ICC & Democratic Republic of Congo

30 Jan 2009
Dear all,

Please find below excerpts from news articles regarding recent developments related to the International Criminal Court's investigations in the Democratic Republic of Congo (DRC).

Excerpted articles include those on the proceedings in the Court’s first trial of Thomas Lubanga Dyilo (I); Amnesty International press release and Economist article regarding Laurent Nkunda and Bosco Ntaganda (II); links to articles in the francophone press (III).

For more information on this case, see the Coalition’s website at www.iccnow.org or join the blog discussion at www.iccnow.org/blog.

Please take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Regards,

CICC Communications
communications@iccnow.org
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I. LUBANGA TRIAL COVERAGE

“Child soldier withdraws statement. First trial ICC troubled from the start” by Thijs Hettinga (Trouw), 29 January 2009, http://www.trouw.nl/nieuws/wereld/article2016670.ece/Kindsoldaat_trekt_verklaring_in__.html

“The prosecutors against Congolese warlord Lubanga start with a great set-back. Their first witness made an unreliable impression yesterday….This bad start had a bad continuation in the court room yesterday….

To protect the witness, his voice was distorted and he was hidden from the public with a curtain. But Lubanga was able to see him. When prosecutor Fatou Bensouda asked the witness whether he had joined the UPC soldiers, he said: ‘I promised to tell the full truth, this brings me in a difficult position.’ Upon judge Adrian Fulford’s question whether something was prohibiting him from telling the truth, he said: ‘This examination puts me in trouble.’

After a two and a half hour break, the minor completely withdrew his previous story. In the afternoon, he told how he and his friends went to an aid organisation, where they said they could help him. The organisation’s employees had also told him what to say, according to the witness. ‘But now I want to say what really happened.’ When judge Fulford asked him whether his previous statement was true or untrue, he answered: ‘That was not the truth.’

‘We must give the trial time,’ says Lorraine Smith of the International Bar Association, who is attending the trial as an observer. ‘We need to know why the witness is behaving like this. It is a young child who has gone through a lot. And a court room is intimidating. Besides, there is hardly any experience with these types of witnesses.’

Fear of being prosecuted in his own country might also have played a role. The Criminal Court cannot try a child individually. ‘However, Congo could still decide to try him’, according to lawyer Smith.

Meanwhile, the Criminal Court has requested the prosecutors to check whether the witness could be brought to justice in Congo. Today, the prosecutors will be allowed to argue in closed session why they still want to call the witness. They had already stated they had evidence that the boy was indeed a child soldier for Lubanga.

Apart from the witness, there was also confusion yesterday about translations. According to both the prosecutors and the defense, parts of sentences in Swahili had not or not completely been translated into English and French. If the simultaneous translation is indeed not satisfactory, the Criminal Court has a new problem: many witnesses do not speak English or French.”

ii. “International Criminal Court has chaotic start” by Marnix de Bruyne (De Volkskrant), 28 (online)/29 (printed)January 2009, http://www.volkskrant.nl/buitenland/article1139680.ece/Internationaal_Strafhof_kent_rommelig_begin

“…What should have been a spectacular start of a long parade of witnesses to prove that Lubanga had committed the war crime of enlisting child soldiers, turned out to be a preliminary setback for the prosecutors.

The day was marked by several problems and delays. The witness, whose face was only shown to the public by means of distorted video, and whose voice was distorted, could only appear around noon. This was caused by an order of the court’s president, the British judge Adrian Fulford, that he should first be explained his right to leave out self-incriminating answers.

The Criminal Court’s prosecutors could guarantee that they would not prosecute the boy for possible crimes committed as a child soldier, because he is not yet eighteen. But Fulford could not guarantee that the DRC courts would refrain from prosecution.
When the boy finally appeared, he had to give his oath three times, because the interpreters could not hear him. He then told that he had been taken on his way home by ‘men from the UPC’, Lubanga’s political movement, who he recognized by their uniforms and weapons.

When asked whether he had indeed joined the men, he did not answer and referred to his oath, and to an ‘NGO’ who ‘would help him’, and to his wish ‘to tell the truth and not what someone else wants him to say.’ Once again, the curtains were closed before the public gallery, for further explanation to the boy.

After lunch, judge Fulford asked him whether his statement that he was taken after school by Lubanga’s men was ‘true or false’. The boy said: ‘false’. Prosecutor Fatou Bensouda explained that the witness apparently was ‘afraid of the consequences when returning to Congo after testifying.’

Fulford then adjourned the hearing. He said ‘further research’ was needed into the effect of the explanation about incriminating statements which he himself had ordered. Lastly, he heard complaints from the defence and the prosecutor that the translation from Swahili of the witness’ words was incorrect.

