2723 War Crimes Research Office, Modes of Liability and the Mental Element: Analyzing the early jurisprudence of the International Criminal Court, Washington College of Law, American University (September 2010), page 69 et seq. 2724 ICC-01/05-01/08-424, paras 364-369. 2725 See Oxford Dictionary (2002, 5th ed).
2722 2721

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part of the co-perpetrator that the consequence will occur in the ordinary course of events. A low risk will not be sufficient. 1013. The Chamber is of the view that the prosecution must establish,

as regards the mental element, that: (i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence will occur in the ordinary course of events; and

(ii) the accused was aware that he provided an essential contribution to the implementation of the common plan. 1014. As already highlighted, the general mental element contained in

Article 30(1) (intent and knowledge) applies to all crimes under the jurisdiction of the Court [u]nless otherwise provided. Article 8(2)(e)(vii), which gives the Court jurisdiction over the war crime of conscripting and enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities does not derogate from this principle. However, under Article 8(2)(e)(vii) of the Elements of Crimes the following requirement is set out:
3. The perpetrator knew or should have known that such a person or persons were under the age of 15 years.

1015.

This lesser mental element raises a number of issues, including:

(i) whether it is possible, under the framework of the Rome Statute, for the Elements of Crimes to alter any of the material elements of the crimes established in the Statute; and (ii) the scope and interpretation

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of this should have known requirement. However, as set out above, the prosecution does not invite a conviction of the accused on the basis he should have known that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. It submits the Chamber should convict the accused only if it finds he knew there were children under 15 years. 2726 The Majority of the Chamber considers it is unnecessary to approach the case on any other basis, and it would be inappropriate to rule on these substantive issues in the abstract. 1016. Addressing the contextual elements, and in accordance with

Element 5 of Article 8(2)(e)(vii) and the introduction to Article 8 of the Elements of Crimes, the accused must be aware of [the] factual circumstances that established the existence of an armed conflict. It is not necessary for the prosecution to prove he knew that there was an armed conflict.2727 The accused must also be aware of the link between these factual circumstances and his conduct. 1017. Judge Fulford has written a concurring opinion which is

attached to this Judgment. 6. Conclusions of the Chamber 1018. For the reasons set out above, the prosecution must prove in

relation to each charge that: (i) there was an agreement or common plan between the accused and at least one other co-perpetrator that, once

2726 2727

ICC-01/04-01/06-2748-Red, para. 72, footnote 123; ICC-01/04-01/06-2778-Red, para. 39 et seq. ICC-01/04-01/06-803-tEN, para. 360.

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implemented, will result in the commission of the relevant crime in the ordinary course of events; (ii) the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime; (iii) the accused meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or he was aware that by implementing the common plan these consequences will occur in the ordinary course of events; (iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; and (v) the accused was aware of the factual circumstances that established the existence of an armed conflict and the link between these circumstances and his conduct.

B. THE FACTS

1019.

The prosecution submits Thomas Lubanga, Floribert Kisembo,

Bosco Ntaganda, Chief Kahwa Panga Mandro, Rafiki Saba Aimable, and other senior FPLC commanders, including commanders

Tchaligonza, Bagonza and Kasangaki the alleged co-perpetrators in this case2728 agreed upon a plan and acted together in order to build an army that included young people and to create a political

2728

ICC-01/04-01/06-2748-Red, para. 77.

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movement. Furthermore, it is said they used political and military means to take control of Bunia and to exercise authority throughout Ituri. The accused is alleged to have coordinated and to have had the final say as to the groups activities.2729 As a result, children under the age of 15 were allegedly conscripted and enlisted, and used to participate actively in hostilities.2730 1020. The defence contends that the prosecution modified its

allegations as to this common plan to the extent that the crimes charged were first described as a consequence rather than an objective of the implementation of the plan, but in due course they were said to be an integral element. 2731 The defence submits that as a result the nature of the case against the accused significantly changed, and it argues the responsibility of Thomas Lubanga should only be considered within the framework of the facts and the law established by the Pre-Trial Chamber.2732 1021. The Chamber has concluded that the enlistment of children

under the age of 15 and using them to participate actively in hostilities was the result of the implementation of the common plan. 2733 As discussed above, it is not necessary for the plan to have been directed specifically at committing the crime in question, and the Chamber has considered the issue on this basis.2734 1022. The defence contends that the events prior to September 2002

fall outside the period covered by the charges, and therefore they are

2729 2730

ICC-01/04-01/06-2748-Red, para. 78. ICC-01/04-01/06-2748-Red, para. 74. 2731 ICC-01/04-01/06-2786-Red-tENG, paras 5 9. 2732 ICC-01/04-01/06-2786-Red-tENG, paras 7 and 8. 2733 ICC-01/04-01/06-2748-Red, para. 74 and ICC-01/04-01/06-803-tENG, paras 344 and 377. 2734 See para. 984.

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not covered by the present Judgment.

2735

The prosecution has

advanced contrary submissions. 2736 In the view of the Chamber, evidence relating to the period before September 2002 may assist in establishing the background and context of the events that fall within the timeframe of the charges. In addition, evidence concerning an earlier period of time may be directly relevant and admissible as regards the crimes confirmed by the Pre-Trial Chamber, including the relationship between the accused and his alleged co-perpetrators, depending on the circumstances as analysed below. 1023. In determining whether Thomas Lubanga is criminally

responsible for the crimes charged, the Chamber has considered, first, whether a common plan existed between the accused and his alleged co-perpetrators, and, second, whether the contribution of the accused amounted to an essential contribution. The Chamber has examined the context of the creation of the UPC; 2737 the objectives of that organisation; the events leading up to the takeover of Bunia; the creation and the structures of the FPLC (the armed wing of the UPC); and the roles of Thomas Lubanga and the alleged co-perpetrators, before and during the timeframe of the charges. Thereafter, the Chamber has examined whether the prosecution has proved the required mental element on the part of the accused.

ICC-01/04-01/06-2773-Red-tENG, para. 801. ICC-01/04-01/06-2778-Red, para. 11. 2737 As explained above in Section III, The letters RP were added to the end of UPC in September 2002. See T-342, lines 15 16 (D-0019) and T-125-Red-ENG, page 17, line 19 to page 19, line 20 (P0041). However, the Chamber notes that the witnesses usually referred to the UPC and often treated the UPC and FPLC interchangeably. Herein, the Chamber refers to the UPC and the UPC/RP as UPC, and the UPC with its army the FPLC as the UPC/FPLC.
2736

2735

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1. COMMON PLAN a) The co-perpetrators alleged alliance (Summer 2000 March 2002) 1024. To establish the existence of a common plan between the alleged

co-perpetrators, the Chamber has examined whether they were in contact with one another and, if so, what the nature of the contact and their relationship was in the period preceding September 2002. 1025. The prosecution suggests that Thomas Lubanga and his co-

perpetrators had formed a political and military alliance by September 2000. 2738 It is submitted that in the summer of 2000 they began recruiting Hema youths who later formed the armed wing of the UPC.2739 1026. The defence disputes this submission, and in particular contests

the prosecutions assertion that the UPC was created by the same soldiers who participated in a 2000 rebellion against the RCD-ML, the then government in power.2740 The defence further submits it has not been proved that the accused maintained contact with the mutinys leaders between July 2000 and March 2002.2741 1027. P-0012 gave evidence that 15 September 2000 the date when

the UPC was created was also when Thomas Lubanga became the spokesman for a group of young Hema mutineers who had rebelled against Professor Wamba dia Wamba (because the latter had failed to assist them in their conflict with the Lendus).2742 P-0012 testified that
2738 2739

ICC-01/04-01/06-2748-Red, paras 83 85. ICC-01/04-01/06-2748-Red, para. 8. 2740 ICC-01/04-01/06-2773-Red-tENG, paras 777, 778 and 781. 2741 ICC-01/04-01/06-2773-Red-tENG, paras 776 and 781. 2742 T-168-Red2-ENG, page 16, line 22 to page 17, line 14.

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the rebels set up a mobile force that was trained at Kyankwanzi, Uganda, in June or July 2000.2743 Adults and children were selected for this training, the latter having been sent by traditional chiefs and their parents, including, as seen by P-0012, a lot of really small young children.2744 P-0012 explained that the future commanders were given separate training in Jinja.2745 The mutineers who broke away from the RCD-ML2746 and founded the UPC were military men. They included General Tchaligonza, Commander Kasangaki, Chief Kahwa Panga Mandro, Bosco Ntaganda and Floribert Kisembo, 2747 some of whom later held positions in the UPC/FPLC.2748 1028. P-0012 indicated Thomas Lubanga acted as the spokesperson

for the youths who had been involved in the mutiny after they returned to Ituri from their training in Uganda.2749 However, he also suggested Mr Lubanga was not actively involved with these children because, at that stage, they were under the guidance of Jean Tibasima, 2750 who had charge of them. 2751 Additionally, P-0012 was unable to describe Thomas Lubangas duties as their spokesperson.2752 1029. The defence contends P-0012s evidence was that Jean Tibasima

rather than the accused was responsible for sending these youths to Uganda for training.
2753

The

defence

further

challenges

the

prosecutions assertion that Thomas Lubanga became the spokesman

T-168-Red2-ENG, page 17, lines 1 12, page 20, lines 3 6 and page 33, lines 20 23. T-168-Red2-ENG, page 22, line 20 to page 23, line 15. 2745 T-168-Red2-ENG, page 20, lines 7 9. 2746 The armed branch of the RCD-ML was the APC. 2747 T-168-Red2-ENG, page 19, lines 5 8 and page 21, lines 7 25 (P-0012). 2748 T-168-Red2-ENG, page 21, lines 20 24 (P-0012). 2749 T-168-Red2-ENG, page 19, lines 15 17. 2750 T-168-Red2-ENG, page 20, lines 3 12. 2751 T- 168-Red2-ENG, page 23, lines 16 23. 2752 T- 168-Red2-ENG, page 23, line 24 to page 25, line 1. 2753 ICC-01/04-10/06-2773-Red-tENG, para. 599, referring to testimony of P-0012. See T-168-Red2ENG, page 23, line 8 to page 24, line 1.
2744

2743

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for the mutineers who broke away from the APC.2754 1030. The defence highlighted2755 the fact that P-0012 did not witness

the events surrounding the mutiny of Hema soldiers in July 2000, and instead his account was based on discussions with some of the participants, in particular Chief Kahwa and General Tchaligonza.2756 The Chamber has scrutinised this indirect evidence with care. D-0019 testified that commanders Tchaligonza, Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML.2757 He indicated the press reported that the Ugandan authorities had offered to provide training for the mutineers at Kyankwanzi and Jinja in Uganda.2758 As set out above, the Chamber has approached certain aspects of D-0019s testimony with caution. However, on these issues, his evidence, which essentially corroborates the testimony of P-0012, was credible and reliable. 1031. P-0116 also gave evidence about the training in Kyankwanzi,

and in particular Thomas Lubangas involvement in the operation. P0116, who was based in Bunia during the period shortly before the timeframe of the charges,2759 testified he was told that the accused had sent children to Uganda2760 during the summer of 2000,2761 and that Mr Lubanga was with them at the camp.2762 Chief Kahwa was allegedly also involved in this recruitment.2763 The Chamber has concluded that this evidence was sufficiently reliable given the circumstances in
ICC-01/04-01/06-2773-Red-tENG, paras 773 - 774. ICC-01/04-01/06-2773-Red-tENG, paras 544 546. 2756 T-169-Red2-ENG, page 26, lines 11 - 19 and T-168-Red2-ENG, page 24, lines 4 19. 2757 T-343-ENG, page 4, lines 7 11, page 6, lines 9 - 10 and T-340-ENG, page 55, lines 19 23. 2758 T-343-ENG, page 13, lines 7 16. 2759 T-209-CONF-ENG, page 32, line 3 to page 34, line 24. 2760 T-203-Red2-ENG, page 43, lines 7 13, page 44, lines 6 8 and page 47, lines 17 24.. 2761 Although at one stage the witness referred to 2001 (at T-203-CONF-ENG, page 78, line 7 to page 79, line 3) he amended his response. T-208-CONF-ENG, page 81, lines 21 25. 2762 T-203-CONF-ENG, page 45, lines 18 24 and page 47, lines 11 13. 2763 T-209-Red2-ENG, page 53, line 24 to page 54, line 1.
2755 2754

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which it was obtained by P-0116.2764 Official and humanitarian sources had informed P-0116 in advance there was a group, a militia, which was managed by Mr Thomas and that was developing and becoming stronger to set up an army.2765 1032. Further, it was said Thomas Lubanga had visited the children at

the camp and he personally underwent military training and was initiated into military life. 2766 Indeed, evidence was given that the accused said they were his children; he had sent them there; and he had the power to bring them back.
2767

P-0116 observed that

approximately 165 children, between the ages of 13 and 18, were removed from the training camp, following a surprise visit by UNICEF and other humanitarian organisations.
2768

P-0116 gave

evidence that the children concerned were predominantly Hema, and a number of them were under the age of 15.2769 1033. Some of those who witnessed this transfer of about 700 youths

to Uganda told P-0116 they had been taken on Ugandan cargo planes, and it appeared that the accused was in contact with the Ugandan military authorities who gave him the necessary military support.2770 1034. P-0024 gave evidence that some of the children he interviewed

in the course of the demobilisation process were under the age of 15.2771 P-0024 started working for SOS Grands Lacs between July and

T-209-CONF-ENG, page 40, line 9 to page 41, line 3 and T-203-CONF-ENG, page 45, line 24 to page 47, line 16. 2765 T-203-Red2-ENG, page 42, line 24 to page 43, line 7. 2766 T-203-CONF-ENG, page 45, lines 23 25 and page 47, lines 12 16. 2767 T-203-CONF-ENG, page 45, line 25 to page 46, line 18. 2768 P-0116 stated only some 12 to 15 were over the age of 18. and 15 or 20 were under the age of 15; see T-203-CONF-ENG, page 30, lines 2 7 and page 32, lines 2 9. 2769 T-203-CONF-ENG, page 31, line 6 to page 32, line 10 and page 28, lines 21 22 (P-0116). 2770 T-209-Red2-ENG, page 47, lines 6 18. 2771 T-170-Red2-ENG, page 45, line 19 to page 46, line 1 and page 47, lines 1 25 (P-0024).

2764

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September 2001.2772 He stated that the mission of SOS Grands Lacs was to assist with the demobilisation and reintegration of child soldiers who had been brought to Uganda for training.2773 He suggested the children had been sent to Kyankwanzi because the rebel movement needed additional troops and they resorted to recruiting young children and preparing them for use by the military.2774 In his view the rebel group that sent the children for training was affiliated with the Hema community.2775 1035. The defence challenges the suggestion that Thomas Lubanga

was involved in recruiting these children. It is argued P-0116s allegedly uncorroborated hearsay evidence is unreliable and, given the childrens identities were not disclosed to the defence, it has not been possible to investigate this information.2776 1036. In the judgment of the Chamber, P-0116s testimony was

credible and reliable. His evidence, that tends to establish Thomas Lubangas involvement in these events, is based on credible sources and the information was verified by the witness. In addition, his account of Thomas Lubanga visiting the children at the camp and personally undergoing training is entirely credible. The Chamber notes that P-0116 had left Bunia by the fall of 2002. Thereafter, he remained professionally involved with the issue of child recruitment in the DRC.2777 He was undoubtedly well qualified to give evidence on these issues, and his account was credible and reliable. 1037.
2772 2773

The defence relies on the evidence of D-0011, who testified that

T-170-Red2-ENG, page 36, lines 13 15. T-170-Red2-ENG, page 37, lines 7 14. 2774 T-170-Red2-ENG, page 38, lines 18 23 and page 43, line 24 to page 44, line 12. 2775 T-170-Red2-ENG, page 45, line 20 to page 46, line 1. 2776 ICC-01/04-10/06-2773-Red-tENG, paras 596 599, 775. 2777 T-209-CONF-ENG, page 32, line 13 to page 36, line 5.

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Thomas Lubanga, in conjunction with the NGO SOS Grands Lacs, organised the social reintegration of the children from Kyankwanzi.2778 1038. Notwithstanding a lack of detail, P-0024 suggested that the

NGO SOS Grands Lacs cooperated with the RCD-ML and that Thomas Lubanga was probably involved with the demobilised children from Kyankwanzi given his role as the RCD-ML Minister of Defence.2779 1039. D-0019 gave evidence that Thomas Lubanga was part of a

delegation sent to dissuade Uganda from attacking the mutineers.2780 He said Thomas Lubanga did not represent the mutineers, but instead he had been sent by prominent individuals in the area to ensure the stability of the town of Bunia, and to protect it in the event of an attack by the Ugandans.2781 1040. D-0019 also gave evidence that Floribert Kisembo, Bosco

Ntaganda, and commanders Kasangaki and Bagonza were absent from Ituri following the summer of 2000 through to March 2002, at the latest.2782 P-0012 similarly testified that the majority of the alleged coperpetrators were not in Ituri for the greater part of the period between the summer of 2000 and February/March 2002.2783 1041. P-0041 testified that around July 2000, Thomas Lubanga

convened a meeting at his home of those who were to become the signatories to the founding documents of the UPC, in order to discuss
ICC-01/04-01/06-2773-Red-tENG, para. 775, referring to T-346-ENG, page 69, line 22 to page 70, line 25. 2779 T-170-Red-ENG, page 56, line 12 to page 57, line 6. P-0116 also gave evidence that is relevant to this issue, T-203-CONF-ENG, page 69, line 14 to page 73, line 5. 2780 T-343-ENG, page 6, line 23 to page 7, line 14. 2781 T-343-ENG, page 9, lines 8 14. In this connection the prosecution refers to a draft letter, dated 27 July 2000 and addressed to the Ugandan authorities, written by the parents des militaires de lArme du Peuple Congolais, that lists the name of Thomas Lubanga under the heading Pour les parents des militaires retranchs en brousse, EVD-OTP-00669. 2782 T-343-ENG, page 49, lines 9 24. 2783 T-168-Red2-ENG, page 26, line 14 to page 27, line 22.
2778

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the creation of a political party.2784 Those documents,2785 including the statute

2786

and the organisations programme,

2787

are dated 15

September 2000 and they are all signed by Thomas Lubanga. The document constituting the UPC and the statute are also signed by numerous other members of the UPC, including Richard Lonema and Rafiki Saba.
2788

The Chamber notes that of the co-perpetrators

identified by the prosecution, only Rafiki Saba signed both of these documents. 1042. The prosecution relies on a photograph of the accused together

with Floribert Kisembo, Bosco Ntaganda, Rafiki Saba, Commander Kasangaki and others that appeared in the 1 August 2002 edition of a local newspaper, and it is suggested it demonstrates that the accused was associated with the others in the photograph and they had a military agenda.2789 The defence argues the photograph was taken in July 2000, therefore over two years before the events of August 2002, at a time when the accused had agreed to join talks with the Ugandan authorities in order to resolve the crisis created by the rebellion.2790 Accordingly, it is suggested the photograph is irrelevant to an alleged common plan in July and August 2002.2791 1043. The Chamber is persuaded that commanders Tchaligonza,

Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML. The evidence is inconclusive as to Thomas Lubangas alleged role as

2784 2785

T-125-Red2-ENG, page 15, lines 8 18. EVD-OTP-00517. 2786 EVD-OTP-00661; EVD-OTP-00715 (with handwritten annotations); EVD-OTP-00726. 2787 EVD-OTP-00662. 2788 EVD-OTP-00517 and EVD-OTP-00661. 2789 ICC-01/04-01/06-2748-Red, para. 119; EVD-OTP-00529. 2790 ICC-01/04-01/06-2773-Red-tENG, para. 792. 2791 ICC-01/04-01/06-2773-Red-tENG, para. 792 and ICC-01/04-01/06-2786-Red-tENG, para. 16.

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spokesperson for the mutineers. However, the evidence of D-0019, P0012 and P-0116 conclusively demonstrates that Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Tchaligonza, Bagonza and Kasangaki were involved in organizing military training in Uganda for Hema youths, including young children during the summer of 2000. Although the Chamber considers the evidence is inconclusive as regards the details of how the children were transported to Uganda and whether Mr Lubanga was in touch with the Ugandan authorities during the relevant period, the evidence of P0012, P-0116 and P-0024 demonstrates he was involved with the group of soldiers, which included children, sent by the mutineers to Uganda for training. Indeed, very young children were included in this group. However, it is unnecessary for the Chamber to reach a precise determination of their individual ages because this incident falls outside the period of the charges and is relevant only for general contextual and background purposes. 1044. Although there is persuasive evidence that the accused was

involved in the recruitment of these children, his precise role is unclear. The evidence fails to establish the exact nature of the relationship between the accused and the alleged co-perpetrators, and whether there was regular contact between any of them in 2000. However, given his overall involvement, and particularly his visit to the soldiers in the camp in Uganda, the Chamber infers he was in contact with the leaders of the mutiny and Chief Kahwa. The Chamber accepts P-0041s evidence that Thomas Lubanga was also in touch with his alleged co-perpetrator Rafiki Saba in the summer of 2000, when the founding documents of the UPC were prepared. In addition, the Chamber notes that if the photograph referred to above was taken in

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July 2000, as suggested by the defence, it demonstrates contact between some of the alleged co-perpetrators at that time. 1045. Viewed overall, the evidence rehearsed above provides strong

support for the suggestion that during the period prior to the confirmation of the charges specifically in the summer of 2000 the accused and some of his principal alleged co-perpetrators, including Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Kisangaki, Tchaligonza, and Bagonza, were jointly involved in organising the training of Hema youths in the context of the mutiny. Mr Lubanga, inter alia, visited the children, liaised with individuals in Uganda to prevent attacks against the mutineers and was involved in the reintegration of the children following their training. b) Events leading up to and the take-over of Bunia 1046. In determining whether there was a common plan for the

purposes of the charges, the Chamber found it of assistance to examine the events surrounding the takeover of Bunia and the events leading to the emergence of the UPC. (1) The emergence of the UPC and of Thomas Lubanga as its leader 1047. The origins of the UPC are disputed. The prosecution suggests

that in parallel with the recruitment and training for the militia in Uganda, on 15 September 2000 Thomas Lubanga and Mr Rafiki, together with others, signed the founding documents of the UPC. The prosecution describes the UPC in September 2000 as the political and military group into which [the soldiers trained in Uganda] would be

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incorporated and which would eventually take control of Ituri.2792 1048. As discussed above, P-0041 gave evidence that Thomas Lubanga

was behind the creation of this political party in the summer of 2000. The founding documents were signed in September of that year. 1049. Further, the prosecution contends that from its inception the

UPC had the aim of using military force to achieve its goals, whereas the defence denies that the UPC had military objectives prior to September 2002.2793 1050. It is submitted by the defence that Mr Lubangas position in the

government of the RCD-ML during this time is inconsistent with the prosecutions theory that the UPC existed as a political/military organisation during the same period. 2794 The defence argument is that from April to August 2002, the accused acted for an organisation called the Front pour la rconciliation et la paix or FRP, which it is said engaged in initiatives of a purely political nature in order to bring about the end of the government of Mr Mbusa Nyamwisi with the help of the Ugandan authorities.2795 It is suggested Thomas Lubanga only began his opposition to the RCD-ML in April 2002 when he and others approached the Ugandan authorities in an attempt to have the organisation removed from Bunia.2796 1051. It is undisputed that Thomas Lubanga served as Minister of

Defence for the RCD-ML, having been appointed by Mr Mbusa

2792

ICC-01/04-10/06-2748-Red, para. 86, referring to EVD-OTP-00726, EVD-OTP-00661, EVDOTP-00715; see also the curriculum vitae of Thomas Lubanga (EVD-OTP-00621 at page 0379), stating that he has been the UPC President since its creation in 2000. 2793 ICC-01/04-01/06-2773-Red-tENG, paras 777, 778 and 781. 2794 ICC-01/04-01/06-2773-Red-tENG, paras 777 - 779. 2795 ICC-01/04-01/06-2773-Red-tENG, para. 785. 2796 ICC-01/04-01/06-2773-Red-tENG, para. 779.

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Nyamwisi.2797 In this position, which he held until April 2002,2798 the accused was responsible for the deployment of various commanders, including Bosco Ntaganda, whom he appointed as his assistant commander of operations.2799 During this time, he also served as the leader of the UPC.2800 1052. P-0041 testified that Bosco Ntaganda
2801

and

Kisembo

Bahemuka2802 were a part of the guard of Thomas Lubanga when he was RCD-ML defence minister.
2803

The defence disputes his

description of their roles,2804 and relies on the testimony of D-0019 that Bosco Ntaganda and Floribert Kisembo were not Thomas Lubangas bodyguards or under his command.2805 1053. On this issue, the Chamber notes P-0041s account concerning

the role of Floribert Kisembo, whom he had not seen before, was based on having seen him with Thomas Lubanga2806 and he was unable to assist during questioning as regards the suggestion that Floribert Kisembo, as opposed to being a bodyguard, was one of the
2797

T-343-ENG, page 44, line 5 to page 46, line 19 (D-0019, stating that Thomas Lubanga was the defence minister but not confirming the date). T-168-Red2-ENG, page 27, lines 9 24 (P-0012). P0012 testified that Thomas Lubanga had been appointed the Minister of Defence by Mr Mbusa Nyamwisi by February or March 2002. 2798 P-0041 stated that in April 2002, Thomas Lubanga was the Commissioner of Defence, for the RCD-ML. T-124-Red2-ENG, page 78, lines 11 14. 2799 T-344-Red-ENG, page 8, lines 11 22 (D-0019). D-0019 was not sure, however, whether Thomas Lubanga was able to exercise direct control over the RCD-ML troops. T-343-ENG, page 48, line 17 to page 49, line 2. 2800 T-343-ENG, page 47, lines 15 17 (D-0019). 2801 T-125-Red2-ENG, page 3, lines 7 10. 2802 The Chamber notes the discrepancy between the names Floribert Kisembo and Kisembo Bahemuka. However, P-0002 gave evidence that the Chief of Staff of the UPC was General Kisembo Bahemuka (T-162-Red2-ENG, page 12, line 20 to page 13, line 7). In document EVD-OTP-00512, in a letter written on behalf of the Chief of Staff, Mr Kisembo is similarly named as Kisembo Bahemuka. In addition, numerous witnesses testified that General Floribert Kisembo was the Chief of Staff (see paras 725, 783, 842), leading to the conclusion that Floribert Kisembo and Kisembo Bahemuka are the same person. 2803 T-125-Red2-ENG, page 3, lines 11 12 and T-126-Red2-ENG, page 3, line 22, to page 4, line 3 and page 4, line 21 to page 5, line 10. 2804 ICC-01/04-01/06-2773-Red-tENG, para. 377. 2805 T-340-ENG, page 46, line 6 to page 47, line 16. 2806 T-126-Red2-ENG, page 4, line 21 to page 5, line 2.

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commanders in charge of operations in the APC. 2807 The Chamber, therefore, does not accept P-0041s suggestion that Floribert Kisembo and Bosco Ntaganda acted as guards for the accused. However, this weakness in his evidence as regards their precise roles before they were appointed to senior positions within the UPC/FPLC does not undermine P-0041s evidence as a whole. 1054. P-0014 suggested that during this period, Thomas Lubanga, as

the President of an emerging group called the UPC,2808 acted as the leader of a number of people.2809 The evidence of P-0014 was that at the outset the accused referred to the need to organise an army in order to fight against Mr Mbusa Nyamwisis military force.2810 P-0014 stated that at one meeting in early June 2002 a significant amount of time was devoted to discussing the tactics to be adopted using both military and diplomatic means, including the press in order to develop the awareness of the population in Ituri and to mobilise its people. 2811 According to the witness, Thomas Lubanga suggested Iturians had to wake up, they had to rise, and team up with him to chase out Mbusa.2812 The accused is said to have explained that all available resources and means military and diplomatic should be used to eject Mr Mbusa Nyamwisi and the RCD-ML, and he assigned tasks to various individuals and groups.2813 1055. P-0014 learned about the UPC at this meeting in June 2002 with

Paul Avochi, John Tinanzabo, Dr. Kabagambe, Mama Akiki, Adle

T-126-Red2-ENG, page 5, lines 3 10. T-179-CONF-ENG, page 39, lines 18 25. 2809 T-181-CONF-ENG, page 26, lines 4 5 and page 92, lines 16 21;T-179-CONF-ENG, page 42, line 4 to page 43, line 13. 2810 T-179-Red-ENG, page 45, lines 14 21. 2811 T-179-Red2-ENG, page 45, lines 4 24. 2812 T-179-Red2-ENG, page 38, line 7 to page 39, line 3. 2813 T-179-CONF-ENG, page 39, lines 8 17, page 43, lines 17 19 and page 45, lines 16 24.
2808

2807

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Lotsove,2814 Kisembo Bitamara and others, and that the organisation was leading the fight, the combat, and wanted to group together all Iturians to continue the combat.2815 1056. P-0014 also gave evidence about Thomas Lubangas leadership

role by reference to this meeting in Kampala, stating [] it was always Thomas Lubanga who took the decision, who took -- who had the final word on everything while he was there. If he said no, then it would be no; and if he gave his approval, then what he approved had to be carried out. [] I would like to tell you that Thomas Lubanga was indeed the leader who approved and disapproved of everything that happened.2816 1057. According to P-0014, at one point during the meeting, the

accused ordered Chief Kahwa and Mr Beiza to go to Rwanda to obtain weapons.2817 The witness noticed that Chief Kahwa and Mr Beiza were not in the hotel the following morning,
2818

and he received

confirmation of these arrangements from those involved.2819 1058. The defence challenges P-0014s credibility, suggesting that

several of his statements about the Kampala meeting are inaccurate. For instance, his testimony is criticised on the basis that he did not know whether all the members of the delegation in Kampala in June 2002 were UPC members, and he was unable to say in which capacity two of the participants attended the meeting.2820 The defence notes P0014s evidence that the first time he heard of the UPC was at the
T-179-CONF-ENG, page 44, lines 14 16. T-179-CONF-ENG, page 44, lines 2 10 and page 45, lines 23 24. 2816 T-184-CONF-ENG, page 43, lines 16 25. 2817 T-179-Red2-ENG, page 46, line 2 to page 47, line 13. 2818 T-179-Red2-ENG, page 46, line 24 to page 47, line 3. 2819 T-179-CONF-ENG, page 46, lines 2 -12 and T-184-CONF-ENG, page 39, line 18 to page 40, line 22. 2820 ICC-01/04-01/06-2773-Red-tENG, para. 571. See T-184-CONF-ENG, page 37, lines 3 18.
2815 2814

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Kampala meeting, even though the UPC had been in existence prior to June 2002.2821 However, in light of the fact that P-0014 was not a UPC member, the Chamber does not consider his lack of knowledge on these issues undermines his credibility as to what he observed during the Kampala meeting. 1059. The defence also questions P-0014s evidence that Thomas

Lubanga ordered Mr Beiza and Chief Kahwa to obtain arms in Rwanda, asserting this was simply a deduction based on the fact they were absent for part of the Kampala meeting. 2822 In the Chambers view, P-0014s evidence about the trip is credible and reliable; he spoke with numerous people about this issue; and he gave consistent evidence when examined. (2) The arrest and detention of Thomas Lubanga, interim power and communications during detention (July August 2002) 1060. It is undisputed that while he was attending the meeting

referred to above in Kampala, Uganda, in the summer of 20022823 the accused, along with others in his delegation, was arrested and transferred to Kinshasa. There he was detained in the government facility for political prisoners, DEMIAP (dtection militaire anti patrie [Detection of Unpatriotic Activities]), for approximately a month.2824 In due course, Mr Lubanga was placed under house arrest at the Kinshasa Grand Htel
2821 2822

2825

and he was eventually released and

ICC-01/04-01/06-2773-Red-tENG, para. 571. ICC-01/04-01/06-2773-Red-tENG, para. 571. 2823 T-126-Red2-ENG, page 6, lines 5 12 (P-0041). 2824 T-Red2-ENG, page 8, line 11 to page 10, line 19 and T-126-CONF-ENG, page 9, line 9 to page 10, line 19 (P-0041); T-340-ENG, page 45, lines 10 25 and T-346-ENG, page 73, lines 10 16 (D-0019). 2825 T-125-Red2-ENG, page 10, lines 15 19 and T-126-CONF-ENG, page 10, line 22 to page 11, line 12 (P-0041).

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transferred to Bunia at the end of August 2002, at the instigation of the Kinshasa authorities.2826 1061. P-0014 testified that once Thomas Lubanga discovered his group

was to be detained and sent to Kinshasa, he delegated authority to Richard Lonema (who was to act as President on an interim basis) and Mbuna Dieudonn, his private secretary. He gave them and others responsibility for the awareness campaigns, mobilisation, supervising recruitment and the army, along with various political matters such as liaising with the relevant groups and parties.2827 1062. The defence suggests that despite this account, P-0014 also

described Mr Lubangas arrest and transfer to Kinshasa as coming as a complete surprise to the delegates, which caused panic.2828 The defence notes P-0041 stressed the manu militari2829 nature of the transfer of the delegates to Kinshasa, and it highlights his account that no arrangements were made in Kampala for the September 2002 appointments within the UPC.2830 However, the Chamber understood P-0041 used the expression manu militari to describe his involuntary transfer to Kinshasa. Furthermore, P-0014 testified that although the precise moment of Thomas Lubangas arrest came as a surprise, the latter had had the foresight to make advance arrangements, given the information that was in circulation.2831 In all the circumstances, P-0014 and P-0041 have not given contradictory evidence on this issue. 1063.
2826 2827

The prosecution relies on the evidence of P-0014 and P-0041 to

See ICC-01/04-01/06-2773-Red-tENG, para. 373. T-179-CONF-ENG, page 67, lines 23 25, page 78, lines 6 12 and page 81, line 24 to page 82, line 14. (P-0014); D-0019 confirmed that Mr Lonema and Dieudonn Mbuna managed to avoid an arrest and returned to Bunia, T-344-Red-ENG, page 17, lines 8 11. 2828 ICC-01/04-01/06-2773-Red-tENG, para. 571; T-184-Red2-ENG, page 44, lines 8 14. 2829 T-125-Red2-ENG, page 9, lines 1 2. 2830 ICC-01/04-01/06-2773-Red-tENG, para. 571. 2831 T-184-CONF-ENG, page 44, lines 11 14 and page 45, line 4 to page 46, line 7.

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support the suggestion that between July 2002 and the end of August 2002 Thomas Lubanga was in contact with Richard Lonema and others in Bunia.2832 1064. The defence contends that this evidence which involved

telephone contact between the detainees and the UPC headquarters in Bunia is implausible because, as P-0041 accepted,2833 mobile telephones were inoperative in Bunia.2834 1065. P-0014 testified that Thomas Lubanga talked with Richard

Lonema at some point during his detention.2835 He said Mr Lonema received orders from Thomas Lubanga by telephone while he was acting on the accuseds behalf, between July and August 2002.2836 P0014 gave evidence that members of the UPC at the headquarters in Bunia used satellite telephones because there was no cell phone network.2837 P-0014 also testified that the detainees at DEMIAP had cell phones,2838 although this evidence was contradicted by P-0041, who suggested that their mobile phones were confiscated and the detainees at DEMIAP had no means of communication.2839 1066. P-0041, who was in Kinshasa at the same time as Thomas

Lubanga, agreed there had been communication between the accused and Bunia in August 2002, and as a result the accused discovered that

ICC-01/04-01/06-2748-Red, paras 103 -104, referring to T-179-CONF-ENG, page 80, lines 6 20, page 75, lines 20 25, page 76, lines 1 25 and page 77, lines 1 9; T-181, page 24, lines 2 6 (P0014); and T-125-CONF-ENG, page 10, lines 18 19, page 11, lines 12 23, page 12, lines 1 3 and page 14, lines 16 18. 2833 T-184-CONF-ENG, page 51, line 2. 2834 ICC-01/04-01/06-2773-Red-tENG, para. 373. 2835 T-179-CONF-ENG, page 75, line 20 to page 79, line 24. 2836 T-179-CONF-ENG, page 81, line 11 to page 83, line 3. 2837 T-184-CONF-ENG, page 51, lines 2 9. 2838 T-184-Red2-ENG, page 51, lines 19 22. 2839 T-126-CONF-ENG, page 9, lines 9 17.

2832

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Bunia had been occupied by RCD-ML dissidents.2840 P-0041 testified that when the delegates were released from DEMIAP they travelled from their hotel nearly every day in order to visit Thomas Lubanga, who was held at the Grand Hotel. 2841 The accused gave them a telephone to contact him.2842 1067. The Chamber is uncertain of P-0014s evidence that the

detainees were able to communicate by cell phone whilst they were detained at DEMIAP, given the circumstances of their detention and the evidence just rehearsed. However, it is sure that contact by telephone was possible after they were moved to house arrest in a hotel, (no later than the end of July/early August 2002).2843 1068. The defence submits P-0041s evidence does not support the

prosecution suggestion that there was concerted action between the accused and the leaders of the armed rebellion.2844 The Chamber has concluded, however, that his evidence, as corroborated by P-0014, has demonstrated that the accused and at least some of his alleged coperpetrators were in contact with each other while he was in Kinshasa and Thomas Lubanga thus had the opportunity to give orders and directions. The Chamber found the evidence of P-0014 and P-0041 to be consistent, credible and reliable. 1069. In addition, P-0041 gave evidence that Richard Lonema, who

worked with Daniel Litsha, represented Thomas Lubanga whilst the

T-125-Red2-ENG, page 14, lines 14 18 and T-126-Red2-ENG, lines 7 9. T-126-Red2-ENG, page 10, line 22 to page 11, line 21. 2842 T-126-Red2-ENG, page 10, line 22 to page 11, line 21. 2843 T-126-Red2-ENG, page 10, line 22 to page 11, line 21. See also ICC-01/04-01/06-2773-RedtENG, para. 372, setting out the timeline of Mr Lubangas arrest with reference to the testimony of P0041. 2844 ICC-01/04-01/06-2773-Red-tENG, para. 787.
2841

2840

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latter was in detention.2845 By this he meant Richard Lonema acted in place of the President of the UPC in Bunia.2846 P-0041 did not know who appointed Richard Lonema as Thomas Lubangas representative, but he suggested it was probably the President of the UPC himself because I dont think another person would appoint you to act on behalf of a different official.2847 1070. P-0014 gave similar evidence that Richard Lonema stood in for

the accused and he discharged the routine duties of the president, including supervising all the activities of the army such as those that concerned recruitment, military rations, equipment and the armys general well-being. In addition, he maintained contact with various external groups. 2848 P-0014 testified that Richard Lonema publicly indicated that he was standing in for the President.2849 As mentioned above, P-0014 said that Richard Lonema received orders from Thomas Lubanga while he was acting on the accuseds behalf between July and August 2002, and he discussed general policy matters with the accused.2850 1071. P-0002 testified that during this period Richard Lonema was

like a vice-president because Thomas Lubanga was absent from Ituri.2851 He indicated that a rally was held in Bunia, attended by a large number of UPC members, including Bosco Ntaganda, Floribert Kisembo and Chief Kawha, at which Richard Lonema represented the

T-125-Red2-ENG, page 24, lines 6 17. Mr Lonema returned to Bunia from Kampala, whilst the others were compelled to travel to Kinshasa. T-125-Red2-ENG, page 25, lines 3 8. 2847 T-125-Red2-ENG, page 25, lines 13 18. 2848 T-179-Red2-ENG, page 81, line 25 to page 82, line 14 and page 74, line 16 to page 75, line 9. 2849 T-179-Red2-ENG, page 75, lines 1 9 and T-184-CONF-ENG, page 46, lines 8 18. 2850 T-179-CONF-ENG, page 81, line 11 to page 83, line 3. 2851 T-160-CONF-ENG, page 72, lines 9 10 and T-162-CONF-ENG, page 4, lines 23 25.
2846

2845

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UPC.

