January 23, 2009

Who is Thomas Lubanga?
What are the crimes alleged against him?
Why is the Lubanga trial significant?
How have child soldiers been used in Congo? Are children being used in the current conflict in the Kivu provinces?
Has the Lubanga trial had any impact on the recruitment and use of children in Congo?
What is happening with Bosco Ntaganda, who worked with Lubanga?
Is Lubanga's UPC militia not alleged to be involved in many other serious crimes?
Why did it take two years since the ICC confirmed the charges against Lubanga to get the trial under way? Is this court inefficient?
Will victims have a role in the trial?
How will people in Congo know what is happening in The Hague?
How did the ICC become involved in the DRC?
Why are all the ICC's cases in Africa? Is the ICC targeting Africa?
What has happened in Ituri?
Will there be other cases in the ICC's investigation in Ituri?
Will higher-ranking officials be investigated for crimes committed in Ituri?
Will the ICC investigate other crimes in Congo outside of Ituri?
What international law prohibits the recruitment and use of child soldiers?
Are there other cases where military commanders have been prosecuted or charged with recruiting or using child soldiers?
Where else are child soldiers being used?

I.     Thomas Lubanga's Trial

1.    Who is Thomas Lubanga?

Thomas Lubanga was the president of the Union of Congolese Patriots (UPC), a militia that purported to further the interests of the Hema ethnic group in the Ituri region of northeastern Democratic Republic of Congo (DRC). This militia has been implicated in ethnic massacres, torture, and rape during the conflict in Ituri, which began in 1999 as a local conflict between the Hema and Lendu ethnic groups but was exacerbated by Ugandan military forces and aggravated by a broader international armed conflict in the DRC.

2.    What are the crimes alleged against him?

Lubanga is charged with the war crimes of enlisting and conscripting children under age of 15 as soldiers and of using them in hostilities between September 2002 and August 2003. In March 2006, Lubanga was arrested on these charges and transferred to the International Criminal Court (ICC) in The Hague. In January 2007, the charges were confirmed by Pre-Trial Chamber I of the ICC, meaning that the judges decided that there was enough evidence to move forward with a trial. It is now up to the trial chamber to assess in a fair trial whether Lubanga is guilty.

3.    Why is the Lubanga trial significant?

This is the first ICC trial, and it is significant both for international justice and for helping to bring accountability to Congo, a country where perpetrators of serious crimes are rarely brought to justice. This is also one of the first high-profile trials focusing exclusively on the issue of child soldiers. Enlisting, conscripting, and using children as soldiers in an armed conflict are serious crimes that have devastating consequences for victims: once recruited, child soldiers have been sent to the front lines or are used as porters, guards, or sex slaves. Lubanga's trial-the ICC's first-is therefore a step toward bringing justice to the victims of these crimes in Ituri. The trial also signals to other perpetrators and would-be perpetrators of crimes relating to child soldiers that they will no longer be able to commit these crimes without fear of punishment.

How the Lubanga trial is conducted will also help to shape practices before the ICC-in courtroom management, for example-that could influence how it handles future trials.

4.    How have child soldiers been used in Congo? Are children being used in the current conflict in the Kivu provinces?

Unfortunately, the use of children as soldiers in combat is nothing new in Congo: the overthrow of the former dictator Mobutu Sese Seko by Laurent Kabila's forces in 1996 was largely carried out by "kadogas," or child soldiers. All of the parties to Congo's armed conflict have used child soldiers-both government forces and non-state armed groups, including other Ituri-based militias. At the height of the war, the United Nations (UN) estimated that as many as 30,000 children were participating as soldiers. Over 22,000 former child soldiers have been demobilized over the past four years and given access to rehabilitation services. However, because of continuing violence and insufficient assistance, many have been re-recruited.

Thousands of children are still involved in fighting in the eastern DRC. Since heavy fighting resumed last August between the Congolese army (FARDC) and the rebel group led by Laurent Nkunda, the National Congress for the Defense of the People (CNDP), Human Rights Watch estimates that at least 175 children have been forcibly recruited into armed service, and there are reports about many others.