‘The witness has not been well prepared. The boy must have panicked because of the extra explanation and all those white men around him’, says Bukeni Tete Waruzi, a Congolese who has worked with former child soldiers and who was in the public gallery. ‘I do think he was a real child soldier. But I cannot rule out the possibility that he was simply drawn by the promised financial compensation.’”

iii. “Testimony of former Congo child soldier halted,” Associated Press, 29 January 2009, http://www.google.com/hostednews/ap/article/ALeqM5jIIQpLKyj3NrhJa50Xg3Wte4yxJwD960S92O0

“…The problems with the witness have cast a shadow over the prosecution case, which will rely largely on evidence from former child soldiers who may encounter similar problems.

‘While I would say it is a less than desirable start to the first trial it is also a very stark reminder of the issues we are dealing with here,’ said Lorraine Smith, who is monitoring proceedings for the International Bar Association.

‘The fact that the prosecution decided to start their case with this child soldier means that there are particular challenges which have come up now.’

Defense lawyers for Lubanga, who has pleaded not guilty to charges of recruiting and using child soldiers in 2002-2003, said the witness should have been allowed to continue his testimony.

‘Postponing the testimony could be interpreted by the witness ... as a form of pressure,’ said Jean-Marie Biju-Duval. ‘We should avoid this for this witness and we should avoid it for future witnesses.’

The case against Lubanga has been plagued by problems. Last year his trial was delayed for more than six months and the court came close to releasing him amid concerns he could not get a fair trial. The judges objected that prosecutors were using evidence obtained under nondisclosure deals, including some that could be beneficial to the defense. The problem was only resolved when the United Nations and other providers of the evidence lifted the confidentiality requirement.”

II. AMNESTY PRESS RELEASE AND ECONOMIST ON NKUNDA AND NTAGANDA

i. “Democratic Republic of Congo: Laurent Nkunda and Bosco Ntaganda must face justice,” Amnesty International press release, 29 January 2009, http://www.amnestyusa.org/document.php?id=ENGAFR620012009&lang=e

“The arrest of Laurent Nkunda should be followed by swift steps to prosecute him on charges that he committed war crimes and crimes against humanity committed in the Democratic Republic of Congo (DRC), Amnesty International said today. Any trial must be fair and exclude the death penalty. If states fail to do so, then the Prosecutor of the International Criminal Court has jurisdiction to seek to prosecute him. Since 2004, the ICC Prosecutor has been investigating war crimes and crimes against humanity in the DRC, particularly in the Ituri region, and has sought and obtained arrest warrants.

Laurent Nkunda, former leader of the National Congress for the Defence of the People (CNDP) armed group, was arrested on 22 January and is detained at an undisclosed location in Rwanda. The Government of Rwanda must immediately clarify on what charges and in what circumstances it is holding Laurent Nkunda, announce what course it intends to pursue to ensure that he is prosecuted in a fair trial where witnesses are effectively protected, and guarantee that his rights are fully respected.

Members of the CNDP and previous armed groups led by Laurent Nkunda have been accused of war crimes and other serious human rights abuses by the UN, national and international human rights organizations, including Amnesty International. These allegations include the recruitment and use of children as soldiers, unlawful killings and systematic rape of women and girls. He is the subject of an international arrest warrant issued by the DRC authorities in September 2005 for war crimes and crimes against humanity as well as insurrection. Despite these multiple accusations, Laurent Nkunda was for many years able to move freely between his base in eastern DRC, Rwanda and Uganda.

Although the possibility exists that Laurent Nkunda may be extradited from Rwanda to the DRC, he is unlikely to receive a fair trial in the DRC. The DRC criminal justice system is characterized by a lack of independence of the judiciary, particularly in its military courts before which Laurent Nkunda would be prosecuted, routine torture and ill-treatment in detention, inhumane prison conditions and prolonged detention without trial. Witnesses and lawyers do not receive adequate protection and are routinely threatened and attacked. The DRC retains the death penalty. The DRC government must address the longstanding failures of its judicial system that prevent the effective prosecution of suspected war criminals before domestic courts.

Laurent Nkunda's sudden downfall contrasts with the rise of Bosco Ntaganda, the new leader of the CNDP and Laurent Nkunda's former Chief-of-Staff, who now appears to enjoy the full confidence of the DRC and Rwandan governments. Bosco Ntaganda is the subject of an International Criminal Court arrest warrant issued under seal in August 2006 and made public on 28 April 2008 for the war crime of recruiting and using children as soldiers in the Ituri region of eastern DRC between July 2002 and December 2003. He also reportedly commanded CNDP fighters who unlawfully killed scores of civilians in Kiwanja, North Kivu province, eastern DRC, on 4/5 November 2008.

The DRC government is under a legal obligation to arrest and surrender anyone named in arrest warrants issued by the International Criminal Court. However, on 16 January, shortly after he had announced that he had deposed Laurent Nkunda as head of the CNDP, Bosco Ntaganda appeared publicly in Goma alongside the DRC Minister of Interior, Célestin Mbuyu Kabango, and senior DRC army officers to declare an end to the CNDP rebellion and commit his forces to the joint DRC and Rwandan government military operation against the Democratic Liberation Forces of Rwanda (FDLR) armed group. James Kabarehe, the Rwandan army Chief of Staff, attended the same event.