2852

Colonel Maguru represented the Kinshasa government,

whose role was to reconcile the opposing groups in Bunia.2853 (3) Recruitment and training before the takeover of Bunia (Summer 2002) 1072. The prosecution submits that throughout the summer of 2002

the co-perpetrators each contributed to the implementation of the common plan namely, establishing political and military control of Bunia by setting up training camps, recruiting young people (including children under the age of 15) and securing weapons and uniforms for the recruits. The overall objective was to remove the RCD-ML in order to take control of Bunia in the name of Thomas Lubanga and the UPC/FPLC.2854 1073. The defence disputes the suggested involvement by Thomas

Lubanga or the UPC in the mutiny against the RCD-ML in April and May 2002, given he was absent from Ituri for long periods.2855 Since the accused was abroad or in detention, the defence submits he could not have contributed to a large-scale recruitment campaign between May and August 2002, as argued by the prosecution. 2856 It is said Mr Lubangas activities within the FRP, which did not have an armed wing, were of a purely political nature. 2857 The defence suggests Thomas Lubanga would only have learnt about the existence and outcome of the recruitment campaigns once he returned to Bunia in

T-162-CONF-ENG, page 4, line 13 to page 5, line 4. T-160-CONF-ENG, page 71, line 21 to page 72, line 10 and T-162-CONF-ENG, page 4, lines 13 22 (P-0002). 2854 ICC-01/04-01/06-2748-Red, para. 105. 2855 ICC-01/04-01/06-2773-Red-tENG, para. 787. 2856 ICC-01/04-01/06-2773-Red-tENG, para. 788. 2857 ICC-01/04-01/06-2773-Red-tENG, paras 784 788.
2853

2852

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late August 2002.2858 1074. P-0038 testified that he joined the army of the UPC in 2001,2859

after Chief Kahwa and Bosco Ntaganda held a meeting with the whole village of Mabanga, including children under the age of 15, during which they were encouraged to join the army.2860 After the meeting, vehicles were loaded up with young people, including children under 15, who were taken to Mandro for training.2861 Chief Kahwa was known at the time to be the leader of the training centre at Mandro.2862 1075. P-0038 suggested he was Chief Kahwas bodyguard at Mandro

between April and September 2002,2863 and he accompanied him to the frequent meetings he held in Katoto, Barrire and other villages.2864 Chief Kahwa provided information to parents about sending their children, and others, to be trained as soldiers.2865 On these occasions Chief Kahwa was dressed either in military uniform or civilian clothing, and his bodyguards carried his weapon. 2866 Chief Kahwa indicated to those with whom he spoke that the Lendu were threatening the villages, and they were asked to assist by sending children they needed for training at Mandro.2867 He threatened that if they did not assist, when war came to their town we would not come to rescue them.2868

ICC-01/04-01/06-2773-Red-tENG, para. 788. T-113-Red2-ENG, page 31, lines 9 12. The Chamber notes that in his answer in the transcript, the year 2000 is given. However, in view of the question asked, the answer given to the previous question, and the comparison to the French transcript, the correct year is clearly 2001. 2860 T-113-Red2-ENG, page 39, lines 3 18; T-114-Red2-ENG, page 44, lines 4 7. 2861 T-113-Red2-ENG, page 39, line 19 to page 41, line 4. 2862 T-114-Red2-ENG, page 42, line 19 to page 43, line 8. 2863 T-114-Red2-ENG, page 43, lines 13 19. 2864 T-113-Red2-ENG, page 53, line 13 to page 54, line 14. 2865 T-113-Red2-ENG, page 53, lines 20 22. 2866 T-114-Red2-ENG, page 85, lines 12 15. 2867 T-113-Red2-ENG, page 54, lines 17 21. 2868 T-113-Red2-ENG, page 54, lines 19 21.
2859

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1076.

Children were made available following these meetings,2869 and

the new recruits were driven to the training centre at Mandro in vehicles provided by traders. They were accompanied by Chief Kahwa and his commanders.2870 The vehicles were either given voluntarily or the commanders seized them from the traders.2871 Although P-0038 did not see children taken forcibly, they arrived at Mandro immediately after the meetings.2872 These trips to the villages were frequent,2873 and boys as well as girls volunteered.2874 As discussed above,2875 P-0038 was, generally speaking, a credible and reliable witness. 1077. P-0116 testified that the recruitment of children continued

during the summer of 2002 because the UPC was striving to consolidate its position as a strong political movement in the Ituri region. [] And this was common knowledge to everyone.2876 1078. Other witnesses testified about the recruitment of children at

this time. D-0006 joined the UPC towards the end of May 2002 and he was trained at Mandro.
2877

P-0046 was told about the Hema

recruitment campaigns in Bunia and elsewhere in March, April and July 2002.2878 1079. D-0037 left the APC in 2002, along with other soldiers, and he

joined a group in order to defend the Hema community, for which Chief Kahwa set up a training centre in Mandro, involving Bosco

T-113-Red2-ENG, page 54, lines 22 24. T-113-Red2-ENG, page 54, line 24 to page 55, line 1. 2871 T-113-Red2-ENG, page 58, lines 9 11. 2872 T-113-Red2-ENG, page 58, lines 15 18. 2873 T-113-Red2-ENG, page 55, lines 5 13. 2874 T-114-Red2-ENG, page 84, lines 19 25. 2875 See paras 340-349. 2876 T-203-CONG-ENG, page 96, lines 16 20. 2877 T-254-CONF-ENG, page 71, lines 7 12. 2878 EVD-OTP-00489: T-37-EN, page 51, line 13 to page 53, line 19 (testimony of P-0046 before the Pre-Trial Chamber).
2870

2869

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Ntaganda. 2879 D-0037 emphasised that this group only became the FPLC when Governor Lompondo was driven out of Bunia.2880 1080. D-0019 heard that the mutineers withdrew from Bunia around

July 2002 in order to live in Mandro, where there was some form of military training. 2881 He said that Floribert Kisembo, Commander Tchaligonza and Bosco Ntaganda were the leaders of the mutineers, although Chief Kahwa was a leading figure in that particular group.2882 There were discussions in the surrounding areas about the recruitment and training of new soldiers at Mandro.2883 1081. P-0014 testified that during the summer of 2002, in accordance

with the UPCs plan, the recruits were trained to fight against their primary enemy, the RCD-ML.2884 P-0014 suggested that the Lendus, whom the UPC had been fighting for some time, were a secondary target. 2885 The main military leaders during July and August 2002 included the Chief of Staff Floribert Kisembo, Bosco Ntaganda and Chief Kahwa.2886 1082. P-0016, who was a former APC soldier, described his arrest by

the Ugandans and the visits he received, whilst in detention, from Floribert Kisembo who told him to organise all the APC soldiers he knew so as to form a new army.2887 FPLC soldiers took the witness, and other former APC soldiers he had gathered together, to the camp at Mandro in August 2002. Bosco Ntaganda decided they would teach

2879 2880

T-349-ENG, page 4, line 16 to page 5, line 18. T-349-ENG, page 7, line 23 to page 8, line 20 and page 20, line 22 to page 21, line 7. 2881 T-344-Red-ENG, page 17, lines 17 18 and page 18, lines 5 9. 2882 T-344-Red-ENG, page 18, lines 10 15 and T-340-ENG, page 53, line 13 to page 54, line 22. 2883 T-344-Red-ENG, page 18, lines 16 18. 2884 T-184-CONF-ENG, page 60, lines 5 11. 2885 T-184-CONF-ENG, page 60, lines 12 13. 2886 T-181-Red2-ENG, page 12, line 22 to page 13, line 4 (P-0014). 2887 T-189-Red2-ENG, page 9, line 22 to page 10, line 16.

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young soldiers how to use the weapons they had received from the UPC. 2888 P-0016 stayed at the camp for about 10 days. 2889 He was appointed to a position within the FPLC by the end of August or early September.2890 P-0016 indicated that the accused was the President of the UPC whilst he was at the camp at Mandro. 2891 1083. The defence submits that P-0016s evidence demonstrates that

his training at Mandro and appointment to a post within the UPC/FPLC predate Thomas Lubangas return to Bunia. 2892 It is suggested this proves the armed forces who took over Bunia were under the command of Floribert Kisembo and other rebel leaders, and Thomas Lubanga played no role in the recruitment of soldiers acting under their orders.2893 In light of P-0016s evidence as set out above, the Chamber is not persuaded that his appointment took place before Thomas Lubanga returned from Bunia. The role of the accused with respect to the soldiers that took over Bunia is considered below. (4) The takeover of Bunia (August 2002) and the formal establishment of the UPC/FPLC as a political and military organisation 1084. It is the prosecutions submission that the UPC was responsible

for the takeover of Bunia on 9 August 2002.2894 1085. The prosecution relies on a letter sent on 6 June 20022895 from

T-189-Red2-ENG, page 10, line 17 to page 11, line 19. T-189-Red2-ENG, page 11, line 20 to page 12, line 5. 2890 T-189-CONF-ENG, page 9, line 22 to page 12, line 15 and page 61, lines 9 12. The Chamber has come to this result on account of the witnesss description of the various time periods of detention, time spent contacting other former APC soldiers and his stay in the training camp. 2891 T-189-CONF-ENG, page 11, lines 21 24 and page 17, lines 11 - 14. 2892 ICC-01/04-01/06-2773-Red-tENG, paras 408 - 411. 2893 ICC-01/04-01/06-2773-Red-tENG, para. 412. 2894 ICC-01/04-01/06-2748-Red, paras 113 - 114. 2895 EVD-OTP-00686.
2889

2888

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Governor Molondo Lompondo to the President of the RCD-ML, to suggest that Thomas Lubanga and his movement, the UPC, were organising a militia in Mandro comprised of the Gegere tribes, in order to create an independent state of Ituri and to remove the RCD-ML.2896 It is argued Mr Lubanga had the support of Chief Kahwa Panga Mandro, and they recruited young people between the ages of 9 and 13, in defiance of the prohibitions of the UN, the Organisation of the African Union, and the Lusaka Agreements against the use of child soldiers. 2897 Governor Lompondo warned of a possible attack by Thomas Lubangas militia.2898 1086. The defence suggests this letter from Governor Lompondo may

not be genuine, on the basis it is an unauthenticated copy and the prosecution failed to describe the circumstances in which it came into the possession of the UN. Furthermore, it is said there is no evidence as to who provided it to the prosecution and it is suggested that it appears to have come from someone whose antipathy to the accused is well known, but who was not interviewed.2899 When this document was admitted from the bar table, the Chamber indicated that although it was admissible, its weight, authenticity and reliability would be dealt with at a later stage.2900 1087. The letter bears the letterhead of the RCD-ML, it is dated, and it

carries what appear to be an official stamp and the signature of the Governor of Ituri, Mr Molondo Lompondo.
2901

The prosecution

obtained it from the United Nations on 24 January 2005, before the

2896 2897

EVD-OTP-00686. EVD-OTP-00686. 2898 EVD-OTP-00686. 2899 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 14. 2900 ICC-01/04-01/06-1981-Anx, pages 15 - 16 (item 27). 2901 EVD-OTP-00686.

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arrest warrant against the accused was issued. No explanation has been provided as to why a false document of this kind would have been provided at that stage to the UN and otherwise its validity has not been previously questioned. However, given there is no evidence before the Chamber as to the circumstances in which the document was drafted or obtained, it has not been relied on for purposes of this Judgment. 1088. P-0024 and P-0014 testified that Bunia came under the control of

the UPC in August 2002.2902 P-0014 gave evidence that on 9 August the UPC drove out the RCD-ML.2903 After the fall of Bunia the President (Mr Lubanga) made it known he was very proud of them, since they had worked to achieve this objective.
2904

D-0011 gave a somewhat

different account, in that he attributed the expulsion of the RCD-ML from Bunia to mutineers within the armed wing of the RCD-ML (the APC), who were eventually joined by the UPC.2905 He indicated the UPC became the UPC-RP in the absence of Thomas Lubanga, who was in prison when a core group of soldiers from the RCD-ML mutinied and split away from the APC, with the assistance of the UPC. 2906 This account is partially corroborated by D-0019, who said that the takeover of Bunia in August 2002 was not linked to the UPC of Thomas Lubanga, and instead the mutineers only decided to entrust the leadership to Thomas Lubanga at the end of August 2002.2907 1089. The prosecution refers to the 17 April 2002 Political Declaration

of the Managerial Staff of Ituri in the Face of Institute Injustice by the

2902 T-171-Red2-ENG, page 29, lines 22 25 (P-0024) and T-179-Red2-ENG, page 76, lines 13 17 (P-0014). 2903 T-179-Red-ENG, page 76, lines 13 17. 2904 T-179-Red-ENG, page 76, lines 7 10. 2905 T-346-ENG, page 74, lines 2 4. 2906 T-346-ENG, page 73, line 23 to page 74, line 4. 2907 T-343-ENG, page 3, lines 16 24 and T-342, page 42, lines 1 15.

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RCD/KIS-ML

under

His

Excellency

Mr.

Mbusa

Nyamwisis

Presidency (Political Declaration of 17 April 2002), signed by Thomas Lubanga, which accused the RCD-ML of ethnic

discrimination, and of seeking to take over Ituri.2908 The prosecution suggests this demonstrates that Thomas Lubanga demanded the departure of Mr Mbusa Nyamwisi and Governor Molondo

Lompondo.2909 1090. 2002, The defence also relies on the Political Declaration of 17 April
2910

contending that Thomas Lubangas signature is not

accompanied by any reference to a position held by him in the UPC indeed, the UPC is not mentioned throughout the entire document.2911 The Political Declaration of 17 April 2002 contains the following:
5. Ask our soldiers serving in Ituri to keep calm and let us invite under Congolese Flag all our glorious soldiers (ex. FAZ, FAC, APC) left to their sad fate by the discriminatory politics of the RCD/KIS-ML.2912

1091.

The defence suggests this document does not support the

conclusion that those who signed it had their own armed forces available to them. It is argued that no documents have been introduced for the period before September 2002 to indicate that forces of that kind existed, and the defence relies on P-0041s evidence that the FRP did not have a military wing.2913 1092. P-0041 testified that the signatories of the Political Declaration of

17 April 2002 were members of the FRP, save for the 12th signatory,

ICC-01/04-01/06-2748-Red, para. 92, EVD-D01-00050. ICC-01/04-01/06-2748-Red, para. 92. 2910 EVD-D01-00050. 2911 ICC-01/04-01/06-2773-Red-tENG, para. 780. 2912 EVD-D01-00050 at DRC-0127-0112. 2913 ICC-01/04-01/06-2773-Red-tENG, paras 370, 785; ICC-01/04-01/06-2786-Red-tENG, paras 14 15.
2909

2908

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Bayau Wa Naiba. 2914 P-0041 suggested Thomas Lubanga was the President of the FRP at that time. 2915 As noted above, D-0019 gave evidence that at least 11 of the 13 signatories were, or later became, members of the UPC.2916 D-0019 stated that although he had not seen this declaration, he was aware of its content, given it features in all the later UPC decrees. He said it reflected a landmark event in the history of the UPC,2917 when the UPC began to distance itself from the RCD-ML.2918 However, he declined to comment on whether members of the UPC wanted to remove the RCD-ML.2919 As mentioned above, the declaration does not refer to the UPC. 1093. The prosecution suggests that within days of the Political

Declaration of 17 April 2002, the same individuals who had orchestrated the first mutiny within the APC in 2000 (Floribert Kisembo, Bosco Ntaganda, commanders Tchaligonza, Kasangaki, and Bagonza) organised a second revolt by Hema soldiers in the APC against President Nyamwisi and the RCD-ML, in the summer of 2002.2920 1094. Similarly, D-0019 said that Floribert Kisembo, Bosco Ntaganda,

as well as commanders Tchaligonza, Kasangaki and Bagonza were amongst the soldiers who participated in the April 2002 mutiny within the APC. 2921 P-0012 testified that in April 2002 the conflict began between the rebellious Hema soldiers, who had joined Thomas Lubanga, and Mr Mbusa Nyamwisis soldiers when the head of Mr

2914 2915

T-126-Red2-ENG, page 23, line 10 to page 26, line 22. T-125-Red2-ENG, page 14, line 24 to page 15, line 2. 2916 T-343-ENG, page 57, line 1 to page 58, line 22 and page 61, line 19 to page 62, line 12. 2917 T-343-ENG, page 63, lines 6 14 and page 66, lines 8 9. 2918 T-343-ENG, page 67, lines 8 16. 2919 T-343-ENG, page 66, line 21 to page 68, line 22. 2920 ICC-01/04-01/06-2748-Red, para. 93. 2921 T-343-Red ENG, page 49, lines 9- 24 and page 76, lines 10 16.

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Mbusa Nyamwisis personal guard was assassinated.2922 1095. D-0019 indicated that Bunia was divided between the mutineers
2923

and the troops loyal to Governor Molondo Lompondo.

The

prosecution concedes D-0019 rejected the suggestion that the mutineers were loyal or otherwise connected to Thomas Lubanga,2924 but it is suggested that other evidence contradicts his account.2925 The prosecution refers to a document entitled Histoire de lUnion des Patriotes Congolais (U.P.C.), which states that Bunia was carved up into two zones of influence, one held by partisans of Thomas Lubanga and the other by men of Governor Mulondo.2926 1096. This document, the Histoire de lUnion des Patriotes Congolais

(U.P.C.), 2927 was shown to D-0019, who said it was a rough copy that did not reflect the reality of what occurred, and he rejected the suggestion that the mutineers were loyal to Thomas Lubanga or that UPC soldiers had been responsible for the expulsion of Governor Lompondo in August 2002. However, the witness conceded that Thomas Lubanga had probably read the document and seemingly had corrected the first paragraph on page 6, which contains references to two zones of influence in Bunia.2928 1097. The document is dated 30 June 2004 and it bears Mr Lubangas

handwritten annotations. 2929 A paragraph, to which no annotations were made, reads as follows:
T-168-CONF-ENG, page 29, lines 1 11. T-343-ENG, page 82, lines 11 20 and page 84, lines 1 3. 2924 T-340-ENG, page 47, lines 8 20 and page 59, lines 11 23. 2925 ICC-01/04-01/06-2748-Red, para. 94. 2926 EVD-OTP-00672, interpreted in Court at T-343-ENG, page 81, line 8 to page 82, line 9 (D-0019). The spelling of the name varies in the transcript: Mulondo and Molondo. 2927 EVD-OTP-00672. 2928 T-343-ENG, page 80, line 9 to page 84, line 24 and T-344-Red-ENG, page 3, line 12 to page 7, line 3. 2929 EVD-OTP-00672; T-343-ENG, pages 78 - 79; interpretation at page 81, line 8 to page 82, line 7.
2923 2922

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On the 17th of April, through a political statement, the UPC withdrew its trust from Mbusa, and the UPC turned itself into a military political movement. This is because part of the army joined Lubangas ranks and created the nucleus of the armed unit of the UPC.2930

1098.

The 11 August 2002 Political Declaration of the FRP 2931

declares that [t]he armed dissidents of the RCD-ML aligned behind the ex-Minister of Defence of the RCD-ML, Thomas Lubanga, took control of Bunia and its surroundings []. 2932 P-0041 testified

Thomas Lubanga was the president of the FRP, and he suggested that although the FRP did not have an armed wing, the armed dissidents referred to in this declaration were Thomas Lubangas guards.2933 1099. The defence takes issue with the claim that some of the

dissidents were Thomas Lubangas guards.2934 As discussed above, P-0041 appeared to be mistaken about the roles of Floribert Kisembo and Bosco Ntaganda when Thomas Lubanga was the Minister of Defence of the RCD-ML, given he erroneously assumed they were part of the guard of the Ministry of Defence.2935 It is clear P-0041 referred to the armed dissidents as guards because of this mistake, and therefore P-0041s account supports other evidence in the trial that Floribert Kisembo and Bosco Ntaganda were involved in the military takeover of Bunia. 1100. P-0041 also said the Ugandans supported RCD-ML dissidents in

chasing Governor Molondo Lompondo from Bunia, 2936 although he expressed doubts as to whether an organised army existed in

EVD-OTP-00672, as interpreted in Court at T-343-ENG, page 81, line 8 to page 82, line 7 (D0019). 2931 EVD-OTP-00663. 2932 Unofficial translation of EVD-OTP-00663. 2933 T-125-Red2-ENG, page 13, line 23 to page 14, line 23. 2934 ICC-01/04-01/06-2773-Red-tENG, para. 377. 2935 See paras 1052-1053. T-125-Red2-ENG, page 3, lines 7 12. 2936 T-126-Red2-ENG, page 12, lines 10 13.

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August 2002. 2937 Notwithstanding the prosecutions submission that a loyal base of Hema soldiers and other supporters backed Thomas Lubanga, the evidence relied on from P-0041 only tends to demonstrate the existence of the rivalry between Thomas Lubanga and Mr Mbusa Nyamwisi. 2938 D-0019, whilst describing this conflict, did not indicate that Thomas Lubanga was supported by Hema soldiers.2939 1101. The defence argues that the Political Declaration of the FRP of 11

August 2002 fails to establish that Thomas Lubanga was in control of an armed force affiliated with either the FRP or the UPC. 2940 The defence relies on the testimony of D-0019, who suggested that as regards the takeover of Bunia, [s]everal people were trying to claim this military victory.2941 P-0041 agreed with the contention that it was likely that the FRP wanted to gain political capital from the takeover of Bunia, but he did not suggest the document contained inaccurate information.2942 In all the circumstances, the evidence discussed above is inconclusive as to whether the FRP or the UPC had their own armed forces available to them in the summer of 2002. 1102. The defence further relies on P-0041s testimony to suggest a

wide cross-section of the population was represented in the UPC and the UPC-RP, and that the Hema were only a small minority.2943 P-0041 was asked to describe the ethnicity of the signatories to the decree appointing members of the executive of the UPC-RP dated 3
T-125-Red2-ENG, page 14, lines 19 23. T-124-Red2-ENG, page 80, line 20 to page 81, line 4. 2939 T-343-ENG, page 50, line 12 to page 52, line 6. 2940 ICC-01/04-01/06-2773-Red-tENG, paras 378 380 and ICC-01/04-01/06-2786-Red-tENG, para. 15. 2941 T-344-Red-ENG, page 28, line 7 to page 29, line 19. 2942 T-124-Red2-ENG, page 80 line 20 to page 81, line 4 and T-126-Red2-ENG, page 15, lines 20 25, and T-125-Red2-ENG, page 13, lines 16 17. 2943 ICC-01/04-01/06-2773-Red-tENG, paras 399, 781.
2938 2937

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September 2002,2944 and he indicated they included individuals from thirteen different ethnic groups.2945 1103. A declaration dated 14 September 2002 from the UPC/FPLC

Presidency, printed on official UPC letterhead and signed by Thomas Lubanga, sets out the objectives of the UPC-RP and states the UPCRP has taken [up] arms to remove all the forces that contribute to the destruction of Ituri and has put an end to the management of Ituri by the RCD-ML.
2946

D-0019 stated this declaration accurately

described the objectives of the UPC-RP. 2947 1104. A document dated 22 September 2002 on official UPC/FPLC

letterhead, signed by Professor Dhetchuvi, states:

The Union of the Congolese Patriots for Reconciliation and Peace, the acronym of which is the UPC/RP, under the direction of Mr. Thomas Lubanga, is a political and military movement that was created on the 15th of September 2000.2948

1105.

The defence contends that all the documents from the UPC

archives suggesting that the UPC was involved in securing control of Bunia are unreliable as they were only intended as political propaganda.2949 However, the Chamber does not accept the suggestion that these documents were created, at least in part, for this false purpose. Although they do not demonstrate the UPC had resorted to military action prior to the year 2002, they provide clear support for the oral evidence of various witnesses linking the armed takeover of Bunia with Thomas Lubanga.

EVD-OTP-00721. T-126-CONF-ENG, page 27, line 9 to page 31, line 25. P-0041 did not know the ethnicity of three individuals on the list and one individual seems to have been skipped during questioning. 2946 EVD-OTP-00674, T-344-Red-ENG, page 36, lines 16 19. 2947 T-344-Red-ENG, page 36, lines 13 23. 2948 EVD-D01-00078. 2949 ICC-01/06-2773-Red-tENG, para. 786.
2945

2944

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1106.

In addition, during an interview Thomas Lubanga gave at his

residence in Bunia in June 2003,2950 the accused stated the following about the UPC:2951
[] We came up in arms in 2000, in September. We did so to react to the short-comings and irresponsible behaviour of the RCD/ML that was managing the area. We didn't appreciate their policies. They didn't manage to solve the problems in Ituri and mainly the massacres that had almost become commonplace and institutionalised, and that's why we came up in arms. And the revolution was for -- in the interests of the Congolese in Ituri but also to ensure an amount of discipline among the leading politicians in the Congo. So our work in the UPC has both a political character to it, and on top of that, there's been a lot of conflict with the RCD/ML, because in 2002, on the 9th of August, we actually chased the RCD/ML out of Ituri and we occupied the whole of Ituri. []

(5) Conclusion 1107. While there is no doubt Thomas Lubanga was a founding

member of the UPC at its creation in September 2000, together with at least his co-perpetrator Rafiki Saba, there is a clear dispute as to the nature of the UPCs aims prior to late August/early September 2002. The UPCs founding documents describe a political programme as well as the organisations military ambitions. Other contemporary documents, including the 22 October 2002 declaration signed by Thomas Lubanga, 2952 indicate the UPC-RP was a political-military movement, established on 15 September 2000, which had taken up arms against the RCD-ML. 1108. On the available material there is real uncertainty as to whether,

at the outset, the UPC was created as part of a plan to build an army in
EVD-OTP-00584; T-130-Red2-ENG, page 36, line 18 and page 39, lines 5 10 and lines 22 23. The Chamber notes that the prosecution submits that the interview took place on 5 June 2003, ICC01/04-01/06-2748-Red, para. 281. However, the accused refers to 12 June 2003 in the interview (T130-Red2-ENG, page 48, line 23). The Chamber is satisfied that the interview took place in June 2003. 2951 EVD-OTP-00584, interpretation taken from the transcript of the hearing, T-130-Red2-ENG, page 45, lines 13 24 (emphasis added). The English transcript refers to the year 2000, but the French transcript (reflecting the original language of the interview) contains the correct date of 9 August 2002. 2952 EVD-OTP-00665.
2950

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order take control of Ituri. Further, although there is evidence that members of the FRP became members of the UPC, the exact relationship between the two groups in the period before August 2002 is unclear. That said, the evidence of witnesses such as P-0041, P-0014 and P-0012, together with the documentary evidence, has established that by the summer of 2002 Thomas Lubanga personally intended to take control of Bunia. His leadership role and ambitions particularly overthrowing Mr Mbusa Nyamwisi and taking control of Ituri are reflected in the evidence about the meeting in Kampala in June 2002. 1109. It is also clear that he was in contact with Bosco Ntaganda and

Floribert Kisembo while he acted as Minister of Defence for the RCDML. 1110. On the basis of the evidence of P-0041, P-0014 and P-0002, the

Chamber is persuaded that Thomas Lubanga was represented by Richard Lonema in his absence in the summer of 2002. Mr Lubanga was able to give orders and instructions to his co-perpetrators and other individuals (including Richard Lonema), whilst in detention in Kinshasa. 1111. The Chamber is satisfied that recruitment and training was

carried out during the summer of 2002. P-0038s testimony concerning various recruitment activities carried out by Chief Kahwa and Bosco Ntaganda between 2001 and September 2002 is corroborated by D0006 and D-0037, who gave evidence about joining the UPC or its armed group and the training centre in Mandro, with which both Chief Kawha and Bosco Ntaganda were involved. P-0116 and P-0046 similarly referred to recruitment by the UPC or within the Hema community, and P-0014 and P-0016 testified about military training in

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Mandro that was conducted by the UPC. The Chamber accepts P0014s testimony that the main military leaders in July and August 2002 included Floribert Kisembo, Bosco Ntaganda and Chief Kahwa. 1112. The documents discussed above demonstrate the link between

Thomas Lubanga and the armed forces that took control of Bunia. Document EVD-D01-00050, which is a declaration of the managerial staff signed, inter alia, by Mr Lubanga, indicates the signatories were dissatisfied the RCD-ML was in power and they were seeking a change of government. Although the UPC is not referred to in this document, D-0019 confirmed that 11 of the 13 signatories, including the accused, would later form part of the UPC. Document EVD-OTP00663, a political declaration of the FRP dated 11 August 2002, signed by Mr Lubanga and three others (the latter also signed document EVD-D01-00050) sets out that the FRP, assisted by the armed dissidents from the APC who supported Thomas Lubanga, took control of Bunia and it declared the end of the RCD-MLs power in Ituri. Whether the forces were officially affiliated to the UPC, as suggested in some of the founding documents, is not determinative. What is relevant is that many of the individuals who signed these two declarations were, or became, members of the UPC/FPLC, the body that exercised control over Ituri after the departure of the RCD-ML from Bunia. Although the involvement of the UPC in the mutiny against the RCD-ML and the subsequent takeover of Bunia in August 2002 is a highly contested issue, the military aims of those who are said to have acted with the accused including Floribert Kisembo, Chief Kahwa, Bosco Ntaganda and commanders Tchaligonza, Kasangaki, and Bagonza and their involvement in the August 2002 rebellion are clear. Confirmation of this was provided by D-0019, P-

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0012 and, to an extent, P-0041. The document, the Histoire de lUnion des Patriotes Congolais (U.P.C.), 2953 suggests that there were two conflicting parties, namely those loyal to Mr Lubanga and those loyal to Governor Mulondo, and it implies that the forces that took over Bunia were affiliated to the UPC. Document EVD-OTP-00674, along with the evidence of D-0019, demonstrate that the UPC/FPLC Presidency, namely, the accused, acknowledged in September 2002 that the UPC had taken control of Bunia from the RCD-ML by military means. In addition, in the interview Thomas Lubanga gave in June 2003,2954 he attributed the military takeover of Bunia in August 2002 to the UPC. 1113. P-0016 testified that to his knowledge the structure of the FPLC,

and in particular the main staff, was created after the UPC took control over Bunia.
2955

However, the Chamber has not accorded any

significant weight to this evidence because its source was not explained. 1114. Regardless of the extent of the UPCs military involvement in

the defeat of the RCD-ML, the UPC-RP claimed responsibility for the victory. It appears that on 2 September 2002 the name FRP was dropped. 2956 1115. Thomas Lubanga returned to Bunia around 1 September 20022957

and was appointed President of the UPC and Commander in Chief of

EVD-OTP-00672. EVD-OTP-00584. 2955 T-190-CONF-ENG, page 75, line 25 to page 76, line 8. 2956 P-0041 testified that on 2 September 2002 a decree, signed by Thomas Lubanga, was issued to name the group UPC/RP rather than FRP/UPC. T-125-Red-ENG, page 17, line 19 to page 19, line 20. 2957 T-181-Red2-ENG, page 53, lines 21 22 (P-0014).
2954

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the FPLC army (the military wing of the UPC).2958 This event appears to constitute the formal establishment of the FPLC. 1116. On 2 and 3 September 2002 he appointed the executive of the

UPC/FPLC,2959 including Floribert Kisembo and Bosco Ntaganda the same men who had been the architects of the rebellion against the RCD-ML and who had been actively involved in recruiting and training recruits prior to the takeover of Bunia. c) The goals of the UPC/FPLC after September 2002 1117. The Chamber heard evidence on the aims of the UPC/FPLC after

it had taken control of Bunia and came officially under the leadership of Thomas Lubanga. 1118. P-0012 gave evidence that prior to the accuseds official

appointment as President of the UPC/FPLC, it did not function as a political party2960 and he suggested it only became a separate party when they took control of the city of Bunia after the RCD-ML left.2961 1119. D-0019 testified that in September 2002 the armed force that had

been under the leadership of Chief Kahwa, Floribert Kisembo and Commander Tchaligonza was restructured by the UPC and was named the FPLC.2962 D-0037 gave similar evidence.2963 1120.
2958

As previously indicated, a declaration from the presidency

T-168-Red2-ENG, page 17, lines 18 21 (P-0012) and T-181-Red2-ENG, page 53, line 25 to page 56, line 10 (P-0014). 2959 T-181-Red2-ENG, page 54, line 19 to page 55, line 21 (P-0014); T-124-Red2-ENG, page 69, lines 13 19 (P-0041); T-174-Red2-ENG, page 47, line 23 to page 48, line 7, T-175-Red2-ENG, page 4, line 22 to page 5, line 7; T-346-ENG, page 73, lines 10 16 (D-0011); D-0011 stated that he thought it was the end of September 2002, but in light of the totality of the evidence, the Chamber is sure that it was in fact at the start of that month. 2960 T-168-Red2-ENG, page 17, lines 19 23. 2961 T-168-CONF-ENG, page 17, lines 15 18 and page 20, lines 23 - 24. 2962 T-340-ENG, page 68, lines 11 17. 2963 T-349-ENG, page 7, line 12 to page 8, line 20 and page 21, lines 1 7.

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(dated 14 September 2002) 2964 and another from the UPC/FPLC concerning the Inter-Congolese dialogue (dated 22 October 2002)2965 describe the UPC-RP as a political and military movement that had been in conflict with the RCD-ML.2966 The Chamber does not accept the defence suggestion that these documents were created as propaganda the UPC-RP was a political and military body, and it is of note that the defence accepts that the UPC-RP resorted to arms after its formation in September 2002.2967 1121. A message from the President of the UPC/FPLC dated 11

September 2002 that was broadcast over Radio Candip provided an account of the creation of the UPC and the means of achieving a lasting peace in Ituri.2968 The aim of the UPC was said to be genuine reconciliation and a durable peace.2969 The message ended with the words Vive le territoire sous contrle de lUnion des Patriotes Congolais pour la Rconciliation et Paix.2970 It is undisputed that by the beginning of September 2002, at the latest, the UPC/FPLC was in control of Bunia. 2971 Thomas Lubanga set out in a letter to Kinshasa that his movement was in effective political and military control of the territory.2972 1122. Moreover, members of the UPC/FPLC publicly described the

role that the UPCs armed forces should play in Ituri. As discussed in

EVD-OTP-00674. EVD-OTP-00665, read aloud and interpreted in Court at T-342-ENG, page 25, line 23 to page 26, line 5 (D-0019). 2966 Moreover, D-0019 conceded that the UPC-RP as of September 2002 had a political and military character. T-342-ENG, page 36, line 23 to page 37, line 1. 2967 ICC-01/04-01/06-2773-Red-tENG, para. 794. 2968 EVD-OTP-00735; T-125-Red2-ENG, page 21, line 25 to page 22, line 22 and page 23 line 22 to page 24, line 5 (P-0041). 2969 EVD-OTP-00735, pages 3 - 4. 2970 EVD-OTP-00735, page 4. 2971 T-346-ENG, page 74, lines 6 12 (D-0019). 2972 EVD-OTP-00664.
2965

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greater detail hereafter, Thomas Lubanga spoke of the military aims of the UPC/FPLC, for example when addressing recruits at the Rwampara training camp on 12 February 2003. 2973 P-0002, who attended2974 a rally on 26 February 2003 at the stadium in the centre of Bunia,2975 identified Commander Eric Mbabazi2976 of the UPC from a video excerpt.
2977

Mr Mbabazi (who was the G5 within the

UPC/FPLC)2978 stated as follows:

Our young people enlisted in the army in order to seek change. Our army is now called the revolutionary army. Its an army which first and foremost wants change, change in its country. We need change in our villages, in our land, in our territory. The population wants to see change. The population must be able to see the difference between good and bad. The population will need to see change, and when our young people started this work in the army, it was to chase out a group that was making the Congolese population in the country suffer [] When the army will follow this objective we will tell the population of Ituri to support us, and you know we face a lot of difficulties, and you know young people are sacrificing themselves.2979

1123.

This was echoed in a speech delivered at the rally on the same

day by an Iturian governor, Mr Misaka:

I would like to congratulate you for walking. You are behind the movement of the UPC and its president, and our march today also shows the support that we provide to our children who work night and day. Here I'm referring to the Patriotic Forces for the Liberation of the Congo, forces patriotiques pour la libration du Congo, and we congratulate them. They are -- they are giving their blood for us to be able to live in peace, for us to be able to live in calm. That's why we congratulate them. They must move on forward. They have given their bodies, their life to protect the population. Without the population, there is no president. If there is no population, there are no soldiers. There are no governors.2980

1124.
2973 2974

The media was also used to spread the military aims of the

See para. 1242. T-162-Red2-ENG, page 29, line 24 to page 30, line 1. 2975 T-162-Reds-ENG, page 31, lines 11 13 and page 33, lines 1 13. 2976 T-162-Red2-ENG, page 37, line 24 to page 38, line 5. 2977 EVD-OTP-00410/EVD-OTP-00676, from time code 00:34:58 to 00:00:38; T-162-Red-ENG, page 35, line 7 to page 37, line 23 (P-0002). 2978 T-154-Red2-ENG, page 24, lines 3 4 (P-0017). 2979 Interpretation in court, T-162-Red-ENG, page 36, line 21 to page 37, line 23. 2980 Interpretation in court. T-162-Red2-ENG, page 32, lines 8 17.

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UPC/FPLC, and P-0041 indicated that the UPC/FPLC alone was able to broadcast on Radio Candip between September 2002 and March 2003.2981 P-0014 acknowledged the existence of this restriction, and he noticed many changes in the organisation of the radio programmes.2982 Each time P-0014 heard Floribert Kisembo on the radio, he spoke from a military perspective and delivered a message that was favourable to the army.2983 P-0014 understood Floribert Kisembos opinion was that peace could only be secured by force and, in essence, he was referring to the Lendus when he spoke about their enemies.2984 1125. On the basis of the evidence rehearsed above, including the

testimony of D-0019 and D-0037, the Chamber finds that by September 2002, at the latest, the UPC had a military wing (the FPLC). The Chamber is persuaded that the UPC exercised political and military control over Bunia, and that it had clear military aims, particularly to expand its role in Ituri. d) Conclusion and legal findings on the common plan 1126. The prosecution submits that by September 2002, the first phase

of the common plan had been successfully coordinated and implemented, given the UPC/FPLC controlled Ituri; Thomas Lubanga was President and Commander-in-Chief; the co-perpetrators held senior positions in the movement; and the military wing had an official position, as well as a source of recruits. 2985 The prosecution submits that in order to remain in power and to extend its territorial

2981 2982

T-125-Red2-ENG, page 23 line 22 to page 24, line 5. T-182-Red2-ENG, page 44, lines 13 16. 2983 T-182-Red2-ENG, page 45, lines 5 7. 2984 T-182-Red2-ENG, page 45, lines 8 10. 2985 ICC-01/04-01/06-2748-Red, para. 137.

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control, the army needed to grow in size and strength.2986 1127. The defence argues the evidence fails to demonstrate the

existence of a concerted plan of any kind between Thomas Lubanga and his alleged co-perpetrators prior to early September 2002,2987 and that from September 2002, the evidence regarding the institutional links between Thomas Lubanga and the civil and military officials of the UPC-RP and the FPLC fails to establish a concerted plan of a criminal character. In particular, it is suggested that gaining control of a territory by military means and enlisting recruits, do not in themselves reveal a relevant element of criminality, and any crimes that were committed should not be regarded as the inevitable consequence of the underlying project.2988 1128. The evidence shows there was a significant conflict between

Thomas Lubanga and the RCD-ML from at least April 2002, and that the accused headed a group that sought to bring about political changes in Ituri, including the removal of Mr Mbusa Nyamwisi and Governor Molondo Lompondo. As the Chamber has already observed, it is notable that eleven of the signatories of the 17 April 2002 Declaration were later to become members of the UPC/FPLC. Furthermore, the second APC revolt, which occurred at the same time, was directed at Mr Mbusa Nyamwisi and the RCD-ML and once again involved Floribert Kisembo, Bosco Ntaganda, as well as commanders Tchaligonza, and Kasangaki, all of whom are alleged to have been coperpetrators with the accused. The Histoire de lUnion des Patriotes Congolais (U.P.C.) is of significance in this context: the accused read

2986 2987

ICC-01/04-01/06-2748-Red, para. 137. ICC-01/04-01/06-2773-Red-tENG, para. 801. 2988 ICC-01/04-01/06-2773-Red-tENG, para. 801.

