Rebel Leader Guilty, but Co-accused Ntaganda Must be Arrested
March 14, 2012
The verdict against Lubanga is a victory for the thousands of children forced to fight in Congo’s brutal wars. Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.
Géraldine Mattioli-Zeltner, international justice advocacy director

(The Hague) – The International Criminal Court’s (ICC) guilty verdict against rebel leader Thomas Lubanga Dyilo for recruiting and using child soldiers in hostilities is a first step in bringing justice to the tens of thousands of children forced to fight in conflicts, in the Democratic Republic of the Congo (DRC) and elsewhere, Human Rights Watch said today. The verdict highlights the need to urgently arrest Lubanga’s co-accused, Bosco Ntaganda, who is currently a general in the Congo army in Goma, eastern Congo, and continues to evade justice.

“The verdict against Lubanga is a victory for the thousands of children forced to fight in Congo’s brutal wars,” said Géraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. “Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.”

The ICC judges found Lubanga guilty “beyond reasonable doubt” of the war crimes of conscripting, enlisting, and actively using children under the age of 15 in hostilities in the Ituri district during 2002 and 2003. Lubanga was the leader of the Union of Congolese Patriots (UPC), a rebel group implicated in many serious human rights abuses, including ethnic massacres, torture, rape, and the massive recruitment of children, some as young as seven. Congolese authorities transferred Lubanga to the ICC in March 2006. His trial began in January 2009.

Hearings will be scheduled in the coming weeks to determine Lubanga’s sentence and reparations for victims. The court should take all necessary steps to ensure that affected communities in the DRC learn about the judgment and next steps, Human Rights Watch said.

The judgment also included sharp criticism of how the Office of the Prosecutor conducted its first case. The judges noted the prosecution’s failure to verify its evidence carefully, which led to the discrediting of several witnesses. The judges also discussed the role of “intermediaries” – individuals who assist the Office of the Prosecutor to contact victims and witnesses – which was scrutinized during the trial amid defense claims that some of them may have coached and bribed witnesses to lie.

“The Lubanga case highlights at every phase the need for improved field investigations conducted directly by members of the Office of the Prosecutor,” Mattioli-Zeltner said. “The prosecutor and the court as a whole should draw important lessons from this first experience to improve the delivery of justice. Victims deserve nothing less.”

The Lubanga trial has contributed to raising awareness about the plight of children forced to go to war. Children were so prevalent in Lubanga’s Union of Congolese Patriots that the force was known as “an army of children.” All parties to DRC’s war in Ituri used children as soldiers. Children are still in the ranks of armed groups and the Congolese army, and in some areas of Congo children are being actively recruited, including by force.

Many of these children are involved in armed combat either in the Kivu provinces of eastern Congo or in northern Congo, including by the Lord’s Resistance Army (LRA), a Ugandan rebel group. Joseph Kony, the leader of the LRA and his lieutenant, Okot Odhiambo, are also wanted on arrest warrants by the ICC for abducting children and forcing them to participate in the hostilities in northern Uganda, among other crimes.  Dominic Ongwen, another LRA leader active in northern Congo is also wanted by the ICC on other charges of war crimes and crimes against humanity. The LRA continues to commit abuses in the remote border region of Congo, the Central African Republic and South Sudan. A 30-minute video calling for Kony’s arrest published by the campaign group Invisible Children last week has been viewed by over 80 million people to date.

“The ICC guilty verdict against Lubanga should be a stark warning to Joseph Kony who continues to send children into combat,” Mattioli-Zeltner said.  “African and international efforts to apprehend Kony and other LRA leaders wanted by the ICC should be urgently stepped up.”

Worldwide, children participate in armed conflict in at least 15 countries. In addition to Lubanga, six other people have been charged by the ICC with the crime of recruiting and using child soldiers.

The United Nations, local organizations, and Human Rights Watch have documented many other grave crimes committed by Lubanga’s militia, though these were not part of the ICC prosecutor’s case. The narrow scope of charges brought by the prosecutor against Lubanga does not reflect the extent of the suffering endured by victims of his forces, Human Rights Watch said.

