Feb
13

Lubanga Defense Described as “Witnesses Lied, Lubanga Not Guilty”

The Open Society Institute offered its summary of the Lubanga defense on its Lubangatrial.org website, boiling down the arguments to “witnesses lied, Lubanga not guilty.” The website’s summary, and unofficial transcript of the opening argument of Catherine Mabille, defense counsel for Thomas Lubanga is available here.  Catherine Mabille is a Paris-based lawyer and argued in French, this appears to be a transcription of the translation, though is not the court’s official transcript.

In the time that the defense has been offering witnesses, since this opening statement they have had one witness testify that he was paid $200 to lie and state that he had been a child soldier in Lubanga’s Union of Congolese Patriots (UPC) army, a rebel force in the Democratic Republic of Congo.  When asked if he had been paid to lie on behalf of the UPC, the witness claimed he asked for money from the UPC, but they would not give it to him.

Another witness testified that his son lied about being a child soldier in the UPC. A third witness testified over three days that he children were not conscripted into the UPC, but also testified that some joined willingly, which would seem to harm at least part of Lubanga’s  case.

The testimony that parties working on behalf of the ICC brought a question to the Office of the Prosecutor from Judge Adrian Fulford, who demanded to know if the prosecutor was going to produce the people who were alleged to have paid for false testimony.  Fulford said “Are we going to hear from them?  If so, when?”  The judge apparently suggested that the court might have a difficult time rejecting the testimony of witness bribery without hearing from the people who are alleged to have bribed witnesses.  The OSI’s summary is available here.

Thomas Lubanga Dyilo is the first defendant to face trial at the International Criminal Court for war crimes.  Lubanga is accused of conscripting, enlisting and using child soldiers in his UPC army.  Lubanga was brought to the court in May 2007, his trial began in January of 2009.  The defense began presenting its case in January 2010, after a few victims testified on their own behalf seeking reparations.   The court is intended to be a permanent place to prosecute charges of war crimes, crimes against humanity and genocide.

The court has a unique feature, never seen in international law before, allowing the victims of war crimes to seek reparations from a fund supported by the state’s parties who fund the court, charitable donations and the fines and fees paid by those convicted.  Reparations may include financial support, psychological and physical rehabilitation services.  The reparations process also includes the appointment of counsel funded by the court to represent the victims in pursuing their claims.

Feb
11

Lubanga Defense Witness Testifies for Third Day at the ICC

Lubanga defense witness Claude Nyeki Django testified for the third day that Thomas Lubanga’s Union of Congolese Patriots (UPC) did not draft child soldiers.  The proceeding stopped for a time because Django broke down on the stand for a second time.  After meeting with a psychologist from the Victims and Witness Unit  (VWU) of the International Criminal Court (ICC), Django continued his testimony.  Curiously, Django said children voluntarily joined Lubanga’s army, which may not be a very good defense.  The public portions of Django’s testmony are recounted on Day One, Day Two and Day Three of his testimony.

Django’s testimony is essentially that he never served in the UPC, and was never in the armed forces at all, but was lured into a group who claimed that he had been a child soldier and he was portrayed as such by this group.

Thomas Lubanga Dyilo was the leader of the UPC in the Democratic Republic of the Congo.  He was brought before the court in 2007, and is the first person to face trial at the ICC.  Lubanga’s trial commenced in January of 2009 and the defense began presenting its case in January 2010.  Lubanga is accused of conscripting, enlisting, and using child soldiers, which is a war crime.  This witnesses testimony appears directed at the idea of cosncripting child soldiers, though he appears to admit there were child soldiers present to his knowledge, which would appear bad for Lubanga on the charges of enlisting and using child soldiers.

The court sits as a three judge panel, who will have to determine at the close of the case if the Office of the Prosecutor has proved its case beyond a reasonable doubt.  If they make a finding of guilt the trial will then move on to a reparations phase where the victims who have been granted leave to participate in the case will have an opportunity to seek reparations from the victims fund and from any assets of Lubanga’s.  The ICC is permanent court seated in The Hague, Netherlands to hear accusations of war crimes, crimes against humanity and genocide, where the crimes are not likely or capable of being prosecuted by national authorities.