5.    Has the Lubanga trial had any impact on the recruitment and use of children in Congo?

Human Rights Watch research suggests that the Lubanga case has already had an impact on changing the behavior of militia and government soldiers, at least in the short term. During a Human Rights Watch research mission to eastern Congo in 2007, it was clear that militia leaders knew that Lubanga was being tried on charges relating to child soldiers and were aware of their own vulnerability to prosecution. Militia leaders in Ituri who in the past openly admitted to having children in their ranks denied having any children under their command. The charges have also helped raise awareness among those who previously thought that crimes relating to child soldiers were not "serious"-including parents in Ituri who gave their children to militia groups willingly.

6.   What is happening with Bosco Ntaganda, who worked with Lubanga?

Bosco Ntaganda, who collaborated with Lubanga as chief of military operations for the UPC, has also been charged with war crimes by the ICC, but he remains at large. Like Lubanga, Ntaganda is wanted by the ICC on charges of enlisting, conscripting, and actively using children in hostilities. To facilitate his arrest through confidential operations, his arrest warrant was sealed by the ICC until February 2008 when the court decided to make it public.

Ntaganda currently serves as the military chief of staff of the CNDP. In early January 2009, Ntaganda claimed he was taking over leadership of the CNDP from its former head Laurent Nkunda, and on January 16 he declared that instead of waging war on the Congolese national army, he would join its troops in fighting the Democratic Forces for the Liberation of Rwanda (FDLR), a Rwandan armed group some of whose leaders participated in the genocide in Rwanda in 1994.

For international criminal justice to make an effective contribution to improving respect for the rule of law there must be a real threat of arrest and prosecution as well as fair trial proceedings. The credible threat of arrest is the "Achilles' heel" of the ICC: since it does not have its own police force, it must rely on states to enforce its orders and decisions. The Congolese government, a party to the Rome Statute that established the ICC, has an obligation to arrest Ntaganda. Yet no such attempt was made on January 16 when Ntaganda was in Goma alongside the Congolese minister of the interior and other senior Congolese military officers.

Ntaganda and forces under his command have continued to commit human rights abuses, including recruitment of children. On November 4 and 5, 2008, CNDP troops under Ntaganda's command killed an estimated 150 people in the town of Kiwanja, one of the worst massacres in North Kivu in the past two years. That forces under his command continue to commit serious crimes underscores why Congolese authorities should make Ntaganda's arrest an urgent priority. The international community-including the United Nations Mission in Congo (MONUC)-should provide immediate assistance to help Congolese authorities apprehend Ntaganda. Senior Congolese officials requested assistance from MONUC to help arrest Ntaganda in mid-2007, but to date no such assistance has been provided.

7.    Is Lubanga's UPC militia not alleged to be involved in many other serious crimes?

Yes, according to research by Human Rights Watch. For example, in December 2002 and early 2003, UPC forces led by Lubanga attacked several towns near Ituri's gold mines, including Kilo, Kobu, and Lipri. In Kilo, Human Rights Watch research shows that UPC combatants abducted men, women, and children whom they took to be Lendu, an ethnic group that they considered to be their enemy. They forced the victims to dig their own graves and then killed them with hammer blows to the head. An estimated 100 people were killed in this town alone.

Human Rights Watch believes that the charges brought by the ICC should reflect the full range of serious crimes under ICC jurisdiction committed by perpetrators against civilians. In Congo, this is crucial for the victims and to bring accountability to that country and to the Great Lakes region overall. While the current charges against Lubanga are very serious, the failure to include a broader range of serious crimes has led many victims in Ituri to question the credibility of the ICC and its relevance in addressing their suffering. This has undermined the ICC's impact there. This offers an important lesson for the ICC on the importance of selecting charges that represent the range of crimes under its jurisdiction allegedly committed by perpetrators.

