Defence comes on strong in Lubanga case

Both the prosecution and defence have laid out their case this week in the first-ever case presented before the International Criminal Court in The Hague. Is Thomas Lubanga a power-mad despot or a scapegoat?

Modern western armies would no doubt endorse this indictment, “as it is the only war crime that they themselves cannot be accused of," sneered Jean-Marie Biju-Duval to the judges. Biju-Duval is one of the lawyers of the Congolese militia leader Thomas Lubanga. During the past two days the prosecution and defence have laid out their strategies before the International Criminal Court, set up to try the most serious war criminals.

The defence aired some of the more frequent compliants since the court was set up six years ago. This included the charge that the court is a creation of western countries to rule over the less powerful, and that for opportunistic reasons it will not prosecute the biggest villains.

Lubanga (48) was the first suspect to appear before the court in March 2006. He has been incarcerated in the Netherlands since. After several delays, he stands charged for the recruitment and use of child soldiers during the war in the east Congolese region of Ituri in 2002 and 2003. According to the prosecutor, he headed the rebel movement UPC and its armed wing the FPLC and used hundreds of child soldiers in his struggle to control the raw material-rich region.

"In the twenty-first century there are no wars without war crimes," declared Biju-Duval, "and children are always, everywhere the first victims in a war. [...] Right now children are dying now from bombs of the most developed countries ... If this is the only charge against Lubanga after a five-year investigation, why choose Lubanga?" He continued: Why not president Kabila, who during the war was the commander of an army of child soldiers? Or the governments of Uganda and Rwanda, who got tangled up in the struggle? Or the rebels, who tallied the most dead and later gained high posts in the government?

Lost generation

The Argentinian chief prosecutor Luis Moreno-Ocampo wishes to draw attention to the suffering of child soldiers via this process. They are, in his words, "a lost generation." "Lubanga has sacrificed the children before they get the chance to grow up into adults capable of making their own decisions." His assessment, additionally, was that this charge would be easier to prove than the murders and rapes Lubanga is held accountable for, according to human rights organisations. This one is an orderly, clearly defined case.

Although Lubanga pleaded innocent, the defence did little to counter the evidence presented by the prosecutor. Moreno-Ocampo outlined the image of a power-hungry man who took control of a militia in order to take power in Ituri. Some 30 percent of his soldiers are said to have been younger than 15. Children were abducted, trained to be soldiers and then put into battle as bodyguards to the commandants. Girls fought alongside them, cooked and served as sex slaves.

Statement withdrawn

The prosecutor showed video images revealing Lubanga getting into a car escorted by a truck laden with armed and uniformed combatants, some of whom are clearly small children. Video images will be shown during the trial on which Lubanga calls on children to complete their military training so that they "can have their own weapon and uniform tomorrow." Nine former child soldiers will appear in The Hague to testify, Moreno-Ocampo announced. X-rays of bones will reveal that they were younger than 15 at the time.

The first witness who took the stand on Wednesday, however, withdrew his earlier statements about serving as a child soldier in Lubanga’s legion. Sitting right across the defendant, the underage boy said he had been told how to accuse Lubanga by an officer of an ngo.

Furthermore the prosecution relies on three documents which could prove that Lubanga knew that there were children in his ranks, and that this was prohibited under international law. Contracts will be revealed, signed by him, ordering that the child soldiers be demobilised from the FPLC. According to Moreno-Ocampo, this demobilisation never happened, and the documents were only drawn up in order to mislead international aid organisations.

Jigsaw puzzle

The defence, led by the French lawyer Catherine Mabille, is committed to Lubanga's right to a fair trial. Lubanga was almost released during his pre-trial when the judges determined that his legal process could not be conducted fairly due to a breach of procedure by the prosecutor. Moreno-Ocampo had obtained incriminating documents from the United Nations, on the condition of confidentiality, to which even the judges had no access.

After months of wrangling the UN lifted most of its conditions, but Mabille was not satisfied on Tuesday. So many documents had words blacked out that "the defence needs to finetune their skills at jigsaw puzzling" in order to be able to interpret them. "The judges have access to information that the defence will never have. How can we have a fair trial this way?"

Mabille further objected to the prominent role the victims will play in the process, for the first time in international law. A total of 93 victims of the FPLC may seek compensation and call attention to their suffering. Their eight lawyers sat next to the prosecution on Monday. "First we have to deal with the prosecution and then with the victims," said Mabille. "How can we deal with this second party that accuses us. "