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and annotated it, and whilst he made certain changes he did not alter or comment on the assertion that on 17 April 2002 the UPC became a political-military movement. Furthermore, this document which, in all the circumstances, the Chamber is satisfied the accused approved, given the detail of the alterations he inserted sets out that in 2002 part of Bunia was held by his partisans. The Chamber accepts the evidence of P-0014 that he was told in June 2002 by Mr Lubanga that the people of Ituri needed to rise up to oust Mr Mbusa Nyamwisi, and this would be achieved by both diplomatic and military means. For reasons set out elsewhere, the Chamber is satisfied, notwithstanding the criticisms of the defence, that P-0014 was a credible and reliable witness. 1129. Furthermore, the Chamber is of the view the inevitable inference

to be drawn from the evidence of P-0014 is that Chief Kahwa and Mr Beiza were sent by the accused to Rwanda to obtain arms. 1130. On all the relevant material, the Chamber is persuaded the

accused intended to organise an army in order to fight Mr Nyamwisi and the RCD-ML. Additionally, Mr Lubanga sent a letter which set out that in the summer of 2002 the UPC delegation had been detained in Kinshasa, and it was against the background of his detention that he was provided with assistance in order to exercise his authority by Richard Lonema, Chief Kahwa and others, which included recruiting, mobilising and supervising the army. This conclusion is unaffected by the fact that there may have been little notice of the impending detention of the delegation sent to Kampala in June 2002. The Chamber accepts the evidence that the accused gave Richard Lonema instructions between July and August 2002, and the Chamber notes that, certainly in part, P-0041 agreed with this evidence. Critically, the
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evidence demonstrates the accused and Mr Lonema discussed the general policy that was to be adopted, and the former gave instructions that Mr Lonema acted on. The latter was the accuseds delegate, and Mr Lubanga was kept informed about, and controlled the activities of, the UPC from detention. 1131. During the course of July and August 2002, the main players in

the armed group that was eventually transformed into the UPCs armed branch, the FPLC, included Floribert Kisembo, Bosco Ntaganda and Chief Kahwa, three of the accuseds alleged co-perpetrators, and they had particular responsibility for recruitment and training. 1132. On all the evidence, the Chamber is persuaded the accused was

involved, along with some of his co-perpetrators, in the takeover of Bunia. The lack of certainty as to his formal position within the UPC at the time is largely irrelevant because it is the objectives and acts of the co-perpetrators, including the accused, which are critical for the charges. The evidence of P-0016 as to Floribert Kisembos and Bosco Ntagandas involvement in transferring him (P-0016) and other former APC soldiers to the training camp in Mandro in order to build a new army, and the evidence of D-0037 that the Mandro force was subsequently transformed into the FPLC immediately after the takeover of Bunia, suggests that there was close coordination between the rebels and the members of the UPC. In all the circumstances, D0019s evidence that the rebels only transferred political leadership to Thomas Lubanga after Bunia came under their control lacks credibility. 1133. The evidence has demonstrated that Thomas Lubanga,

following his return to Bunia in September 2002, appointed members

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of staff and filled positions within the UPC/FPLC. Elements of the group which became officially known as the FPLC in September 2002, at the latest, had taken up arms during the summer of 2002 to remove the forces that it considered were contributing to the destruction of Ituri, particularly the RCD-ML. 1134. Therefore, at least from September 2002, the accused as

President of the UPC-RP endorsed a common plan to build an effective army to ensure the UPC/FPLCs domination of Ituri, and he was actively involved in its implementation. Thomas Lubanga appointed Chief Kahwa, Floribert Kisembo and Bosco Ntaganda to senior posts within the UPC/FPLC, and they played significant roles in relation to the recruitment and training of soldiers. This plan, including the accuseds involvement, remained essentially unchanged during the time-frame of the charges. 1135. As to the events that took place prior to the period of the

charges, the central issue given the continuous nature of the offences is whether the co-perpetrators, including the accused, knew that children below the age of 15 who had been previously recruited would remain within the UPC/FPLC following September 2002. The Chamber is satisfied that the armed forces which had been recruited and trained by Chief Kahwa, Floribert Kisembo and Bosco Ntaganda prior to the takeover of Bunia, in due course became part of the FPLC, and the training camps that had been established by Chief Kahwa and Bosco Ntaganda in Mandro continued to be used in this context. 1136. It has been proved that by September 2002 at the latest Thomas

Lubanga, the President of the UPC/FPLC, had entered into an agreement, and thereafter participated in a common plan, with his co-

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perpetrators to build an effective army in order to ensure the UPC/FPLCs political and military control over Ituri. This plan resulted in the conscription, enlistment and use of children under the age of 15 to participate actively in hostilities, a consequence which occurred in the ordinary course of events. This conclusion satisfies the common-plan requirement under Article 25(3)(a). 2. THOMAS LUBANGAS ESSENTIAL CONTRIBUTION 1137. Given the requirement that Thomas Lubanga provided an

essential contribution, it is necessary to analyse his role and his contribution in accordance with the common plan. 1138. The prosecution contends that [w]ithout the contribution of the

accused as head of the UPC/FPLC and architect of its policies, the implementation of the common plan using criminal means the recruitment and use of child soldiers would have been frustrated.2989 It is argued that to demonstrate an essential contribution by the accused in the implementation of the common plan, it is sufficient in this case that the Accused was in control over the FPLC and had an instrumental role in the functioning of the military.2990 1139. The defence argues that the accused has not been prosecuted as

a civil or military commander who is responsible for the acts of his subordinates, but instead for his personal responsibility for the alleged crimes. 2991 It suggests that whether Thomas Lubanga had effective control over the FPLC and had knowledge of the crimes is immaterial in the instant case. Further, it is argued that Thomas Lubangas alleged

2989 2990

ICC-01/04-01/06-2778-Red, para. 18. ICC-01/04-01/06-2778-Red, para. 19. 2991 ICC-01/04-01/06-2773-Red-tENG, para. 818.

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central role in the functioning of this organisation cannot be characterised as amounting to an essential contribution and it is insufficient to form the basis of responsibility as a co-perpetrator.2992 The defence submits the accuseds logistical and organisational role as regards military operations, including providing the FPLC with weapons and ammunition, is irrelevant to his alleged contribution to the crimes with which he is charged. 2993 The defence suggests the leader of a political-military group cannot be considered criminally responsible for crimes committed by his or her troops solely on the basis of having provided logistical support or having facilitated their activities.2994 Therefore, it is argued that activities of this kind cannot constitute an essential contribution to the recruitment or use of children under the age of 15 in combat, because the offences were not dependent on the alleged role the accused.2995 The defence submission is that an overall coordinating falls short of an essential

contribution.2996 1140. In order to determine whether Thomas Lubanga performed an

essential role in accordance with the common plan, the Chamber has examined his position within the UPC/FPLC and the entirety of the contribution he made to the conscription, enlistment and use of children under the age of 15 to participate actively in hostilities. a) Thomas Lubangas role in the UPC/FPLC (1) Thomas Lubangas position in the UPC/FPLC

2992

ICC-01/04-01/06-2773-Conf, paras 818 820 and ICC-01/04-01/06-2786-Red-tENG, paras 24

28.
2993 2994

ICC-01/04-01/06-2773-Red-tENG, paras 824 and 825. ICC-01/04-01/06-2773-Red-tENG, para. 824. 2995 ICC-01/04-01/06-2773-Red-tENG, para. 824. 2996 ICC-01/04-01/06-2773-Red-tENG, para. 826.

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1141.

The Chamber heard evidence relating to the issue of Thomas

Lubangas role within the UPC/FPLC and to the question of whether he was, de facto, in a position to exercise the authority accorded to him in his official role as President of the UPC/FPLC. 1142. It is undisputed that Thomas Lubanga was the President of the

UPC and Commander-in-Chief of its armed wing, the FPLC, 2997 throughout the period of the charges. 2998 Several witnesses gave evidence that decisions were taken and orders were issued by the President or the Presidency, and they were all under the Presidents authority.2999 P-0012 stated the accused was never referred to by any title other than the President of the UPC, 3000 and P-0016 indicated that he understood the expression the Presidency to refer to Thomas Lubanga.3001 His evidence was that the FPLC was commanded by the Presidency,3002 and that Thomas Lubanga, as the President of the UPC, was therefore the Commander-in-Chief. 3003 P-0014 indicated that in accordance with the laws that were announced over the radio, 3004 Thomas Lubanga, as President of the UPC/FPLC, was also the National Secretary for Defence. 3005 On this basis, P-0014 concluded Thomas Lubanga was the political leader of the army, and he observed that there had been a clear statement to the effect that he was the

See the Agreement entitled Agreement between the UPC/RP and the UPDF signed on behalf of the UPC/RP (FPLC), EVD-OTP-00693; T-349-ENG, page 8, lines 15 20 and page 20, line 20 to page 21, line 12 (D-0037). 2998 T-168-Red2-ENG, page 17, lines 18 21 and page 72, lines 3 6 (P-0012); T-170-Red2-ENG, page 51, lines 12 14 (P-0024); T-179-Red2-ENG, page 39, line 23 (P-0014); T-189-Red2-ENG, page 4, lines 10 15 (P-0016); T-113-Red2-ENG, page 32, lines 1 5 (P-0038) . 2999 T-179-Red-ENG, page 39, lines 23 25 (P-0014); T-125-Red2-ENG, page 40, lines 17 19 (P0041); T-175-CONF-ENG, page 20, lines 3 4 and page 22, lines 12 23 (P-0055). 3000 T-168-Red2-ENG, page 72, lines 3 6. 3001 T-189-Red2-ENG, page 4, lines 21 24. 3002 T-189-Red2-ENG, page 4, lines 19 20 (P-0016). 3003 T-189-Red2-ENG, page 4, lines 21 24; T-190-Red2-ENG, page 37, line 24 to page 38, line 5 (P0016). 3004 T-181-Red2-ENG, page 54, line 24 to page 55, line 5. 3005 T-181-Red2-ENG, page 56, lines 1 5.

2997

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Commander-in-Chief of the army put otherwise, there was no one in command above him.3006 1143. When he returned to Bunia around 1 September 2002, 3007

Thomas Lubanga, as President, appointed members of his staff and filled positions within the UPC/FPLC. 3008 P-0041 testified that the decree of 2 September 2002 which gave the group the name UPC-RP, instead of the FRP-UPC, was signed by Thomas Lubanga, although he could not say who decided on the change. 3009 As President of the UPC/FPLC, Thomas Lubanga also issued a decree appointing the Governor and the two Vice-Governors of Ituri.3010 1144. The disputed evidence from P-0014 was that civilians and

members of the military made suggestions to Thomas Lubanga for his decision.3011 The witness gave evidence that after 20 August 2002, once the accused had arrived, the members of the political and military elite included Thomas Lubanga, John Tinanzabo, Daniel Litsha, Adle Lotsove, Pilo Kamaragi, Richard Lonema and, at the outset, Chief Kahwa.3012 1145. P-0055 stated that the Chief of Staff and the Deputy Chief of

Staff were responsible for implementing any plans concerning the structure of the army, in particular the establishment of sectors and brigades, and these decisions were subject to the approval of President

T-181-Red2-ENG, page 56, lines 5 10. T-181-Red2-ENG, page 53, line 21 to page 54, line 7 (P-0014). 3008 T-181-Red2-ENG, page 54, line 19 to page 55, line 15 (P-0014); T-124-CONF-ENG, page 69, lines 13 21 (P-0041); T-174-CONF-ENG, page 47, line 23 to page 48, line 7, T-175-CONF-ENG, page 4, line 22 to page 5, line 7 (P-0055). See also the decree appointing members of the government, EVD-OTP-00721 dated 3 September 2002, signed by Thomas Lubanga. 3009 T-125-Red2-ENG, page 17, line 19 to page 19, line 5. 3010 EVD-OTP-00734. 3011 T-181-CONF-ENG, page 94, line 1 to page 95, line 8. 3012 T-181-CONF-ENG, page 92, line 23 to page 93, lines 7 17.
3007

3006

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Lubanga.3013 When dealing with meetings the accused held on military matters, P-0014 gave evidence that, at the outset, the accused had insufficient technical knowledge of military matters, but he learnt quickly and easily became familiar with the subject. 3014 P-0014 was told, even at this early stage, that Mr Lubanga either approved or disapproved certain operations that were being planned.3015 1146. As an example of Thomas Lubangas authority within the

UPC/FPLC, P-0014 gave evidence that after September 2002, all the members of the UPC executive 3016 had been ordered by President Lubanga to go to Mandro for two weeks training.3017 The defence challenged this indirect evidence, but P-0014 maintained his account.3018 1147. After several months in power, Thomas Lubanga appointed a

new executive by the UPC/FPLC decree of 11 December 2002. 3019 Article 1 stated that defence and security were the responsibility of the Presidency and the positions of Minister and Deputy Minister for Defence were unassigned.3020 Thomas Lubanga therefore retained the defence and security portfolio for himself. 1148. The Chamber heard evidence on the involvement of the accused

in planning and contributing to operations. Thomas Lubangas private secretary (D-0011) gave evidence that whilst he was working for the accused from, approximately, August 2002 to September 2004,3021 he

3013 3014

T-175-CONF-ENG, page 33, lines 13 14. T-181-CONF-ENG, page 97, lines 2 4. 3015 T-181-CONF-ENG, page 97, lines 4 6. 3016 T-185-Red2-ENG, page 11, lines 9 11. 3017 T-182-CONF-ENG, page 19, lines 19 25. 3018 T-185-Red2-ENG, page 13, lines 18 21. 3019 EVD-OTP-00687. 3020 EVD-OTP-00687. 3021 T-346-ENG, page 74, lines 6 15 and page 75, lines 3 6.

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was responsible for procuring the military rations or supplies that had been purchased by Thomas Lubanga.3022 1149. During an interview at his residence in Bunia,3023 the accused

indicated the UPC/FPLC had bought ammunition from Uganda, 3024 and in a letter dated 12 July 2003, a General in the Force Multinationale Intrimaire was requested to return weapons seized from the UPC/FPLC at a camp in Miala.3025 The Chamber notes the accused did not sign this letter personally and someone signed it on his behalf. 1150. P-0016 gave evidence to the effect that President Lubanga was

not involved in planning military operations conducted by the FPLC because he was not a soldier, and instead he waited at his residence for reports from his Chief of Staff and others.3026 Instead, he suggested Mr Lubanga had a role securing the provisions that were used by the soldiers during these operations. 3027 P-0016 indicated the accused issued instructions for this purpose, in that he would give it to the Chief of Staff. And the G4 would go out to get food. 3028 P-0016 testified that Mr Lubanga negotiated with the traders, whom P-0016 referred to as the brothers of the accused, to collect money or vehicles for the army (the latter were used to secure food or for transport).3029 P-0016 also indicated he couldnt have another role other than providing logistical support.
3030

P-0016 testified that

following negotiations between Mr Lubanga, Bosco Ntaganda,

3022 3023

T-346-ENG, page 75, lines 14 16. EVD-OTP-00584 at 01:03:00 01:04:00; T-130-Red2-ENG, page 39, lines 5 10 and lines 22

23.
3024 3025

EVD-OTP-00584, interpretation from transcript T-130-Red2-ENG, page 48, lines 14 19. EVD-OTP-00685. 3026 T-190-Red2-ENG, page 9, lines 19 24. 3027 T-190-Red2-ENG, page 10, line 10 to page 11, line 8. 3028 T-190-Red2-ENG, page 10, lines 10 12. 3029 T-190-Red2-ENG, page 10, line 24, to page 11, line 8. 3030 T-190-Red2-ENG, page 10, line 10.

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Ali3031 and the RCD,3032 weapons were dropped from aircraft at the military base in Mandro, where there was a weapons depot.3033 The Chamber concludes there is strong evidence that the accused provided support for the troops in this way. However, the Chamber does not accept the evidence of P-0016 as to the extent of Mr Lubangas control over operations. His account was, at least in part, inconsistent and it was difficult to follow, and it was improbable when compared with other witnesses on this issue, whose evidence the Chamber has accepted. 1151. Other evidence demonstrates the accused was involved

substantively in military affairs. P-0055 testified that the accused was involved in planning a particular operation in 2003 before fighting occurred between the UPC/FPLC and the UPDF in Bunia. 3034 The witness suggested the arrangements for this operation were made in the presence of the accused at the latters residence.3035 More generally, the witness stated that when Bosco Ntaganda and the main staff planned operations, they informed the President of their requirements and he secured the necessary finances and logistical support.3036 P-0055 also described an occasion when the accused gave instructions in the course of a tense military event and a battle plan was drawn up by the Chief of Staff in his office.3037 1152. P-0017 testified that after the operations in Kobu, Bambu and

The Chamber notes that Ali could be referring to Ali Mbuyi, who was said to have replaced Idriss Bobale as G2. P-0016 said the G2 was responsible for security, T-189-CONF-ENG, page 5, line 20 to page 6, line 1 and page 80, lines 7 10 (P-0016). 3032 T-189-Red2-ENG, page 43, line 20 to page 44, line 5. 3033 T-189-Red2-ENG, page 43, lines 20 24. 3034 T-175-CONF-ENG, page 10, lines 1 13. 3035 T-175-Red2-ENG, page 10, line 24 to page 11, line 8. 3036 T-178-Red2-ENG, page 61, line 21 to page 62, line 18 and page 63, lines 5 16; T-175-Red2ENG, page 11, lines 8 11 and lines 20 21. 3037 T-178-CONF-ENG, page 29, line 2 to page 31, line 19.

3031

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Lipri, most of his brigade returned to Bunia where it was billeted in the EPO camp close to the residence of the accused. 3038 While the witness was in Bunia, he escorted his brigade commander, Salumu, to the accuseds residence although he was unaware of the reasons for the visit.3039 After about an hour and a half, Commander Salumu left the meeting with the accused and told P-0017 that [t]he orders were just to take the camp.3040 The witness did not understand this to mean that Thomas Lubanga had issued these orders, but rather the commander did not want to tell him anything.3041 Notwithstanding this lack of detail, P-0017s evidence concerning this meeting lends support to the account of P-0055. 1153. P-0014 testified that after August 2002, Adle Lotsove, Neme

Ngona, Floribert Kisembo and Chief Kahwa were in Aru in order to deploy UPC soldiers peacefully and to mobilise the population in support of the UPC.3042 The witness also testified that Adle Lotsove had been entrusted by Thomas Lubanga to speak with the notables in Aru so as to gain support for the accused. 3043 They each made reports by telephone to Thomas Lubanga.3044 1154. P-0014 suggested the military participated in this exercise,

given there were troops in Aru, and the Chief of Staff, Floribert Kisembo, led the UPC contingent and Commander Jerme Kakwavu, who was accompanied by troops, was also present. 3045 The witness indicated Thomas Lubanga received reports from Floribert Kisembo

3038 3039

T-158-Red2-ENG, page 13, line 17 to page 14, line 10. T-158-Red2-ENG, page 14, lines 3 to 17 and page 15, line 20 to page 16, line 13. 3040 T-158-Red2-ENG, page 16, line 15 to page 17, line 1 (P-0017). 3041 T-158-Red2-ENG, page 17, lines 2 7 (P-0017). 3042 T-181-CONF-ENG, page 82, line 16 to page 84, line 6. 3043 T-181-CONF-ENG, page 83, lines 19 22 and T-181-Red2-ENG, page 84, lines 15 23. 3044 T-181-Red2-ENG, page 82, lines 20 21. 3045 T-181-Red2-ENG, page 83, line 23 to page 84, line 3 and lines 7 11.

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by telephone, 3046 and Chief Kahwa and Floribert Kisembo spoke to Thomas Lubanga, who had ordered the transfer of soldiers from Bunia.3047 P-0014 stated that Chief Kahwa and Floribert Kisembo were informed by Thomas Lubanga that soldiers would be arriving shortly. 3048 P-0014 understood this was an order, given the soldiers then arrived.3049 P-0014 noticed they were wearing new uniforms and they had been given new weapons.3050 1155. In this context P-0014 also gave evidence on the accuseds

involvement in procuring weapons and uniforms. 3051 According to information he received, weapons and uniforms had been airdropped near Mandro, having come from Rwanda pursuant to an agreement between the UPC and Rwanda.3052 P-0014 testified that Chief Kahwa and Beiza Nembe had already established contacts in this context.3053 The witness suggested the weapons delivery was arranged on the basis of instructions given by the accused before he was detained in Kinshasa, and that the accused was informed about developments in the field and was in direct contact with the Rwandan authorities.3054 The Chamber accepts this evidence. 1156. However, the Chamber also heard evidence to the effect that

Thomas Lubanga may not have been in full control of the FPLC, and that other members of his staff made decisions that he had not

T-181-CONF-ENG, page 82, lines 20 21, page 83, line 11 and page 85, lines 9 14. T-181-CONF-ENG, page 83, line 3 to page 86, line 3. 3048 T-181-CONF-ENG, page 82, line 13 to page 86, line 21. 3049 T-181-CONF-ENG, page 83, lines 3 11 and page 85, lines 16 25. 3050 T-181-Red2-ENG, page 87, lines 11 19. 3051 T-181-CONF-ENG, page 87, line 11 to page 89, line 25. 3052 T-181-CONF-ENG, page 88, line 21 to page 89, line 10 and page 89, line 23 to page 91, line 23. P-0014 received the same information from another source as well. T-181-CONF-ENG, page 90, lines 14 15. 3053 T-181-CONF-ENG, page 88, line 21 to page 89, line 4 and page 89, line 23 to page 91, line 8 (P0014). 3054 T-181-CONF-ENG, page 90, line 24 to page 92, line 6.
3047

3046

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necessarily agreed to or authorised. 1157. P-0012 testified that although on 5 March 2003 Thomas Lubanga

had indicated that he did not want the FPLC to attack the UPDF forces, his view had not prevailed.3055 Similar evidence was given by P0038, who said that Commander Salumu, as one of the UPC/FPLC brigade commanders in the field, was very angry after a meeting attended by the brigade commanders, the Chief of Staff and Thomas Lubanga, and he told P-0038 that the accused did not want to attack the Ugandans. 3056 However, Commander Salumu instructed P-0038 they were nonetheless to attack the following morning, 3057 and the battle of Bunia when the FPLC attacked the Ugandan troops took place on 6 March 2003.3058 It is to be emphasised that the Chamber heard contradictory evidence concerning this incident.3059 1158. The defence suggests the evidence of P-0012 and P-0038 shows

that the Military High Command could reverse Thomas Lubangas decisions and thus he did not have effective power or control over the FPLC. 3060 However, the evidence concerning the battle with the Ugandans is unclear and it is of note that P-0012 and P-0038 gave indirect evidence. Although the witnesses corroborate each other to the extent that Thomas Lubanga may not, certainly at one stage, have agreed with the final decision, it is impossible to determine whether Thomas Lubanga was overruled or if he was persuaded by his staff that the battle should occur. In any event, the evidence shows that the accused was centrally involved in these discussions and was consulted

3055 3056

T-169-CONF-ENG, page 48, line 22 to page 49, line 14 and page 50, lines 5 8. T-114-Red2-ENG, page 74, line 15 to page 75, line 17. 3057 T-114-Red2-ENG, page 75, lines 17 18. 3058 T-114-Red2-ENG, page 74, lines 7 11. 3059 See references in ICC-01/04-01/06-2748-Conf, para. 260. 3060 ICC-01/04-0/106-2773-Conf, paras 474 - 475.

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on relevant military decisions. 1159. In addition to his evidence on the logistical assistance provided

by the accused, P-0016 also appeared to suggest, at least potentially, that the Chief of Staff, Floribert Kisembo, and his two deputies, Bosco Ntaganda and Mr Nfomo, presented various military issues to the President only after they had been resolved.3061 The inferences to be drawn from this particular evidence are uncertain. However, in light of the material overall, including an incident during which Bosco Ntaganda and Floribert Kisembo were reprimanded for acting without informing the accused, 3062 the Chamber is not persuaded that it demonstrates, or establishes the real possibility, that the authority of the accused was limited or undermined by his staff. 1160. On the issue of appointments within the FPLC, P-0016

understood that the Chief of Staff, Floribert Kisembo, proposed his own appointment within the FPLC hierarchy. 3063 Further, P-0016 suggested that Idriss Bobale was removed as the G2 responsible for military and civilian security and replaced by one of Bosco Ntagandas brothers, Ali Mbuyi, because Mr Ntaganda wanted to have a member of his family in this position.3064 1161. Similarly, P-0055 indicated that although President Lubanga

officially appointed him to his position within the hierarchy of the FPLC, 3065 he believed the decision may have been made by certain leaders within the main staff (the high command), and thereafter

T-189-Red2-ENG, page 64, lines 3 20. See reference to evidence of the relevant witness in ICC-01/04-01/06-2748-Conf, para. 262. 3063 T-189-Red2-ENG, page 62, lines 8 16. 3064 T-189-Red-ENG, page 8, line 11 to page 9, line 14. 3065 T-174-CONF-ENG, page 47, line 23 to page 48, line 7, T-175-CONF-ENG, page 4, line 22 to page 5, lines 5 7 and T-178-CONF-ENG, page 16, lines 18 22.
3062

3061

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simply endorsed by Thomas Lubanga.

3066

P-0055 indicated that a

member of the main FPLC staff treated him as a member of the UPC/FPLC prior to his appointment and he helped him with insignificant tasks, despite the lack of a letter of appointment at that time.
3067

The defence suggests the circumstances of P-0055s later

appointment confirm that the accused did not exercise any de facto control over the military.3068 The defence also refers to a mission when P-0055 accompanied a high-ranking FPLC official to distribute weapons prior to his appointment, and suggests Mr Lubanga was unaware of this involvement by P-0055.3069 However, the latter stated that although he participated in this weapons delivery at a particular location, he accompanied the high-ranking FPLC officer as a visitor rather than in an official capacity.3070 1162. The Chamber is satisfied that notwithstanding the undoubted

influence and the various duties of Floribert Kisembo and Bosco Ntaganda as regards appointments and other staffing matters, given the inevitable necessity for the President to delegate a large number of significant tasks and the structure of the UPC/FPLC, they remained under his ultimate authority. 1163. That said, it is necessary to address further evidence on this

issue. P-0017 confirmed the extensive statements he had made to the investigators to the effect that Floribert Kisembo was in charge of the army; that his influence was greater than that of Thomas Lubanga; and

3066 3067

T-178-CONF-ENG, page 12, lines 20 24, page 13, line 3 to page 14, line 22. T-178-CONF-ENG, page 10, lines 19 24. 3068 ICC-01/04-01/06-2773-Red-tENG, para. 484. 3069 ICC-01/04-01/06-2773-Red-tENG, para. 484. 3070 T-178-Red2-ENG, page 9, lines 2 15.

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the latter played a political rather than a military role.3071 This witness never personally heard President Thomas Lubanga give military commands, and he said it was the Chief of Staff, Floribert Kisembo, who visited the army and issued orders.3072 P-0017 testified that while he was in Mamedi with Mr Kisembo and they were discussing their return to Bunia, Mr Kisembo commented that the President habitually talked about political affairs, but this time they would use arms to pacify the situation if necessary.3073 P-0017 also described an incident when Floribert Kisembo, accompanied by Thomas Lubanga, visited the soldiers on their return from military training in Rwanda, in about November 2002. 3074 P-0017 suggested he and other soldiers were surprised to see Mr Lubanga wearing a military uniform, because the President was a political figure.3075 According to P-0017:
I went to Mandro. There were recruits there. I did not hear the name of Thomas. Nobody talked about the influence of Thomas. There was more talk of Kahwa instead, and that's why I have always considered, even after I left the UPC, I have always considered that the person in charge of military affairs in the UPC is Kahwa. That's my opinion. When I look at the activities carried out by Mr. Lubanga when we were in the UPC, when I look at those activities, I will say that he, rather, handled the political side of things.3076

1164.

The prosecution suggests P-0017 may not necessarily have been

aware of the accuseds role in giving military orders, because he was with Commander Salumus brigade. 3077 The Chamber notes that

although P-0017 provided detailed evidence about lower-level military structures and practices in the field, his testimony that Thomas

T-160-Red2-ENG, page 41, lines 18 25, page 42, line 17 to page 43, line 11 and page 44, line 10 to page 46, line 16. 3072 T-160-Red2-ENG, page 44, line 25 to page 45, line 2 and page 45, lines 8 11. 3073 T-160-Red2-ENG, page 45, lines 4 8. 3074 T-154-Red2-ENG, page 40, lines 7 12, page 66, line 25 to page 67, line 2 and page 69, line 2 to page 71, line 11. 3075 T-160-Red2-ENG, page 49, line 12 to page 50, line 6. 3076 T-160-Red2-ENG, page 46, lines 18 25. 3077 ICC-01/04-01/06-2748-Red, para. 254.

3071

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Lubanga did not play a military role was essentially a general impression he had formed, based in part on the fact that nobody [at Mandro] talked about the influence of Thomas.3078 The witness made it clear he never personally heard or assisted or attended personally an occasion in which orders were given by President Thomas Lubanga.3079 However, when asked if the Chief of Staff had to report to anyone above him, the witness unequivocally stated that whilst Floribert Kisembo, the Chief of Staff, was the supreme chief in the army, the president of the UPC was the person above him. 3080 Therefore, although P-0017 may have formed the impression that Floribert Kisembos influence in the army was greater than that of the accused, he critically conceded that the President of the UPC/FPLC was the Chief of Staffs superior within the hierarchy. 1165. P-0017 further testified that, after the Artemis operation in June

2003 3081 and the ensuing fighting, Floribert Kisembo attempted to become the President of the UPC/FPLC when Thomas Lubanga was in Kinshasa, and in fact proclaimed himself President of the UPC/FPLC when he returned to Bunia. 3082 However, the attempted coup in December 2003 was unsuccessful and the accused was confirmed in his role as President of the UPC/FPLC the same month.3083 Given the date of the incident, it is not an indication of a lack of authority on the part of the accused during the period of the charges. 1166.
3078 3079

D-0011 referred to a period before May 2003 during which we

T-160-Red2-ENG, page 46, lines 18 19. T-160-Red2-ENG, page 44, line 25 to page 45, line 2. 3080 T-154-Red2-ENG, page 24, lines 14 19. 3081 D-0019 stated that Artemis was deployed in June 2003, T-345-ENG, page 51, line 25 to page 52, line 3. 3082 T-160-Red2-ENG, page 56, lines 7 20. 3083 Letter condemning the attempted coup and confirming Thomas Lubanga as President, signed by the Interim President of the UPC/FPLC, dated 9 December 2003: EVD-D01-01092; D-0019 confirmed that he was Interim President in the absence of Thomas Lubanga, T-342-ENG, page 52, lines 2 9.

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[the UPC/FPLC] werent in a position to manage affairs in the territory.3084 D-0037 likewise gave testimony that there was a period when the structures within the UPC/FPLC may not have been functioning: D-0037 stated that the various divisions of the main staff continued to function in Bunia up until the war with the Ugandans.3085 After the UPC was driven out of Bunia on 6 March 2003, the witness joined other troops in order to find shelter from the Ugandans, who were hunting down anyone who had served with the FPLC.3086 When the Ugandans left in May 2003, the FPLC and other armed groups returned to Bunia.3087 D-0037 maintained it was difficult to distinguish the FPLC troops from other forces,3088 given everyone carried weapons and there was a lack of control over those in the military. 3089 This apparently chaotic situation is reflected in the minutes, drafted and signed by D-0037, of a meeting on 16 June 2003 in Bunia3090 that was attended by, amongst others, Rafiki Saba and Bosco Ntaganda.3091 It was reported that unlike the period before 6 March 2003, the army was undisciplined and the issue of independent troops needed to be addressed.3092 It was also said it was necessary to demobilise the child soldiers and to deliver them to the NGOs, and in this context there was reference to a UPC demobilisation decree of 1 June 2003.3093 1167. The defence further suggests the FPLC was a precarious alliance

3084 T-347-ENG, page 35, line 25 to page 36, line 5; D-0011 described where he and the accused went when they had to flee between the 6 March 2003 when the UPC/FPLC was forced out of Bunia and the end of May when the FPLC had retaken Bunia and they could return, T-347-ENG, page 12, line 5 to page 14, line 9. 3085 T-349-ENG, page 23, line 25 to page 24, line 5. 3086 T-349-ENG, page 15, line 21 to page 16, line 1. 3087 T-349-ENG, page 16, lines 9 23. 3088 T-349-ENG, page 16, line 24 to page 17, line 2. 3089 T-349-ENG, page 17, lines 4 12. 3090 T-349-ENG, page 17, lines 21 25 and page 19, lines 6 15 (D-0037). 3091 EVD-D01-01098 and T-349-ENG, page 18, line 23 to page 19, line 2 (D-0037). 3092 EVD-D01-01098 at page 2. [Unofficial translation.] Original: Je sais quil y a des troupes indpendantes, mais il faut que cela cesse immdiatement. 3093 EVD-D01-01098.

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of autonomous forces rather than a properly structured army under a commander-in-chief, as indicated by the continuous stream of defections by the main FPLC commanders, along with their troops.3094 For instance, P-0055 testified that a few days before 6 March 2003, Jrme Kakwavu left the UPC and founded his own movement, the FAPC.3095 P-0055 also indicated that at about this time, commanders Munyalizi, Tchaligonza and Kasangaki left the UPC and the latter two established a separate movement, PUSIC, under the leadership of Chief Kahwa.3096 The defence submits the additional defection by the Chief of Staff, Floribert Kisembo, and his troops in December 2003 reveals the autonomy and independent authority of the military leaders, thereby demonstrating the accuseds lack of a central role in the FPLCs military structure, which was headed by Floribert Kisembo.3097 1168. However, during an interview Thomas Lubanga gave at his

residence in Bunia in early June 2003,3098 he said the situation in Bunia was relatively calm following the arrival of the UPC army. 3099 Mr Lubanga explained he was the President of the UPC and he described the FPLC army as trained, equipped, well organised and

experienced.3100 He distinguished the FPLC from other armed groups, suggesting that it is not a militia, but an army built on political objectives. 3101 Thomas Lubanga referred to the UPCs absence from

ICC-01/04-01/06-2773-Red-tENG, para. 815. T-178-Red2-ENG, page 18, line 22 to page 19, line 1 and page 19, line 16 to page 20, line 5. 3096 T-178-Red2-ENG, page 63, line 17 to page 64, line 8. 3097 ICC-01/04-01/06-2773-Red-tENG, paras 816 and 817, referring to EVD-D01-01092, a letter on official UPC/FPLC letterhead dated 9 December 2003 referring to an attempted coup by Commander Kisembo and Daniel Litsha and recognising Thomas Lubanga as the President. 3098 EVD-OTP-00584; T-130-Red2-ENG, page 36, line 18 and page 39, lines 5 10 and lines 22 23. 3099 EVD-OTP-00584, starting at 00:58:38. Interpretation in T-130-Red2-ENG, page 42, line 20 to page 43, line 3. 3100 Interpretation in T-130-Red2-ENG, page 43, line 25 to page 44, line 11. 3101 Interpretation in T-130-Red2-ENG, page 44, lines 6 11.
3095

3094

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Bunia for a few months between 6 March and 12 June, 3102 and he asserted the Ugandans had created a confusing situation in Ituri by distributing arms and creating divisions amongst the people, in order to justify their continued presence in the region. 3103 He said the Ugandans had armed child soldiers who had previously been demobilised during the UPCs absence between March and June.3104 1169. Although the March 2003 conflict with the Ugandans and the

defections of some of the commanders in the FPLC appear to have had an adverse effect on the FPLC, there is no suggestion that it collapsed. A number of official documents, including the demobilisation order of 1 June 2003, and the evidence about a variety of meetings demonstrate that the UPC/FPLC continued to function after March 2003. Additionally, taking into account the statements of the accused in the interview just referred to, the Chamber is persuaded that he exercised substantive authority as President and Commander-in-Chief. Overall, the accused was more than the UPC/FPLCs figurehead: he was the organisations active President and he had ultimate control, including as regards military matters. The accused was involved in planning military operations and he played a key role in providing logistical support, including weapons, ammunition, food, uniforms, military rations and other supplies for the FPLC troops. Furthermore, Mr Lubanga appointed his co-perpetrators to the different positions they held within the political and military structure of the UPC/FPLC. The evidence demonstrates that the UPC/FPLC had a clear hierarchy with lines of reporting and communication. This issue is described in greater detail below. In summary, the accused was the ultimate
3102 3103

Interpretation in T-130-Red2-ENG, page 48, lines 22 23. Interpretation in T-130-Red2-ENG, page 48, lines 5 13. 3104 Interpretation in T-130-Red2-ENG, page 48, lines 14 24.

