The Prosecutor v. Thomas Lubanga Dyilo

Original: English No .: ICC-01/04-01/06 Date: 14 March 2012 TRIAL CHAMBER I Before: Judge Adrian Fulford, Presiding Judge Judge Elizabeth Odio Benito Judge René Blattmann

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v .THOMAS LUBANGA DYILO Public Judgment pursuant to Article 74 of the Statute

Decision/Order/Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence Mr Luis Moreno Ocampo Ms Catherine Mabille Ms Fatou Bensouda Mr Jean-Marie Biju Duval

Legal Representatives of the Victims Legal Representatives of the Applicants Mr Luc Walleyn Mr Franck Mulenda Ms Carine Bapita Buyangandu Mr Joseph Keta Orwinyo Mr Paul Kabongo Tshibangu

Unrepresented Victims Unrepresented Applicants for Participation/Reparation

The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massida

States Representatives Amicus Curiae

REGISTRY Registrar Defence Support Section Ms Silvana Arbia

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section

No. ICC-01/04-01/06 2/593 14 March 2012

Trial Chamber I (“Trial Chamber” or “Chamber”) of the International Criminal Court (“Court” or “ICC”), in the case of The Prosecutor v. Thomas Lubanga Dyilo (“ Lubanga case”), issues the following Judgment pursuant to Article 74 of the Statute:

I. THE CHARGES

1 On 29 January 2007, Pre-Trial Chamber I issued its Decision on the Confirmation of Charges. 1 It confirmed that there was sufficient evidence to establish substantial grounds to believe that:

Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(b)(xxvi) and 25(iii)(a) of the Statue from early September 2002 2 to 2 June 2003. Additionally, the Pre-Trial Chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that:

Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning 3 of articles 8(2)(e)(vii) of the Statute from 2 June to 13 August 2003. 2. Under the Rome Statute (“Statute”) 4 and the Rules of Procedure and Evidence (“Rules”), the charges include a description of the relevant facts and circumstances, and the facts are legally characterised. Therefore the charges are made up of factual and legal elements. 3. Pursuant to Article 74(2) of the Statute, the judgment “shall not exceed the facts and circumstances, described in the charges and any 1 Decision on the confirmation of charges, 29 January 2007, ICC-01/04-01/06-796-Conf-tEN, and public version: ICC-01/04-01/06- 803 -tEN (“Decision on Confirmation of Charges” or “Confirmation Decision”). The public version of the Decision is referred to hereinafter. 2 ICC-01/04-01/06- 803 -tEN, page 157. 3 ICC-01/04-01/06- 803- tEN, page 158. 4 Where “Article” is used herein it refers to the Rome Statute unless otherwise indicated. No. ICC-01/04-01/06 7/593 14 March 2012

amendments to the charges”. The charges and any amendments thereto establish the factual scope of the Decision pursuant to Article 74(2). 4. By Regulation 55(1) of the Regulations of the Court (“Regulations”), “the Chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28”. However, it shall not exceed the facts and circumstances described in the charges and any amendments to the charges. 5. Regulation 52(b) of the Regulations establishes what needs to be included in the document containing the charges: “[a] statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court”.

6 The Appeals Chamber has defined what are “the facts” in this context:

In the view of the Appeals Chamber, the term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and 5 detail, meeting the standard in article 67 (1) (a) of the Statute. 7. It follows that the accused cannot be convicted on a basis that 5 Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, ICC-01/04-01/06-2205, footnote 163. No. ICC-01/04-01/06 8/593 14 March 2012

exceeds the factual circumstances that were identified in the Confirmation Decision as supporting each of the legal elements of the crimes charged. 8. The two paragraphs of the Decision on the Confirmation of Charges cited above contain the legal characterisation of the facts, including the mode of liability, the temporal framework of the crimes and the fact that the alleged conscription and enlistment was “into” the Force Patriotique pour la Libération du Congo (“FPLC”). The Pre-Trial Chamber, in this section, did not expressly identify the facts that supported each of the legal elements of the crimes charged. However, they were referred to in other sections of the Decision and the Trial Chamber has ensured that the present Judgment does not exceed the facts and circumstances established by the Pre-Trial Chamber.