“Despite this important judgment on the use of child soldiers, victims of other atrocities at the hands of Lubanga’s UPC troops have yet to see justice,” Mattioli-Zeltner said. “This verdict should not be an excuse to ignore other grave crimes committed by the UPC and other armed groups in Congo, and it underscores the importance of prosecuting others for a fuller range of serious crimes, including Ntaganda.”

The former UPC chief of military operations, Bosco Ntaganda, is also wanted by the ICC for recruiting and using child soldiers in Ituri, the same charges as those brought against Lubanga. Ntaganda is now a general in the Congolese army and lives openly in Goma, eastern Congo, where he is regularly seen at the top restaurants and on the tennis court. He is currently serving as deputy commander of military operations in eastern Congo and troops under his command continue to commit grave abuses, as Human Rights Watch has documented.

“With Lubanga found guilty, Ntaganda’s continued freedom from arrest is an all the more shameful betrayal of the victims,” Mattioli-Zeltner said. “The Congolese authorities should immediately arrest Ntaganda and turn him over to the ICC.”

The ICC’s docket in relation to the DRC – currently limited to one other trial involving two leaders of an armed group that opposed the UPC in Ituri – fails to address the causes and extent of horrific crimes endured by civilians throughout eastern Congo. If the ICC is going to contribute meaningfully to ending impunity in the Congo, the Office of the Prosecutor should bring additional cases, in particular against those who armed, financed, and directed armed groups in eastern Congo, Human Rights Watch said.

The trial of Lubanga is the first case to reach the judgment phase at the ICC. The court began operations in 2003. Two other trials, in relation to the Congo and the Central African Republic, are under way and charges have been confirmed in two more cases.

Issues Raised in the First ICC Trial
As the first trial at the ICC, the Lubanga case broke new ground in interpreting the court’s treaty and procedures. This was the first international trial in which victims were allowed to participate in court proceedings beyond the role of witnesses – an important innovation under the ICC treaty. Victim participants made a positive contribution in this trial, but this first experience provided lessons for future trials, Human Rights Watch said.

Because of security concerns, most witnesses had some form of protection and significant portions of the trial were held in closed hearings. The trial highlighted the risks encountered by victims and witnesses who engage with the court and the importance of an effective protection program at the ICC, Human Rights Watch said.

The first trial at the ICC had to contend with many difficult legal and procedural questions. One such issue brought to the fore in the trial is the court’s use of “intermediaries –individuals and organizations who, in the case of the Office of the Prosecutor, assist with contacting victims and witnesses. Given that the ICC operates with limited resources in various country situations with different cultural and language backgrounds and precarious security conditions, resorting to intermediaries is often unavoidable for the court to execute its mandate effectively. These intermediaries make an essential contribution to the work of the ICC and face important challenges in doing so. The Lubanga trial showed that the relationship between intermediaries and the court needs to be well supervised and regulated, Human Rights Watch said.

There were a number of hitches in the trial, and many observers and victims expressed concern that the trial took too long. The ICC has come under increasing pressure from member countries to improve its efficiency.

Lessons learned from the Lubanga trial – taking into account its unique character as the court’s first trial – should be carefully considered by court officials, Human Rights Watch said. Other trials under way at the ICC are already running more smoothly.

Background
Ituri is one of the areas worst affected by Congo’s devastating wars. Competition for the region’s lucrative gold mines and trade routes – and the resulting money, guns, and power –was a major contributing factor to the fighting. In their ruthless battles for gold, armed groups such as Lubanga’s UPC often targeted civilians.

A localized armed conflict between Hema and Lendu ethnic groups that began in 1999 was exacerbated by Ugandan military forces who occupied the area from 1999 until 2003 and by the broader Congolese war. Backed by foreign armies, local militias multiplied and the conflict among them resulted in the slaughter of at least 60,000 civilians across Ituri. Most of the victims were killed during ethnically targeted violence.

In addition to the DRC, the ICC prosecutor has opened investigations in six other country situations: northern Uganda, the Darfur region of Sudan, the Central African Republic, Kenya, Libya, and Côte d’Ivoire. The prosecutor is also conducting preliminary examinations in a number of other situations, including Afghanistan, Colombia, Georgia, Nigeria, and Honduras.