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authority in that political-military structure. (2) Other staff in the UPC 1170. The Chamber heard other evidence on the general hierarchy and

structures within the UPC/FPLC, as well as the functions exercised by some of its staff. 1171. P-0041 gave evidence concerning the organisation of the UPC/

FPLC in September 2002, highlighting its political and military wings. There was a governor and various territorial administrators, and the President appointed the individuals who were responsible for the military. 3105 P-0041 suggested that the administration in Ituri was comparable to the government of a country, and the national secretary for each domain was not only superior to the provincial governor but worked directly with the office of the UPC President. 3106 P-0041 expressed the view that the President was uppermost in the hierarchy, followed by the secretary general, the ministers or national secretaries, the governor and the various other officials who controlled the territory.3107 It follows from this testimony that the President was able exercise authority over all those in the administration. 1172. In 2002 and 2003, General Floribert Kisembo was the Chief of

Staff,3108 and he served under Thomas Lubanga, the President of the

T-125-Red2-ENG, page 27, lines 5 8. T-125-Red2-ENG, page 26, lines 2 9. 3107 T-125-Red2-ENG, page 26, lines 13 17. 3108 T-154-Red2-ENG, page 21, lines 11 12 and 21 23 (P-0017 gave evidence on the staff hierarchies for the time he was in the UPC/FPLC, which was from early 2002 to August 2003, T-154Red2-ENG, page 16, lines 18 20 and page 17, lines 11 15); T-175-CONF-ENG, page 17, lines 14 17 (P-0055); T-168-Red2-ENG, page 46, lines 6 8 (P-0012); T-125-Red2-ENG, page 27, line 8 (P0041); T-188-CONF-ENG, page 95, lines 7 8 and 11 13 (P-0016); T-113-Red2-ENG, page 32, lines 1 5 (P-0038).
3106

3105

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UPC/FPLC. 3109 Bosco Ntaganda was the Deputy Chief of Staff with responsibility for military operations;3110 Chief Kahwa was the Minister of Defence (but only at the outset);3111 Professor Dhetchuvi was the Minister of Foreign Affairs;
3112

and Adle Lotsove, Minister of

Economy and Finance.3113 Richard Lonema was the National Secretary of Economy, Commerce and Industry; John Tinanzabo, the National Secretary for Pacification and Reconciliation; and Djokaba Lambi Longa became the Assistant National Secretary of the Interior. 3114 Daniel Litsha became the First Secretary of the UPC/FPLC, a post that was initially referred to as the Secretary General of the UPC when the list of the executive was issued.3115 Rafiki Saba worked with the staff at the main staff headquarters.3116 1173. The Chief of Staff in the UPC/ FPLC had two deputies: one was

in charge of the administration and logistics and the other controlled intelligence, including operations.
3117

The

latter

was

Bosco

Ntaganda, 3118 who witnesses confirmed was inferior in rank to

T-154-Red2-ENG, page 24, lines 14 19 (P-0017); T-175-CONF-ENG, page 20, lines 3 4 and page 22, lines 12 23 (P-0055). 3110 T-175-CONF-ENG, page 17, lines 14 17 (P-0055); P-0041 stated that Bosco Ntaganda was Floribert Kisembos assistant, T-125-Red2-ENG, page 27, lines 8 - 9 (P-0041); T-113-Red2-ENG, page 32, lines 1 5 (P-0038); T-349-ENG, page 9, lines 5 7 and page 21, lines 13 15 (D-0037); T168-Red2-ENG page 46, lines 6 - 7 (P-0012). 3111 T-168-Red2-ENG, page 46, line 3 (P-0012); T-113-Red2-ENG, page 32, lines 1 5 and page 37, lines 7 8 (P-0038); EVD-OTP-00721, T-126-Red2-ENG, page 27, line 11 to page 28, line 1 (P-0041). The decree includes the title Assistant National Secretary rather than Minister. 3112 T-168-Red2-ENG, page 46, lines 10 12 (P-0012); EVD-OTP-00721, T-126-Red2-ENG, page 27, lines 11 12 and page 27, line 21 to page 31, line 25 (P-0041). The decree includes the title National Secretary rather than Minister. 3113 T-168-Red2-ENG, page 46, lines 13 14 (P-0012); EVD-OTP-00721. 3114 EVD-OTP-00721; T-126-Red2-ENG, page 27, line 11 to page 28, line 1 (P-0041). 3115 T-184-Red2-ENG, page 52, lines 2 6 (P-0014). 3116 T-175-Red2-ENG, page 17, lines 19 22 (P-0055). 3117 T-175-Red2-ENG, page 17, lines 14 17 (P-0055); P-0041 stated that Bosco Ntaganda was Floribert Kisembos assistant; T-125-Red2-ENG, page 27, lines 8 - 9 (P-0041) and T-113-Red2ENG, page 32, lines 1 5 (P-0038). T-188-Red2-ENG, page 95, lines 1 13 and T-189-Red2-ENG, page 76, lines 9 18 (P-0016). 3118 T-175-CONF-ENG, page 17, lines 14 17 (P-0055); T-113-Red2-ENG, page 32, lines 1 5 (P0038); T-349-ENG, page 9, lines 5 7 and page 21, lines 13 15 (D-0037); T-168-Red2-ENG page 46, lines 5 - 7 (P-0012).

3109

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Floribert Kisembo.3119 1174. Floribert Kisembo exercised authority over those at G1, G2, G3,

G4 and G5 levels within the FPLC.3120 The Chamber heard evidence that Luhala Mbala was the G1 responsible for staff management and the administration of the FPLC. 3121 Commander Idris Bobale, later replaced by Ali Mbuyi, was the G2 in charge of intelligence, surveillance and security. 3122 It was suggested that the G2 was

responsible for training children in military intelligence.3123 Floribert Kisembo appointed John Hoyeti as the G3, with responsibility for areas such as organisation, instruction and operations.3124 P-0017 and P-0038 testified that Bosco Ntaganda was a G3, 3125 but given the strength of the evidence that he was the head of operations and in charge of the G3s, the Chamber has disregarded this contention. The G4, Papy Maki, 3126 was responsible for food and logistics. 3127 Eric Mbabazi, as G5, was concerned with relations between soldiers and civilians, and morale issues,3128 and P-0038 referred to a further G5 by the name of Lobho.3129 D-0037 gave evidence that these men, as heads

3119 T-160-Red2-ENG, page 44, lines 2 5 (P-0017); T-178-CONF-ENG, page 47, line 6 to page 48, line 2 and T-175-CONF-ENG, page 18, line 5 to page 19, line 22 and page 21, line 13 to page 22, line 1 (P-0055), also referring to the flowchart of the army EVD-OTP-00452. 3120 T-154-Red2-ENG, page 21, lines 11 13 (P-0017); T-188-Red2-ENG, page 95, lines 4 12 (P0016); T-113-Red2-ENG, page 32, lines 8 9 (P-0038). 3121 T-189-CONF-ENG, page 80, lines 2 6 (P-0016) and T-113-Red2-ENG, page 32, line 19 (P0038). 3122 T-154-Red2-ENG, page 24, lines 3 and 10 (P-0017, referring to Ali); T-189-Red2-ENG, page 5, line 22 to page 6, line 1 and page 8, lines 11 14 (P-0016); T-181-CONF-ENG, page 96, lines 7 9, page 97, line 25 to page 98, line 2 and page 98, lines 7 9 (P-0014 ). 3123 T-184-Red-ENG, page 24, line 24 to page 25, line 1 (P-0014). 3124 See for example transcript reference in ICC-01/04-01/06-2748-Conf, para. 240. 3125 T-113-Red2-ENG, page 32, lines 15 16 and page 33, lines 4 5 (P-0038) T-154-Red2-ENG, page 24, lines 3 4 (P-0017). 3126 T-189-Red2-ENG, page 80, lines 12 - 13 (P-0016). 3127 T-113-Red2-ENG, page 32, line 9 and 16 17 (P-0038); T-154-Red2-ENG, page 24, lines 11 12 and T-158-Red2-ENG, page 34, line 9 (P-0017). 3128 T-154-Red2-ENG, page 24, lines 4, 12 13 (P-0017); T-189-Red2-ENG, page 77, lines 11 19 (P0016) and T-175-Red2-ENG page 17, lines 17 19 (P-0055, stating that the staff included an individual with the name of Mr Eric). 3129 T-113-Red2-ENG, page 32, lines 10, 17 18.

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of divisions, were ultimately responsible to the Chief of Staff, Commander Kisembo.3130 1175. As mentioned above, P-0055 suggested the Chief of Staff and his

Deputy were responsible for the structure of the army, by establishing the sectors and brigades and deploying the troops.3131 P-0017 testified that the brigades came under the army staff, 3132 and the brigade commanders were answerable to the sector commanders. 3133 P-0038 indicated the generals, including the brigade generals, had overall responsibility for the army.3134 P-0055 provided details on the way the FPLC was organised, including information on sectors, brigades and battalions, with the help of various diagrams.3135 Two witnesses who were UPC/FPLC soldiers further described the structure within the UPC/FPLC.3136 1176. The evidence demonstrates the UPC/FPLC was a well-

structured organisation, with the accused and some of his alleged coperpetrators discharging significant functions. The accused was clearly able to exercise authority over all those within the UPC/FPLC. (3) Lines of reporting within the FPLC hierarchy 1177. In order to establish whether the accused played an essential

role in accordance with the common plan, the Chamber has examined whether reporting mechanisms were in place to ensure that he was fully informed of developments and was in a position to issue
T-349-ENG, page 22, line 23 to page 23, line 1. T-175-Red2-ENG, page 30, lines 21 25, page 33, lines 7 10. 3132 T-154-Red2-ENG, page 21, lines 13 16. 3133 T-154-Red2-ENG, page 21, lines 14 15. 3134 T-113-Red2-ENG, page 33, lines 14 16. 3135 EVD-OTP-00452; EVD-OTP-00453; EVD-OTP-00454. 3136 T-154-Red2-ENG, page 16, line 22 to page 17, line 15, page 21, lines 10 20, and page 34, line 7 to page 35, line 4 and a hand-drawn diagram of the army structures, EVD-OTP-00396 (P-0017); T113-Red2-ENG, page 34, lines 4 8 and page 35, lines 1 8 (P-0038).
3131 3130

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instructions that were communicated at an appropriate level within the FPLC hierarchy. 1178. P-0041 suggested, as set out above, that the governors reported

to the national secretaries, who in turn reported to the Presidency.3137 Floribert Kisembo and Bosco Ntaganda reported to the President and the Minister of Defence,3138 and P-0016 said that if there was a problem with information, Bosco Ntaganda was in a position to provide information to the Minister of Defence, for onward transmission to the President. 3139 However, for problems with operations, Mr Ntaganda went directly to the President, as he alone could make a decision.3140 1179. Although there were some discrepancies in his evidence as to

whether the reports were delivered on a daily or monthly basis,3141 P0055 testified that given his position within the UPC/FPLC, 3142 he provided information to President Lubanga on the military situation through the latters secretary or office.3143 P-0055s reports were based on the material he received from members of his staff.3144 There were a number of reports that Mr Lubanga asked for personally, 3145 for instance about an incident in which several civilians had been murdered by UPC/FPLC troops. 3146 P-0055 also recalled personally handing over a second report to Mr Lubanga concerning a military

T-125-Red2-ENG, page 26, line 22 to page 27, line 2, T-124-CONF-ENG, page 69, lines 13 25, page 71, line 21 to page 72, line 4, and page 74, lines 5 7 (P-0041); EVD-OTP-00384. 3138 T-175-Red2-ENG, page 22, lines 17 20 (P-0055); T-189-Red2-ENG, page 5, lines 5 16 and T189-Red2-ENG, page 6, lines 4 7 (P-0016). 3139 T-189-Red2-ENG, page 7, lines 13 15. 3140 T-189-Red2-ENG, page 7, lines 17 20 (P-0016). 3141 See T-175-CONF-ENG, page 7, lines 12 14 as compared with T-175-CONF-ENG, page 14, lines 16 17 and page 15, lines 15 21 (P-0055). 3142 T-175-CONF, page 17, line 16 to page 18, line 3. 3143 T-175-Red2-ENG, page 7, lines 2 14 and page 14, line 22 to page 15, line 4. 3144 T-175-Red2-ENG, page 15, line 23 to page 16, line 4. 3145 T-175-Red2-ENG, page 7, lines 14 16 (P-0055). 3146 T-175-CONF-ENG, page 8, lines 3 17 (P-0055).

3137

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confrontation in Bunia.3147 In addition, P-0055 submitted reports to the Chief of Staff.3148 1180. P-0016 testified it was necessary for those at G-level to submit

reports to the Chief of Staff, who then prepared his own report for his immediate superior on the basis of this information.3149 P-0016 stated that the commander at Mandro, who attended at the training centre, communicated with Bosco Ntaganda and the Commander-In-Chief.3150 D-0037 further indicated that Bosco Ntaganda, as Chief of Operations and Deputy Chief of Staff, was aware of the reports from the brigades and battalions in the field.3151 1181. P-0038 gave evidence that Floribert Kisembo issued orders to

the brigade commanders, which were passed to the battalion and company commanders, who in turn transmitted them so that they reached the platoon commanders.3152 Therefore, within the military, orders came down through the hierarchy.3153 1182. The prosecution also relies on various documents to show that

Thomas Lubanga regularly received information on both important and trivial matters, and he issued orders.3154 It submits that the G2, Idris Bobale, submitted reports and requests directly to the accused, as demonstrated by a request for the reopening of a training centre, dated December 2002. 3155 However, the Chamber has not attributed any weight to this latter document as it does not bear a particular date in

3147 3148

T-175-CONF-ENG, page 8, lines 6 8. T-178-CONF-ENG, page 48, lines 18 20 and T-175-Red2-ENG, page 16, lines 5 9. 3149 T-189-Red2-ENG, page 83, line 19 to page 84, line 4. 3150 T-189-Red2-ENG, page 43, lines 5 19. 3151 T-349-ENG, page 30, line 20 to page 31, line 5. 3152 T-113-Red2-ENG, page 46, lines 1 19. 3153 T-113-Red2-ENG, page 46, line 5. 3154 ICC-01/04-01/06-2748-Red, paras 270 275. 3155 ICC-01/04-01/06-2748-Red, para. 274; EVD-OTP-00666.

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December 2002 or a document number, and it is not signed or stamped. 1183. The prosecution further submits that [e]ven sector

commanders, a level below main staff officers at Bunia, ensured that the accused was informed of key developments related to critical military operations, such as the takeover of Mongbwalu and the establishment of youth committees in the town. 3156 In support, the prosecution refers to a decision of 27 December 2002, signed by a commander and a representative of the UPC/FPLC, which is copied to the President of the UPC/FPLC. 3157 In this document, appointments are made to different posts, including to the youth committees, in the city of Mongbwalu that had been liberated on 24 December 2002.3158 1184. In a presidential letter of 10 December 2002, the accused gave

Floribert Kisembo instructions relating to the recovery of military equipment from the civilian population and he requested reports on this issue.3159 In addition, a document dated 11 August 2003 from the Presidents Cabinet office, that concerns the re-structuring of the FPLC military units in the interior, was copied to Thomas Lubanga. 3160 However, the defence submits it lacks probative value, 3161 and the Chamber notes that although it is printed on paper bearing the official UPC letterhead and a stamp, it is unsigned and a line has been drawn through it. On this basis, it has not been relied on by the Chamber. 1185. An order dated 22 October 2003 addressed to all the FPLC

Brigade Commanders and signed by the Chief of Staff, which relates to

3156 3157

ICC-01/04-01/06-2748-Red, para. 274. EVD-OTP-00710. 3158 EVD-OTP-00710. 3159 EVD-OTP-00712. 3160 EVD-OTP-00497. 3161 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 9.

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the recovery of public assets, was copied to the accused. 3162 Even though it is dated shortly after the period of the charges, the Chamber considers it gives an indication as to the kind of information that was brought to the attention of Thomas Lubanga in his capacity as President of the UPC/FPLC. 1186. The prosecution also refers to the demobilisation orders, which

will be addressed in detail below, and it suggests that despite their alleged deceptive purpose, they reflect the military authority of the accused.3163 1187. A document informing the accused of the appropriation of a

motorbike by an FPLC soldier, dated 16 December 2002,3164 supports the prosecutions suggestion that trivial information as well as essential matters relating to military operations and the FPLC structure were reported to the accused.3165 1188. A monthly report sent by the G5, Eric Mbabazi,3166 provides a

comprehensive survey of the military situation facing, and the difficulties encountered by, the FPLC. The defence submits that it contradicts the claim that the accused was closely informed about the FPLCs activities, because it was addressed to the Chief of Staff alone.3167 This argument is unpersuasive, because P-0055 and P-0016 testified that Bosco Ntaganda and Floribert Kisembo reported to the accused,3168 and the fact that it was addressed to the Chief of Staff, Mr

EVD-OTP-00725. ICC-01/04-01/06-2748-Red, para. 272. 3164 ICC-01/04-01/06-2748-Red, para. 275; EVD-OTP-00510. 3165 ICC-01/04-01/06-2748-Red, para. 275. 3166 EVD-OTP-00457. 3167 ICC-01/04-01/06-2773-Red-tENG, para. 807. 3168 T-175-Red2-ENG, page 22, lines 19 23 (P-0055); T-189-Red2-ENG, page 5, lines 5 16 and page 6, lines 4 7 (P-0016).
3163

3162

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Kisembo, who was the official head of the G-level staff,3169 is consistent with the UPC/FPLC structures as described to the Chamber. 1189. When setting out the circumstances of his appointment, P-0016

indicated there was a list setting out the various positions in the FPLC that bore the signature of the Chief of Staff, Floribert Kisembo, which must have been sent to the Office of the President, Thomas Lubanga, since everything that happened within the military was reported to him.3170 P-0016 initially indicated that the President as Commander-inChief should have been informed about any military matters, 3171 asserting that [i]f an army is well-structured, then thats how things are done.3172 However, as underlined by the defence,3173 P-0016 also stated that the UPC/FPLC was not a real army, as they were not properly trained.3174 In particular, the witness asserted that whereas he had received training for nine months as a soldier in the Congolese national armed forces, 3175 the FPLC companies and platoons were trained within a week or were not trained at all.3176 On this basis, the witness indicated that the President was not told everything, or informed about all the operations.3177 He therefore appeared to suggest that although reporting mechanisms were in place, they were not always implemented. Notwithstanding this evidence, given the testimony of other witnesses that there was a hierarchy and a regular flow of information, and the documentary evidence identified by the

T-154-Red2-ENG, page 21, lines 12 13 (P-0017), T-188-Red2-ENG, page 95, lines 4 5 and 11 12 (P-0016), T-113-Red2-ENG, page 32, lines 8 9 (P-0038) and T-349-ENG, page 22, line 23 to page 23, line 1 (D-0037). 3170 T-189-Red2-ENG, page 62, line 8 to page 64, line 5. 3171 T-189-Red2-ENG, page 64, lines 3 5 and 10 15 and lines 19 20. 3172 T-189-Red2-ENG, page 84, lines 17 18. 3173 ICC-01/04-01/06-2773-Red-tENG, para. 812. 3174 T-189-Red2-ENG, page 84, lines 17 19. 3175 T-189-Red2-ENG, page 41, lines 8 10. 3176 T-189-Red2-ENG, page 84, lines 19 22. 3177 T-189-Red2-ENG, page 84, lines 22 24.

3169

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prosecution, the Chamber is unpersuaded by P-0016 that there was a lack of effective reporting. 1190. In light of the totality of this evidence, the Chamber is

persuaded that structured and efficient reporting mechanisms were in place to ensure that the accused was informed of all significant developments within the FPLC. He was, therefore, in a position to give relevant instructions, which were distributed, as needed, down through the FPLC hierarchy. (4) Means of communication 1191. Turning to the question of whether the necessary technical

requirements were in place in order for information and instructions to be communicated within the FPLC hierarchy, P-0055 testified that the main members of staff had a call radio for long distances, and they otherwise used Motorolas.
3178

P-0055 also referred to the

manpack, [] a type of radio for communicating over long distances,3179 which was used at the brigade level.3180 P-0055 recalled an instance in which Thomas Lubanga had personally called him using a Motorola.3181 1192. P-0016 corroborated P-0055s evidence that within the FPLC, in

addition to the standard Motorolas3182 they used F-13 devices, which were large Motorolas, referred to as phonies. 3183 Bosco Ntaganda, Floribert Kisembo, Thomas Lubanga3184 and other individuals in Aru had these devices, which had special frequency ranges and antennae
3178 3179

T-175-Red2-ENG, page 24, lines 15 18 and page 25, line 23 to page 26, line 5. T-175-Red2-ENG, page 31, line 17 to page 32, line 14 and page 45, lines 10 12. 3180 T-175-Red2-ENG, page 49, line 1. 3181 T-175-CONF-ENG, page 26, lines 8 19. 3182 T-190-Red2-ENG, page 18, lines 9 11 (P-0016), T-175-Red2, page 44, lines 15 18 (P-0055). 3183 T-190-Red2-ENG, page 17, line 24 to page 18, line 4 (P-0016), 3184 T-190-Red2-ENG, page 24, lines 4 14 (P-0016).

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for long-range communication.3185 1193. Video evidence introduced in the course of P-0030s testimony

depicts Mr Tinanzabo, at the time the National Secretary for Pacification,3186 holding a Motorola radio during the accuseds visit to the Rwampara camp, on 12 February 2003.
3187

Similarly, FPLC

Commander Liganda had a radio in his hand3188 during a meeting of UPC and Lendu representatives near the city of Lipri.3189 1194. P-0016 stated that the communications included, for example,

morning security updates between the units, or distributing other news.

3190

P-0016 testified that during operations, phonies and

Motorolas were used in the field and orders were given in this way.3191 The Chief Operator responsible for communications controlled the phonies from Bosco Ntagandas residence, and the messages that were sent and received were recorded in personal logbooks.3192 The Chief of Staff, Floribert Kisembo, had his own personal logbook, as did other high-ranking UPC/FPLC officers.3193 P-0038s evidence on the use of Motorolas and phonies was that during battles the higher

commanders and those at the headquarters were aware of the details of what was occurring, enabling them to issue orders.3194 Some of the higher commanders, such as General Kisembo, had a satellite

T-190-Red2-ENG, page 18, lines 6 16 (P-0016). T-128-Red2-ENG, page 34, lines 9 13. 3187 EVD-OTP-00570 at 2:45 and T-128-Red2-ENG, page 34, lines 7 16 and page 37, lines 2 6 (P0030). 3188 EVD-OTP-00572 at 00:03:27. 3189 T-128-Red2-ENG, page 60, line 12 to page 61, line 7 and page 66, lines 22 24 (P-0030). 3190 T-190-Red2-ENG, page 22, lines 4 15. 3191 T-190-Red2-ENG, page 22, lines 7 22. 3192 T-190-Red2-ENG, page 22, line 23 to page 25, line 17 (P-0016) and T-175-CONF-ENG, page 32, lines 8 14, page 46, lines 1 3 and 18 22, page 48, lines 14 19 and page 49, lines 2 4 (P-0055). 3193 T-175-CONF-ENG, page 48, lines 10 19 (P-0055). 3194 T-113-Red2-ENG, page 46, line 10 to page 48, line 1.
3186

3185

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telephone known as a Thuraya.3195 1195. Although P-0017 at one stage gave evidence with certainty

that he was unaware of anyone communicating with President Lubanga,3196 there were occasions when he was at the General Staff (supervising the guard because heavy weapons were installed at the house of the Chief of Staff, Floribert Kisembo),3197 and he was told by Mr Kisembos bodyguards that the Chief of Staff sometimes talked to Thomas Lubanga.3198 According to P-0017, Mr Kisembo alone had a phone,3199 and he said that the survival of the soldiers was dependent on the Chief of Staffs ability to communicate.3200 The witness asked Floribert Kisembos bodyguards what was discussed when the Chief of Staff was talking.3201 Sometimes the bodyguards did not know but on other occasions they said he was speaking to Thomas Lubanga.3202 However, the soldiers were unaware of the details of their discussions.3203 1196. Evidence was provided on the call signs assigned to each

individual when the phonies or manpacks were used, 3204 including Thomas Lubanga, whose sign was No. 1,3205 Floribert Kisembo,3206 Bosco Ntaganda 3207 and Mr Rafiki. 3208 P-0055 recognized one of the logbooks for recording messages sent by the phonies, and he
T-113-Red2-ENG, page 46, line 25 to page 47, line 1 (P-0038) and T-158-Red2-ENG, page 27, lines 17 20 (P-0017). 3196 T-158-Red2-ENG, page 27, lines 23 24. 3197 T-158-Red2-ENG, page 28, lines 7 8. 3198 T-158-Red2-ENG, page 28, lines 8 11. 3199 T-158-Red2-ENG, page 35, line 1. 3200 T-158-Red2-ENG, page 34, line 24 to page 35, line 1. 3201 T-158-Red2-ENG, page 35, lines 2 3 (P-0017). 3202 T-158-Red2-ENG, page 35, lines 3 4 and 7 8 (P-0017). 3203 T-158-Red2-ENG, page 35, lines 4 - 5 (P-0017). 3204 T-175-Red2-ENG, page 24, lines 21 25 (P-0055). 3205 T-175-Red2-ENG, page 25, lines 18 19 (P-0055). 3206 T-175-Red2-ENG, page 25, lines 16 17 (P-0055) Call sign: Zulu Mike. 3207 T-175-Red2-ENG, page 25, lines 14 15 (P-0055) Call sign: Tango Romeo. 3208 T-175-Red2-ENG, page 25, lines 20 22 (P-0055) Call sign: Romeo Kilo.
3195

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commented on a message about a military operation in Mongbwalu that allegedly included information on an injured child who was one of the troops.3209 He indicated there were messages that referred to

Thomas Lubanga by his call sign No. 1 and he recalled an occasion when the accused provided information by telephone about an incident addressed in one of the messages.3210 The defence suggests the logbook3211 clearly shows that the instructions concerning the military units and operations came from the Staff or other commanders within the FPLC rather than the accused. 3212 Although the Chamber does not accept the entirety of the prosecutions suggestion that the logbook confirms the accused was in control3213 it nonetheless demonstrates that the phonies were one of the means of communication, including for the accused. It follows that the Chamber rejects the defence suggestion that the logbook demonstrates the accused did not issue instructions. 1197. Based on the evidence above, the Chamber is satisfied that the

UPC/FPLC had the technical means required to ensure that information and instructions could be effectively communicated via the established hierarchy between the accused and other FPLC staff. (5) Meetings 1198. The Chamber heard evidence about meetings within the

organisation that provided insight into the extent of the accuseds involvement in the decision-making processes of the FPLC.

3209 3210

T-176-Red2-ENG, page 70, line 15 to page 78, line 17. T-177-CONF-ENG, page 8, line 1 to page 11, line 25. 3211 EVD-OTP-00409. 3212 ICC-01/04-01/06-2773-Red-tENG, para. 806. 3213 ICC-01/04-01/06-2778-Red, para. 22.

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1199.

P-0014 testified that he was told that Thomas Lubanga often

held military meetings with Floribert Kisembo, Richard Lonema, other officers, and, at the outset, Chief Kahwa.3214 1200. P-0016 gave evidence that although the meetings held by

President Lubanga at his residence did not involve all the main staff,3215 very often the Chiefs of Staff were included.3216 Therefore, the meetings usually had selected attendees,3217 and the President invited staff from the military headquarters to his office for this purpose.3218 The witness indicated the senior officers, particularly the two Chiefs of Staff, Bosco Ntaganda and Floribert Kisembo, were in the habit of going to the presidents residence.3219 P-0016 said it was like Bosco Ntagandas home and that he came and went as he pleased.3220 1201. P-0041 also referred to the meetings of the officers when

decisions about military secrets were made, which he suggested were chaired by the President or his delegate, such as the Chief of Staff.3221 The defence correctly notes that P-0041 stated that he did not participate during these meetings because he was not a military officer. 3222 However, given the evidence of P-0014 and P-0016, the Chamber is persuaded that the accused convened meetings with the military staff, even in the absence of eyewitness evidence that he presided over them. 1202. P-0055 stated that given the continuous fighting in Bunia, it was

3214 3215

T-181-CONF-ENG, page 96, lines 10 14. T-190-Red2-ENG, page 5, lines 17 21 and T-189-Red2-ENG page 84, lines 10 12. 3216 T-190-Red2-ENG, page 5, lines 21 24. 3217 T-189-Red2-ENG, page 84, lines 10- 12 (P-0016). 3218 T-189-Red2-ENG, page 85, lines 2 9. 3219 T-189-Red2-ENG, page 85, lines 8 17. 3220 T-189-Red2-ENG, page 85, lines 16 17. 3221 T-126-Red2-ENG, page 67, lines 11 24. 3222 ICC-01/04-01/06-2786-Red-tENG, para. 34.

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impossible to hold regular monthly meetings of the UPC general staff at their headquarters.3223 Therefore, although P-0055 did not see the President at the meetings that included all the commanders, 3224 he testified that Mr Lubanga held meetings with Floribert Kisembo and Bosco Ntaganda.3225 1203. The Chamber heard evidence concerning a particular meeting

during which Mr Lubanga reprimanded Bosco Ntaganda and Floribert Kisembo for an action that was undertaken without the accused being informed.3226 The prosecution suggests that this event established that the military Chiefs understood the accused was in charge.3227 1204. Generally, meetings would be held when there were

problems.3228 For instance, Mr Lubanga convened and presided over a meeting during fighting between the UPDF and the UPC.3229 P-0055 also gave evidence about the relatively frequent meetings between Mr Mafuta and Mr Lubanga, when the latter was advised on matters relating to the UPC.3230 As regards the reliability of this evidence, the defence challenges P-0055s assertion that Mr Mafuta was a founding member, or indeed a member at all, of the UPC, and it highlights that P-0055, at one stage, said he never attended a meeting between Mr Mafuta and Thomas Lubanga and he was unaware of the subject of

T-175-CONF-ENG, page 40, lines 7 13 (P-0055). T-175-CONF-ENG, page 40, lines 18 21 (P-0055). The Chamber notes the dispute between the defence (ICC-01/04-01/06-2773-Red-tENG, para. 486 and ICC-01/04-01/06-2786-Red-tENG, para. 37) and the prosecution (ICC-01/04-01/06-2778-Conf, para. 24) but finds the evidence is clear since P0055 stated that although he never saw the president taking part in a meeting with all of the commanders, there were meetings where not all of the commanders attended where there were Rafiki [] Kisembo, Bosco and others. T-175-CONF-ENG, page 40, lines 20 23. 3225 T-175-CONF-ENG, page 40, lines 20 23. 3226 See the description of events and transcript reference in ICC-01/04-01/06-2748-Conf, para. 262 and footnote 728. 3227 ICC-01/04-01/06-2748-Red, para. 262. 3228 T-175-CONF-ENG, page 40, lines 7 13 and page 41, lines 23 24 (P-0055). 3229 T-175-CONF-ENG, page 42, line 21 to page 43, line 5 (P-0055). 3230 T-176-CONF-ENG, page 18, line 17 to page 21, line 17; T-174-Red-ENG, page 35, lines 19 21.
3224

3223

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their discussions. 3231 As rehearsed above, all the relevant evidence demonstrates that Mr Mafuta played a significant role within the UPC, even if it is unclear at what point in time he took up the official position of special adviser to the President and military adviser to the UPC/FPLC. He was a signatory of the document constituting the UPC, dated 15 September 2000. 3232 In the course of his testimony, P-0055 indicated that Mr Lubanga and Mr Mafuta often spoke to each other in their mother tongue, which P-0055 does not understand, or they talked together in a separate room.3233 However, if there were subjects that were of concern to the witness, he was able to participate in the discussions. 3234 It follows that even if P-0055 did not attend formal meetings with the accused and Mr Mafuta, he met with both of them in a more informal manner on numerous occasions. The Chamber is satisfied that P-0055s testimony on this issue is credible, given, inter alia, it is based on the witnesss own first-hand knowledge. 1205. Mr Lubanga once called P-0055 to a meeting at his residence, so

as to ask him about a military confrontation in which civilians were killed, and he ordered the removal of a commander.3235 1206. P-0017 testified that in June 2003 the Chief of Staff, Floribert

Kisembo, frequently met with Mr Lubanga at his residence after the UPC/FPLC returned to Bunia. 3236 The witness was aware of this because he was part of the unit that protected the Chief of Staff, and escorted him to the residence.3237 Sometimes the meetings lasted up to

3231 3232

ICC-01/04-01/06-2773-Red-tENG, paras 501 503. EVD-OTP-00517. 3233 T-176-Red2-ENG, page 18, lines 7 9. 3234 T-176-Red2-ENG, page 18, lines 3 11. See also T-176-CONF-ENG, page 17, lines 13 21. 3235 T-175-CONF-ENG, page 8, line 20 to page 9, line 5. 3236 T-158-Red2-ENG, page 40, line 1 to page 41, line 25. 3237 T-158-Red2-ENG, page 42, lines 1 12 (P-0017).

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an hour. 3238 P-0017 also stated that during the morning assemblies, which the accused did not attend,3239 they received their orders for the day and the Chief of Staff reported what President Lubanga had said.3240 1207. P-0041 testified that the national secretaries also met with the

President and Radio Candip disseminated the minutes or the outcome of these meetings.3241 According to P-0041, given the extent to which the minutes were broadcast, the only inference to be drawn is that there were regular meetings, particularly in the period between 2 September 2002 and 6 March 2003.3242 Until 6 March 2003, P-0041 did not attend because he had not been made national secretary,3243 but he was present on a few occasions once his position changed.3244 The use of child soldiers was discussed in the Presidents office in Bunia, and the President read out a decree he had signed regarding their demobilisation, so that we would not have difficulties with [] human rights.3245 The witness could not recall the exact date of this meeting, but indicated that it was after the return of the UPC to Bunia in around May 2003.3246 1208. P-0002 visited the Presidency almost every day up until March

2003. 3247 The UPC army guarded Thomas Lubangas residence and office, located near the EPO School, in order to ensure his safety.3248 P0002 testified that executive meetings were sometimes held at the
3238 3239

T-158-Red2-ENG, page 43, lines 1 3 (P-0017). T-158-Red2-ENG, page 44, lines 5 10. 3240 T-158-Red2-ENG, page 43, line 19 to page 44, line 10. 3241 T-125-Red2-ENG, page 40, lines 21 23. 3242 T-125-Red2-ENG, page 41, lines 8 16. 3243 T-125-Red2-ENG, page 41, lines 17 22. 3244 T-125-Red2-ENG, page 42, lines 2 9. 3245 T-125-Red2-ENG, page 42, lines 12 24 (P-0041). 3246 T-125-Red2-ENG, page 43, lines 1 3 (P-0041). 3247 T-162-CONF-ENG, page 5, line 14 to page 10, line 19. 3248 T-162-CONF-ENG, page 11, lines 10 16 (P-0002).

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residence or in his office, and on occasion these meetings involved delegations from MONUC. 3249 Apart from MONUC personnel, the witness saw members of the UPC and soldiers visit the residence,3250 including the Chief of Staff, General Kisembo, the assistant Chief of Staff, General Bosco Ntaganda who was in charge of operations, the presidential staff and the army staff.3251 P-0002 was unaware of what was discussed, as the meetings were held in private.3252 D-0011 said he attended executive committee meetings at the Presidency on approximately two or three occasions.3253 1209. In addition, certain video footage shows the accused in the

presence of some of his alleged co-perpetrators. P-0030 testified that Rafiki Saba and Floribert Kisembo attended a presidential rally in Bunia on 11 January 2003 together with Thomas Lubanga following the latters return from Goma.3254 1210. P-0030 gave evidence about a video that was filmed on a single

day in three different locations (Shari, Bunia and Katoto) sometime after the UPC had re-taken Bunia around May 2003. 3255 The video showed Thomas Lubanga in the company of Floribert Kisembo and Rafiki Saba, all of whom the witness recognised.3256 Similarly, P-0030 recognised Thomas Lubanga, Rafiki Saba and Bosco Ntaganda at a

T-162-CONF-ENG, page 10, line 24 to page 11, line 2. T-162-CONF-ENG, page 11, lines 7 11. 3251 T-162-Red2-ENG, page 12, line 20 to page 13, line 7. 3252 T-162-Red2-ENG, page 13, lines 13 20. 3253 T-348-ENG, page 5, line 24 to page 6, line 2. 3254 T-128-CONF-ENG, page 51, line 17 to page 55, line 15, EVD-OTP-00571 at 02:25:07 02:35:13. 3255 The prosecution indicates that the date of the film is 1 June 2003, see ICC-01/04-01/06-2748-ConfAnx2. 3256 T-129-Red2-ENG, page 61, line 23 to page 78, line 16, EVD-OTP-00578 at 00:35:24, 00:36:50 and 01:23:58.
3250

3249

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meeting between UPC/FPLC and military officers from Uganda 3257 held in Bunia on 23 January 2003. 3258 Thomas Lubanga, Floribert Kisembo and Rafiki Saba were included in a video of a public rally in Bunia on 3 June 2003, in which the accused thanked the UPC army for its involvement in previous events in Bunia.3259 The defence suggests the video EVD-OTP-00579 fails to demonstrate that Mr Lubanga was personally involved in military recruitment.3260 1211. The video footage establishes that some of the co-perpetrators

were in contact with each other, given it shows that Thomas Lubanga was accompanied by John Tinanzabo, 3261 Commander Kasangaki, 3262 Rafiki Saba3263 and Bosco Ntaganda.3264 In addition, there is footage of the accused, 3265 on 12 February 2003, visiting the Rwampara camp where he told the recruits that the commanders are helping us carry out training, managing the army and that he saw these commanders every day.3266 1212. On the basis of this evidence, the Chamber is satisfied the

accused regularly met with members of his staff, including members of the military, and with at least some of his alleged co-perpetrators. On the basis of the other evidence discussed in the sections above, the Chamber is also persuaded that the accused played an active role in

3257 T-129-CONF-ENG, page 13, line 23 to page 16, line 1 (commenting on 00:38:35; 00:38:40 and 00:38:47 of EVD-OTP-00573) and page 22, lines 11 16 (commenting on 02:10:26 of EVD-OTP00573). 3258 EVD-OTP-00573, T-129-Red2-ENG, page 17, lines 3 4. 3259 T-129-CONF-ENG, page 79, line 13 to page 83, line 24; EVD-OTP-00579 between 02:37:53 and 02:51:24 (interpretation included in the transcript). 3260 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 10. 3261 EVD-OTP-000570 at 00:02; T-128-Red2-ENG, page 34, lines 7 13 (P-0030). 3262 EVD-OTP-000570 at 00:03:12; T-128-Red2-ENG, page 34, line 21 to page 35, line 16 (P-0030). 3263 EVD-OTP-000570 at 00:01:51; T-128-Red2-ENG, page 33, line 24 to page 34, line 3 (P-0030). 3264 EVD-OTP-000570 at 00:04:04; T-128-Red2-ENG, page 35, lines 15 18 (P-0030). 3265 EVD-OTP-000570 at 00:00:24; T-128-Red2-ENG, page 33, lines 19 22 (P-0030). 3266 EVD-OTP-000570; T-128-Red2-ENG, page 37, lines 2 23 (interpretation taken from the transcript).