Feb
08

International Criminal Court Finds For Abu Garda

The Interational Criminal Court, pre-trial chamber I today ruled that the Office of the Prosecutor had not provided sufficient evidence to continue the case against Bahar Idriss Abu Garda for trial.  Abu Garda was the first case from the Sudan to come before the court. He appeared voluntarily with counsel in May of 2009 and has been in The Hague, though not in custody since then.

Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.  The court found there was not sufficient evidence presented at the confirmation of charges hearing to require a trial.

The International Criminal Court uses a three stage process, a warrant and indictment can issue if there are “reasonable grounds” to believe the person committed war crimes or crimes against humanity.  Once the accused is before the court, then there is a confirmation of charges hearing where the accused can participate and challenge the evidence, if after that hearing the court determines there is “substantial grounds” to believe the person is guilty of the crimes charged then a trial may be held where the prosecutor must prove the case beyond a reasonable doubt.

It was at this second stage where the court found for Abu Garda and essentially dismissed the charges.  This hearing, the equivalent of a probable cause hearing in an American court case may end the case against Abu Garda, although the prosecutor has the right to appeal the determination, and may ask to reopen if they can provide new evidence of Abu Garda’s involvement or command responsibility for the alleged war crimes.

The court’s press release regarding the decision is available here, the order itself is here, and the court’s fact sheet on the case is located here.  Abu Garda is the fifth person brought to the court to face charges of war crimes, and the first to win the confirmation of charges hearing.

The court has previously confirmed charges against Thomas Lubanga of the Democratic Republic of Congo and against Germain Katanga and Matthieu Ngdolo Chui also of the Democratic Republic of Congo.  Lubanga’s defense team is currently presenting its case, and Katanga and Chui are being tried together, their trial recently resumed.  The court has also confirmed the charges against Jean-Pierre Bemba Gombo of the Central African Republic who is awaiting the start of trial.

The president of Sudan, Omar Hassan Ahmad Al Bashir and a cabinet official, Ahmad Harun have also been indicted by the court for war crimes as has a rebel leader, Ali Kushayb.  None of them has yet appeared before the court to face the charges.

Feb
06

Prosecutors Admonished for Late Disclosure in Lubanga Case

Judge Adrian Fulford, lead judge on the three judge panel sitting at the International Criminal Court to hear the case against Thomas Lubanga inquired of the prosecutors why they were late in disclosing evidence to the defense.  The defense complained that the late disclosure of information relating to their witnesses just before the witnesses were to be called made preparing the direct of the testimony difficult.

The prosecution apparently had information relating to the witnesses and other witness that was not disclosed until last week.  Judge Fulford said the information should have been disclosed by December of 2009 “if not substantially earlier.”  A full report of the case is available here.  The size and complexity of these cases make them difficult for both sides.  The prosecution has an advantage in staff and information. There is a great deal of information and a number of sources to keep track of as the investigations progress.  The trial in this case started in January 2009, Lubanga was brought before the court in 2007 and has been in custody since then.

Lubanga is the first person to go on trial at the International Criminal Court. Lubanga is accused of using child soldiers in his rebel army in the Democratic Republic of Congo.

Feb
06

Lubanga Defense Witness Claims Son Lied To ICC

A witness called by the defense testified that his son, who appeared as a prosecution witness lied to the court when he testified about being a child soldier in Thomas Lubanga’s army.  Lubanga is the first person to face trial at the International Criminal Court.  Lubanga, from the Democratic Republic of Congo is accused of using child soldier in his rebel army.  Lubanga was brought to the court in 2007, his trial began in January 2009, in January of 2010, the defense began presenting its case.  Lubanga was the head of the Union of Conoglese Patriots (UPC in French).

A detailed account of the day’s testimony is available here. The prosecutor cross examined the man arguing that because he did not report the allegedly false testimony to the police or ICC officials that he may not be telling the truth about his son’s testimony.

There is one other case in trial at the International Criminal Court, also from the Democratic Republic of Congo.  There is one defendant before the court from Sudan, and one from the Central African Republic.  The five accused from Uganda have not been brought before the court.  There are three accused from the Sudan with open arrest warrants who have not yet been brought to the court.  There is one accused from the Democratic Republic of the Congo who is still at large.

