Thomas Lubanga trial: Timeline of victims’ engagement

14 March 2012 – The International Criminal Court (ICC) will issue its first verdict on March 14, 2012 in the case against Congolese warlord Thomas Lubanga Dyilo.

As the leader of the Union of Congolese Patriots (UPC) and the commander-in-chief of its military wing, the Forces Patriotiques Pour la Libération du Congo (FPLC), Lubanga is accused of enlisting and conscripting children under the age of 15 and using them to participate in hostilities between September 2002 and August 2003.

The Lubanga case has set important precedents for the rights of victims in international criminal proceedings. For the first time in the history of international criminal justice, victims had the opportunity to present their views and concerns before the ICC on their behalf and not only as witnesses for the prosecution. In addition, in the event that Lubanga is found guilty, for the first time in history an international criminal court will have the power to order some form of reparations to victims for their suffering.

In the Lubanga case, 4 victims were accepted to participate in the confirmation of charges hearing in November 2006. This figure rose to 123 by the closing arguments in August 2011.

Victims had a significant contribution during the trial. Victims’ participation was crucial, for example, to raise concerns about the limited nature of the charges against Lubanga. In May 2009, victims’ representatives brought a motion asking the judges to include new charges of sexual slavery and cruel and inhuman treatment that they argued better reflected sexual violence against female child
soldiers. Unfortunately, the Appeals Chamber reversed the Trial Chamber decision to allow these additional charges in December 2009. Another significant development occurred in January 2010, when three victims were allowed to testify before the Court, as part of their recognised right to present evidence against the accused.

A number of victims, however, were not able to participate in the closing arguments hearing, because their applications could not be processed on time for lack of sufficient resources. Victim participation is one of the most innovative features of the ICC Statute, designed to involve in the justice process those most affected by crimes, but this lack of resources threatens victims’ ability to participate meaningfully in this and other cases before the ICC.

REDRESS has put together a timeline that traces the history of victims’ engagement in the case since 2006. REDRESS, along with others, played a role in ensuring that key provisions for victims were incorporated into the Rome Statute which established the ICC. It continues to be one of the leading organisations advocating for victims at the ICC. We are currently the informal coordinator of the Victims’ Rights Working Group, a network of 400 national and international organisations and experts that advocates on victims’ issues.

LUBANGA TIMELINE: VICTIMS’ ISSUES

10 February 2006: An ICC arrest warrant is issued for Thomas Lubanga. He is handed over to the ICC on 17 March 2006.

28 July 2006: First three victims are allowed to participate in the Lubanga case, including in the confirmation of charges hearing. A fourth victim is allowed to participate on 31 July 2006.

9-28 November 2006: A three-week confirmation of charges hearing is held. Four victims are allowed to present their views and concerns via their lawyers. On the ground in Eastern DRC is a feeling of relief but also of concern about the lack of charges other than child recruitment in hostilities.

29 January 2007: ICC Pre-Trial Chamber I confirms the charges against Lubanga sending the case against him to trial. He is charged with the war crimes of enlisting and conscripting children under age 15 as soldiers and using them as active participants in hostilities in 2002-2003.

18 January 2008: Trial Chamber I issues a landmark decision on victims’ participation, in which it notes the importance of ensuring adequate protection for victims and applicants, “conscious of the particular vulnerable position of many of these victims, who live in an area of ongoing conflict where it is difficult to ensure their safety.” The Court recognises that those who apply to participate in the Court’s proceedings may require protection, even before they are formally recognised as participants in the legal proceedings.

24 January 2008: The Trust Fund for Victims notifies for the first time the Court of its intention to carry out projects for the physical and psychosocial rehabilitation and/or material support of victims in Eastern DRC. In accordance with the Regulations of the Trust Fund, this support is meant to provide broad assistance and is much wider than the reparations that may ultimately be awarded to victims at the end of a criminal case.

13 June 2008: The judges halt the proceedings 10 days before the trial is due to start before the ICC’s Trial Chamber I.The Court rules it is impossible for Lubanga to receive a fair trial after it learns the Prosecutor refused to disclose potentially exculpatory evidence to the defence.

2 July 2008: The Court orders Lubanga’s unconditional release from detention. However, Lubanga stays in detention pending the result of an appeal by the Prosecution on this order and the stay of the proceedings. Victims’ lawyers stress security concerns. They argue that such a release would send the wrong message to both perpetrators and victims.

11 July 2008: The Appeals Chamber defines the criteria for victims’ participation in the trial, including recognising their right to lead and to challenge evidence relating to the guilt or innocence of the accused. Only victims who are linked to the charges may apply, however not only victims who were directly affected by a crime, but also victims who were indirectly affected – like the parents of child soldiers – are entitled to apply to participate. Trial Chamber I had previously set the criteria for victims’ participation, but both the defence and the prosecution had appealed.