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making decisions and issuing instructions. (6) Conclusion 1213. Thomas Lubanga was the President of the UPC/FPLC during

the relevant period, and the evidence (witnesses P-0012, P-0016, P0014, P-0041, P-0055, P-0017 and D-0011, as rehearsed above), as well as the video EVD-OTP-00584, demonstrates that he was the Commander-in-Chief of the army as well as its political leader. This is further supported by the documents the accused signed in his position as President and that reflect his role as head of the political and military hierarchy of the UPC/FPLC. EVD-OTP-00721, EVD-OTP00734 and EVD-OTP-00687 clearly show that Mr Lubanga appointed key officials within the UPC/FPLC, in his position as the leader of the UPC/FPLC. 1214. The evidence of P-0041, P-0055, P-0038, P-0012, P-0017, P-0016

and D-0037 demonstrates that various individuals within the UPC/FPLC, including some of the co-perpetrators, were assigned to particular posts within the organisation. EVD-OTP-00721, a UPC decree signed by the accused and dated 3 September 2002 describes the accused as President of the UPC/FPLC, Floribert Kisembo as Chief of Staff, Bosco Ntaganda as the Deputy Chief of Staff with responsibility for military operations; Chief Kahwa as the Minister of Defence (but only at the outset); Professor Dhetchuvi was the Minister of Foreign Affairs; and Adle Lotsove, as Minister of Economy and Finance. Richard Lonema was the National Secretary of Economy, Commerce and Industry; John Tinanzabo, the National Secretary for Pacification and Reconciliation; and Djokaba Lambi Longa became the Assistant National Secretary of the Interior. Daniel Litsha became the

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First Secretary of the UPC/FPLC (a post that was initially referred to as the Secretary General of the UPC when the list of the executive was issued). Rafiki Saba worked with the staff at the main staff headquarters. 1215. The Chamber heard disputed and in some instances

contradictory evidence from witnesses P-0012, P-0038, P-0016, P-0055, P-0017, D-0011 and D-0037 as to the extent to which the accused had day-to-day control over military affairs. However, whether or not he was involved in every detail of the military decisions within the UPC/FPLC is not determinative of the essential character of the role performed by the accused in accordance with the common plan. The evidence of P-0041, P-0055, P-0016 and P-0038 analysed above demonstrates that the accused was at the summit of the civil and military hierarchy, that he attended, even if he did not preside over, military meetings and he received reports on a regular basis. The documentary evidence, such as EVD-OTP-00710 and EVD-OTP-00725, which addressed FPLC military matters and were sent or copied to the accused, further shows that Mr Lubanga was consulted and received reports whenever a particular problem or issue arose. Document EVDOTP-00510 demonstrates that Mr Lubanga was kept informed about even the most inconsequential issues. 1216. The evidence of witnesses P-0055, P-0016, P-0030 and P-0017

testified that UPC officials and staff, including the accused, used radios and satellite or mobile phones to communicate with each other. Furthermore, video footage (EVD-OTP-00570 and EVD-OTP-00572) shows UPC officials using the radios described to the Chamber. It has been established that the accused and his co-perpetrators possessed the technology that enabled them to communicate with each other and
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that the accused could receive information and issue instructions by radio or telephone. 1217. The evidence of P-0014, P-0016, P-0041, P-0055, P-0017 and P-

0002 establishes the accused held meetings of both a formal and informal nature with military personnel (including his co-perpetrators, Floribert Kisembo and Chief Kahwa) at his residence, and it has been demonstrated he made decisions on operations. 1218. Video footage EVD-OTP-00571 is of a rally in Bunia on 11

January 2003 attended by the accused and two of his co-perpetrators, Rafiki Saba and Floribert Kisembo. Video EVD-OTP-00573 shows the accused in company with Rafiki Saba and a third co-perpetrator, Bosco Ntaganda, on 23 January 2003. Therefore, there is clear evidence that the accused and his co-perpetrators met with each other and were otherwise in personal contact during the period of the charges. Furthermore, the demobilisation orders (analysed below), as well as other documentary evidence, demonstrate that Mr Lubanga issued orders that were communicated and followed within the UPC/FPLC. 1219. Military leaders dealing with forces on this scale will not be

involved in all aspects of the decision-making process. The evidence demonstrates that there was a hierarchy within the army and a functioning structure that would have enabled an appropriate degree of delegation, certainly as regards routine operational decisions. This conclusion does not diminish the extent to which the accused was aware of what was happening within the armed forces or his overall responsibility for, or involvement in, their activities. Instead, it is an inevitable result of his position as the overall commander. The Chamber is persuaded beyond reasonable doubt that the evidence

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demonstrates that Thomas Lubanga was the ultimate authority within the organisation and he was informed, on a substantive basis, as to the operations carried out by the FPLC officials, including his coperpetrators Floribert Kisembo and Bosco Ntaganda. 1220. As mentioned above, the period of conflict between 6 March

and June 2003, when the UPDF was in Bunia, and the defections of some of the commanders may have had an adverse effect on the structures within the UPC, but the Chamber is not persuaded that they led to a breakdown of the chain of command or significantly undermined the authority of the accused as the head of the organisation. According to P-0041, after the return of the UPC to

Bunia in around May 2003, the accused held meetings and issued decrees, thus acting as President and Commander-in-Chief of the UPC/FPLC in exactly the same way as prior to the takeover of Bunia by the UPDF in March 2003. 1221. Thomas Lubanga has not been charged on the basis of acts

undertaken by his subordinates solely on account of his position within the UPC/FPLC. It is necessary for the Chamber to address the questions as to whether, inter alia, he led the UPC/FPLC and whether he had knowledge of the crimes in determining whether his role under the common plan was essential. 1222. The evidence discussed above demonstrates, beyond reasonable

doubt, that the accuseds function within the hierarchy of the UPC/ FPLC, along with his involvement in planning military operations and his key role in providing logistical support including weapons,

ammunition, food, uniforms, military rations and supplies for the FPLC troops resulted in his role being essential within the

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UPC/FPLC. 1223. The consequences of the implementation of the common plan,

and the contribution of the accused thereto, are discussed in greater detail below. b) Thomas Lubangas individual contribution to the conscription and enlistment of children under the age of 15 or using them to participate actively in hostilities 1224. In order to determine whether the accused made an essential

contribution to the common plan that resulted in the conscription, enlistment and use of children below the age of 15 between September 2002 and August 2003, the Chamber has considered the evidence in the case relating to his personal involvement in relation to these crimes.

(1) Recruitment initiatives 1225. Various witnesses gave evidence about Thomas Lubangas

involvement in recruiting soldiers. 1226. The prosecution relies on P-0055s evidence as regards

recruitment by the cadres who were supposedly trained by the accused.3267 This is challenged by the defence.3268 At one point P-0055 stated the accused organised the training for the purposes of mobilisation (he did not suggest the accused conducted the training himself, as argued by the prosecution).
3269

P-0055 repeatedly

emphasised he did not know how the training was conducted or by

3267 3268

ICC-01/04-01/06-2748-Red, para. 289. ICC-01/04-01/06-2773-Red-tENG, para. 836. 3269 T-175-Red2-ENG, page 77, lines 5 19.

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whom because the cadres had been trained by the time he joined the UPC.3270 Given P-0055 conceded he did not have personal knowledge of these events, the Chamber has not relied on this assertion. 1227. However, there was further evidence from P-0055 that

demonstrates Thomas Lubangas personal involvement in the recruitment process.3271 Taking into account the defence challenges to his evidence addressed above, the Chamber is persuaded that P-0055s testimony on this issue is credible and reliable. 1228. The prosecution highlights that Eric Mbabazi, the G5 within the

UPC,3272 was required to meet with the Chief of Staff and the accused to discuss recruitment, for which he was responsible.3273 The defence argues that the role and conduct of the G5 does not establish an essential contribution by the accused, and it is suggested it shows that the enlistment, training and use of recruits occurred without the accuseds personal participation because they fell solely within the ambit of the military authorities.3274 1229. The defence further suggests that the accused did not participate

at any stage in the recruitment operations.3275 It relies on D-0019 and P0041s evidence to the effect that the armed individuals who were organised in September 2002 under the name the FPLC were recruited by dissident soldiers from the APC and Chief Kahwa, at a time when the accused could not have contributed to this operation,

T-177-Red2-ENG, page 46, line 5 to page 47, line 5; T-177-Red2-ENG, page 47, line 18 to page 48, line 3. 3271 T-176-CONF-ENG, page 21, line 24 to page 23, line 18. 3272 T-154-Red2-ENG, page 24, lines 4 and 12 13 (P-0017); T-189-Red2-ENG, page 77, lines 11 19 (P-0016); T-175-Red2-ENG, page 17, lines 14 18 (P-0055). The latter only stated that the staff included an individual with the name of Mr Eric. 3273 ICC-01/04-01/06-2748-Red, para. 289. 3274 ICC-01/04-01/06-2773-Red-tENG, paras 840 and 849. 3275 ICC-01/04-01/06-2773-Red-tENG, paras 833 837.

3270

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and that there was no systematic recruitment from 2 September 2002.3276 The evidence of P-0055 is cited as support for the contention that the enlistment of young people occurred mainly at the instigation of the commanders, along with P-0016s account that a recruitment policy had not been instituted.3277 1230. P-0016 testified that recruitment was theoretically conducted by

the G5 but instead the recruits arrived voluntarily.3278 He stated that while he was in the FPLC, he never saw the G5 conducting recruitment and he did not see any recruits being brought to the camp in vehicles.3279 As mentioned above,3280 the Chamber does not to accept this evidence and it has concluded that campaigns directed at raising awareness were conducted by the UPC/FPLC during the relevant timeframe. 1231. P-0046 gave evidence about an incident in which Thomas

Lubanga was allegedly involved in abducting a former child soldier. Paragraph 88 of the final report of MONUC on its special investigations in March and April 2003,3281 contains an excerpt of the account of the 14 year old child who had been allegedly captured on a road in Mongbwalu by President Lubanga and six other UPC members, in February 2003.
3282

P-0046 did not investigate this

account,3283 which was given to her by a child during a special mission in Bunia in March.3284 When questioned about this event, P-0046 stated
3276 3277

ICC-01/04-01/06-2773-Red-tENG, paras 834 and 837. ICC-01/04-01/06-2773-Red-tENG, para. 838. 3278 T-189-Red2-ENG, page 81, lines 6 25. His evidence as to whether or not the G3 was also theoretically involved is unclear. 3279 T-189-Red2-ENG, page 81, lines 20 25 (P-0016).
3280
3281

See para. 911. EVD-OTP-00480 at DRC-OTP-0152-0309; T-208-Red2-ENG, page 31, lines 5 11 (P-0046). 3282 EVD-OTP-00480 at DRC-OTP-0152-0309; T-208-Red2-ENG, page 31, lines 12 18 (P-0046). 3283 T-208-Red2-ENG, page 31, line 22 to page 32, line 1 (P-0046). 3284 T-208-Red2-ENG, page 32, lines 1 5.

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that the perpetrators of the abductions were not her main concern: [i]n that context, what was important for us was to find solutions for those children, and that it was not the purpose of the documentation for it to be used in a court of justice.3285 The childs account appeared to P-0046 as being perfectly credible.3286 It was suggested to P-0046 that Thomas Lubanga was not in Mongbwalu during February 2003, to which she responded that the statement given by the child was not subject to a specific investigation and she noted that the dates given by the children were not always accurate.3287 P-0046 was unable to say where Thomas Lubanga was in February 2003. 3288 The Chamber is persuaded that P-0046 gave a reliable account of this incident. However, due to the lack of age verification, or any description of the childs behaviour or appearance supporting the conclusion that the child was under the age of 15, the Chamber has not relied on this evidence to establish that Thomas Lubanga personally recruited children under the age of 15. 1232. In addition, in the context of questioning about the visit of the

accused to a training camp in February 2003, when it was suggested to D-0011 (the private secretary of Thomas Lubanga) by the prosecution that the UPC would not have demobilised troops in February 2003 because he would have needed as many troops as possible, D-0011 agreed this was quite logical and right, and that [i]f there are a lot of attacks on the outskirts of the town and the power that is established feels threatened, its quite normal that one would want to

3285 3286

T-208-Red2-ENG, page 32, lines 5 13. T-208-Red2-ENG, page 32, line 20 to page 33, line 1. 3287 T-208-Red2-ENG, page 33, lines 16 24. 3288 T-208-Red2-ENG, page 33, line 25 to page 34, line 2.

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mobilise troops in order to face up to the situation.3289 1233. With respect to the defence argument that recruitment took

place at a time when the accused could not contribute, the Chamber accepts that the militia that was originally comprised of soldiers who had been recruited by Chief Kahwa and others at Mandro in due course became the FPLC. However, the Chamber rejects the defence argument that the evidence of P-0041, D-0019 and P-0055 demonstrates that recruitment into the FPLC was only undertaken before Thomas Lubanga became the President of the UPC/RP and that it was solely the responsibility of individual commanders. Significant evidence in the case has proved that systematic recruitment into the armed wing of the UPC/RP, the FPLC, continued after September 2002.3290 P-0016s evidence on this issue was evasive, and, in the context of his account, it is irrelevant for the purposes of Article 8(2)(e)(vii) of the Statute whether or not recruits joined voluntarily if they were under the age of 15. 1234. Based on the evidence of P-0055 and the account of P-0046

concerning the child abducted in Mongbwalu, the Chamber is persuaded Thomas Lubanga was actively involved in the exercise of finding recruits. The Chamber cannot determine, however, whether he was directly and personally involved in recruitment relating to individual children below the age of 15. That said, it is sure that Thomas Lubanga was informed about these activities, for example as a result of his meetings with the G5 responsible for recruitment.3291 The evidence establishes that he not only condoned the recruitment policy,

3289 3290

T-347-ENG, page 61, line 4 to page 62, line 3. See paras 770-774, 777-785 and 911. 3291 T-175-Red2-ENG, page 76, lines 19 25.

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but he also played an active part in its implementation, and he approved the recruitment of children below the age of 15. The statement of his personal secretary, D-0011 that in February 2003 the accused would have had an interest in mobilising troops, rather than demobilising them, supports the conclusion that the accused was informed about, and actively influenced, the decisions on recruitment. 1235. The defence suggests that as soon as the accused became the

head of the UPC/RP, he ordered an unequivocal ban on the enlistment of minors.3292 The implementation of this order is discussed in greater detail below. (2) Troops and camps 1236. The Chamber heard evidence to the effect that the accused

personally visited UPC training camps in Mandro, the EPO camp near Bunia, the headquarters and Rwampara. During these visits he addressed the recruits and gave morale-boosting speeches. 3293 The Chamber is satisfied beyond reasonable doubt that at least during the Rwampara visit the accused saw and addressed children under the age of 15 years. 1237. P-0014 was told by two closely involved individuals in

September or October 2002 that at some point after September 2002 Mr Lubanga went to the training camp at Mandro to attend the celebrations when the recruits completed their training. 3294 P-0038 testified that he was present when President Thomas Lubanga visited the camp with Chief Kahwa, the Chief of Staff, Floribert Kisembo, and

3292 3293

ICC-01/04-01/06-2773-Red-tENG, para. 834. Save for at the EPO camp in Bunia, as further set out below. 3294 T-182-CONF-ENG, page 19, lines 11 15.

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Bosco Ntaganda, on the accuseds return from Kinshasa. 3295

The

defence challenges P-0038s evidence about Thomas Lubangas visit to the training camp at Mandro.3296 Focussing on Thomas Lubangas visit to the training camp, the defence submits that P-0038 gave an inconsistent account as to when it occurred.3297 At one stage P-0038 maintained this took place whilst he was working as a trainer at the camp prior to April 2002,
3298

but later he stated it followed the

accuseds return to Bunia on his release from detention in Kinshasa after August 2002.3299 In the judgment of the Chamber the different accounts from the witness as to the date of the visit are irreconcilable and although many aspects of the witnesss account concerning this event are credible, the confusion as to when it occurred means it is unsafe for the Court to rely on P-0038s account of this event. The Chamber is persuaded that the accused visited the Mandro training camp in September or October 2002, based on the evidence given by P0014 and in light of the role of the individuals who informed P-0014 about the visit of the accused. 1238. P-0016 testified that at some point after he left the camp at

Mandro, 3300 President Lubanga spoke to the troops at the staff headquarters, in order to boost their morale and to encourage them to work together. 3301 As discussed above, this must have been around September 2002.3302 P-0016 said this visit by the accused and his Chief of Staff (which lasted about 30 minutes) was to establish how his main

3295 3296

T-113-Red2-ENG, page 42, lines 8 13 and page 43, lines 9 11. ICC-01/04-01/06-2773-Red-tENG, paras 828 and 465 471. 3297 ICC-01/04-10/06-2773-Red-tENG, paras 467 471. 3298 T-114-Red2-ENG, page 40, line 23 to page 41, line 9 and page 43, line 20 to page 44, line 3. 3299 T-114-CONF-ENG, page 44, line 18 to page 46, line 8. 3300 T-190-Red2-ENG, page 17, lines 5 9. 3301 T-190-Red2-ENG, page 13, lines 11 15 and page 13, line 24 to page 14, line 22. 3302 See para. 790.

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staff and the forces were functioning.3303 The accused did not say or do a great deal to boost their morale, but instead he asked the troops to be calm, suggesting that they wanted peace and they were going to remake our country. 3304 P-0016 testified that adults and children were present at the parade because its not as if you would chase the children away when the President arrived. 3305 children were between 13 and 17 years of age.3306 1239. P-0017 gave evidence about a visit to the EPO camp in Bunia by He indicated the

the Chief of Staff and President Lubanga around November 2002.3307 P0017 had been amongst the 107 soldiers sent to Rwanda for training and on their return to Ituri the Chief of Staff, Floribert Kisembo, met them and they were brought to the EPO camp in Bunia. 3308 P-0017 recalled that when they were asked to assemble, they saw the Chief of Staff and Thomas Lubanga arrive.3309 The accused was dressed in the camouflage uniform of the UPC/FPLC,3310 and the Chief of Staff said they should show respect to the President in military tradition.3311 The accused was not at the camp for any appreciable length of time and he did not speak with the troops when he inspected them. 3312 Indeed, the accused only remained at the camp for about 15 to 20 minutes.3313 1240. P-0017s evidence is supported by the testimony of P-0038, who

was one of the 107 soldiers sent to Rwanda for training between

T-190-Red2-ENG, page 14, line 23 to page 15, line 18. T-190-Red2-ENG, page 15, lines 5 9. 3305 T-190-Red2-ENG, page 16, lines 10 15. 3306 T-190-Red2-ENG, page 16, lines 17 19. 3307 T-154-Red2-ENG, page 64, lines 20 23; page 66, line 25 to page 67, line 4; page 69, line 2 to page 70, line 1. 3308 T-154-Red2-ENG, page 69, lines 2 21 (P-0017). 3309 T-154-Red2-ENG, page 69, line 22 to page 70, line 1. 3310 T-154-Red2-ENG, page 70, lines 21 22 (P-0017). 3311 T-154-Red2-ENG, page 71, lines 3 5 (P-0017). 3312 T-154-Red2-ENG, page 71, lines 6 8 and page 72, lines 1 5 (P-0017). 3313 T-154-Red2-ENG, page 72, lines 6 8.
3304

3303

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September and November 2002. 3314 P-0038 indicated that upon their return the Chief of Staff and other commanders met them at the airport in Bunia, and they were taken to Floribert Kisembos residence in Bunia to rest. 3315 The following day they received a visit from Floribert Kisembo together with President Thomas Lubanga. The accused told the recruits that they were to be deployed in the field, and that they should obey orders and fight the enemy.3316 1241. The Chamber notes there is a slight discrepancy between the

witnesses as to the location where the soldiers were brought: P-0017 said it was the EPO camp, whilst P-0038 referred to Floribert Kisembos residence. However, on a map annotated by P-0017,3317 Mr Kisembos residence the EPO camp and the residence of the accused were very close to each other. The Chamber is persuaded that the 107 soldiers were brought to the EPO camp, near Floribert Kisembos residence, and that the length of time given by P-0017 before the accused came to visit (some time) does not contradict the evidence given by P-0038 that the accused visited the next day. It is therefore persuaded Thomas Lubanga visited the EPO camp around the end of November 2002. However, it is not possible to determine whether he saw recruits below the age of 15 whilst he was there. 1242. Finally, the Chamber is satisfied the accused visited the

Rwampara training camp during the period of the charges. A video3318 was introduced through P-0030 that shows a military rally and parade

T-114-Red2-ENG, page 6, line 22 to page 7, line 4 (P-0038). T-114-Red2-ENG, page 8, line 10 to page 9, line 11. 3316 T-114-Red2-ENG, page 9, line 11 to page 10, line 14 (P-0038). 3317 EVD-OTP-00407; T-157-Red2-ENG, page 64, lines 19 21 and page 65, line 10 to page 66, line 21. 3318 EVD-OTP-00570.
3315

3314

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attended by Thomas Lubanga on 12 February 2003,3319 accompanied by John Tinanzabo, the Deputy Chief of Staff (Bosco Ntaganda), Rafiki Saba and other officers such as Commander Kasangaki.3320 In the first excerpt, P-0030 identified Thomas Lubanga wearing military

clothing.3321 The second excerpt shows Thomas Lubanga, again at the training camp, in the presence of dozens of young people, some of whom are well below the age of 15. 3322 A young male who is well below the age of 15 is standing in the front of the group, wearing camouflage clothing (including a cap) and holding a rifle with the stock resting on his right wrist. 3323 P-0030 testified that those not wearing military uniforms were recruits in training to become soldiers. 3324 While at the camp, Mr Lubanga gave a speech to the recruits and other soldiers which included the following:3325
When I first arrived, when I was put in prison, I think there was a building here. The Ugandans arrested me. Its the second time I come here. I think many have heard the name; they listen to what is said about us on the radio. When you were still civilians, you saw us on television. I am Thomas Lubanga, the president of our party, the UPC. I believe this is the first time many of you see me. (Yes, yes, says the group). You are used to seeing our commanders; they are helping us carry out training, managing the army. I see them everyday. But we have a lot to do, a lot. And from time to time I am asked to go out, hold conferences and meet people; it is difficult for me to always be in touch with you; the chief of staff, commander Bosco should come and see you here. Is he coming here? (the group answers yes, yes). So if he doesnt come, he will be seen as an enemy but I think he cannot do that because he needs the troops. We have come to see you and encourage you. Why give you courage? Because the work we are doing, we are doing with you. The work you know, being enlisted in the army, trained, using weapons, is blessed. We have just sung about daily suffering, and it is this daily

T-128-Red2-ENG, page 37, lines 2 6 (P-0030). T-128-Red2-ENG, page 31, lines 6 11 (P-0030). 3321 T-128-Red2-ENG, page 33, lines 19 22; EVD-OTP-00570: 00:00:00 to 00:02:00 (T-128-Red2ENG, page 25, line 16 to page 26, line 3) at time code 00:00:24. 3322 EVD-OTP-00570: 00:00:00 to 00:38:05; T-128-Red2-ENG, page 33, line 6 to page 46, line 16 (P0030). 3323 EVD-OTP-00570 at time code 00:06:57. 3324 T-128-Red2-ENG, page 31, lines 12 20. 3325 T-128-Red2-ENG, page 36, lines 23 24, page 37, lines 8 23; page 38, line 17 to page 39, line 1, page 40, lines 5 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10.
3320

3319

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suffering that has made us decide to do what we are doing, correct? [] in view of the responsibility we have towards you, because I know we are united, arent we? Well, we took an initiative and as soon as you finish your training and youre given your weapons, you have to go and ensure the safety and security of the population, and this is a very important task to carry out before God and humanity. You shouldnt take this work lightly. This type of work is of great importance. It can involve suffering whilst you are being trained. However, its all to train your endurance and to ensure that you have the capacity. And if a member of the population sees you wearing a uniform, that they feel they can sleep tightly because somebody is guarding their safety. [] What we need to say is that we are all part of the Congolese people. That is our goal. Its that goal, that intention, that you must remember during your training. You have to keep that in mind while you are being trained. Keep that goal in mind. And then once you are deployed in the field, you must provide the security of our people, and that is extremely important for our people and before God. [] And be brave, be courageous, and when you put on your uniform tomorrow, let the people say that here we have the soldiers to provide for our security. We travelled the day before yesterday and we came back yesterday. This army is not an additional army or supplementary army; its an essential army. Amongst you, some of you have studied. Those of you who will complete the training will have the opportunity to complete other training courses, and they will gain experience. Some of you will become generals; in fact, there are already generals amongst you. We need to have colonels and captains, and that we have a high-level army that we can present before our people. The job done by the army is something that gives value to all of us. Were all useful soldiers and were part of this army, so that everyone considers himself as a valuable soldier. In keeping with the history of our country, you must keep in mind that you are a useful and valuable soldier, and that we must we must do whatever we can so that you, indeed, be valuable soldiers. You must complete your training course and then afterwards you will be deployed in the field, in the interests of ourselves, in the interest of our country, and in the interest of our province and in the interests of our party.

1243.

The defence does not dispute that the accused visited the

Rwampara camp.3326 P-0030, who was present, stated that the soldiers and recruits were of all ages (the youngest was nine years old).3327 1244. The Chamber is unpersuaded by the defence suggestion that

there is a lack of evidence demonstrating that children below the age

3326 3327

ICC-01/04-01/06-2773-Red-tENG, para. 828. T-128-Red2-ENG, page 48, lines 6 14.

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of 15 were at the Rwampara camp. 3328 Earlier in this Judgment the Chamber addressed the defence contention that the video evidence is irrelevant for these purposes and decided it is admissible and reliable whenever the children filmed are obviously below the age of 15.3329 1245. As already indicated, the Chamber concludes that Thomas

Lubanga visited the Rwampara camp in mid-February 2003 and saw and addressed recruits below the age of 15. 1246. The Chamber is satisfied the accused visited the troops and

training camps during the period of the charges, in the circumstances described above.

(3) The bodyguards of Thomas Lubanga and soldiers close to him

1247. Deploying children under the age of 15 as bodyguards falls

within the scope of Article 8(2)(e)(vii) since it constitutes the use of children to participate actively in hostilities.3330 The Chamber examines below evidence concerning the soldiers who were responsible for ensuring the security of Thomas Lubanga. 1248. As already set out above, P-0055 gave evidence to the effect that

there were children amongst the accuseds bodyguards, and that the kadogos wore uniforms and carried weapons.3331 He confirmed that the term kadogos refers to children between 13 and 16 years of age.3332 This evidence is corroborated by P-0041 who testified that each commander, as well as the various UPC officials at all levels from the
3328 3329

ICC-01/04-01/06-2786-Red-tENG, para. 48. See para. 644. 3330 See para. 628. 3331 See para. 863; T-176-Red2-ENG, page 47, line 22 to page 48, line 13 and lines 23 24, page 49, lines 8 18, page 50, lines 2 6. 3332 T-178-Red2-ENG, page 36, lines 12 16.

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president through to the national secretaries, had bodyguards who were usually young people since [they] were not taking adults.3333 P0041 indicated that although most of the soldiers serving in the UPC were 22 years of age or older, there were also children in the 10 to 13 age bracket.3334 P-0041 gave evidence that the Presidents bodyguards were visible, having been positioned about 150 to 200 metres away from the witnesss place of work.3335 Neither P-0055 nor P-0041 gave their ages, although P-0055 indicated that they included children (see above) and P-0041 stated that there were also young persons among them and that the children he saw serving as bodyguards to others were between 14 and 16 years old.3336 1249. Video excerpts were introduced through P-0030 that include One sequence
3337

some of the accuseds bodyguards.

is of a

presidential rally for Thomas Lubanga at the city stadium on the latters return from a trip to Goma.3338 This event took place on 11 January 2003.3339 A second sequence of the same event3340 shows the moment when the President was about to enter the stadium.3341 P-0030 identified the figure in blue or purple traditional dress as Thomas Lubanga.3342 P-0030 testified that the accused spoke to the population about asking the UPDF, the Ugandan soldiers, to leave Ituri.3343 The witness gave evidence about how the military personnel travelling in a
T-125-Red2-ENG, page 54, line 15 to page 55, line 22. T-125-Red2-ENG, page 54, line 18 to page 55, line 8. 3335 T-125-Red2-ENG, page 55, line 21 to page 56, line 1 (P-0041). 3336 T-125-Red2-ENG, page 56, lines 2 19. 3337 EVD-OTP-00571 from 02:21:25 to 02:23:00; T-128-Red2-ENG, page 49, line 25 to page 50, line 6 (P-0030). 3338 T-128-Red2-ENG, page 51, lines 15 20 and page 53, lines 15 16 (P-0030). 3339 T-128-Red2-ENG, page 55, lines 2 6 (P-0030). 3340 EVD-OTP-00571 at 02:21:25 to 02:25:07; T-128-Red2-ENG, page 52, line 24 to page 55, line 2 (P-0030). 3341 EVD-OTP-00571 at time code 02:22:37; T-128-Red2-ENG, page 52, line 24 to page 53, line 4 (P0030). 3342 EVD-OTP-00571 at time code 02:23:06; T-128-Red2-ENG, page 54, lines 8 10. 3343 T-129-Red2-ENG, page 51, lines 17 18 and page 55, line 18 to page 56, line 4.
3334 3333

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truck were the accuseds bodyguards.3344 One of them is standing up holding a rocket-propelled grenade-launcher, whilst the guard sitting third from the left is noticeably smaller than the others and is significantly below 15 years of age.3345 1250. In addition, P-0030 identified a young man with a shaved head

wearing camouflage fatigues (standing next to a taller male in camouflage fatigues and a cap) as a member of the UPC. 3346 He is clearly carrying a rifle and he is obviously younger than the other males in military dress standing nearby. However, in the judgment of the Chamber it is not possible to determine whether he was below the age of 15 years. 1251. In the same excerpt P-0030 identified another soldier in the

foreground (wearing camouflage clothing, including a cap, with a rifle across his right shoulder) as a member of the UPC/FPLC.3347 From his appearance he was significantly below 15 years of age. P-0030 believed he was one of those maintaining security whilst Thomas Lubanga made his speech.3348 1252. In another video excerpt filmed on 23 January 2003, Mr Lubanga

is seen returning to his residence after an event at the Hellenique Hotel.3349 Two young men in camouflage clothing who are significantly below 15 years of age are sitting with taller, armed males in military

EVD-OTP-00571 at time code 02:22:37 to 02:22:54; T-128-Red2-ENG, page 53, lines 11 25 (P0030). 3345 EVD-OTP-00571 at time code 02:22:52. 3346 EVD-OTP-00571, at time code 02:44:18; T-128-Red2-ENG, page 56, lines 5 18 (P-0030). 3347 EVD-OTP-00571, from time code 02:47:16 to 02:47:19; T-128-Red2-ENG, page 56, line 23 to page 57, line 5 (P-0030). 3348 T-128-Red2-ENG, page 57, lines 6 19. 3349 EVD-OTP-00574 from time code 00:32:40 to 00:35:44; T-129-Red2-ENG, page 26, line 19 to page 28, line 22 (P-0030).

3344

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clothing.3350 P-0030, who was present throughout the day,3351 identified them as members of the presidential guard.3352 1253. In a further video of events on 23 January 2003,3353 a young man

wearing camouflage clothing and a green hat is in a truck with other males wearing military clothing, whom the witness had previously identified as Thomas Lubangas bodyguards. 3354 Although he is younger than the others around him, his eyes are partly shaded by his hat, and the Chamber was unable to determine whether he was below the age of 15. 1254. On 24 February 2003, a MONUC delegation visited President

Lubangas office.3355 P-0030 gave evidence to the effect that during this visit he was outside having fun with these young soldiers, these young kadogos, who were part of the protective forces responsible for guarding the office of the President. 3356 The footage includes a bodyguard, playing with an insect, who is evidently under the age of 15.3357 1255. It is unclear whether the soldiers filmed in EVD-OTP-00585,3358

who were guarding Thomas Lubanga at his residence, were younger than 15 years of age. The Chamber has not relied on this excerpt. 1256. However, in the same video, footage showing an English-

EVD-OTP-00574 at time code 00:36:22; T-129-Red2-ENG, page 26, line 19 to page 28, line 22 (P0030). 3351 T-129-CONF-ENG, page 29, lines 17 20 (P-0030). 3352 T-129-Red2-ENG, page 28, lines 19 25 (P-0030). 3353 T-129-Red2-ENG, page 39, lines 12 17 (P-0030). 3354 EVD-OTP-00575, at time code 00:35:04; P-0030 identified Thomas Lubangas escort at T-129Red2-ENG, page 37, lines 10 12 at time code 00:32:39. 3355 EVD-OTP-00574 at 01:30:48; T-129-Red2-ENG, page 48, lines 1 7 and page 53, lines 16 20 (P-0030). 3356 T-129-Red2-ENG, page 57, lines 14 25 (P-0030). 3357 EVD-OTP-00574 at 01:49:02; T-129-Red-ENG, page 57, lines 13 20 (P-0030). 3358 EVD-OTP-00585 at time code 00:09:09.

3350

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speaking journalist at a rally was also admitted into evidence.3359 At least one of the young armed soldiers at the rally P-0030 identified as having taken place at Iga Barrire,3360 and where Thomas Lubanga was present and addressed the crowd, is well below the age of 15 in appearance and in comparison with other soldiers.
3361

P-0030

confirmed that the soldiers in the sequence were from the UPC and although he could not recall the exact date of the event, he suggested it was when the UPC had regained control over Bunia.3362 1257. P-0030 testified that additional footage of the same day in Iga

Barrire showed Thomas Lubanga addressing a crowd.3363 A young male who is apparently responsible for maintaining security is filmed in the foreground wearing camouflage clothing and a green cap.3364 P0030 said he was from the UPC/FPLC.3365 As mentioned above, P-0030 could not recall the exact date, but suggested this event occurred whilst the UPC was in power in Bunia.3366 Although this individual appears to be below 15 years of age when he faces the camera,3367 the Chamber is uncertain as to his exact age, and accordingly it has not relied on this excerpt as supporting the charges. 1258. P-0016 testified that there were children in the Presidential

Guard. 3368 P-0016 explained why he was well placed to give this

EVD-OTP-00585. T-130-Red2-ENG, page 70, lines 17 18. 3361 EVD-OTP-00585 from time code 00:40:08 onwards; T-130-Red2-ENG, page 70, lines 19 21. 3362 T-130-Red2-ENG, page 70, line 25 to page 71, line 6. 3363 T-130-Red2-ENG, page 73, lines 3 21 and page 70, lines 17 18. 3364 EVD-OTP-00586 from time code 01:00:55 onwards; T-130-Red2-ENG page 72, lines 2 5. 3365 T-130-Red2-ENG, page 79, line 21 to page 80, line 6 (P-0030). 3366 T-130-Red2-ENG, page 70, line 17 to page 71, line 6 (P-0030). He confirmed that the footage showed the same scene as in the previous video excerpt EVD-OTP-00585; T-130-Red2-ENG, page 73, lines 3 21. 3367 EVD-OTP-00586 at time code 01:01:02. 3368 T-189-Red2-ENG, page 23, lines 23 25; T-189-CONF-ENG, page 29, lines 1 4.
3360

3359

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evidence.3369 The Presidential Guard was also known as the PPU.3370 They were under the Commander-in-Chief, although from the strictly military standpoint they answered to the Chief of Staff.3371 When the President travelled from his residence or office, he was accompanied by those members of the PPU who were on duty.3372 The chief escort, who reported to the lead commander, compiled their roster, which was made available to the general staff.3373 P-0016 gave inconsistent evidence as to the number of the guards he saw who were under the age of 15, but his evidence was that the youngest (of whom there were no more than four) were 13 to 14 years old. 3374 P-0016 said the uniforms of the PPU were the same as the rest of the FPLC and they all had weapons. 3375 The PPU also included female soldiers known as PMFs, some of whom were younger.3376 On the basis of this evidence, the Chamber is persuaded there were at least a few children under the age of 15 within the PPU. 1259. P-0016 described a particular child soldier, who was about 13

years of age, as a little one who was really too small.3377 P-0016 testified that whilst in the FPLC this child had served as a bodyguard with Bosco Ntaganda and Floribert Kisembo, and thereafter with the Presidency.3378 P-0016 said that for the latter assignment, he needed to

T-189-CONF-ENG, page 23, line 23 to page 24, line 2. T-189-Red2-ENG, page 28, lines 19 20 and page 36, lines 9 15 (P-0016). 3371 T-189-Red2-ENG, page 33, lines 16 20 (P-0016). 3372 T-189-Red2-ENG, page 37, lines 14 23 (P-0016). 3373 T-189-Red2-ENG, page 37, line 24 to page 39, lines 1- 3 (P-0016). 3374 T-189-Red2-ENG, page 30, line 15 to page 31, line 19 and page 34, lines 13 22; page 35, line 22 to page 36, line 2 (P-0016). 3375 T-189-Red2-ENG, page 32, line 24 to page 33, line 12. 3376 T-189-Red2-ENG, page 33, line 24 to page 34, line 22 and page 35, line 22 to page 36, line 8 (P0016). 3377 T-189-Red2-ENG, page 16, lines 7 14. 3378 T-189-Red2-ENG, page 32, lines 4 11.
3370

3369

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be a member of the PPU.3379 1260. The defence relies on the evidence of D-0011 and D-0019 to

support the claim that there were no children under the age of 15 amongst the soldiers assigned to guard the accused.3380 D-0019 testified he did not notice any minors amongst them, and he said all the bodyguards of the accused he had met were adults.3381 D-0011 gave evidence that between September 2002 and March 2003 he was by Thomas Lubangas side effectively on a daily basis. 3382 During this period he was in contact every day with most of the soldiers, and his evidence was that the members of the presidential bodyguard were adults he indicated there were no child soldiers in the entourage of the accused.3383 D-0011 also said he was with Thomas Lubanga on a regular basis between May 2003 and the latters departure for Kinshasa,3384 and he had been in a position to notice that there were no minors amongst the accuseds bodyguard during this period. 3385 D0011 emphasised there were no children aged between 13 and 17 in the Presidential Guard or serving under the accused.3386 Furthermore, he said he had not seen any child soldiers within the UPC between September 2002 and May 2003, and if there were any, they may have been deployed in the interior (meaning not in towns). 3387 However, given the wealth of contrary evidence in the case, including clear video evidence, the Chamber finds that D-0019s and D-0011s testimony on the absence of child soldiers amongst Thomas Lubangas body guards

3379 3380

T-189-Red2-ENG, page 32, lines 19 23 (P-0016). ICC-01/04-01/06-2773-Red-tENG, para. 847. 3381 T-340-ENG, page 41, lines 12 19 and page 42, lines 16 19. 3382 T-347-ENG, page 29, lines 19 22. 3383 T-347 -ENG, page 29, line 23 to page 30, line 3. 3384 T-347-ENG, page 30, lines 4 7. 3385 T-347-ENG, page 30, lines 8 11. 3386 T-347- ENG, page 69, line 9 to page 70, line 3. 3387 T-347- ENG, page 35, lines 20 24 and page 36, lines 9 13.

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lacks credibility. 1261. The defence submits that the prosecution concealed

exonerating testimony from a former bodyguard of the accused to the effect that there were no child soldiers under the age of 15 in the FPLC or within his Presidential Guard until a very late stage in the proceedings, by which point it was impossible for the defence to investigate and arrange for him to testify. 3388 In this individuals statement, he suggested that although there were 15 or 17 year old children at Thomas Lubangas residence, he never saw 15-year old child soldiers in the UPC and he observed that Thomas Lubanga was opposed to recruiting child soldiers. 3389 Again, this statement lacks credibility given it is contradicted by a wealth of evidence that has been accepted by the Chamber. 1262. On the basis, in particular, of the video footage the Chamber is

persuaded there were children below the age of 15 who were responsible for ensuring the security of the accused during public events. In addition, P-0016s evidence, which the Chamber accepts, was unequivocal as to the presence of approximately four children aged between 13 and 14 years within the PPU. P-0055 gave evidence that Thomas Lubangas escorts included children and that he was accompanied by kadogos wearing uniforms and carrying arms, but he was not specific as to their ages. P-0041 similarly confirmed that there were children below the age of 15 amongst the bodyguards of various UPC officials, although he was less precise as to the age of the bodyguards of the accused. In light of the entirety of the evidence, the

ICC-01/04-01/06-2773-Red-tENG, para. 848, referring to ICC-01/04-01/06-2657-Conf-tENG, paras 279 280 and EVD-D01-00773. 3389 EVD-D01-00773, paras 67 and 68 at DRC-OTP-0233-0042 and 0043.

3388

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Chamber is satisfied that children below the age of 15 worked for Thomas Lubanga, and other UPC officials, as bodyguards. c) Conclusions and legal findings on the essential contribution of Thomas Lubanga 1263. The prosecution submits the accused made an essential

contribution to the common plan to take over Ituri using military means, including the use of children under 15, through his control over the FPLC and the directions he gave to recruit and use children under 15.3390 It argues that the accused established the context for the recruitment and mobilisation of young people,3391 and that by using children under the age of 15 in his bodyguard unit, as the head of the UPC/FPLC, he was setting an example for the means by which Ituri was to be conquered.3392 1264. The defence argues the accused could not have been involved in

the establishment of the FPLC as an armed force in September 2002, and that the evidence of P-0016, P-0055 and D-0037 demonstrates that recruitment and training fell within the jurisdiction of the military authorities.3393 The defence suggests that before and during the period of the charges it was the military leaders who determined and implemented the measures necessary to create an armed force, and the political leader of the UPC/FPLC was uninvolved with recruitment and military operations.3394 The defence argues that the commanders, under the leadership of the Chief of Staff, had exclusive command of the units; the civilian authorities did not interfere in the execution of military operations; and the accused did not have a role as regards the
3390 3391

ICC-01/04-01/06-2778-Red, para. 18. ICC-01/04-01/06-2778-Red, para. 29. 3392 ICC-01/04-01/06-2778-Red, para. 36. 3393 ICC-01/04-01/06-2773-Red-tENG, paras 849 852. 3394 ICC-01/04-01/06-2773-Red-tENG, paras 853 - 854.