Situations before the ICC can be referred by the state parties who have signed on to the treaty establishing the court or by the United Nations Security Council.  The court is intended to be permanent and to investigate and prosecute war crimes, crimes against humanity and genocide that are not prosecuted under any national authority.

Feb
03

Appeals Chamber Reverses Pre-Trial Chamber in Bashir Warrant Decision.

The International Criminal Court made history in March of 2009 by issuing an arrest warrant for a sitting head of state, Omar Al Bashir, the President of Sudan. The warrant for his arrest was based on allegations of war crimes and crimes against humanity. The pre-trial chamber though declined to issue a warrant for the charge of genocide, finding at the time that the prosecutor had not established sufficient evidence of genocidal intent.

Today the appeals chamber of the ICC issued a decision, available here, determining that the pre-trial chamber erred by using the wrong standard for making its determination. The pre-trial chamber decided that since genocidal intent was only one of the reasonable inferences based on the evidence submitted and that a warrant should not issue for genocide. The appeals chamber reasoned that the pre-trial chamber read in too high a requirement when reading the statute’s requirement that a warrant of arrest required “reasonable grounds to believe” that a crime within the jurisdiction of the court occurred.

The appeals chamber said the pre-trial chamber’s determination effectively required the prosecutor to establish its case beyond a reasonable doubt and “disprove any other reasonable conclusions.”  The appeals chamber determined that this effectively required a trial standard of proof at the issuance of an arrest warrant and did not recognize the statute’s escalating standards of proof, “reasonable grounds to believe” at the warrant stage, “substantial grounds to believe” at the confirmation of charges stage and “beyond reasonable doubt” for a conviction at trial.

The appeals chamber did not issue a warrant based on charges of genocide but sent the matter back to the pre-trial chamber for a determination based on whether or not there are reasonable grounds to believe that Bashir and the Government of acted with genocidal intent in Darfur.  The court’s press release summary of the decision is available here.

Jan
26

Second ICC trial resumes

The trial of Germain Katanga and Matthieu Ngdolo Chui resumed today at the International Criminal Court in The Hague.  This is the second ICC case to proceed to trial.  Katanga and Chui are charged with war crimes and crimes against humanity as part of the conflict in the Democratic Republic of Congo.  They are charged specifically with an attack on the Bagoro village.

War crimes include attacks by armed combatants on civilians, targeting civilians rather than other combatants is a focus of current war crimes prosecutions.  The Katanga and Chui trial was delayed in December when one of the three judges was injured in a car accident.  The court’s press release on the resumption is available here.

Jan
22

Third Lubanga Victim Testifies Seeking Reparations

A third child soldier victim of Thomas Lubanga testified about the treatment of young soldiers at the direction of Lubanga.  The victim testified about his abduction and conscription into the Union of Congolese Patriots (UPC in French).  A detailed report on the day of testimony is available here.

The testimony is part of the court’s unique process allowing the victims to participate in the case as it goes on, and to seek reparations.  The reparations will be funded by the victims fund, persons convicted may be directed to contribute by paying fines as well as serving sentences, but the fund will also be supported the state’s parties.

Persons who have a potential claim before the court can seek victim’s status and appointed counsel to represent their interests.  A person who applies may choose their own lawyer at the time of the application, or they will be assigned to the Office of the Public Counsel for Victims, which will handle the case within their pool of cases.

Jan
21

Lubanga Victims Testify

The Lubanga trial entered an unprecedented phase last week as the victims who are seeking reparations from Lubanga and the court testified about the harm they suffered because of Lubanga.  The victims tesitfied about their experiences being abducted as child soldiers and of others being held in sexual slavery. A summary of the testimony of the  first week of victims seeking reparations is available here.

The ICC process is unique in the history of war crimes prosecutions.  Never before have the victims of war crimes had an opportunity to seek reparations and never have they had the opportunity to participate in the case as it is going on.  This creates a difficulty for the defense as they have to defend the case on multiple fronts.  Reparations will be funded not just by the parties convicted, but by a victims fund which the member states contribute to.

Victims may seek reparations, including psychological and physical rehabilitation services. To assist them in seeking reparations, victims may request appointed counsel of their choosing, if they do not select counsel, they will be represented by the Office of Public Counsel for Victims.   Appointed counsel will not be funded by the courts and not by the victims personally.

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