Of course, the prosecutor can only put forward charges for which there is sufficient evidence. That is precisely why it is so important for the Office of the Prosecutor to ensure that it has the necessary resources-including experienced staff-to gather enough evidence by conducting quality investigations on the ground.

8.   Why did it take two years since the ICC confirmed the charges against Lubanga to get the trial under way? Is this court inefficient?

Lubanga's trial was originally scheduled to begin in June 2008. However, the judges of the trial chamber unanimously decided to "stay" the proceedings, suspending the trial, because the prosecution was unable to release more than 200 documents that were considered essential for the defense's preparation of its case. Without these documents, the trial chamber was concerned that Lubanga would not receive a fair trial.

The prosecution collected these documents confidentially from the United Nations and nongovernmental organizations, as permitted under a provision of the Rome Statute which established the court, and could not disclose the material to the defense without the consent of these providers. Requiring this consent is important because it helps to ensure that the safety of those who had gathered the information, particularly those operating in Congo, is not compromised. Following the stay, the prosecution worked with the information providers to address the judges' fair trial concerns, and in November 2008 the trial chamber allowed proceedings to resume.

Overall, it is worth emphasizing that the ICC is a novel institution breaking new ground with innovative procedures. To an extent, certain delays in proceedings are to be expected.

9.    Will victims have a role in the trial?

For the first time in an international criminal tribunal, victims can participate in the trial hearing beyond giving testimony as witnesses. By engaging victims in a more active role, the ICC has the potential to make proceedings more real and relevant to members of affected communities. More than 90 victims will participate in the proceedings against Lubanga through their legal representatives.

To be eligible, a victim must show that the alleged harm that he or she has suffered is linked to the charges against the defendant. In the Lubanga case, this would include former child soldiers who were in the UPC ranks when Lubanga is alleged to have committed the crimes. However, the court also allows "indirect" victims to participate-for example, parents of the former UPC child soldiers-provided an applicant can show that the harm is "personal to the individual."

Unlike the prosecutor and the accused, victims are not parties to the proceedings. Nonetheless, both the trial and the appeals chamber have interpreted the ICC's legal framework to provide victims with rights that will make their participation meaningful. They include the right to submit evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence. The court has outlined a procedure to permit victims to do so consistent with the rights of the accused and of a fair trial.

Victims can also apply to obtain court-ordered reparations from someone who is convicted, but in a separate procedure. This underscores that victims' participation is not simply to facilitate reparations claims but is valuable in its own right, both for the victim and for judges trying to determine the truth.

10. How will people in Congo know what is happening in The Hague?

The ICC is faced with the challenge of making sure that the proceedings are meaningful for the communities in DRC most affected by the crimes. The ICC must, therefore, make every possible effort to communicate publicly to the people of Congo about important legal proceedings in The Hague. To be effective, justice must not only be done but must also be seen to be done.

An effective outreach and communications strategy is also essential to combat misinformation. This is particularly relevant in light of the "stay" of the Lubanga proceedings. While necessary to protect Lubanga's fair trial rights, the lengthy delays and confusion proved to be fertile ground for damaging rumors in Ituri. For instance, many of Lubanga's supporters interpreted the suspension as proof of his innocence.

Security situation permitting, we urge the Public Information Documentation Section (in the ICC's Registry) to carry out a robust outreach and communications strategy at the beginning of and throughout the trial. This could include transmitting the trial via video link for live broadcast in Ituri; making ICC officials available to explain the proceedings and to answer questions; devising a strong communications strategy with local media outlets; and making audio, video, and written summaries available in an easily accessible and understandable format throughout the trial.

11.  How did the ICC become involved in the DRC?

In March 2004, the government of Congo referred the situation in the country to the ICC. The Congolese authorities then invited the ICC prosecutor to determine whether crimes within the ICC jurisdiction had been committed there since the entry into force of the Rome Statute on July 1, 2002, the starting date of the ICC's jurisdiction. The ICC prosecutor announced the opening of an investigation in Congo in June 2004. He decided to focus his investigations initially on the Ituri region of northeastern DRC because of the serious crimes in violation of the Rome Statute committed there.