21 October 2008: The ICC Appeals Chamber reverses Lubanga’s release order, but maintains the stay of proceedings. It returns the case to the Trial Chamber to review whether the necessary information had been handed over. The Trial Chamber lifts the stay in November 2008 and sets a trial date.

26 January 2009: The trial begins. Eight lawyers, representing a total of 93 victims, make opening statements on their behalf. The first witness called by the prosecution is a former child soldier. Soon after his testimony began, he froze and recanted what he had previously said. One of the possible reasons for this is the inadequacy of protection measures: the witness was shielded from the public, with voice and face distortion, but was testifying in plain view of Lubanga, his former superior commander. After a lengthy break, the witness resumes his testimony with added protection measures which thereafter have become standard for child testimony before the Court: the number of people in the courtroom are reduced to a bare minimum, the witness is not forced to see the accused directly, questioning is non-confrontational and non-pressurising.

26 January 2009 – 25 July 2011: A total of 123 victims are allowed to participate in the trial, among them at least 15 young girls who were allegedly raped by UPC members.

22 May 2009: Victims participating in the trial file a motion arguing that the evidence that came out during the trial warranted the additional charges of sexual slavery and cruel and inhuman treatment.

14 July 2009: The prosecution closes its case. The Trial Chamber judges rule in favour of the victims’ motion and say that they are considering adding the new charges of sexual slavery and cruel and inhuman treatment.

8 December 2009: After months of delay, the Appeals Chamber reverses the Trial Chamber decision to allow additional charges. Victims express deep disappointed.

7 January 2010: An expert witness on names and other social conventions in the DRC testifies following a request by victims’ legal representatives, after the identity of witnesses becomes the subject of repeated questioning by the defence.

12-26 January 2010: Three victims applied (independent of the Prosecutor) and are granted the opportunity to testify in person and present evidence in the trial for the first time before the Court.

27 January 2010: The defence alleges that some of the Prosecutor’s “intermediaries” (local organisations or individuals providing assistance of some kind on the ground, for example, facilitating contacts with victims and witnesses), fabricated evidence and encouraged witnesses to lie to the Chamber. This led to the Trial Chamber I’s 31 May 2010 ruling that, in some cases, the identity of intermediaries should be disclosed to the defence.

12 May 2010: The prosecution was ordered to disclose the identity of intermediary 143, which was not complied with, citing protection concerns.

8 July 2010: The Court stays the case a second time, after the prosecution refuses to obey three separate orders to disclose the identity of intermediary 143.

15 July 2010: The Court orders Lubanga’s release and the prosecution appeals. Lubanga remains in custody until the determination of the appeal. Victims’ lawyers filed submissions in the appeal opposing the release, raising concerns that the decision to release Lubanga does not specify whether he would be returned to Congolese authorities or retained at the Court’s disposal, leaving open the possibility that he may escape or return to Ituri to commit more crimes. Protection of victims and witnesses, whose identity is known to the defence, is also expressed as a major concern.

8 October 2010: The stay of proceedings is reversed by the Appeals Chamber, which holds that the Trial Chamber erred when it stayed the proceedings without first considering less drastic measures, such as sanctioning the prosecution. The decision to release Lubanga is also reversed.

10 December 2010: The Defence requests the Chamber to stay the proceedings for a third time, arguing an abuse of process. It alleges that four intermediaries who acted for the Prosecutor prepared false evidence, that the Prosecutor knew that certain evidence was untruthful, failed to investigate its reliability, and deliberately omitted to disclose exculpatory evidence to the Defence. The role of the three victims who came to testify was also questioned. On 23 February 2011, this request was dismissed as it would be disproportionate and the allegations made by the defence could be addressed in the context of assessing the weight to be given to the evidence heard.

15 April 2011: Final defence witness concludes his testimony.

20 May 2011: The official close of the evidence phase of the trial. Victims submit their final written observations. In its submission, the Office of the Public Counsel for Victims (OPCV) argues that the notion of “active participation of children under the age of 15 in hostilities” not only covers direct participation in hostilities, but also in activities related to the fighting such as espionage, sabotage, and using children as messengers. It also argues that it should be sufficient to prove that girls under 15 were recruited in order to establish that they actively participated in the hostilities, given that the primary objective of their enlistment was to use them for sexual purposes.

25 and 26 August 2011: The closing statements by the defence, prosecution, and participating victims were delivered.

14 March 2011: The ICC will issue its first-ever verdict in the case of Thomas Lubanga.

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