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army.3395 It submits that Thomas Lubanga therefore did not make an essential contribution to the commission of the crimes with which he is charged.3396 1265. The defence also notes that the prosecution does not argue that

the accused was personally involved in allocating recruits within the military units at the end of their training or in the detail of their deployment, functions which were handled by the commanders of the units acting on the orders of the Chief of Staff.3397 In consequence, it is suggested by the defence that the accused did not make an essential contribution to the FPLC soldiers active participation in hostilities.3398 1266. Although recruitment and training fell within the jurisdiction of

the military authorities, the evidence has demonstrated that Thomas Lubanga was well-informed on military matters and he endorsed the recruitment initiatives. There is persuasive evidence of a conversation in which the accused acknowledged that he frequently tried to convince the population to provide food and to make young people available to join, and to train with, the UPC army. 3399 He visited training camps,3400 where he encouraged the recruits (who included children under the age of 15), and he made speeches at public rallies, in order to motivate the population to support the war effort. 3401 Moreover, there is evidence that he gave orders on military affairs: for example, there is an account concerning soldiers who arrived in Aru on the accuseds instruction, following telephone conversations with
ICC-01/04-01/06-2773-Red-tENG, paras 855 and 856. ICC-01/04-01/06-2773-Red-tENG, para. 857. 3397 ICC-01/04-01/06-2773-Red-tENG, para. 844. 3398 ICC-01/04-01/06-2773-Red-tENG, para. 845. 3399 See description of events in ICC-01/04-01/06-2748-Conf, para. 288 and transcript reference in footnote 783. 3400 See paras 786, 790, 792, 1163, 1211, 1236-1246. 3401 See, e.g., EVD-OTP-00586; T-130-Red2-ENG, page 72, lines 2 9 and interpretation at page 73, line 6 to page 76, line 6.
3396 3395

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Floribert Kisembo and Bosco Ntaganda. P-0055 also provided detailed evidence about an incident that occurred at a stage when there were tensions between the UPC/FPLC and the UPDF that demonstrates the accused gave instructions on military matters.3402 1267. The defence also argues the accuseds visit to the Rwampara

training camp and his speech to the recruits do not constitute an essential contribution because there is nothing to suggest the recruitment and training operations would have ended if this visit had not taken place. 3403 It is contended this event would not have influenced the recruitment operations conducted by the military leaders. 3404 In the judgment of the Chamber, the speech given by the accused during the Rwampara visit, when viewed along with the other evidence rehearsed above, establishes Thomas Lubangas position of authority and his control over the other co-perpetrators, some of whom were present during the accuseds speech (e.g. Bosco Ntaganda, John Tinanzabo and Rafiki Saba). The essential nature of his contribution to the common plan is not established by the discrete and undisputed fact that he visited the Rwampara camp, but instead it is founded on the entirety of the evidence relating to the contribution he made as the highest-ranking official within the UPC. 1268. The defence further alleges the accuseds speech does not

demonstrate unqualified approval of the conduct of the military leaders, because he did not direct thanks or praise at the leaders who were present.3405 1269.
3402 3403

During his speech in Rwampara Mr Lubanga highlighted the

T-178-CONF-ENG, page 28, line 21 to page 31, line 19. ICC-01/04-01/06-2786-Red-tENG, para. 46. 3404 ICC-01/04-01/06-2786-Red-tENG, para. 46. 3405 ICC-01/04-01/06-2786-Red-tENG, para. 47.

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need for armed troops and he referred to the role of the commanders as regards training and deployment. He encouraged those present, including children who were under the age of 15, to complete their training in order to become soldiers, and to receive their weapons so they would be able to fight. The lack of any thanks directed at the commanders is a peripheral issue. The central factor is that the accused supported the continued recruitment, training and deployment of soldiers of all ages. He said if his chief of staff did not visit a camp, he would consider him to be an enemy.3406 This establishes the accuseds authority over the other military leaders who were directly in charge of the military training provided to children under the age of 15 at the UPCs camps. 1270. The Chamber concludes beyond reasonable doubt that the

accused, by virtue of his position as President and Commander-inChief from September 2002 onwards, was able to shape the policies of the UPC/FPLC and to direct the activities of his alleged coperpetrators. The established reporting structures; the lines of communication within the UPC/FPLC; and the meetings and close contact between the accused and at least some of the alleged coperpetrators, support the conclusion that he was kept fully informed throughout the relevant period and he issued instructions relating to the implementation of the common plan. Thomas Lubanga personally assisted in the military affairs of the UPC/FPLC in a variety of ways. He was involved in planning military operations and he exercised a key role in providing logistical support, by ensuring weapons, ammunition, food, uniforms and military rations and other supplies were available for the troops. The fact that other alleged co3406

EVD-OTP-00570, interpretation at 128-Red2-ENG, page 37, lines 16 19.

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perpetrators, such as Floribert Kisembo and Bosco Ntaganda, were more involved with the day-to-day recruitment and training of soldiers,3407 including those under the age of 15, does not undermine the conclusion that Mr Lubangas role was essential to the implementation of the common plan. In addition, the accused and other commanders were protected by guards, some of whom were below 15. As set out above, the use of children as bodyguards for the commanders amounts to their use to participate actively in hostilities. The role of the accused within the UPC/FPLC and the hierarchical relationship with the other co-perpetrators, viewed in combination with the activities he carried out personally in support of the common plan, as demonstrated by the rallies and visits to recruits and troops, lead to the conclusion that the implementation of the common plan would not have been possible without his contribution. 1271. Viewed in its entirety, the evidence demonstrates that the

accused and his alleged co-perpetrators, including particularly Floribert Kisembo, Chief Kahwa and Bosco Ntaganda, worked together and each of them made an essential contribution to the common plan that resulted in the enlistment, conscription and use of children under the age of 15 to participate actively in hostilities. 1272. In light of the evidence above, the Chamber is persuaded

beyond reasonable doubt that the accused made an essential contribution to the common plan for the purposes of Article 25(3)(a).

For example, T-179-Red2-ENG, page 63, lines 1 3 (P-0014); T-125-Red2-ENG, page 52, lines 6 7 (P-0041); T-189-Red2-ENG, page 17, lines 15 20 (P-0016); T-189-Red2-ENG, page 29, lines 16 25, page 30, line 24 to page 31, lines 4 and 19 and page 35, line 25 to page 36, line 2 (P-0016).

3407

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3. MENTAL ELEMENT a) Intent and knowledge 1273. Pursuant to Article 30, the prosecution has the obligation of Lubanga committed the crimes of

establishing that Thomas

conscripting, enlisting and using children below the age of 15 to participate actively in hostilities, with the necessary intent and knowledge. 1274. It is necessary, therefore, for the prosecution to establish that

Thomas Lubanga intended to participate in implementing the common plan, and, additionally, that he was aware that the conscription, enlistment or use of children below the age of 15 will occur in the ordinary course of events 3408 as a result of the implementation of the common plan. 3409 The Chamber needs to be satisfied the accused knew that the children were under the age of 15 years and, additionally, he was aware that he was providing an essential contribution to the implementation of the common plan. Finally, it is for the prosecution to establish the accused was aware of the existence and the factual circumstances that established the existence of an armed conflict. 1275. The prosecution argues that the accused (1) established the

circumstances that led to the recruitment of children under 15 in the ordinary course of events, and (2) knew this would occur, or was aware there was a substantial likelihood that the crimes would

See Article 30(2)(b) and (3). The Chamber notes the defence arguments that the prosecution relied on a degree of probability rather than certainty that the crime would be committed on account of the common plan. As the Chamber has determined the legal basis on which it has examined the evidence, it will not discuss these arguments in any detail. (See ICC-01/04-01/06-2773-Red-tENG, paras 869 - 871).
3409

3408

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occur.3410 It submits the evidence demonstrates the accused had intent and knowledge within the terms of Article 30.3411 1276. The defence argues the alleged crimes were not a virtually

certain consequence of creating the armed force and thereafter using it in the armed conflict.3412 Equally, the defence suggests the prosecution has not established that voluntary enlistment in the FPLC by children under the age of 15 was the virtually certain consequence of the various recruitment activities. 3413 It is argued that although it was difficult to verify the ages of recruits, a policy requiring age verification was in place and was implemented, thereby considerably reducing the risk that children under the age of 15 would be enlisted.3414 Any deliberate enlistment of children under the age of 15 by the military authorities was, therefore, in violation of this prohibition. 3415 The defence further argues the prosecution has not established how the essential contribution ascribed to the accused inevitably resulted in the conscription or use of children under the age of 15 to participate actively in hostilities.3416 The defence contends there is no evidence to suggest that the accused was personally involved, or had knowledge of, any forcible recruitment of children under the age of 15 into the FPLC or their use to participate actively in hostilities.3417 Finally, the Chamber is reminded the accused has not been prosecuted on the basis of superior responsibility, and it is suggested it has not been established that he condoned or participated in the crimes with

3410 3411

ICC-01/04-01/06-2778-Red, para. 40. ITT-01/04-01/06-2778-Red, para. 41. 3412 ICC-01/04-01/06-2773-Red-tENG, para. 872. 3413 ICC-01/04-01/06-2773-Red-tENG, paras 873 879. 3414 ICC-01/04-01/06-2773-Red-tENG, paras 876 878. 3415 ICC-01/04-01/06-2773-Red-tENG, paras 876 877. 3416 ICC-01/04-01/06-2773-Red-tENG, paras 881 883. 3417 ICC-01/04-01/06-2773-Red-tENG, paras 884 888.

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which he is charged.3418 1277. The evidence presented to the Chamber establishes that the

accused said he frequently tried to convince the population to provide food and to make youngsters available in order to join, and to train with, the army of the UPC/FPLC.3419 Thomas Lubanga was in close contact with Mr Mafuta,3420 who is said to have played an important role in recruiting children and advising the accused on policy.3421 The accused frequently saw or was in contact with the senior UPC staff, many of whom were significantly involved in conscripting, enlisting, using and training of child soldiers, including Floribert Kisembo, 3422 Bosco Ntaganda,
3423

and Chief Kahwa.

3424

Moreover, numerous

witnesses gave evidence that all the armed groups in Ituri and elsewhere used child soldiers. 3425 In a conversation with P-0046, Thomas Lubanga referred to children who had joined the UPC/FPLC because they were orphans and needed protection,
3426

thereby

accepting there were children within the UPC/FPLC. Thomas Lubanga used child soldiers below the age of 15 as his bodyguards within the PPU; 3427 he gave speeches and attended rallies where UPC/FPLC soldiers below the age of 15 were present;3428 and given the extent of the contact between the accused and senior members of the FPLC, the Chamber concludes that he was aware that children under the age of

ICC-01/04-01/06-2773-Red-tENG, paras 886 and 889. See description of the conversation as set out in ICC-01/04-01/06-2748-Conf, para. 288 and transcript reference in footnote 783 of that document. 3420 T-174-Red2-ENG, page 35, lines 6 21 (P-0055). 3421 T-174-Red2-ENG, page 32, lines 8 11 and page 34, lines 1 12 (P-0055). 3422 See paras 1154, 1199-1203, 1206, 1208-1210, 1212, 1217-1218. 3423 See paras 1200, 1202-1203, 1208, 1210-1212, 1218. 3424 See paras 1154, 1199, 1217. 3425 T-158-Red2-ENG, page 61, lines 1 11 (P-0017); T-168-Red-ENG, page 76, line 18 (P-0012). 3426 T-206-ENG, page 54, lines 13 16 (P-0046); EVD-OTP-00494, T-39-FR, page 83, line 23 to page 84, line 18 (T-39-ENG, page 103, line 5 to page 104, line 2). 3427 See paras 864, 1247-1262. 3428 See paras 790, 792, 860-861, 1236, 1242-1245, 1249-1251, 1256-1257.
3419

3418

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15 formed part of their personal escorts.3429 1278. The accused visited UPC/FPLC training camps, and specifically

at the Rwampara camp he gave a morale-boosting speech to recruits who included young children below the age of 15.3430 The Chamber is of the view that the video footage of this event provides compelling evidence on Thomas Lubangas level of knowledge, which is directly relevant to the mental element of the charges. It is unnecessary to reiterate in this section what the accused, accompanied by some of his co-perpetrators, said at the UPC/FPLC training camp in Rwampara on 12 February 2003.3431 Irrespective of whether or not there was a policy of verifying the ages of the recruits, it has been established that the accused was aware that the FPLC was recruiting and using child soldiers who were clearly below the age of 15 and he condoned, and he took steps to implement, this policy, along with his co-perpetrators. 1279. The Chamber is persuaded the evidence discussed in the

sections above demonstrates that the accused had intent and knowledge with respect to the crimes with which he is charged. In reaching this conclusion, the Chamber has additionally considered the evidence and the arguments submitted by the parties concerning demobilisation as discussed below. (1) Demobilisation 1280. The prosecution suggests that the demobilisation orders issued

by the accused were a sham and that during the period when the

See paras 1277, 1348; See, e.g., T-113-Red2-ENG, page 36, line 24 to page 37, line 5 (P-0038); T125-Red2-ENG, page 54, line 20 to page 55, line 8 and page 55, lines 12 20 (P-0041). 3430 See paras 792, 1211, 1242-1245. 3431 T-128-Red2-ENG, page 36, lines 23 24, page 37, lines 8 23; page 38, line 17 to page 39, line 1, page 40, lines 5 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10.

3429

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accused was supposedly demobilising children under the age of 18, he failed to question their use as bodyguards or soldiers on the occasions when he saw them. It is argued the evidence has demonstrated that he condoned the continued recruiting and using child soldiers. 3432 The prosecution alleges the demobilisation orders were issued by the accused in response to pressure from the media and the international community.3433 1281. This is challenged by the defence,3434 and it argues the accused

was opposed to the recruitment of minors throughout the relevant period, and he took appropriate steps to end this practice and to ensure that children were demobilised. 3435 The defence submits that this undermines the suggested mental element, as follows:
From all these observations it is clear that at no time did the Accused approve, accept or tolerate the enlistment of children under the age of 15 years and, a fortiori, their forced enlistment or active participation in hostilities. On the contrary, the trial has shown that each time he found himself in a position to exert his authority, the Accused formally prohibited practices of this nature and ordered the necessary measures to end them. It follows that the mental element required by article 30 for the commission of the crimes charged cannot be established against the Accused.3436

1282.

D-0011 and D-0019 each gave extensive evidence on issues

relating to the accuseds knowledge and intent, including the issue of demobilisation. As discussed above, their account of Thomas Lubangas approach to child soldiers, particularly within the UPC/FPLC, is generally lacking in credibility.
3437

Although the

Chamber has not relied on their views as to the nature and purpose of the demobilisation orders, it has nonetheless accepted their accounts
3432 3433

ICC-01/04-01/06-2748-Red, paras 20, 307 348. ICC-01/04-01/06-2748-Red, paras 308 309, 342 344. 3434 ICC-01/04-01/06-2773-Red-tENG, paras 955 957. 3435 ICC-01/04-01/06-2773-Red-tENG, paras 834, 890 957. 3436 ICC-01/04-01/06-2773-Red-tENG, para. 957. 3437 See paras 784-785, 866-869.

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concerning the relevant prevailing circumstances, to the extent that this was supported by other credible evidence.
(a) MONUC and NGOs

1283.

Representatives of certain NGOs and MONUC discussed the

use and demobilisation of child soldiers with representatives of the UPC/FPLC. P-0041 became aware there was an issue concerning child soldiers within the organisation when he worked in a particular section of the executive between September 2002 and mid-2003. 3438 This issue was raised during the weekly discussions he had with a handful of MONUC officers. 3439 In particular, after September 2002, members of the UPC were told they should not use children as soldiers or make them engage in particular forms of work.3440 P-0012 testified that MONUC or other organisations raised demobilisation issues with the armed groups after March or April 2003.3441 He stated that although during the earlier meetings other topics were addressed, by the end of August or beginning of September 2003 demobilisation and social reintegration programmes were being discussed. 3442 P-0012 indicated that even though by that time MONUC had become aware that children were within the armed groups, they were unable to demobilise due to a lack of any sufficient assistance.3443 However, P0012 further indicated that during meetings in March and April 2003, the various organisations told the representatives of the armed groups that the use of child soldiers was a serious problem.3444 It is, however, unclear from P-0012s evidence whether the UPC was formally
3438 3439

T-124-CONF-ENG, page 69, line 13 to page 70, line 3. T-125-Red2-ENG, page 47, lines 6 14. 3440 T-125-Red2-ENG, page 48, lines 2 7 (P-0041). 3441 T-168-Red2-ENG, page 81, line 24 to page 82, line 2. 3442 T-168-Red2-ENG, page 82, line 3 to page 83, line 6. 3443 T-168-Red2-ENG, page 82, lines 10 18. 3444 T-168-Red2-ENG, page 82, line 19 to page 83, line 6 (P-0012).

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represented at some or all of these meetings.3445 1284. P-0046 gave evidence about a further MONUC meeting with the

accused on 30 May 2003, at which the issue of child soldiers was addressed (see below), and representatives of the UPC at all levels but in particular those who participated in the Comit de Concertation des Groupes Armes3446 (CCGA) were reminded repeatedly of their obligations as regards child protection.3447 P-0046 indicated that these issues, including forcible recruitment, were regularly raised.3448 1285. P-0116 testified that after he left Bunia in mid-2002, the

organisation he worked for tried to contact Mr Lubanga about the recruitment (and re-recruitment) of children.3449 Mr Lubanga refused to meet with this NGO. 3450 However, P-0116 stated that a meeting on demobilisation took place during the second half of 2002 between members of P-0116s team and Didier Mandey, who P-0116 stated was the UPC/FPLCs Minister of Defence and one of Mr Lubangas close aides.3451 Mr Mandey informed the representatives of the organisation that their project was not to the advantage of children3452 and given the NGOs inability to care for the children, the UPC/FPLC should not be asked to be involved in their demobilisation or liberation.3453 1286. The defence challenges the reliability of P-0116s evidence on the

basis that the witness said Didier Mandey was the Minister of Defence.
T-168-Red2-ENG, page 83, lines 7 25. T-209-Red2-ENG, page 24, lines 20 23 (P-0046). 3447 T-207-Red2-ENG, page 24, lines 8 12. 3448 T-207-Red2-ENG, page 40, lines 2 15. 3449 T-208-Red2-ENG, page 58, lines 3 4 and page 58, line 19 to page 59, line 4 (P-0116). The transcript first refers to the witness leaving in 2003 and then to him leaving Bunia in 2002. Based on the witnesss evidence, 2002 appears to be correct. 3450 T-208-Red2-ENG, page 58, line 23 to page 59, line 4 (P-0116). 3451 T-208-Red2-ENG, page 59, lines 5 12 and page 59, line 20 to page 60, line 2; T-209-Red2-ENG, page 68, line 15 to page 69, line 18. 3452 T-208-Red2-ENG, page 59, lines 5 9. 3453 T-208-Red2-ENG, page 59, lines 9 12.
3446 3445

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It is suggested Chief Kahwa occupied the post of Deputy Minister for Defence of the UPC and was not replaced on his departure.3454 The defence submits Mr Mandey was never a member of the UPC/FPLC executive and he was not mentioned by any other witness. 3455 Although the defence suggested to P-0116 that Mr Mandey was a member of the RCD-ML and was not involved with Mr Lubanga after March 2002, the witness did not change his evidence on this issue.3456 However, given this account by P-0116 is not supported by any other witness, the Chamber has not relied on this particular aspect of his testimony. 1287. Nonetheless, there was other evidence to the effect that

individuals working in the field of demobilisation were threatened by the UPC/FPLC. P-0024 testified that in October 2002 he did not consider that the UPC would willingly have cooperated with SOS Grands Lacs, because the activities of NGOs of this kind did not accord with the UPCs expansionist aims.3457 P-0024 suggested the UPC did not support the activities of humanitarian workers and those involved in human rights because they had different aims from the UPC, given the latter was out for enrolling children. 3458 P-0024 testified that around November 2002 his organisation had difficulties continuing with its work and many other humanitarian organisations experienced similar difficulties because the UPCs regime in Bunia was characterised by general terror tactics.3459 P-0024 recalled that the UN

ICC-01/04-01/06-2773-Red-tENG, para. 614; To show that Chief Kahwa was not replaced the defence refers to EVD-OTP-00721, a UPC/FPLC decree of 11 December 2002 in which a new executive is appointed, but the Deputy Minister for Defence is no longer listed and Article 1 states that defence and security is the responsibility of the Presidency. 3455 ICC-01/04-01/06-2773-Red-tENG, para. 614. 3456 T-209-Red2-ENG, page 69, lines 19 23 (P-0116). 3457 T-170-Red-ENG, page 57, lines 7 14. 3458 T-170-Red-ENG, page 57, lines 22 24. 3459 T-170-Red-ENG, page 68, lines 2 16, see also page 57, lines 14 22.

3454

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Office for the Coordination of Humanitarian Affairs and the Catholic Church were threatened, and the coordinator of humanitarian activities and one of the Catholic priests were declared persona non grata in Bunia.3460 This evidence was corroborated by P-0046.3461 The latter added that in 2002 several individuals belonging to

humanitarian organisations were arrested by the administration of the UPC.3462 P-0046 indicated that in March and May 2003, the NGOs and UN bodies in Bunia had to deal with attacks, and not only by the UPC.3463 There were threats to staff in humanitarian organisations, and although these may not have been constant, they formed part of the general environment.3464 P-0116 testified that he left Bunia in mid-2002 because the situation was no longer tolerable for humanitarian and child protection workers. 3465 The organisation he worked for had received covert threats and someone close to Mr Lubanga warned them they ought to be careful and leave.
3466

P-0116 said the

organisation only received threats from Mr Lubangas group,3467 and he suggested this was because they were witnessing, and reporting on, the recruitment of children, and working to raise awareness on this issue. They were considered a nuisance because their activities were having an impact.3468 1288. In addition, D-0037 agreed there were complaints made by the

United Nations and other international organisations in October or November 2002 and early 2003 regarding the recruitment of children

3460 3461

T-170-Red-ENG, page 57, lines 16 22 and page 67, line 8 to page 68, line 1. T-206-Red2-ENG, page 53, lines 10 14 . 3462 T-206-Red2-ENG, page 53, lines 8 10 (P-0046). 3463 T-206-Red2-ENG, page 53, lines 14 16 (P-0046). 3464 T-206-Red2-ENG, page 53, lines 17 21 (P-0046). 3465 T-203-Red2-ENG, page 81, lines 9 13 (P-0116). 3466 T-203-Red2-ENG, page 81, line 14 to page 82, line 9. 3467 T-203-Red2-ENG, page 82, lines 10 17. 3468 T-203-Red2-ENG, page 83, lines 7 20 (P-0116).

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in the FPLC, which were received by his office within the UPC.3469 In a departure from his earlier testimony, D-0037 indicated he had not been informed about the complaints against the UPC in May or June 20033470 and he only learnt about them in the letters that the President of the UPC sent to the commanders.3471 D-0019 suggested that complaints by MONUC or from other members of the international community about the presence of children in the UPC army were discussed at executive committee meetings, and the UPC President considered it necessary to try and take action in order to protect the FPLC from such accusations.
3472

D-0011 also indicated Thomas Lubanga received

complaints from the United Nations and other international organisations during October and November 2002, although he attempted to minimise their significance by suggesting that they were attacks of the sort that are usually made against any rebel movement.3473 1289. The defence rejects the suggestion that pressure was exerted on

the FPLC in September and October 2002 because of the presence of children.3474 It refers to a video excerpt introduced through P-0030 of a meeting between Mr Lubanga and a MONUC delegation on 24 February 2003, in support of the contention that meetings with MONUC occurred in February and the subject of child soldiers was not raised. 3475 It is further submitted that P-0012 confirmed that meetings with MONUC or other NGO that addressed the topic of

T-349-ENG, page 64, lines 1 6. T-350-Red2-ENG, page 2, lines 5 9. 3471 T-350-Red2-ENG, page 2, lines 10 15. 3472 T-345-ENG, page 63, lines 9 23. 3473 T-347-ENG, page 63, line 24 to page 64, line 10 (D-0011). 3474 ICC-01/04-01/06-2773-Red-tENG, para. 899. 3475 ICC-01/04-01/06-2773-Red-tENG, para. 899; EVD-OTP-00577; P-0030 confirmed that the meeting took place on 24 February 2003, T-129-CONF-ENG, page 53, lines 16 20.
3470

3469

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child soldiers were held in late August or early September 2003.3476 1290. On the basis of the evidence discussed above, the Chamber is

persuaded that by May 2003 at the latest Thomas Lubanga was fully aware of the prohibition on child recruitment and was aware of the concerns of outside bodies as to the recruitment and use of child soldiers, and that this issue was repeatedly raised regardless of the precise nature or context of their meetings. Moreover, the evidence demonstrates the UPC/FPLC attempted to impede the work of the organisations which were involved with helping child soldiers during the period of the charges. On the basis of the testimony of D-0019, D0037 and D-0011, the Chamber is satisfied that complaints about the use of child soldiers were levelled at the UPC/FPLC by late 2002 and early 2003, and it accepts D-0019s evidence that these complaints were discussed at meetings. 1291. Other aspects of the involvement of international and national

organisations in demobilisation are discussed below.

(b) Demobilisation instructions of 21 and 30

October 2002 (EVD-OTP-00696 and EVD-D0101096) 1292. P-0055 was shown a document entitled Enrlement des enfants

soldats signed on 21 October 2002, which appears to originate from the cabinet of the President. 3477 The letter is written on UPC/FPLC letterhead and is signed by Thomas Lubanga.3478 It notes that contrary to the UPC ideology, the practice had developed of recruiting children

3476

ICC-01/04-01/06-2773-Red-tENG, para. 899, referring to T-168-CONF-FRA, page 84, lines 10

24.
3477

T-176-Red2-ENG, page 57, line 23 to page 58, line 12 (P-0055); EVD-OTP-00696 (previously EVD-OTP-00047). 3478 EVD-OTP-00696.

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of both sexes into the armed forces and the revolutionary armies.3479 As regards the armed branch of the UPC army (the FPLC) the letter purports to prohibit this practice, which it is said goes against the UPCs prior initiatives concerning the demobilisation of child soldiers with the NGO SOS Grand-Lacs.3480 P-0055 indicated he had not been informed of the document and was not on the list of addressees,3481 and he had been unaware of its existence.3482 P-0055 stated he had not received any order to demobilise child soldiers, and he was not conscious of any instruction to this effect.3483 1293. D-0011 was also shown this letter of 21 October 2002,3484 and he

indicated it was his draft and he proposed it to the president for signature, on his recommendation in October 2002.3485 According to D-0011, the President sought in this letter to remind the Chief of Staff of the FPLC that the ideology of any army that he commands should include avoiding the enrolment of minors, 3486 by which Thomas Lubanga meant any individual below the age of 18.3487 According to D-0011, other military groups tended to enrol individuals of all ages, and since the UPC was establishing a military wing 3488 Thomas Lubanga wished to indicate to the chiefs of staff that children were not to be enlisted in this army.3489 D-0011 said that was a rationale in which Thomas Lubanga has always moved. Since he started in this

3479

EVD-OTP-00696. The original refers to [] une pratique denrlement des mineurs de deux sexes au sein des forces combattantes et dans certaines armes caractre rvolutionnaire []. 3480 EVD-OTP-00696. 3481 T-176-Red2-ENG, page 60, lines 10 11. 3482 T-176-Red2-ENG, page 61, lines 1 2. 3483 T-178-Red2-ENG, page 44, line 21 to page 45, line 8 (P-0055). 3484 T-346-ENG, page 78, lines 8 9; EVD-OTP-00696 (previously EVD-OTP-00047). 3485 T-346-ENG, page 78, lines 8 22. 3486 T-346-ENG, page 78, lines 22 25. 3487 T-346-ENG, page 78, line 25 to page 79, line 1. 3488 The English transcript erroneously refers to the APC (T-346-ENG, page 79, line 13), but the French transcript correctly refers to the FPLC (T-346-FRA, page 68, line 13). 3489 T-346-ENG, page 79, lines 10 19.

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field, hes never wanted children to be enrolled in armies, [].3490 1294. The prosecution questioned D-0011 about the reference number

287 on the 21 October letter, which was higher than the reference numbers for documents dated November3491 and December,3492 and it was suggested that this violated the administrative regulations in the UPC.3493 D-0011 replied that there was a register for numbering letters to the Presidency that came from the Presidents cabinet and there was a further register for documents sent directly by his private secretary.3494 He explained that the apparent divergence between the reference numbers occurred because of the existence of these two separate registers (which used discrete systems for assigning numbers to documents),3495 and because more documents were produced by the President via his private secretary than by the director of his cabinet.3496 It was suggested to D-0011 that the document of 21 October 2002 was a false document, or a smokescreen, that had been created deliberately to give a false impression.3497 D-0011 maintained that the document was genuine and it had not been written after the event for this reason.3498 1295. Another order dated 30 October 2002 drafted on behalf of the

Chief of Staff of the FPLC, Floribert Kisembo, instructs all the commanders of the various units of the FPLC to disarm children below

T-346-ENG, page 79, lines 15 19. EVD-OTP-00684 (previously EVD-OTP-00043) with reference 146/UPC/RP/CAB/PRES/2002; T-347-ENG, page 71, line 18 to page 72, line 47. 3492 EVD-OTP-00712 (previously EVD-OTP-00184) with reference 179/UP/RP/CAB/PRES/2002; T-347-ENG, page 71, lines 10 25. 3493 T-347-ENG, page 73, lines 2 4 and page 74, lines 11 13. 3494 T-347-ENG, page 73, lines 5 9 and page 74, lines 14 18. 3495 T-347-ENG, page 74, line 15 to page 75, line 6. 3496 T-347-ENG, page 73, lines 22 25. 3497 T-347-ENG, page 76, lines 8 11 and page 77, lines 4 7. 3498 T-347-ENG, page 76, lines 12 24 and page 77, lines 8 13.
3491

3490

number number

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the age of 18, including those within the self-defence forces.3499 The order is worded generally and does not specify that the commanders should disarm children in the FPLC3500 and it does not refer to the previous demobilisation order of 21 October 2002. When asked about potential discrepancies in the numbering on this and a later document, D-0037 testified that the reference number of the letter was inappropriate within the context of military regulations and he suggested that given it was a time of war, there may have been problems in the filing that documents had not been dealt with in the same way and the numbers had possibly jumped. 3501 D-0037 accepted there were irregularities in the signature and the stamp, but he did not give a clear explanation as to why the seal was that of the charg des operations if the document was drafted and signed on behalf of the Chief of Staff.3502 1296. D-0019 testified that the decree dated 21 October 2002 was

published and read out on Candip radio station during a news broadcast.3503 Although D-0019 was unsure about the precise date, he stated it was read out on the date of publication during October 2002, and that this was possibly around the middle of the month.3504 He explained that in the absence of its own official newspaper, the UPC published documents in the national press and it used programmes on the Radio Nationale et Tlvision du Congo.3505 1297. D-0019 denied that the October and other similar orders were

EVD-D01-01096; T-349-ENG, page 11, lines 2 17 (D-0037). EVD-D01-01096: Ds prsent, vous devez dsarmer endans 2 (deux) semaines tous les enfants, cest--dire moins de 18 ans. Et cela, mme dans les forces dauto-dfense. 3501 T-349-ENG, page 46, line 21 to page 48, line 18. 3502 T-349-ENG, page 43, line 11 to page 46, line 14. 3503 T-345-ENG, page 60, lines 8 13 and page 64, line 6 to page 65, line 19. 3504 T-345-ENG, page 64, lines 12 14 and page 64, line 22 to page 65, line 21. 3505 T-345-ENG, page 64, lines 6 19.
3500

3499

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sham documents, in the sense that it was not intended to put them into effect.3506 1298. D-0019 also testified that the UPC G5, Eric Mbabazi, spoke on

the radio several times in order to make announcements about demobilisation and to raise awareness so as to prevent children from joining the army.3507 D-0019 denied the suggestion that Eric Mbabazi was actively attempting to recruit more children into the FPLC or that he sent documents complaining about the lack of children and the difficulty in recruiting them into the FPLC.3508 1299. The Chamber accepts the account provided by D-0019 that the

21 October order was read out over the radio. A UN report admitted into evidence supports the suggestion that UPC documents were broadcast in this way as it contains in its annex a later order, as read out over the radio.
3509

However, given the wealth of evidence

demonstrating that recruitment continued unabated in spite of the demobilisation orders, the Chamber rejects D-0019s evaluation of the nature and the underlying purpose of these orders. 1300. D-0037 similarly disagreed with the prosecutions assertion that

the demobilisation letters were produced at the time solely to fend off complaints by the international community, together with the contention that it was never intended to implement the demobilisation measures. 3510 D-0037 stated that demobilisation started within the RCD-ML in 2001, and indeed individuals were brought from the

3506 3507

T-345-ENG, page 64, lines 2 5. T-345-ENG, page 69, line 24 page 71, line 11. 3508 T-345-ENG, page 71, line 16 to page 72, line 15. 3509 EVD-OTP-00741 at DRC-OTP-0152-0248. 3510 T-349-ENG, page 62, line 24 to page 63, line 25.

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training centres and handed over to NGOs in 2000/2001.3511 However, D-0037 also acknowledged he knew Eric Mbabazi, the G5, and that from October 2002 through into 2003 the latter was trying, inter alia, to rally young people to attend at the training centres.3512 D-0037 stated he could not say whether Eric Mbabazi was recruiting children.3513 1301. The defence disputes the prosecutions claim that the

instructions of 21 and 30 October 2002 were only issued following protests from the international community and the NGOs, and it argues there is no evidence of pressure or protests regarding the presence of minors in the FPLC in the period immediately preceding the instructions. 3514 The defence further submits that the documents could not have been intended to mislead MONUC and the NGOs as they were designed for internal use only, and had not been made available to representatives of the international community or the NGOs by members of the UPC/FPLC.3515 It is further suggested that the fundamental difference between the political documents and the demobilisation orders are that the former were public while the latter were confidential prior to their use at trial.3516 1302. The prosecution suggests the defence has conceded that the

accused routinely drafted false documents.3517 The defence argues that in relying on this alleged concession, the prosecution appears to accept that some of the documents it relied on to prove the existence of a

3511 3512

T-349-ENG, page 63, lines 16 19. T-349-ENG, page 64, lines 7 19. 3513 T-349-ENG, page 64, lines 13 16. 3514 ICC-01/04-01/06-2773-Red-tENG, paras 895 899. 3515 ICC-01/04-01/06-2773-Red-tENG, para. 900. 3516 ICC-01/04-01/06-2786-Red-tENG, paras 53 54. 3517 ICC-01/04-01/06-2778-Red, para. 49.

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common plan lack reliability.3518 1303. The Chamber accepts, contrary to the defence submissions, that

the orders were made available to the public via the media. Whether or not the orders were a sham, and were issued in response to external pressure, is analysed below.
(c) Request for report of 27 January 2003 (EVDOTP-00697) and letter of 16 February 2003 (EVDD01-01097)

1304.

A letter dated 27 January 2003, and signed by Thomas Lubanga,

refers to the demobilisation order of 21 October 2002 and requests a detailed report on the demobilisation of children below the age of 18 within the FPLC from the Chief of Staff.3519 P-0055 gave evidence that he had not seen this letter and he was unaware of it, although he had been in the UPC at that time.3520 However, D-0037 indicated he saw the letter when it arrived in the office where he was working.3521 D-0011 testified that he had drafted the letter following a request by the accused in order to generate a follow-up report from the Chief of Staff of the FPLC in relation to the order that had previously been issued.3522 1305. A report dated 16 February 2003 addressed to the general

administrator of UPC security refers to the demobilisation instructions of 21 October 2002 and 27 January 2003 and states they had been correctly disseminated to all the major units. However, guidance was requested given the opposition from the self-defence forces to

ICC-01/04-01/06-2786-Red-tENG, paras 53 54. EVD-OTP-00697 (previously EVD-OTP-00050). 3520 T-176-Red2-ENG, page 61, lines 10 25; T-178-CONF-ENG, page 42, lines 5 9 (the letter was the document under tab 2 in the binder) and page 44, line 21 to page 45, line 8. 3521 T-349-ENG, page 11, line 20 to page 12, line 4. 3522 T-347-ENG, page 10, lines 2 4 and page 10, line 16 to page 11, line 6.
3519

3518

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demobilise and disarm the children in their groups.3523 D-0037 testified he had drafted and signed the report on the orders of Bosco Ntaganda.3524 He conceded that the reports reference number did not appear to be consistent with the military regulations, 3525 and it mistakenly did not contain the reference number given to the 21 October 2002 order.3526 1306. The prosecution argues the letter of 27 January 2003 is a sham

because a genuine follow-up report would have been requested earlier than three months after the demobilisation order was issued in October. 3527 It suggests the letter supports the proposition that the October order was drafted later and backdated,3528 and submits that, in any event, the follow up order was not implemented and recruitment continued.3529 The prosecution draws attention to the fact that D-0037 could not explain why the 16 February 2003 report omits the reference number 287 that had allegedly been assigned to the 21 October 2002, and itself contains an erroneous reference number.3530 1307. The defence argues the two documents of 27 January and 16

February 2003 reflect the intention of the accused to demobilise children and they demonstrate that the instructions issued by Thomas Lubanga in this regard were transmitted to the relevant military authorities, which then proceeded to implement them.3531 The defence notes the prosecution does not challenge the authenticity of the
EVD-D01-01097; T-349-ENG, page 12, line 5 to page 13, line 24. As was discussed above, the Chamber found that D-0037s supported the finding that the village self-defence forces existed separately from the FPLC. 3524 EVD-D01-01097; T-349-ENG, page 12, lines 8 12. 3525 T-349-ENG, page 55, lines 13 23. 3526 T-349-ENG, page 56, lines 2 25. 3527 ICC-01/04-01/06-2748-Red, paras 333 334. 3528 ICC-01/04-01/06-2748-Red, para. 333. 3529 ICC-01/04-01/06-2748-Red, paras 335 339. 3530 ICC-01/04-01/06-2748-Red, para. 330 . 3531 ICC-01/04-01/06-2773-Red-tENG, paras 909 913.
3523

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documents and it reiterates its argument that they were not created to deceive the international community, given their content.3532 1308. The Chamber considers the documents of 23 January and 13

February 2003 below, within the context of the evidence in its entirety in order to establish whether they are of relevance, as advanced by the defence, to the mental element of the charges.
(d) Letter of 12 February 2003 from the National

Secretary for Education (EVD-OTP-00518) 1309. As discussed above, a 12 February 2003 letter from the

UPC/FPLCs National Secretary for Education, Adubango Biri, dated 12 February 2003 and addressed to the UPC/FPLCs G5 officer, refers to a demobilisation program for child soldiers aged 10 to 15 or 16 years that had been initiated in the name of the UPC and its President.3533 1310. The prosecution relies on this document to demonstrate that the

accused was aware of the presence of children in the UPC/FPLC.3534 1311. The defence suggests the letter demonstrates that the decisions

as to demobilisation were being implemented.3535 1312. The Chamber accepts that the letter may have been a response

to previous demobilisation orders but the relevant question is whether children under 15 years of age formed part of the FPLC troops after September 2002. In the Chambers estimation, this letter clearly demonstrates that children under 15 years of age were serving in the FPLC in February 2003.

3532 3533

ICC-01/04-01/06-2773-Red-tENG, paras 914 915. EVD-OTP-00518. 3534 ICC-01/04-01/06-2748, paras 303 and 304. 3535 ICC-01/04-01/06-2773-Red-tENG, paras 919 921.