12. Why are all the ICC's cases in Africa? Is the ICC targeting Africa?

The ICC currently has situations in four countries under active investigation-Uganda, Democratic Republic of the Congo, Central African Republic, and Darfur region of Sudan. While the prosecutor's office is on its own initiative looking into possible investigations in Colombia, Afghanistan, and Georgia, no new investigations have been opened yet. Unfortunately, the court's exclusive focus on Africa at present has led to criticism among some African states and ICC observers that the continent is the court's main target.

However, a number of objective factors undermine accusations that the ICC is "biased," including:

  • Three of the four ICC country situations under investigation were referred by the countries involved, while the fourth situation, Darfur, was referred to the court by the UN Security Council.
  • The ICC can only investigate crimes committed after July 1, 2002, which means that many situations are excluded from the court's jurisdiction.
  • Crimes committed after July 1, 2002, must still be sufficiently grave (in terms of the number of victims, for example) and the national authorities must be shown to be either unable or unwilling to address them to warrant ICC intervention.

A number of countries, including the United States (US), do not automatically come under the ICC's jurisdiction because they have not become parties to the Rome Statute. It is also possible for a country that is not a party to the Rome Statute to voluntarily submit crimes on its territory to the ICC's jurisdiction.

Twenty-two African countries were among the founding ratifiers of the Rome Statute, and of the 108 states parties to the ICC, 30 are countries in Africa. They have each voluntarily demonstrated their commitment to the institution, which was established to bring accountability for the world's most serious crimes. The ICC, in turn, is working to bring justice to the countless African victims that have suffered unspeakable crimes.

II.     The Conflict in Ituri and the ICC's Investigation

13. What has happened in Ituri?

Ituri is one of the areas worst-affected by Congo's devastating wars. A local armed conflict between Hema and Lendu ethnic groups that began in 1999 was exacerbated by Ugandan military forces and through linkages to the broader conflict in the Great Lakes region. As the conflict spiraled and armed groups multiplied, more than 60,000 civilians were slaughtered in Ituri, according to the UN. Competition for the region's lucrative gold mines and trading routes was a major contributing factor to the fighting. Foreign armies and local militia groups-seeing control of the gold mines as a way to money, guns, and power-fought each other ruthlessly, often targeting civilians in the process. In their battles for gold, armed groups such as Lubanga's UPC were implicated in widespread ethnic slaughter, torture, and rape.

Human Rights Watch has been documenting human rights abuses committed in Ituri since 1999. Human Rights Watch published detailed reports in 2001, 2003, and 2005, as well as dozens of news releases and briefing papers detailing the widespread atrocities by all armed groups.

14. Will there be other cases in the ICC's investigation in Ituri?

Yes. Two other Ituri warlords-Germain Katanga, chief of staff of the Ituri Patriotic Resistance Forces (FRPI), a Ngiti-based militia (the Ngiti are closely linked to the Lendu), and Mathieu Ngudjolo, former chief of staff of the Nationalist and Integrationist Front (FNI), a Lendu-based militi- are currently in ICC custody in relation to war crimes and crimes against humanity charges. The FNI and the FRPI are considered rival groups to Lubanga's UPC. Their joint trial is set to being in mid-2009.

According to Human Rights Watch's research, there are numerous other alleged perpetrators that merit ICC investigation in Ituri. One such individual is Floribert Kisembo, a former military chief of staff of Lubanga's UPC, one of the commanders allegedly responsible for a campaign of executions and forced disappearances of civilians of Lendu origin and others who opposed UPC policies in Bunia in late 2002. Today he is a general in the Congolese army.

15.  Will higher-ranking officials be investigated for crimes committed in Ituri?

Human Rights Watch's research indicates that senior political and military officials in Kinshasa as well as in Uganda and Rwanda supported the UPC and other militias operating in Ituri. Human Rights Watch has consistently urged the Office of the Prosecutor to investigate them for their role in crimes committed in Ituri.