Time and again, justice has been sacrificed to the interests of political and military expediency in the DRC. A number of other
persons suspected of committing war crimes and crimes against humanity now occupy senior positions in the DRC's army and police. Persistent impunity is one the major reasons why war crimes and crimes against humanity continue to be committed on a large scale in the DRC. They will not end until regional governments and the international community demonstrate an unequivocal commitment to bring all those responsible for war crimes or crimes against humanity to justice.”

ii. “An arresting and hopeful surprise” The Economist, 29 January 2009,http://www.economist.com/displayStory.cfm?story_ID=13022113

“…The capture of a Congolese warlord, Laurent Nkunda, surprised almost everyone, not least the preening man himself. As commander of the National Congress for the Defence of the People (known by its French initials, CNDP), he claimed to be protecting fellow Tutsis in eastern Congo from Hutu génocidaires of the Democratic Forces for the Liberation of Rwanda (FDLR), and, in consequence, the interests of Rwanda’s Tutsi-dominated government across the border. Despite causing mayhem in eastern Congo last year, Mr Nkunda plainly had the backing of Rwanda’s president, Paul Kagame. Not any more.

The austere Mr Kagame was increasingly embarrassed by reports, particularly a recent one by a panel of experts under the aegis of the United Nations, who detailed extensive links between Rwanda and the belligerent Mr Nkunda. The revelations were undermining Mr Kagame’s efforts to attract foreign investment to transform his tiny country into “Africa’s Switzerland”. Britain, Rwanda’s most generous backer, gave warning that it would cut its aid if Mr Kagame did not clean up Rwanda’s act in next-door Congo.

The poor condition of the Congolese army and the inability of Congo’s president, Joseph Kabila, to project power into his country’s east gave Mr Kagame the opportunity to strike against his erstwhile ally. The two heads of state agreed to a simple swap. Rwanda would break up the CNDP and hand over Mr Nkunda, with a proviso that the CNDP’s fighters would be integrated into the Congolese army. In return, Congo would let several thousand Rwandan troops cross the border and smash up the Hutus’ FDLR. The UN’s large peacekeeping force in the area, which both countries had lost confidence in, would be told nothing of the operation in advance….

Pessimists say Mr Kabila acted out of desperation. With Congo’s economy in tatters, its government near-bankrupt and his popularity plummeting, the young president needs a victory. If the two neighbours do squash the FDLR and bring a semblance of peace back to the east, Mr Kabila could revive the peacemaking image that a little over two years ago helped him win Congo’s first democratic elections in more than 40 years. But in the short run his decision to invite Rwandan soldiers into Congo has met stiff resistance from enemies and allies alike, who remember that Rwanda has invaded Congo twice in recent memory, both times to terrible effect.

Mr Nkunda’s extradition by Rwanda to Congo could take some heat off Mr Kabila and help him sell a seemingly unholy alliance with Mr Kagame to the sceptical Congolese: a tricky task. But powerful soldiers in Rwanda’s army are apparently loth to hand Mr Nkunda over.

Still, Rwanda has more to gain by co-operating with Congo. Rwanda’s economy grew tidily in 2008, with revenue from tea, coffee and tourism. As a new member of the East African Community, it can earn more by openly handling Congo’s metals, gems and hardwoods than it can by looting them, as in the past. If Mr Nkunda and other alleged war criminals, such as another warlord, Congo’s Thomas Lubanga, whose trial has just begun at the International Criminal Court in The Hague, are sent to prison, hundreds of thousands of displaced Congolese may feel safe enough to start going home. It may even be the beginning of the end of a long, hellish period of impunity in the tragic heart of Africa.”

III. LINKS TO FRANCOPHONE PRESS COVERING LUBANGA, NKUNDA AND NTAGANDA

http://www.afriquejet.com/afrique-centrale/rd-congo/le-proces-thomas-lubanga-retransmis-en-direct-a-la-television-congolaise-2009012620534.html

http://www.monuc.org/news.aspx?newsID=19999

http://www.digitalcongo.net/article/56197

http://www.digitalcongo.net/article/56204

http://www.afriquejet.com/actualites/societe/l'ue-se-felicite-de-l'ouverture-du-proces-de-thomas-lubanga-2009012920771.html

http://www.monuc.org/news.aspx?newsID=20030

http://www.jeuneafrique.com/depeche_afp_20090129T141906Z20090129T131856Z_Proces-Lubanga-a-la-CPI--pression-sur-les-temoins-le-premier-se-retracte.html

http://fr.allafrica.com/stories/200901280131.html

http://www.lalibre.be/actu/monde/article/475712/un-tournant-dans-la-guerre-du-kivu.html

http://www.iwpr.net/?apc_state=henpacr&l=fr&s=f&o=349043


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