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(e) Demobilisation decree of 1 June 2003 (EVD-

OTP-00728) 1313. P-0041 described a meeting he attended during which the

demobilisation of child soldiers was discussed and the President read out a decree on the issue, dated 1 June 2003, which he had signed in order that they would not have difficulties with [] human rights. 3536 P-0041 stated that the issue of child soldiers was on the agenda of the meeting because there was a problem with MONUC and human rights organisations and that the UPC had to take a decision so that we would not have that problem within the UPC, and so it was that the child soldiers were demobilised.3537 1314. The decree provides in Article 1 that any individual below the

age of 18 years is demobilised forthwith from the FPLC.3538 Pursuant to Article 2, a National Secretary and the Chief of Staff were charged with implementing the decree and this was effective from the date it was signed, 1 June 2003.3539 It does not specifically address the position of child soldiers below the age of 15, and instead refers to children in the armed forces.3540 P-0041 commented that although he had not been provided with the decree, those concerned [had] most probably received the document.3541 He stated that, in principle, the document should have been transmitted by the presidents office to each of the national secretaries, but apparently that did not happen. 3542 D-0037 stated that he recognised the document, having seen it in the office of

T-125-Red2-ENG, page 42, lines 11 17 and page 43, line 22 to page 44, line 19 (P-0041); EVDOTP-00728 (previously EVD-OTP-00051). 3537 T-125-Red2-ENG, page 43, lines 6 10 (P-0041). 3538 EVD-OTP-00728. 3539 EVD-OTP-00728. 3540 EVD-OTP-00728. 3541 T-126-Red2-ENG, page 39, lines 2 17. 3542 T-125-Red2-ENG, page 43, line 22 to page 44, line 2.

3536

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the Chief of Staff.3543 1315. Since the wording of the decree is contained in an annex to a

MONUC report dated 15 June 2003, as broadcasted by Radio Candip on 2 June 2003, 3544 the Chamber is satisfied the contents of the decree were published in the public domain. 1316. Following up on this decree, a document entitled Memo

number 014 dated 5 June 2003, addressed to all brigade commanders of the FPLC and signed by Commander Floribert Kisembo refers to the decree of 1 June 2003 and contains the following instructions:3545
In accordance with the spirit of decree number 1 bis/UPC/RP/Cab/Pres/2003 of the 1st of June, 2003, of the UPC/RP President, FPLC Commander-in-Chief, you are requested to demobilise all people among our ranks under the age of 18 according to the regular procedure.

1317.

Turning to the circumstances in which the 1 June 2003 decree

was issued, during the period when the UPC sought to take control of the town of Bunia, a MONUC representative often visited the UPC/FPLC staff headquarters, where the kadogo unit was stationed (indeed, it was present during his visits).3546 P-0017 gave evidence that the children in the kadogo unit, prior to their disarmament, were dressed in military uniforms and carried weapons. 3547 However, according to P-0017, the major problem for the UPC/FPLC during this period lay with the media, who were perceived by the UPC as a

T-349-ENG, page 17, lines 13 20. EVD-OTP-00741 at DRC-OTP-0152-0248. The text as transcribed from the radio broadcast contains a slight variation to the extent that pursuant to Article 2 a National Inspector (rather than a National Secretary), and the Chief of Staff are responsible for the implementation. 3545 EVD-OTP-00691 (previously EVD-OTP-00052); T-126-Red2-ENG, page 39, line 19 to page 40, line 23. 3546 T-158-Red2-ENG, page 44, line 16 to page 47, line 3 (P-0017). 3547 T-158-Red2-ENG, page 47, lines 6 9 and lines 20 25.
3544

3543

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threat.3548 The witness explained that:

[p]hotographs were being taken, especially where child soldiers were moving around with weapons. And sometimes they would try to focus on the area where heavy weapons were located, and this was disturbing. This was embarrassing, because this was going to take on a different dimension. A lot was already being said about child soldiers, that it is was not a good thing. Almost everyone was aware of that at that time. As so that is why I say their presence was threatening, because they would pass by at any time. []3549

1318.

At one point, a European foreign journalist was given special

permission to interview a kadogo soldier in the UPC/FPLC.3550 P-0017 stated that the child was no more than 13 years old, and for the interview he was given a red beret and he carried his weapon.3551 The interview was eventually broadcast on television.3552 1319. P-0017 testified that the demobilisation order of June was issued

within a week of this interview with the child soldier, 3553 and the witness suggested the decision to disarm child soldiers was influenced by this attention on the part of the media.3554 The Chamber accepts this contention. 1320. Taking into account the evidence concerning the complaints

received by the UPC, the evidence of P-0041 relating to meetings in which demobilisation was discussed as a means to avoid human rights problems within the UPC, the evidence of P-0017 on the visits by the MONUC representative and the attention of the media, the Chamber is persuaded the UPC was subjected to strong external pressure because child soldiers were within the FPLC and it is sure the demobilisation
3548 3549

T-158-Red2-ENG, page 48, lines 4 5 and page 51, line 18 to page 52, line 12. T-158-Red2-ENG, page 51, line 23 to page 52, line 12. 3550 T-158-Red2-ENG, page 48, lines 4 18 (P-0017). 3551 T-158-Red2-ENG, page 48, line 11 to page 49, line 17. 3552 T-158-Red2-ENG, page 49, line 9 (P-0017). 3553 T-158-Red2-ENG, page 54, line 23 to page 55, line 2. 3554 T-158-Red2-ENG, page 60, line 21 to page 61, line 11.

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decree of 1 June 2003 was issued in response to this external pressure. 1321. However, the effective implementation of this order, as well as

the other demobilisation instructions, has not been demonstrated, even on a prima facie basis. As analysed below, the evidence proves that child recruitment continued regardless of the external pressure and internal orders to demobilise.
(f) Lack of demobilisation, continued recruitment

and re-recruitment 1322. Turning to the question of whether the demobilisation orders

were implemented, according to P-0017, during a morning assembly at the UPC/FPLC staff headquarters, the Chief of Staff talked about the fact that he was going to ask the commander in charge of the child soldiers to disarm them. They were not supposed to carry weapons or wear military uniforms. 3555 Following this announcement, P-0017 stated we were surprised.3556 However, having been disarmed, some of the children remained at the military headquarters because they were provided with meals, although they no longer carried weapons or wore military uniforms.3557 In particular, children below the age of 15 the youngest being about 12 years old3558 who had originally come from the kadogo unit in Mamedi remained at the headquarters even if they no longer had weapons or uniforms because they felt tied to the headquarters and the Chief of Staff.3559 P-0017 suggested those child soldiers who joined at a later stage did not feel protected by the

T-158-Red2-ENG, page 47, lines 9 19; see also page 52, lines 19 22 and page 53, lines 16 21. T-158-Red2-ENG, page 47, lines 12 13 (P-0017). 3557 T-158-Red2-ENG, page 47, lines 17 19 and page 52, lines 19 23 (P-0017). 3558 T-158-Red2-ENG, page 22, line 23 to page 23, line 9 (P-0017). 3559 T-158-Red2-ENG, page 47, lines 13 19; page 52, lines 22 23; page 54, lines 3 11 and lines 19 20 (P-0017).
3556

3555

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general staff and ran away to other commanders.3560 He stated he saw them once they had joined units in Mudzipela and Centrale because they were permitted to continue using their weapons provided they were out of sight of the Chief of Staff.3561 When asked whether he was aware of children being disarmed on other occasions, P-0017 gave evidence that he only saw children from the UPC being disarmed in Bunia.
3562

In Kilo they were following their commanders to

Mongbwalu, although he witnessed the departure of numerous child soldiers.3563 1323. Notwithstanding his evidence on the Chief of Staff initiating the

disarmament of child soldiers in Bunia, P-0017 testified that only ten days later those who remained at the military headquarters were again provided with weapons when the Artemis force arrived. 3564 The kadogos who were available when the fighting began in Bunia were re-armed on the order of the Chief of Staff, Floribert Kisembo, to assist in the ongoing fighting. 3565 Although P-0017 initially stated that he thought Mr Lubanga was still in town when the order to re-arm the children was given, he thereafter confirmed an earlier statement in which he had indicated that the order to re-arm the children was given in the middle of battle and it did not come from Thomas Lubanga, who had already left the town.3566 P-0017 suggested that a child who had been re-armed died in fighting during the course of the night

T-158-Red2-ENG, page 54, lines 14 16. T-158-Red2-ENG, page 47, lines 16 19. 3562 T-158-Red2-ENG, page 60, lines 18 20 (P-0017). 3563 T-158-Red2-ENG, page 60, lines 10 14 (P-0017). 3564 T-158-Red2-ENG, page 53, line 22 to page 54, line 2, page 54, lines 19 21 and page 55, lines 4 7. D-0019 confirms that Artemis was deployed in June 2003, T-345-ENG, page 51, line 25 to page 52, line 5. 3565 T-158-Red2-ENG, page 54, lines 19 21; page 55, lines 4 21; T-160-Red2-ENG, page 52, lines 20 25 (P-0017). 3566 T-160-Red2-ENG, page 52, line 25 to page 53, line 2; page 55, line 2 page 56, line 6 (P-0017).
3561

3560

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before the Artemis contingent arrived.3567 P-0017 further gave evidence that the Chief of Staff proclaimed himself as President of the UPC/FPLC on his return to Bunia following the arrival of Artemis and the ensuing battle.3568 1324. The defence appears to suggest that the accused was not

responsible for re-arming the children because he had left the town and Floribert Kisembo was trying to take control of the UPC. 3569 However, there is no evidence to suggest that Mr Kisembo was in control or acted against the authority of the accused in the period following the incident with Artemis. His attempted take-over did not occur until December 2003,3570 and the documentary evidence suggests that Floribert Kisembo acknowledged, at least in a formal sense, the authority of the accused as president as late as November 2003.3571 In evidence that the Chamber accepts, P-0017 indicated that the UPC/FPLCs response to the Artemis operation included deploying the children during the battle. Given the continued, essentially uncontested authority of the accused at this time, the return of weapons and uniforms to the child soldiers for this purpose is compelling evidence that their involvement was the result of the common plan, namely to use soldiers of any age to maintain control
Earlier, P-0017 suggested that the children from the kadogo unit in Mamedi were grouped together to protect them and that although some were bodyguards to the Chief of Staff, the witness did not know about military tasks and said that they had no special responsibilities at that time. T-158-Red2-ENG, page 22, line 14 to page 25, line 22. At that time the kadogos had been brought back to the General Staff, which was in Mamedi. T-158-Red2-ENG, page 22, lines 17 22 and page 25, lines 23 24. The Chamber is persuaded that this earlier testimony does not contradict the evidence that they were rearmed and that at least one child died fighting in the night before Artemis arrived. T-158-Red2-ENG, page 46, lines 12 18 and page 56, lines 6 24. 3568 T-160-Red2-ENG, page 56, lines 7 21 and page 57, lines 1 14. 3569 ICC-01/04-01/06-2773-Red-tENG, para. 448. 3570 EVD-D01-01092, a letter dated 9 December 2003 signed by the Interim President of the UPC/FPLC criticises the attempted coup by Commander Kisembo and confirms the presidency of Thomas Lubanga. It is a response to a political declaration of 3 December 2003. 3571 In EVD-OTP-00683, a letter on the UPC/FPLC letterhead dated 1 November 2003, apparently bearing the stamp and signature of Floribert Kisembo himself, informs the accused of a reorganisation of the brigade commanders in the field.
3567

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over Bunia rather than representing a decision that had been taken by the Chief of Staff alone. 1325. The Chamber heard evidence that before demobilisation finally

occurred in October and November 2003 (after the period of the charges), 3572 there had been sham demobilisation attempts by the UPC/FPLC.3573 P-0024 gave evidence that two months after the UPC took control of Bunia, there were broadcasts by Radio Candip and on television in which the UPC/FPLC pretended to demobilise certain children. 3574 P-0024 said children had remained within the armed groups, and they were seen, for instance, acting as bodyguards in their pick-up vehicles. 3575 He suggested any demobilisation that occurred only concerned a limited number of children he estimated no more than 20. 3576 P-0024 also gave evidence that after the purported demobilisation in October 2002, he saw armed children from the FPLC threatening members of the population.3577 The defence suggests P0024s claim that the UPC/FPLC only pretended to demobilise children was simply his opinion and that he failed to provide further details.3578 It is argued the witness was biased, and he attempted to minimise the significance and scope of the demobilisation measures which he accepted existed.3579 The evidence of this witness is evaluated in the context of the other material on this issue. 1326. P-0046 gave similar evidence, namely that the UPC/FPLC

3572 3573

T-207-Red2-ENG, page 28, lines 1 10 (P-0046). T-170-Red-ENG, page 52, line 24 to page 53, line 15 (P-0024). 3574 T-170-Red-ENG, page 52, lines 15 19. 3575 T-170-Red-ENG, page 52, lines 19 23. 3576 T-170-Red-ENG, page 53, lines 5 15. 3577 T-170-Red-ENG, page 53, lines 16 21. 3578 ICC-01/04-01/06-2773-Red-tENG, para. 591. 3579 ICC-01/04-01/06-2786-Red-tENG, para. 58.

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demobilisation efforts were not genuine,

3580

and that once the

demobilisation instructions had been issued, the UPC/FPLC failed to cooperate, notwithstanding the meetings with MONUC

representatives that were held several times a week. 3581 P-0046 indicated that during a meeting on 30 May 2003 at Thomas Lubangas residence, contrary to the reaction of other armed groups that I had met with previously, there was no indication on his part of any will to cooperate [] if you will allow me to compare with the FAPC3582 that I had met with in March, the RCD-ML, or other groups, the Mai Mai groups in the North Kivu who had publicly stated that they were willing to cooperate with child protection agencies from the United Nations, on 30 May, there was no sign of open-mindedness or any will to actually discuss the matter. 3583 During this meeting, P-0046 informed Thomas Lubanga that MONUC was trying to make a detailed record of the ongoing recruitment of children,3584 including, in particular, by the UPC/FPLC.3585 P-0046 showed certain documents to Mr Lubanga, including various international resolutions and other instruments concerning the protection of children, discussed the DRCs ratification of the Rome Statute.3587 1327. After the 30 May 2003 meeting between the MONUC delegation
3586

and they

and Thomas Lubanga, and once the MONUC teams had been able to monitor the information that was publicly broadcasted, P-0046 was informed about a text, distributed by the Presidency of the UPC, which
EVD-OTP-00489, T-37-EN, page 106, line 22 to page 107, line 25; EVD-OTP-00491, T-39-EN, page 108, line 23 to page 109, line 15 (transcripts of testimony before the Pre-Trial Chamber). 3581 EVD-OTP-00489, T-37-ENG, page 107, lines 10 25 (transcript of testimony before the Pre-Trial Chamber). 3582 T-209-Red2-ENG, page 29, lines 3 11. 3583 T-207-Red2-ENG, page 25, lines 8 18. 3584 T-206-Red2-ENG, page 41, lines 9 12. 3585 T-206-Red2-ENG, page 40, line 25 to page 41, line 6. 3586 T-206-Red2-ENG, page 41, lines 7 9. 3587 T-206-Red2-ENG, page 41, lines 13 19.
3580

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referred to the demobilisation of certain children. 3588 In the days following this announcement, P-0046 and others tried unsuccessfully to find the official text.3589 However, two or three weeks later they were told by one of the child protection agencies that the latter had been contacted by a UPC commander about taking care of some of the children.3590 P-0046 discovered that some of the children who left the UPC travelled to a particular transit centre, but repeated requests by MONUC and other child protection agencies for an official meeting with members of the UPC on this issue were ignored.3591 P-0046 gave evidence about an incident in the fall of 2003 when she encountered a child she had previously met at the Rwampara camp in March 2003, who told her that the children she had interviewed at that time had not been demobilised or ordered to return to civilian life.3592 Generally, the UPC continued to recruit children throughout the time the witness was responsible for Ituri.3593 After having indicated that many children were released by the UPC in October and November 2003 (in contrast to June),3594 P-0046 testified that some families asked the centres not to return the children who had been within the UPC to their homes because they were afraid they might be re-recruited.3595 1328. Supporting the evidence that recruitment continued, the weekly

MONUC report of 15 June 2003 (mentioned above)3596 included in an annex the content of the demobilisation decree as it was read out over the radio, and it contained a section on the continued recruitment of
3588 3589

T-206-Red2-ENG, page 54, lines 21 25 (P-0046). T-206-Red2-ENG, page 55, lines 1 3 (P-0046). 3590 T-206-Red2-ENG, page 55, lines 4 10 (P-0046). 3591 T-206-Red2-ENG, page 55, lines 11 15 (P-0046). 3592 T-206-Red2-ENG, page 12, lines 7 24 (P-0046). 3593 T-206-Red2-ENG, page 55, lines 16 18 (P-0046). 3594 T-207-Red2-ENG, page 28, lines 1 10. 3595 T-207-Red2-ENG, page 29, lines 10 16.
3596

See paras 1299 and 1315.

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children.3597 The report referred in terms to children who were being recruited by the UPC.3598 Although the ages of the children are not specified, the decree purportedly referred to all children below the age of 18. 1329. P-0024 did not recall that SOS Grands Lacs was involved in any

demobilisation initiatives for children undertaken by the UPC indeed, he did not recall any UPC initiatives of this kind. 3599 He indicated that at the time of the first letter, 21 October 2002, their work in Bunia was becoming difficult, 3600 and in November 2002 their activities were discontinued for security reasons, 3601 with the NGO losing many of the children within its care.3602 1330. P-0116 did not receive any information about a UPC

demobilisation initiative in the period between September 2002 and October 2003,3603 and he said he would have been aware of an event of this kind on account of his work.3604 According to information P-0116 received, including from child protection workers operating in Bunia at the time, some of the NGOs approached the UPC through purely bilateral relations to ask it to release children, but appointments that were made were not kept.3605 P-0116 gave evidence about a meeting with the child protection unit of MONUC and the donors of the World Bank that took place in March or April 2003 in Kinshasa to discuss demobilisation in the DRC, to which numerous armed groups were

3597 3598

EVD-OTP-00741. EVD-OTP-00741 at page DRC-OTP-0152-0246. 3599 T-170-Red-ENG, page 54, lines 12 17. 3600 T-170-Red-ENG, page 54, lines 15 23. 3601 T-170-Red-ENG, page 54, line 18 to page 55, line 23 (P-0024). 3602 T-170-Red-ENG, page 68, lines 2 9 (P-0024). 3603 T-208-Red2-ENG, page 65, line 23 to page 66, line 7 and page 67, lines 9 7. 3604 T-208-CONF-ENG, page 66, lines 7 11. 3605 T-208-Red2-ENG, page 70, lines 2 8.

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invited.3606 However, although they wanted to establish contact with the UPC, the latter was not invited because it was considered too dangerous to approach, and, in any event, no one within the UPC was engaged with the issue of child demobilisation.3607 Therefore, P-0116 suggested it was difficult for the international organisations to contact the UPC on this issue, and it was recognised that it was difficult to persuade the UPC to release children unconditionally.3608 An initiative, forming part of the national DDR programme and open to all those concerned with the issue, including the armed groups, failed to receive the necessary commitment.3609 Indeed, prior to October 2003, P-0116 was unaware of any formal commitment on the part of the UPC to release children within its ranks.3610 1331. In contrast, D-0037 drafted and signed minutes of a meeting he

attended on 16 June 20033611 that had included, amongst others, Mr Rafiki and Bosco Ntaganda,3612 in the course of which instructions were given to demobilise children and to hand them over to the NGOs. 3613 According to the minutes, during the course of this meeting, the question was raised as to how the demobilisation order of 1 June 2003 related to the FPLC, given it had seemingly banned the use of children at its inception. 3614 The following answer was given during the meeting:
[] With regard to the few child soldiers seen around town, we need to work on them, as you did with the self-defence militias in the field. The decree is T-208-CONF-ENG, page 67, lines 9 24. T-208-Red2-ENG, page 67, line 24 to page 68, line 3. 3608 T-208-Red2-ENG, page 68, lines 9 21. 3609 T-208-Red2-ENG, page 70, lines 9 13. 3610 T-208-CONF-ENG, page 70, lines 13 16 (P-0116). 3611 EVD-D01-01098; T-349-ENG, page 17, line 21 to page 18, line 4 and page 19, lines 6 15 (D0037). 3612 EVD-D01-01098; T-349-ENG, page 18, line 23 to page 19, line 2 (D-0037). 3613 EVD-D01-01098. 3614 EVD-D01-01098.
3607 3606

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for wide-ranging awareness-raising [] As it stands, faced with evil we need to act for the benefit of society as a whole. This is the argument presented by the President, which we have adopted.3615

In order to establish the authenticity of the typed minutes of this meeting, the defence refers to particular unsigned, handwritten notes dated 16 June 2003 that, according to D-0019, appear to have been drafted by the Chief of Staff of the FPLC, Floribert Kisembo3616 and which may be some form of preparatory notes.3617 The two documents appear to relate to the same meeting, and the defence suggests they demonstrate that demobilising child soldiers was a priority for the FPLC; that the demobilisation policy extended to all minors bearing arms within each of the armed groups in Bunia and Ituri; and certain initiatives in this context had already been implemented.3618 1332. D-0011 gave evidence that the decree of 1 June 2003 was brought

to the attention of the public via the press attach of the Presidency when he spoke on the radio. 3619 The witness indicated that he was aware the decree had been implemented because it was normal practice to send the decrees to all the national secretaries, who ensured their provisions were put into effect.3620 According to D-0011, the Chief of Staff had been ordered to disseminate the content of the decree.3621 Additionally, D-0011 testified that Monsignor Nekoosa, the director of Caritas in Bunia, met with Thomas Lubanga and they discussed transferring the children in the army to Caritas so as to ensure their

EVD-D01-01098, page DRC-D01-0003-5902. The translation is taken from the quote in ICC01/04-01/06-2773-Red-tENG, para. 954. 3616 EVD-OTP-00668; T-342-ENG, page 43, lines 10 21. 3617 ICC-01/04-01/06-2773-Red-tENG, paras 949 951. 3618 ICC-01/04-01/06-2773-Red-tENG, para. 955. 3619 T-347-ENG, page 18, lines 17 2. 3620 T-347-ENG, page 19, lines 12 22. 3621 T-347-ENG, page 19, line 23 to page 20, line 2.

3615

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social re-integration.3622 The defence relied on notes drafted by D-0011 in which this meeting is mentioned.3623 D-0011 consistently maintained the demobilisation decree of 1 June 2003 had been effectively implemented, and he denied that children were re-armed by the FPLC/UPC. 3624 Given D-0011s general lack of credibility on the recruitment and use of child soldiers as discussed above, the Chamber has disregarded his testimony on the implementation of the demobilisation decree. 1333. Moreover, as described in detail earlier, Thomas Lubanga

visited the Rwampara training camp in February 2003 after the first demobilisation orders were issued and he encouraged the recruits, some of whom were below the age of 15, including by telling them they would be armed and deployed after the completion of their training.3625 1334. The defence denies that Thomas Lubangas visit to the

Rwampara camp in February 2003 conflicts with his demobilisation orders and it is asserted that his kindness towards these irreproachable young people during his visit to Rwampara should be viewed in light of the firm instructions he gave in this context.3626 1335. It is to be noted P-0030 gave evidence to the effect that the

youngest of the recruits must have been around nine.3627 Indeed, the images in the video of 12 February 2003 show recruits well below the

T-347-ENG, page 20, lines 2 10. ICC-01/04-01/06-2773-Red-tENG, para. 947, referring to EVD-D01-01094. 3624 T-348-ENG, page 5, lines 5 23. 3625 EVD-OTP-00570. 3626 ICC-01/04-01/06-2773-Red-tENG, paras 916 917, with reference to the speech he gave: EVDOTP-00570; T-128-Red2-ENG, page 36, lines 23 24, page 37, lines 8 23; page 38, line 17 to page 39, line 1, page 40, lines 5 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10. 3627 T-128-Red2-ENG, page 48, lines 11 14.
3623

3622

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age of 15.

3628

Thomas Lubanga arrived in a military uniform,

accompanied by soldiers, and he addressed and encouraged young recruits in their military training. He told them that as soon as they completed their training they would be given weapons and entrusted with the security and safety of the population.3629 The accused also told them they would be useful soldiers, who were to be deployed in the field.3630 The Chamber is of the view that the accused intended for those under the age of 15 who were present to be provided with military training before they were sent into combat, treating them identically to those over the age of 15. Even if the procedures for demobilisation were complex and lengthy, as described by P-0046,3631 the behaviour of the accused was wholly incompatible with a genuine intention to avoid recruiting children into, or to demobilise children from, the FPLC. 1336. The defence also suggests that since most of the recruits present

at the training centre were of an appropriate age to be soldiers, the speech he gave was directed essentially at recruits old enough to be soldiers. 3632 The Chamber is unable to accept this submission. The accused addressed all the recruits at the Rwampara camp on 12 February 2003 and there is no credible evidence to support the submission that he was only focussing on those above 15. 1337. D-0011 also gave evidence that in February 2003 there were a

considerable number of attacks in the outskirts of Bunia, leading to the

3628 3629

See paras 792, 1242-1245. T-128-Red2-ENG, page 38, lines 19 20 (interpretation). 3630 T-128-Red2-ENG, page 41, lines 12 17 (interpretation). 3631 EVD-OTP-00494; T-39-ENG, page 102, line 20 to page 103, line 3 and page 109, lines 2 9 (transcript of testimony before the Pre-Trial Chamber). 3632 ICC-01/04-01/06-2786-Red-tENG, paras 55 and 56.

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need to mobilise (rather than demobilise) the troops. 3633 While the Chamber has not accepted a large part of D-0011s evidence (given his close relationship with the accused), this statement relates to the circumstances of the conflict rather than the issue of child soldiers, and it is supported by other evidence, accepted by the Chamber, on the issue of the various battles that were fought at that time. D-0011s confirmation of the need to mobilise at that time also throws light on the attitude of the accused towards the recruits he spoke to at the Rwampara camp on 12 February 2003, as shown in the video EVDOTP-00570. 1338. In addition, P-0055, who had an important position in the FPLC

hierarchy, gave evidence to the effect that he was unaware of any procedures for child soldier demobilisation within the UPC.3634 He did not attend any UPC meetings, nor was he involved in conversations with Mr Lubanga, Floribert Kisembo, Rafiki Saba, Bosco Ntaganda or Eric Mbabazi, during which the subject of the demobilisation of children within the army was raised.3635 1339. The Chamber has considered video footage from 31 July 2004.3636

One of the sequences, shown during P-0030s evidence, shows speeches given by several UPC members at the UPC/FPLC training camp in Katoto.3637 Eloy Mafuta addressed the audience as follows:
Hello everybody. Were very pleased with the work being carried out by the youngsters here. You, you know that giving birth to children, well, if somebody cannot give birth to a child, cannot father a child, hell be very sad. You can see the work that you, the fathers have already done. You can see

T-347-ENG, page 60, line 19 to page 63, line 6. T-176-ENG, page 56, lines 1 10. 3635 T-176-ENG, page 56, lines 11 13 and page 56, line 22 to page 57, line 10. 3636 EVD-OTP-00582. The prosecution indicates the video was filmed on 31 July 2004, ICC-01/0401/06-2748-Conf-Anx2, page 20, No. 61. 3637 EVD-OTP-00582; T-130-Red2-ENG, page 11, line 8 to page 12, line 18.
3634

3633

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the current situation concerning your children and we would like to thank them for the work theyve carried out. You can see the fruit of their work. You must not tire. You must continue to work in the same way, because we can see the fruit of your work. And its because of these children, its thanks to these children that we are living here. We could not live here otherwise. Thanks to the work carried out by your children, we can live in peace here. The work carried out by the children here makes it possible for us to live and to continue to live here. My name is Eloy Mafuta. Im the presidential advisor. Im also military advisor to the UPC.3638

P-0030 confirmed that the speaker was Eloy Mafuta, the special advisor to the President and military advisor to the UPC.3639 1340. Later in the same video, Bosco Ntaganda, wearing a UPC/FPLC

uniform, addressed the crowd:3640

[] Im talking to you as a civilian population and were asking for your support for our military actions. We will continue our work until we are sure we have completed our mission. Im very pleased because if you go to the equatorial region you will find your child whos a colonel, or in South Kivu or other parts of the Congo you will find your children who are there. They are working on the basis of what you, as parents, have handed down to them.3641

1341.

He was followed by the Minister of Defence, Mr Mbuna:

The presidential advisor has spoken to you. Hes also the military advisor. He said that we have borne children and these children have grown up. Among those children there are older children and younger children, and that is why the president wanted and authorised us to give them different ranks. These ranks, thats to show who are the superiors. I think that the ceremony has been in Largu, Blukwa, and there was a lot of talk about that particular day. The president knew that we were going to come here and he asked us to pass on to the population and to the soldiers, to pass on his greetings. You have the greetings of the president.3642

1342.

P-0030 again confirmed that the speaker was the Minister of

Defence, Mr Mbuna, who was referring to Thomas Lubanga when he

EVD-OTP-00582 at 00:34:25, interpretation in Court: T-130-Red2-ENG, page 14, lines 3 17. T-130-Red2-ENG, page 15, lines 2 9. 3640 EVD-OTP-00582 at 00:47:09; T-130-Red2-ENG, page 16, lines 6 14. 3641 EVD-OTP-00582 at 00:55:00; T-130-Red2-ENG, page 17, line 24 to page 18, line 5. 3642 EVD-OTP-00582 at 00:58:58; T-130-Red2-ENG, page 19, line 20 to page 20, line 4.

3638

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said the president.3643 1343. In one scene a soldier wearing a uniform can be seen, who P-

0030 confirms belongs to the FPLC of the UPC.3644 He is below the age of 18, which is the age limit as determined in the Presidential decree of 1 June 2003. 1344. Although the video falls outside of the period of the charges, it

gives a strong indication that the presidential decree of 1 June 2003 and the preceding demobilisation orders were not implemented. Young soldiers should have been demobilised, yet the speeches indicate that children below the age of 18 were still being targeted for recruitment and they remained within the ranks of the FPLC. Not only did Eloy Mafuta and Bosco Ntaganda speak of children, but Mr Mbuna also explicitly refers to younger and older children who are given different ranks, which excludes the possibility that the term children was meant to describe family ties rather than age. 1345. Given the Chambers conclusion that the self-defence forces

were independent of the FPLC, and in light of the finding that the demobilisation orders were not genuinely implemented, it is unnecessary to discuss the position of the self-defence forces vis--vis demobilisation.3645 (2) Conclusion 1346. On the basis of the evidence discussed above, the Chamber is

persuaded that whether or not the demobilisation orders were implemented for some of the children under the age of 15, others were

3643 3644

T-130-Red2-ENG, page 20, lines 6 10. EVD-OTP-00582 at 00:46:18 to 00:46:23; T-130-Red2-ENG, page 15, lines 11 19. 3645 See the defence submissions in ICC-01/04-01/06-2773-Red-tENG, paras 922 929.

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simultaneously recruited, re-recruited and used by the FPLC throughout the timeframe of the charges. The demobilisation orders additionally prove that Mr Lubanga knew that the recruitment of children was prohibited and that children remained amongst the ranks of the UPC/FPLC in spite of the prohibition. 1347. Focusing on the mental element of the charges, the Chamber is

of the view that Thomas Lubanga was fully aware that children under the age of 15 had been, and continued to be, enlisted and conscripted by the UPC/FPLC and used to participate actively in hostilities during the timeframe of the charges. This occurred, in the ordinary course of events, as a result of the implementation of the common plan to ensure that the UPC/FPLC had an army strong enough to achieve its political and military aims. 1348. Within a functioning military hierarchy, it is necessary that

orders are complied with. The defence has been imprecise as to whether the demobilisation order of 21 October 2002 and the decree of 1 June 2003 lead to the conclusion that the resulting crimes did not occur in the ordinary course of events, or whether it is only suggesting that the accused did not have the intention to commit the crimes. However, the lack of cooperation on the part of the UPC/FPLC with the NGOs working within the field of demobilisation and the threats directed at human rights workers who were involved with childrens rights tend to undermine the suggestion that demobilisation, as ordered by the President, was meant to be implemented. Instead, Thomas Lubanga used child soldiers below the age of 15 as his bodyguards within the PPU 3646 and he gave speeches and attended

3646

See paras 864, 1247-1262.

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rallies where conscripted and enlisted children below the age of 15 were present.3647 Mr Lubanga was aware that children under the age of 15 were within the personal escorts of other commanders.
3648

Moreover, the accused visited UPC/FPLC camps,3649and particularly at the Rwampara camp he gave a morale-boosting speech to recruits who included young children who were clearly below the age of 15. As already set out, the Chamber concludes that this video, filmed on 12 February 2003, contains compelling evidence as to Thomas Lubangas awareness of, and his attitude towards, the enduring presence of children under the age of 15 in the UPC. b) Awareness of the factual circumstances that established the existence of a non-international armed conflict and the nexus between the commission of the crime and the armed conflict 1349. On the basis of the evidence rehearsed above, the Chamber

concludes beyond reasonable doubt that the accused was aware of the factual circumstances that established the existence of an armed conflict throughout the period of the charges. 1350. The accused and other members of the UPC/FPLC articulated

the organisations military aims.3650 Child soldiers were recruited as a result of the implementation of a common plan in order to ensure the UPC/FPLC was able to implement its military aims, and the accused was aware that they were being recruited, trained and used in military operations.3651 Hence, the Chamber finds beyond reasonable doubt that Thomas Lubanga was fully aware of the undoubted link between the
See paras 790, 792, 860-861, 1236, 1242-1245, 1249-1251, 1256-1257. See paras 1277, 1348, and, e.g., T-113-Red2-ENG, page 36, line 24 to page 37, line 5 (P-0038); T125-Red2-ENG, page 54, line 20 to page 55, line 8 and page 55, lines 12 20 (P-0041). 3649 See paras 790, 792, 1242-1245. 3650 See paras 1047-1059, 1084-1136. 3651 See paras 1277-1279, 1347-1348.
3648 3647

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crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities and the armed conflict or the factual circumstances that established the existence of the armed conflict. 4. OVERALL CONCLUSIONS 1351. The accused and his co-perpetrators agreed to, and participated

in, a common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri. This resulted, in the ordinary course of events, in the conscription and enlistment of boys and girls under the age of 15, and their use to participate actively in hostilities. 1352. As indicated in an earlier section of this Judgment, the Chamber

has concluded that from late 2000 onwards, Thomas Lubanga acted with his co-perpetrators, who included Floribert Kisembo, Bosco Ntaganda, Chief Kahwa, and commanders Tchaligonza, Bagonza and Kasangaki. Mr Lubangas involvement with the soldiers (including young children) who were sent to Uganda for training is of significance. Although these events fall outside the period covered by the charges and are outwith the temporal jurisdiction of the Court, they provide critical background evidence on the activities of this group, and they help establish the existence of the common plan before and throughout the period of the charges. 1353. As further background, the accused was in conflict with the

RCD-ML from at least April 2002, and he led a group that sought to bring about political change in Ituri, including the removal of Mr Mbusa Nyamwisi and Governor Molondo Lompondo, if necessary by force. The accused remained in control by delegating his authority,
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whilst he was detained in the summer of 2002 and he sent Chief Kahwa and Mr Beiza to Rwanda to obtain arms. During that period, Floribert Kisembo, Bosco Ntaganda and Chief Kahwa, three of the accuseds principal alleged co-perpetrators, were generally responsible for recruitment and training, which included girls and boys under the age of 15. 1354. The accused and at least some of his co-perpetrators were

involved in the takeover of Bunia in August 2002. Thomas Lubanga, as the highest authority within the UPC, appointed Chief Kahwa, Floribert Kisembo and Bosco Ntaganda to senior positions within the UPC/FPLC. The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC. Those children recruited before the formal creation of the FPLC were incorporated into that group, and a number of training camps were added to the original facility at Mandro. The Chamber has concluded that between 1 September 2002 and 13 August 2003, a significant number of highranking members of the UPC/FPLC and other personnel conducted a large-scale recruitment exercise directed at young people, including children under the age of 15, whether voluntarily or by coercion. 1355. The Chamber is satisfied beyond reasonable doubt that as a

result of the implementation of the common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri, boys and girls under the age of 15 were conscripted and enlisted into the UPC/FPLC between 1 September 2002 and 13 August 2003. Similarly, the Chamber is satisfied beyond reasonable
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doubt that the UPC/FPLC used children under the age of 15 to participate actively in hostilities, including during battles. They were also used, during the relevant period, as soldiers and as bodyguards for senior officials, including the accused. 1356. Thomas Lubanga was the President of the UPC/FPLC, and the

evidence demonstrates that he was simultaneously the Commanderin-Chief of the army and its political leader. He exercised an overall coordinating role over the activities of the UPC/FPLC. He was informed, on a substantive and continuous basis, of the operations of the FPLC. He was involved in planning military operations, and he played a critical role in providing logistical support, including as regards weapons, ammunition, food, uniforms, military rations and other general supplies for the FPLC troops. He was closely involved in making decisions on recruitment policy and he actively supported recruitment initiatives, for instance by giving speeches to the local population and the recruits. In his speech at the Rwampara camp, he encouraged children, including those under the age of 15 years, to join the army and to provide security for the populace once deployed in the field following their military training. Furthermore, he personally used children below the age of 15 amongst his bodyguards and he regularly saw guards of other UPC/FPLC members of staff who were below the age of 15. The Chamber has concluded that these contributions by Thomas Lubanga, taken together, were essential to a common plan that resulted in the conscription and enlistment of girls and boys below the age of 15 into the UPC/FPLC and their use to actively participate in hostilities. 1357. The Chamber is satisfied beyond reasonable doubt, as set out

above, that Thomas Lubanga acted with the intent and knowledge
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necessary to establish the charges (the mental element required by Article 30). He was aware of the factual circumstances that established the existence of the armed conflict. Furthermore, he was aware of the nexus between those circumstances and his own conduct, which resulted in the enlistment, conscription and use of children below the age of 15 to participate actively in hostilities.

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XII. DISPOSITION

1358.

For the foregoing reasons and on the basis of the evidence

submitted and discussed before the Chamber at trial, and the entire proceedings, pursuant to Article 74(2) of the Statute, the Chamber finds Mr Thomas Lubanga Dyilo: GUILTY of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003. 1359. Pursuant to Regulation 55 of the Regulations of the Court, the

Chamber modifies the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character from early September 2002 to 13 August 2003. 1360. At the request of the defence and in accordance with Article

76(2) of the Statute and Rule 143 of the Rules, the Chamber will hold a separate hearing on matters related to sentencing and reparations. 1361. The Chamber communicates to the Prosecutor, pursuant to

Article 70 of the Statute and Rule 165 of the Rules, its findings that P0143, P-0316 and P-0321 may have persuaded, encouraged, or assisted witnesses to give false evidence. 1362. The Majority of the Chamber withdraws the right of dual status

witnesses P-0007, P-0008, P-0010, P-0011, P-0298 and P-0299 to participate in the proceedings as victims. 1363. The Chamber withdraws the right of victims a/0229/06,

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a/0225/06, and a/0270/07 to participate in the proceedings. 1364. Judges Fulford and Odio Benito append separate and dissenting

opinions to this Judgment on particular discrete issues.

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Done in both English and French, the English version being authoritative.

cWvs (^Ut>^
Judge Adrian Fulford

Judge Elizabeth Odio Benito

Jtrage Ren Blattmann

Dated this 14 March 2012 At The Hague, The Netherlands

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SEPARATE OPINION OF JUDGE ADRIAN FULFORD

1. I write separately to explain my views on the scope of Article 25(3)(a) of the Statute, as regards an individual who is alleged to have committed a crime jointly with another.

2. I wish to make clear at the outset that I agree with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied at this stage of this case. Focussing on the requirements of Article 25(3)(a) of the Statute, with minor modifications to ensure compliance with the Statute, the test described at paragraph 1018 mirrors the approach of the Pre-Trial Chamber in the Decision on the Confirmation of Charges,1 which established (certainly in this context) the principles of law on which the trial has been prosecuted and defended. No substantive warning has been given to the parties that the Chamber may apply a different test, and as a matter of fairness it would be wrong at this late stage to modify the legal framework of the case. In short, it would be unjust to the present accused to apply a different, and arguably lesser, test.