16. Will the ICC investigate other crimes in Congo outside of Ituri?

Yes. In November 2008, the prosecutor announced the opening of an investigation into crimes committed in the Kivu provinces in eastern DRC. According to Human Rights Watch's research, the violence in North and South Kivu has been characterized by horrific attacks on civilians, including killings, widespread rape, torture, and the use of child soldiers. The worst incident there during the violence of the past two years was in November 2008, with the killing of an estimated 150 people in the town of Kiwanja.

Combatants of all armed groups, both foreign and domestic, who have operated in the Kivus have committed human rights abuses, but few, if any, of those responsible have been brought to justice. Among those that Human Rights Watch believes should be investigated are forces loyal to Laurent Nkunda, including those in the CNDP; the FDLR; the Congolese army; and the Mai Mai rebel group.

II.     The Recruitment and Use of Child Soldiers

17.  What international law prohibits the recruitment and use of child soldiers?

The 1977 Additional Protocols to the Geneva Conventions prohibit the recruitment or use of children under the age of 15 or their use in hostilities. The same provisions appear in the 1989 Convention on the Rights of the Child, which has been ratified by every country in the world except Somalia and the United States. The nearly universal recognition of the prohibition on recruiting or using child soldiers led governments to include it as a war crime under the jurisdiction of the International Criminal Court when the Rome Statute was agreed in 1998.

In 2000, the United Nations adopted an Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict that sets 18 as the minimum age for any conscription, recruitment, or use of individuals in hostilities. The optional protocol permits government armed forces to recruit children on a voluntary basis from age 16, but does not allow their use in hostilities until they reach 18. To date, 126 governments have ratified the Optional Protocol.

Some individual governments are making efforts to underscore to military commanders who recruit and use child soldiers that there will be consequences. For example, in October 2003, the United States enacted a new law that allows it to prosecute individuals in its territory who have recruited and used child soldiers, even if the crime is committed in another country and the perpetrator is not a US citizen.

18. Are there other cases where military commanders have been prosecuted or charged with recruiting or using child soldiers?

The Special Court for Sierra Leone charged all nine of its original defendants, including the former Liberian president Charles Taylor, with the war crime of recruiting and using child soldiers. In 2007, four individuals were convicted of this crime and sentenced to jail terms ranging from seven to 50 years of imprisonment.

The International Criminal Court has also charged others with crimes relating to child soldiers. The two other Ituri warlords in ICC custody-Katanga and Ngudjolo-are charged with using child soldiers in attacking civilians in Bogoro village in early 2003, in addition to other war crimes and crimes against humanity, including murder, sexual slavery, and rape.

In its investigation in Uganda, the ICC has charged three leaders of the Lord's Resistance Army, a Uganda-based armed group that has abducted more than 25,000 children for use as child soldiers over the past 20 years. Joseph Kony, the group's leader, is among those charged. These leaders remain at large and have recently been abducting and killing children in the DRC.

At the national level, there have been very few prosecutions of military commanders for the recruitment and use of child soldiers. In March 2006, Jean-Pierre Biyoyo, a leader of an armed group in Congo known as Mudundu 40, was convicted and sentenced to five years of imprisonment, but he escaped several months later and remains at large.

19. Where else are child soldiers being used?

Currently, they are being used in at least 15 countries and territories: Afghanistan, Burma (Myanmar), Central African Republic, Chad, Colombia, Democratic Republic of Congo, India, Iraq, Occupied Palestinian Territories, Philippines, Somalia, Sri Lanka, Sudan, Thailand, and Uganda. The country believed to have the largest number of child soldiers is Burma (Myanmar), which has recruited tens of thousands of children into its national armed forces.

Child soldiers fight for government armed forces, government-supported militia or paramilitary groups, and non-state armed opposition forces. Although most are between the ages of 13 and 18, some forces have recruited children as young as seven. Many are girls, who often serve as combatants but are also subject to sexual violence.