3. Generally, it is my view that the test laid down by the Pre-Trial Chamber is unsupported by the text of the Statute and it imposes an unnecessary and unfair burden on the prosecution.

ICC-01/04-01/06-803-tEN, paras 322-367.

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The Pre-Trial Chambers reading of Article 25(3)(a) of the Statute

4. In its decision on the confirmation of charges, the Pre-Trial Chamber held that under Article 25(3)(a) of the Statute, liability for committing a crime jointly with another attaches only to individuals who can be said to have control over the crime.2 It adopted a five-part test for co-perpetrator liability under this theory, which, as just indicated, is directed at those who have control over the commission of the offence.3 The five elements are: i. The existence of an agreement or common plan between two or more persons;4 ii. The co-ordinated essential contribution made by each coperpetrator resulting in the realisation of the objective elements of the crime;5 iii. [T]he suspect [must] fulfil the subjective elements of the crime with which he or she is charged;6 iv. [T]he suspect and the other co-perpetrators (a) must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and (b) must all mutually accept such a result by reconciling themselves with it or consenting to it;7 and

2 3

ICC-01/04-01/06-803-tEN, paras 326 338. ICC-01/04-01/06-803-tEN, para. 332. 4 ICC-01/04-01/06-803-tEN, para. 343. 5 ICC-01/04-01/06-803-tEN, para. 346. 6 ICC-01/04-01/06-803-tEN, para. 349. 7 ICC-01/04-01/06-803-tEN, para. 361.

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v. [T]he suspect [must be aware] of the factual circumstances enabling him or her to jointly control the crime.8

5. The Pre-Trial Chamber, in essence, provided two reasons for adopting the control of the crime9 approach to co-perpetration. First, to distinguish[] between principals and accessories.10 Second, to ensure that the liability of principals extends to individuals who, notwithstanding their absence from the scene of the crime, exercised control over its commission because they were in a position to decide whether and, if so, how the offence was to be committed. 11 I will first address the basis of this theory, and thereafter explain my approach to joint perpetration under Article 25(3)(a) of the Statute.

The control of the crime theory is unsupported by the text of the Statute

6. As set out above, the Pre-Trial Chambers adoption of the control of the crime theory was founded, in the first place, on the perceived necessity to establish a clear dividing line between the various forms of liability under Article 25(3)(a) (d) of the Statute and, in particular, to distinguish between the liability of accessories under Article 25(3)(b) and that of principals under Article 25(3)(a) of the Statute.12 I respectfully disagree with this view.

8 9

ICC-01/04-01/06-803-tEN, para. 366. ICC-01/04-01/06-803-tEN, para. 322 et seq. 10 ICC-01/04-01/06-803-tEN, paras 327, 330, 335, 338 and 340 11 ICC-01/04-01/06-803-tEN, para. 330. 12 ICC-01/04-01/06-803-tEN, paras 327 340.

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7. In my judgment, the plain text of Article 25(3) defeats the argument that subsections (a) (d) of Article 25(3) must be interpreted so as to avoid creating an overlap between them. Article 25(3)(a) establishes the concept of committing a crime through another, whilst Article 25(3)(b) focuses on ordering, soliciting and inducing the commission of the offence. These concepts, which appear in separate subsections, will often be

indistinguishable in their application vis--vis a particular situation, and by creating a clear degree of crossover between the various modes of liability, Article 25(3) covers all eventualities. Put otherwise, in my judgment the plain language of Article 25(3) demonstrates that the possible modes of commission under Article 25(3)(a) (d) of the Statute were not intended to be mutually exclusive.13

8. Some have suggested that Article 25(3) establishes a hierarchy of seriousness as regards the various forms of participation in a crime, with Article 25(3)(a) constituting the gravest example and Article 25(3)(d) the least serious.14 I am unable to adopt this approach. In my judgment, there is no proper basis for concluding that ordering, soliciting or inducing a crime (Article 25(3)(b)) is a less serious form of commission than committing it through another person (Article 25(3)(a)), and these two concepts self-evidently overlap. Similarly, I am unable to accept that the
By way of comparison, it is of note that the ad hoc Tribunals have held that the various modes of liability available under their statutes are not mutually exclusive. See, e.g., ICTR, The Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Appeals Chamber, Judgment, 28 November 2007, para. 483 (the modes of responsibility under Article 6(1) of the Statute are not mutually exclusive); ICTR, The Prosecutor v. Ndindabahizi, Case No. ICTR-01-71-A, Appeals Chamber, Judgment, 16 January 2007, paras 122-123 (conviction for committing, instigating and aiding and abetting the same crime); ICTY, The Prosecutor v. ordevi, Case No. IT-05-87-1-T, Trial Chamber, Judgment, 23 February 2011, paras 2193-94 (conviction for participation in a joint criminal enterprise and for aiding and abetting). 14 See, e.g., Gerhard Werle, Individual criminal responsibility in Article 25 ICC Statute, 5 J. Intl Crim. Justice 953, 957 (2007) (Article 25(3)(a)-(d) establishes a value oriented hierarchy of participation in a crime under international law).
13

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criminality of accessories (Article 25(3)(c)) is greater than those who participate within a group (Article 25(3)(d)), particularly since many of historys most serious crimes occurred as the result of the coordinated action of groups of individuals, who jointly pursued a common goal.

9. I am also unpersuaded that it will assist the work of the Court to establish a hierarchy of seriousness that is dependent on creating rigorous distinctions between the modes of liability within Article 25(3) of the Statute. Whilst it might have been of assistance to rank the various modes of liability if, for instance, sentencing was strictly determined by the specific provision on which an individuals conviction is based, considerations of this kind do not apply at the ICC. Article 78 of the Statute and Rule 145 of the Rules of Procedure and Evidence, which govern the sentences that are to be imposed, provide that an individuals sentence is to be decided on the basis of all the relevant factors, including the gravity of the crime and the individual circumstances of the convicted person. Although the degree of participation is one of the factors listed in Rule 145(1)(c) of the Rules, these provisions overall do not narrowly determine the sentencing range by reference to the mode of liability under which the accused is convicted, and instead this is simply one of a number of relevant factors.

10. The control of the crime theory has its origins in the post-war German legal system, where particular domestic considerations which do not exist at the ICC have made it appropriate to apply this principle. In adopting this theory, the Pre-Trial Chamber focussed substantially on a

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minority view from the ad hoc tribunals,15 in that it cited the judgment of the ICTY Trial Chamber in the Staki case when it held that the accused was responsible as a co-perpetrator16 (the conviction on this basis was set aside on appeal)17 and Judge Schomburgs separate opinion in the ICTR Appeals Chambers judgment in the Gacumbitsi case. 18 In these two instances, the judges relied heavily on the scholarship of the German academic Claus Roxin as the primary authority for the control theory of co-perpetration,19 and in the result, this approach was imported directly from the German legal system. 20 While Article 21(1)(c) of the Statute permits the Court to draw upon general principles of law derived from national legal systems, in my view before taking this step, a Chamber should undertake a careful assessment as to whether the policy considerations underlying the domestic legal doctrine are applicable at

ICC-01/04-01/06-803-tEN, footnotes 418, 422 26, 432, 434, 436 and 442. ICTY, The Prosecutor v. Milomir Staki, Case No. IT-97-24-T, Trial Chamber, Judgment, 31 July 2003 (Staki). 17 ICTY, The Prosecutor v. Milomir Staki, Case No. IT-97-24-A, Appeals Chamber, Judgment, 22 March 2006, para. 62 and the Disposition at page 141. 18 ICTR, The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-A, Appeals Chamber, Judgment: separate opinion of Judge Schomburg, 7 July 2006 (Gacumbitsi Schomburg Opinion). 19 Staki, para. 440 (citing Roxin, C, Tterschaft und Tatherrschaft (Perpetration and control over the act), 6th Edition (1994); Gacumbitsi Schomburg Opinion, para. 17 (citing Roxin, C, Tterschaft und Tatherrschaft (Perpetration and control over the act), 7th Edition (2000). 20 I note in passing that although Professor Roxins scholarship appears to form the basis for the control of the crime theory, the test adopted by the Pre-Trial Chamber differs in material respects from the theory as described by Professor Roxin. For example, Professor Roxin acknowledges that in practice, it is impossible to determine, after the crime has been committed, whether an accuseds contribution was essential in the sense that its absence would have thwarted the commission of the crime. See Roxin, Claus, Tterschaft und Tatherrschaft (Perpetration and control over the act), 6th Edition, Berlin, New York, 1994, page 283 (but see also page 280, where he confirms that each co-perpetrator must be able to obstruct or ensure the commission of the crime). Under Professor Roxins approach, co-perpetrator liability would attach if the accused had functional control and the accuseds contribution was of substantial importance (wesentlicher Bedeutung) to the commission of the crime. Ibid., pages 280 and 284. Professor Roxin argues that the term substantial importance in itself has no tangible content, but affords the judge the discretion to determine, on the facts of the case, whether the accuseds contribution was such that it created a functional dependency between the perpetrators. Ibid., page 284. In contrast, the Pre-Trial Chamber held that co-perpetrator liability should attach only if the accuseds contribution was essential in the sense that the crime would have been frustrated absent the accuseds contribution. See ICC-01/04-01/06803-tEN, para. 347. Similarly, the dolus eventualis standard adopted by the Pre-Trial Chamber differs from the mental element proposed by Professor Roxin. Compare ibid., paras 352-54 with Roxin, page 285.
16

15

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this Court, and it should investigate the doctrines compatibility with the Rome Statute framework. This applies regardless of whether the domestic and the ICC provisions mirror each other in their formulation. It would be dangerous to apply a national statutory interpretation simply because of similarities of language, given the overall context is likely to be significantly different.

11. This case demonstrates why a detailed assessment of this kind is necessary. Under the German legal system, the sentencing range is determined by the mode of liability under which an individual is convicted, 21 and it is therefore necessary to draw clear distinctions between principals on the one hand and accessories on the other. As set out above, these considerations do not apply at the ICC, where sentencing is not restricted in this way, and this example of the differences that exist is of significance in this context.

12. The second justification advanced by the Pre-Trial Chamber for adopting the control of the offence theory was to establish principal liability for individuals who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed.22 However, as developed below, in my judgment a plain reading of Article 25(3)(a) establishes the criminal liability of co-perpetrators who contribute to the commission of the crime notwithstanding their absence from the scene, and it is unnecessary to
21

See German Criminal Code (13 November 1998, as amended 2 October 2009), 27(2) and 49(1). English translation available at http://www.gesetze-iminternet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P27. 22 ICC-01/04-01/06-803-tEN, para. 330.

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invoke the control of the crime theory in order to secure this result.23 Therefore, individuals who are involved indirectly can be prosecuted as co-perpetrators without relying on this principle.

Joint-perpetration under a plain text reading of Article 25(3)(a) of the Statute

13. As it seems to me, the Courts approach to this issue should be rooted in the plain text of the Statute. The Appeals Chamber has held that the Statute is to be applied in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties, 24 which requires that the Statutes provisions are to be interpreted in good faith in accordance with the[ir] ordinary meaning [ . . . ] in their context and in light of [the Statutes] object and purpose.25 In line with these principles, I have sought to give the relevant terms their plain meaning, and it has been unnecessary to read in additional terms in order to give effect to the express words of the Statute.

14. In relevant part, Article 25(3) of the Statute provides:

See infra, para. 16. See, e.g., Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168, para. 33; Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07-522, paras 38 and 39; Judgment 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 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", 21 October 2008, ICC-01/04-01/06-1486, para. 40; Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, para. 49. 25 Article 31(1), Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series 18232, signed on 23 May 1969 and entered into force on 27 January 1980.
24

23

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In accordance with this Statute, 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, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

15. When establishing joint perpetrator liability, the prosecution must prove that an individual committed the crime jointly with another. The latter words (jointly with another) clearly indicate the involvement of at least two people, whilst the expression commits [] jointly denotes coordination between the individuals involved. This self-evidently necessitates a sufficient meeting of minds, by way of an agreement, common plan or joint understanding. In practice, this will not always be explicit or the result of long-term planning, and the existence of the joint venture may need to be inferred from the conduct of the co-perpetrators. Although the text of the Statute does not provide that the agreement, common plan or joint understanding must have an overarching criminal goal, the mental element of Article 30 of the Statute must be satisfied, and unless the Courts legal framework has otherwise provided,26 the joint perpetrators must, at a minimum, be aware that executing the agreement or plan will lead to the commission of a crime within the jurisdiction of the Court in the ordinary course of events.27 I consider it is unhelpful to investigate whether the requirement of awareness (on the part of the accused) that a crime will be committed in the ordinary course of events is to be equated with a possibility, a probability, a risk or a danger (see paragraph 1012 of the Judgment). Put otherwise, the
26 27

Article 30(1) of the Statute. Article 30(2)(b) and 30(3) of the Statute.

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Chambers decision as to whether the accused was aware that something will happen in the ordinary course of events is not assisted by asking the question as to whether he was aware of the possibility, the probability, the risk or the danger that it would occur. The words are plain and readily understandable, and it is potentially confusing to reformulate or to interpret this test using other words. Finally, the verb commits requires a contribution to the commission of the crime. Nothing in the Statute requires that the contribution must involve direct, physical participation at the execution stage of the crime, and, instead, an absent perpetrator may be involved. Either way, the use of the word commits simply requires an operative link between the individuals contribution and the commission of the crime. Additionally as regards causation, the plain text of Article 25(3) does not require proof that the crime would not have been committed absent the accuseds involvement (viz. that his role was essential). 28 Rather, the prosecution must simply demonstrate that the individual contributed to the crime by committing it with another or others.

16. To summarise, a plain text reading of Article 25(3)(a) establishes the following elements for co-perpetration: a. The involvement of at least two individuals. b. Coordination between those who commit the offence, which may take the form of an agreement, common plan or joint

understanding, express or implied, to commit a crime or to

28

C.f. ICC-01/04-01/06-803-tEN, paras 346-47.

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undertake action that, in the ordinary course of events,29 will lead to the commission of the crime. c. A contribution to the crime, which may be direct or indirect, provided either way there is a causal link between the individuals contribution and the crime. d. Intent and knowledge, as defined in Article 30 of the Statute, or as otherwise provided elsewhere in the Courts legal framework. I consider it would be unfair, at this stage of the proceedings, to approach the issue of the accuseds knowledge on a lesser basis than he knew there were children under the age of 15 who were conscripted, enlisted or used (see paragraph 1015 of the Judgment).

17. Not only is the above approach supported by the plain text of the Statute, it also provides a realistic basis for the Court to conduct its work. It avoids a hypothetical investigation as to how events might have unfolded without the accuseds involvement (which is necessary under the essential contribution formulation) and it places appropriate emphasis on the accuseds state of mind, once it is established that he or she contributed to the offence. It seems to me to be important to stress that an ex post facto assessment as to whether an individual made an essential contribution to war crimes, crimes against humanity or genocide will often be unrealistic and artificial. These crimes frequently involve a large number of perpetrators, including those who have controlling roles. It will largely be a matter of guesswork as to the real consequence for the particular crime if the accused is (hypothetically) removed from the
Article 30(2)(a) and 30(3) of the Statute. If the mental element for the crime charged is provided elsewhere than Article 30 of the Statute, the ordinary course of events standard is to be substituted with the crimes specific mental element.
29

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equation, and most particularly it will not be easy to determine whether the offence would have been committed in any event.

18. For all of these reasons, I respectfully disagree with the approach to coperpetrator liability on the part of the Pre-Trial Chamber and my judicial colleagues in Trial Chamber I.

Applying the approach of the Pre-Trial Chamber

19. Notwithstanding the conclusions set out above, at this stage in the present case I am of the view that the Chamber ought to apply the tests in paragraphs 1013 and 1018 of the Judgment, which largely mirror the approach of the Pre-Trial Chamber, in the present context. The case has been conducted on the basis of the legal framework established by the Pre-Trial Chamber, which should not be significantly altered if that step would cause material prejudice.

20. One of the Trial Chambers principal duties under the Statute is to ensure that the trial is fair and is conducted with full respect for the rights of the accused. 30 Of particular relevance is the accuseds right, under Article 67(1)(a) of the Statute, to be informed in detail of the nature, cause and content of the charge[s] against him. In my view, this requirement for notice means that the accused should not only be informed of the factual allegations against him, but he needs to be aware of the basic outline of the legal framework against which those facts will be

30

Article 64(2) of the Statute.

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determined. This ensures that the accused knows, at all stages of the proceedings, what he is expected to meet. This is an essential prerequisite for a fair trial.31

21. Abandoning the control of the crime theory for the purposes of the Article 74 Decision would significantly modify the law governing the charges, at a stage when the evidence is closed and the parties have made their submissions. The alternative approach which I have described above arguably involves applying a lesser test. If at this stage in the proceedings (and without prior notice) the Chamber ruled that the prosecution only has to establish a contribution as opposed to an essential contribution the trial would be rendered unfair, in violation of Article 64(2) of the Statute. The accused is likely to have made a number of tactical decisions that, at least in part, have been informed by the legal requirements for a conviction. I am therefore in agreement with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied, notwithstanding my overall reservations as to the control of the crime theory.

See, e.g., ICTY, The Prosecutor v Kupreskic et al., Case No. IT-95-16-T, Trial Chamber, Judgement, 14 January 2000, para. 725 (holding that the right to be informed of the nature and cause of the charge[s] requires that accused be put in a position to know the legal ingredients of the offence charged); ibid., paras 720-48; European Court of Human Rights, Case of Pelissier and Sassi v. France, Application No. 25444/94, Judgment, 25 March 1999, para. 52 (holding that in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterization that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair).

31

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Done in both English and French, the English version being authoritative.

kit^>A^ r ^ \ w \
Judge Adrian Fulford Dated this 14 March 2012 At The Hague, The Netherlands

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SEPARATE AND DISSENTING OPINION OF JUDGE ODIO BENITO

1. I agree with the final decision of the Trial Chamber as regards the individual criminal responsibility of Mr Lubanga Dyilo. However, I have a separate and dissenting opinion on three particular aspects of the Judgment. I hereby explain the reasons for my dissent.

A. Legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to actively participate in the hostilities

2. I respectfully disagree with the conclusions of the Majority of the Chamber as regards the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities.

3. The Majority of the Trial Chamber stated, and I agree, that:

Addressing the three relevant acts, namely enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities, in each instance the conduct is not defined in the Statute, the Rules or the Elements of Crimes. Accordingly, the scope of the activities covered by Article 8(2)(e)(vii) of the Statute must be determined in accordance with Articles 21 and 22(2) of the Statute [].
1

4. However, the Majority of the Trial Chamber is failing to address two key elements: i) the concept of national armed forces within Article 8(2)(b)(xxvi) of the Rome Statute; and ii) the activities covered by Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely those that should be included within the legal definition of enlistment, conscription and use to participate actively in the hostilities. Consequently, I consider that it is important to evaluate these two elements, which the Majority of the Trial Chamber has failed to address.
1

Judgment, para. 600.

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5. A distinction must be made between: a) the legal definition of the crimes (in this case enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities); and b) the evaluation of the evidence presented in this case within the limits of the facts and circumstances of the alleged crimes.

6. Article 8 of the Rome Statute includes as war crimes the enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities. Since neither the Statute nor the Elements of Crimes define further these three criminal conducts, the Chamber is required to define them taking into consideration other applicable law.2 Furthermore, pursuant to Article 21(3) of the Rome Statute, the Chamber is compelled to interpret and apply the law consistent with internationally recognised human rights. 3 The recruitment of children under the age of 15 is prohibited under the Rome Statute, international treaties
4

and

international customary law. 5 All these sources of law seek to protect children under the age of 15 from the multiple and different risks which they are subject to in the context of any armed conflict, such as ill treatment, sexual violence and forced marriages. It would consequently be

See, for example, Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, UNICEF, 1997; the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, adopted in February 2007; African Union Solemn Declaration Gender Equality, adopted in June 2006. 3 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC01/04-01/06-772, para. 37. 4 Article 38 of the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990; Article 3, International Labour Organization (ILO), Convention 182, Worst Forms of Child Labour, adopted on 17 June 1999, Conference Session 87, entry into force on 19 November 2000; Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entry into force 12 February 2002; Article 22, African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force 29 November 1999. 5 SCSL, Prosecutor v. Norman (CDF Case), Appeals Chamber Decision on the Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) of 31 May 2004, SCSL-2004-14-Art.72, paras 17-24.

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contrary to the object and purpose of the Rome Statute,6 contrary to international recognised human rights and discriminatory under Article 21(3), not to define the legal concepts of enlistment, conscription and use to participate actively in the hostilities, independently of the evaluation of the evidence tendered during trial or the scope of the charges brought against the accused.

7. Although the Rome Statutes provisions are applied and interpreted in relation to specific charges brought against individuals, the Chamber must not disregard the interests that these provisions are meant to protect. In the present case, the statutory provisions are meant to protect the life and personal integrity of children under the age of 15. It would thus be impermissible for a Chamber to decline to enter a comprehensive legal definition of a crime and leave it open to a case-by-case analysis or to the limited scope of the charges brought against the accused. This would be a step backwards in the progressive development of international law.7

8. I deem that the Majority of the Chamber addresses only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecution submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by

Article 31(1) of the Vienna Convention on the Law of the Treaties, adopted in Vienna on 23 May 1969, entry into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, p. 331. 7 Unlike the crimes of enlistment, conscription and use, which are not defined by the Statute or the Elements of Crimes, there are other crimes in the ICC provisions which are defined more in detail pursuant to international customary law. For example, the crime of rape, as defined in the Elements of Crimes, has a gender neutral definition which foresees rape not only of a female but also of a male victim. Likewise, the perpetrator could also be male or female. It would be incomprehensible for a Chamber to define rape in a restricted manner (for example in a gender-specific manner) simply because a case brought by the prosecution focuses strictly on the concept of rape committed by men against women.

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victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chambers evaluation of the crimes committed.

The concept of national armed forces under Article 8(2)(b)(xxvi) of the Statute

9. Article 8 of the Rome Statute treats the notion of the armed group in a slightly differentiated manner in depending on whether this was committed in the context of an international or a non-international armed conflict. Whereas (Article 8(2)(b)(xxvi) refers to national armed forces in the context of an international armed conflict, Article 8(2)(e)(vii) refers armed forces or groups in the context of a non-international armed conflict. Thus, a key question that needs to be addressed by the Chamber is whether the concept of national armed forces includes non-State actors such as the Union Patriotique Congolose (UPC/FPLC).

10. In light of the above, the Pre-Trial Chamber in the present case concluded that the concept of national armed forces is not limited to the armed forces of a State.8

11. The Majority of the Trial Chamber concluded as follows:

Given the Chambers conclusion that the UPC was engaged in a noninternational armed conflict throughout the period of the charges, 9 it is unnecessary to interpret or discuss Article 8(2)(b)(xxvi) of the Statute. Subject to one significant difference in wording (conscription or enlistment of children into national armed forces (Article 8(2)(b)(xxvi) of the Statute) as opposed to armed forces or groups (Article 8(2)(e)(vii) of the Statute)), the elements of these two crimes are similar.10 Therefore, the extent to which the crimes of conscription, enlistment and use of children below the age of 15 under Article 8(2)(b)(xxvi) of the Statute have previously been the subject of

ICC-01/04-01/06-803-tEN, paras 268-285. See Section IX on the nature of the armed conflict. 10 See wording of the respective elements of crime for Article 8(2)(b)(xxvi) and 8(2)(e)(vii). See also Knut Drmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 471; Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 206; William Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 252.
9

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interpretation and consideration will be relevant to the Chambers analysis of Article 8(2)(e)(vii) of the Statute [footnotes omitted]. 11

12. I respectfully disagree with the Majority of the Chamber. Although the Chamber has concluded that the crimes were committed in the context of a non-international armed conflict, this case has been argued by the parties and participants pursuant to the decision on the confirmation of the charges, which encompasses both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Statute. In fact, the defence has from start to finish argued that the armed conflict in question is an international armed conflict, and thus, it is foreseeable that this aspect could be the subject matter of an eventual appeal. Thus, the discussion on the concept of national armed forces is required as this is a live issue in the present case.

13. As I previously stated, the recruitment of children under the age of 15 is prohibited under international customary law, regardless of whether this was committed in the context of an international or non-international armed conflict and regardless of the nature of the armed group or force that recruited the child. It would be contrary to the object and purpose of the Rome Statute and contrary to internationally recognised human rights (and thus contrary to Article 21(3) of the Rome Statute) to exclude from the prohibition of child recruitment, and armed group, solely for the nature of its organization (State or non-state armed group).

14. Consequently, the concept of enlistment, conscription and use in both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute should be understood as encompassing any type of armed group or force, regardless of the nature of the armed conflict in which it occurs.

11

Judgment, para. 568.

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Towards a comprehensive legal definition of use to participate actively in the hostilities

15. I respectfully disagree with the Majoritys decision that declines to enter a legal definition of the concept of use to participate actively in the hostilities, but instead leaves it to a case-by-case determination, which ultimately will be evidence-based and thus limited by the charges and evidence brought by the prosecution against the accused. Additionally, this case-by-case determination can produce a limited and potentially discriminatory assessment of the risks and harms suffered by the child. The Chamber has the responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accused.

16. Although the Majority of the Chamber recognises that sexual violence has been referred to in this case, it seems to confuse the factual allegations of this case with the legal concept of the crime, which are independent. By failing to deliberately include within the legal concept of use to participate actively in the hostilities the sexual violence and other illtreatment suffered by girls and boys, the Majority of the Chamber is making this critical aspect of the crime invisible. Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription and use who systematically suffer from this crime as an intrinsic part of the involvement with the armed group.

17. I thus consider it necessary and a duty of the Chamber to include sexual violence within the legal concept of use to participate actively in the hostilities, regardless of the impediment of the Chamber to base its decision pursuant to Article 74(2) of the Statute.

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18. It is also important to state that although I agree with the Majority when it concludes that the decisive factor, in deciding if an indirect role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target, it is crucial to determine that, regardless of the specific task carried out by that child, he or she can suffer harm inflicted by the armed group that recruited the child illegally (for example, for the purposes of supporting the combatants through the use of their bodies for sexual violence).

19. Children are protected from child recruitment not only because they can be at risk for being a potential target to the enemy but also because they will be at risk from their own armed group who has recruited them and will subject these children to brutal trainings, torture and ill-treatment, sexual violence and other activities and living conditions that are incompatible and in violation to these childrens fundamental rights. The risk for children who are enlisted, conscripted or used by an armed group inevitably also comes from within the same armed group.

20. Sexual violence committed against children in the armed groups causes irreparable harm and is a direct and inherent consequence to their involvement with the armed group. Sexual violence is an intrinsic element of the criminal conduct of use to participate actively in the hostilities. Girls who are used as sex slaves or wives of commanders or other members of the armed group provide essential support to the armed groups. Sexual assault in all its manifestations produces considerable damage and it demonstrates a failure in the protection of the life and integrity of its victim. There is additionally a gender-specific potential consequence of unwanted pregnancies for girls that often lead to maternal or infants deaths, disease, HIV, psychological traumatisation and social

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isolation. It must be clarified, however, that although sexual violence is an element of the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in hostilities, crimes of sexual violence are distinct and separate crimes that could have been evaluated separately by this Chamber if the Prosecutor would have presented charges against these criminal conducts.

21. In other words, sexual violence or enslavement are illegal acts and in this case a harm directly caused by the illegality of the war crime of enlisting, conscripting and the use of children under the age of 15 in support of the combatants. Sexual violence and enslavement are in the main crimes committed against girls and their illegal recruitment is often intended for that purpose (nevertheless they also often participate in direct combat.) If the war crimes considered in this case are directed at securing their physical and psychological well being, then we must recognize sexual violence as a failure to afford this protection and sexual violence as acts embedded in the enlisting, conscription and use of children under 15 in hostilities. It is discriminatory to exclude sexual violence which shows a clear gender differential impact from being a bodyguard or porter which is mainly a task given to young boys. The use of young girls and boys bodies by combatants within or outside the group is a war crime and as such encoded in the charges against the accused.

B. Dual Status Victims/Witnesses

22. I respectfully dissent with the manner in which the Majority of the Chamber dealt with witnesses who have the dual status of victims, when evaluating their status as victims participating in this case.

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23. I agree with the evaluation the Chamber does as regards witnesses P-0007, P-0008, P-0010, P-0011 and P-0298,12 particularly that the Chamber cannot rely on their testimony for the purposes of determining the individual criminal responsibility of the accused beyond reasonable doubt.

24. However, I respectfully disagree with the Majority of the Chamber when it concludes:
Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chambers Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules. Given the Chambers present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his sons role as a child soldier. The Chambers conclusions as to the evidence of P-0298 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it is necessary that it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated that they no longer meet the relevant criteria [footnotes omitted].13

Witnesses P-0007 and P-0008 25. I deem that the contradictions and weaknesses of these two individuals as witnesses in the present trial should not affect their status as victims with right to participate in the trial proceedings. Although their accounts as witnesses were inconsistent for the Chamber to rely on them as evidence to determine the responsibility of the accused beyond reasonable doubt, I consider that these individuals could have well been recruited, albeit not in the exact circumstances described in their numerous accounts (witness statements, application forms and live testimony) and in at least one of the cases there was video evidence of one of the witnesses as a soldier.

12 13

See also P-0299, who is the father of P-0298. Judgment, para. 484.

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Witness P-0010 26. I agree with the conclusions of the Trial Chamber that there is no doubt that at some stage this individual served as a soldier within the UPC. I also agree that the Chamber does not have evidence beyond reasonable doubt that this occurred when she was under 15 years of age, and thus her testimony in this regard is not to be relied on for the purposes of determining the individual criminal responsibility of the accused. 27. I nevertheless suggest that the contradictions and weaknesses of this witness, especially given the unreliability of establishing accurate birth dates in the Democratic Republic of Congo in the present trial, should not affect her status as victim with participatory status. There is incontestable evidence that she was recruited, although it is impossible to determine with absolute certainty her exact age at the time of recruitment. This witness was most probably under the age of 18, and thus a child at the time of her first meetings with the OTP investigators in 2005. 14 She additionally was a victim of sexual violence as a result of her recruitment.15 This life experience of a young woman has to be taken into account, notwithstanding that these aspects of her testimony cannot be relied on for the purposes of an Article 74 decision. Her victim status, however, should remain unchanged.

Witness P-0011 28. I firmly believe that any contradictions and weaknesses of this witness in the present trial should not affect his status as victim with participatory status. Even though his accounts as a witness were inconsistent, and cannot be relied upon to convict the accused, I deem that he could have been recruited, albeit the contradictory evidence presented in this trial.

14 15

See para. 32 below. T-145-Red-ENG, page 29, lines 15 to 25 and page 30, line 25 to page 31, line 9.

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Witnesses P-0298 and P-0299 29. I firmly believe that any contradictions and weaknesses of these two witnesses testimonies in the present trial should not affect their status as victims with participatory status. Even though their accounts as witnesses could have been inconsistent, and cannot be relied upon to convict the accused, I truly believe that a real possibility exists that P-0298 was recruited, although not in the precise circumstances he stated in his testimony.

Conclusions as regards witnesses P-0007, 0008, 0010, 0011, 0298 and 0299

30. The Chamber called Ms Elisabeth Schauer as expert witness on the topic of children with trauma, particularly post-traumatic stress disorder. During her testimony, Ms Schauer stated that the trauma suffered by child soldiers has intellectual and cognitive consequences in the childrens minds. Children who have suffered trauma have problems with their memory and may have learning difficulties, particularly as regards reading and writing comprehension.16 She also affirmed that this trauma never goes away.17 The expert further stated that although persons with post-traumatic stress disorder may recall events that occurred in the past, their ability to answer and remember these events will depend on the way questions are asked, and if they are asked chronologically. She literally stated you probably have a hard time just wanting to know jumping and wanting to know little details here and there. 18

31. The Trial Chamber concluded in its Decision on victims participation as follows:

16 17

T-166-ENG, page 27, line 20 to page 28, line 25. T-166-ENG, page 56, lines 7-9. 18 T-166-ENG, page 56, lines 16-23.

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[T]he trial Chamber will seek to achieve a balance between the need to establish an applicants identity with certainty , on the one hand, and the applicants personal circumstances, on the other. Bearing in mind the current situation in the Democratic Republic of Congo and the difficulties that applicants may often have in obtaining or producing copies of official identity documents, and the need in consequence of ensuring that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control []. 19

32. These witnesses were subject to multiple interviews and strenuous examination and cross-examination, which took place on numerous occasions, during a period of time ranging from 2005 to 2009-2010. In all of these interviews and interrogatories they were asked to recall events that occurred between 2002 and 2003. Although there is doubt as to the exact age of these individuals at the time of the events, it has been proven that all of them were certainly children or adolescents at the time of their interviews with OTP investigators in 2005. Some of them could have also been under the age of 18 when they gave testimony in court in 2009-2010.20 These witnesses (and anyone under those circumstances) could explicably and logically have difficulties in recollecting events since the time elapsed between the events (2002-2003), the first interviews with OTP investigators (2005) and the actual trial (2009-2010). In fact, with such elapses of time it would be suspicious if the accounts would remain perfectly alike and unchanged. Memory is faulty. This is more the case for children and adults having suffered any traumatic events.

ICC-01/04-01/06-1119, para. 87. For witness P-0007, the evidence suggests that he was born between 1987 and 1990; see EVD-D01-01103 (birth certificate), EVD-OTP-00655 (declaration sur la carte delecteur), ICC-1/04-01/06-2270-Conf-ExpAnx1, page 3 (Application for Reparations before the Court), and T-148-Red2-ENG, page 18, lines 14-21. For witness P-0008, the evidence suggests that he was born between 1989 and 1991; see EVD-D01-00055 (birth certificate) and T-135-Red3-ENG, page 65, lines 12 20. For Witness P-0010, the evidence suggests that she was born between 1988 and 1989; see T-144-Red2-ENG, page 12, line 25 to page 13, line 3, T-145-CONF-ENG ET, page 47, lines 14 22, EVD-D01-01102 (birth certificate), and EVD-D01-00082 (individual case story). For witness P-0011, the evidence suggests that he was born in 1992; see T-138-Red2-ENG, page 54, lines 1 - 5 and T-139-CONF-ENG, page 57, line 17 to page 58, line 15. For witness P-0298, the evidence suggests that he was born between 1989 and 1991 (see T-123-CONF-ENG) and his legal representatives submit that he was 11 at the time of the events and 18 at the time of his court appearance (see ICC-01/04-01/06-2746-Red-tENG, para. 53).
20

19

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33. The testimony of witness P-0046 further substantiates the difficulties and challenges presented in the present context. This witness stated:
[I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. 21

34. For all the reasons above, although I agree with the Majority of the Trial Chamber that the testimonies of these young individuals should not be used for the purposes of determining the individual criminal

responsibility of Mr Lubanga, their victims status should remain unaffected.

35. Additionally and critically, it is unfair and discriminatory to impose upon individuals with dual status a higher evidentiary threshold (beyond reasonable doubt) as regards their victims status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chamber, as these young persons have been. When reparations are evaluated, it will be up to the Trial Chamber to determine the criteria utilised in determining their final status. Consequently, I consider they should maintain their status as victims for the remaining proceedings in this trial.

C. Evidentiary value of video evidence

36. I respectfully disagree with the evidentiary value the Majority of the Chamber has given to some of the video footage introduced as evidence in this trial.

37. I agree with the conclusions of the Chamber that:

The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders
21

T-206-ENG, page 9, lines 15-17.

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such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC.22

38. However, I consider that the Majority of the Chamber should have relied on the video footage within EVD-OTP-00571 (02:21:20 to 03:04:57), which was introduced through witness P-0030, in order to support its conclusion. Witness P-0030 stated that this video was filmed at a rally in Goma on 11 January 2003, at which certain UPC officials, including the accused, Mr Kisembo and Mr Rafiki, were present. 23 Mr Lubanga addressed an audience that included children clearly below the age of 15. The accuseds speech concerned a meeting with the RCD-ML and the tensions between the UPC and the UPDF, but most importantly, the accused clearly considered it appropriate to include children under the age of 15 when he spoke publicly about military and other issues concerning the UPC.

39. The Majority of the Chamber should have also considered video footage within EVD-OTP-00585 (from 00:40:00) and EVD-OTP-00586 (from 00:40:18), which was introduced through the same witness P-0030. The witness testified that this event (a UPC rally) took place in Iga Barrire, just after the UPC retook Bunia. The witness identified several UPC child soldiers and Mr Lubanga.24 The accused was wearing military clothing and he addressed an audience that included many children who were clearly under the age of 15.

40. In the course of his speech to those assembled, the accused states the following:
Let's try to avoid the massacres we saw committed by the government soldiers. I'm saying this because what are we going to base ourselves on?

22 23

Judgment, para. 1354. T-128-Red2-ENG, page 50, line 8 to page 58, line 11. 24 T-130-Red2-ENG, page 70, line 1 to page 72, line 1.

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Our neighbours do not like us. The president sends the military to exterminate people. Where are we going to go to seek refuge? We cannot wait for aid to arrive. We have to try and be smart and guarantee our own safety. []

People can complain the situation is bad and that we need aid. We could receive aid, but -- or assistance, but as I already mentioned, here in Bunia we should bear in mind that the assistance -- that we rely on you for assistance. We rely on you for assistance. I want you to understand that. I think that if there hadn't been any massacres in Bunia and if we had waited for assistance from elsewhere []

We must look for people who will help us; and whoever will, we should collaborate with to improve the situation. But that won't stop us from doing our work because they could come for two or three months. The work, the help, might be limited. We must be aware and work in the way I have always asked you to work. If, in view of our experience, we are able to forecast the future, even if we are able to do so, we can't be distracted. []

We are going to continue our activities, meet from time to time, because I don't want us to meet in our offices. We need to do our work, the work that will help our future. So, my brothers, that's what will bring us joy. I know that your stomachs aren't full. I know. We have to share our joy and eat together because that will enable us to do our work. You will be asked to do some work. You should know this. But please work to help all the Congolese of Ituri. We're not fighting in the name of one ethnic group; we're fighting for people's security. []

Many people heard that I was dead. That's what was announced on the radio. I would like us to be able to meet and enjoy the time together, for at least a few minutes, and ensure that those who remained help each other. And in that way we will be able to resist our enemies. I came here to

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congratulate you for the work you have carried out here in Lopa. Clap, says somebody in the audience. Brothers, today, if before the massacres in Bunia we weren't able to go to Mahagi, well, people hid. And if we managed to save lives, it was all owing to your courage. And I spoke to your leaders on the phone and he said you continue to recruit people. We can together planify together. Thanks to your courage and the resistance -- your resistance, we have won. 25

41. This video sequence demonstrates that the accused considered it appropriate to include children under the age of 15 when he spoke publicly about issues concerning the UPC, including recruitment.

42. These videos demonstrate that the UPC officials, and particularly Mr Lubanga, would address audiences of young children in which he would discuss the military purposes of the UPC. Such events demonstrate not only the existence of recruitment campaigns (which include also rallies such as the ones showed in these two videos), but also that the accused knew that recruitment of children under the age of 15 will occur in the ordinary course of events after such rallies took place since they targeted a very young audience.

43. It is relevant that the rallies shown in EVD-OTP-00571, EVD-OTP-00585 and EVD-OTP-00586 took place in the context of the wider recruitment campaigns, and it contributes to the evidence that the accused was involved, in activities that resulted, in the ordinary course of events, in the recruitment of children below the age of 15 in the ranks of the UPC/FPLC.

25

T-130-Red2-ENG, page 73, line 11 to page 75, line 24.

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Done in both English and French, the English version being authoritative.

Judge Elizabeth Odio Benito

Dated this 14 March 2012 At The Hague, The Netherlands

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