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II. BRIEF CASE HISTORY, JURISDICTION AND PARTICIPATION BY VICTIMS

Jurisdiction

9 Pursuant to Article 19 of the Statute, the “Court shall satisfy itself

that it has jurisdiction in any case brought before it.”

6

The Democratic

Republic of the Congo (“DRC”) became a State party on 11 April 2002

and, pursuant to Article 14, President Kabila referred the situation in

the DRC to the Prosecutor in March 2004.

7

Pre-Trial Chamber I

concluded that the case falls within the Court’s jurisdiction,

8

and the

Appeals Chamber confirmed the Pre-Trial Chamber’s Decision on the

accused’s challenge to the jurisdiction of the Court.

9

The personal,

temporal, territorial and subject-matter elements that are relevant to

the Court’s jurisdiction have not altered since the Decision on the

Confirmation of the Charges, and the issue has not been raised by the

parties or any State before the Trial Chamber.

6 See also Article 8(1) of the Statute: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large scale commission of such crimes”, and Pre-Trial Chamber’s II decision that “the term ‘in particular’ makes it clear that the existence of a plan, policy or large scale commission is not a prerequisite for the Court to exercise jurisdiction over war crimes but rather serves as a practical guideline for the Court”, The Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08-424, para. 211. 7 See Decision assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, ICC-01/04-1, 5 July 2004 (notified on 6 July 2004), page 4. 8 Decision on the Prosecutor’s Application for Warrant of Arrest, Article 58, 10 February 2006, ICC- 01/04-01/06-1-US-Exp, reclassified as public on 17 March 2006, ICC-01/04-01/06-8-Corr; Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute, 3 October 2006 (notified on 4 October 2006), ICC-01/04-01/06-512; ICC-01/04-01/06-803-tEN, paras 164-166. 9 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772. See also The Prosecutor v. Katanga and Ngudjolo, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/07-1497, paras 85 and 86.

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Case history

10 The first status conference before the Trial Chamber was held on 4 September 2007, and thereafter there were 54 status conferences prior to the commencement of the trial. 10 A list of the main decisions of the Chamber is set out in Annex A. However, it is appropriate to mention in this section four major procedural events which had a significant impact on the course of the proceedings: i) On 13 June 2008, the Chamber stayed the proceedings inter alia as a consequence of the failure by the Office of the Prosecutor (“prosecution” or “OTP”) to disclose a significant body of potentially exculpatory evidence covered by certain confidentiality agreements that had been entered into on the basis of Article 54(3)(e) of the Statute. After a considerable delay, the materials that had been withheld were disclosed, and following a review of them by the Chamber, the stay of proceedings was lifted on 18 November 2008. 12 The prosecution called its first witness on 28 January 2009 after the parties and legal representatives of the victims had completed their opening statements on

10 ICC-01/04-01/06- T-50-ENG (4 September 2007) to ICC-01/04-01/06- T-106-ENG (22 January 2009). The Appeals Chamber held 3 hearings to deliver decisions during this period of time. All transcripts are referred to hereinafter as “T-[RELEVANT NUMBER]” with an appropriate indication of level of confidentiality, language and version. The most up-to-date version (corrected as appropriate) is the version referred to. Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008, ICC-01/04-01/06-1401. The Decision was confirmed by the Appeals Chamber on 21 October 2008: ICC-01/04-01/06-1486. 12 T-98-ENG, page 2, line 23 to page 4, line 1. No. ICC-01/04-01/06 11/593 14 March 2012

26 and 27 January 2009. 13

ii) The presentation of oral evidence by the prosecution

concluded on 14 July 2009, 14 and thereafter the

Majority of the Chamber (Judge Fulford dissenting)

issued a Decision notifying the parties and

participants that the legal characterisation of the

facts may be subject to change, pursuant to

Regulation 55 of the Regulations of the Court. 15 The

Chamber granted leave to appeal the Decision on 3

September 2009 16 and adjourned the presentation of

evidence and any further consideration of

Regulation 55 pending the outcome of the

interlocutory appeal. 17 The Appeals Chamber issued

its judgment reversing the 14 July 2009 Decision on

8 December 2009. The presentation of evidence 18

resumed on 7 January 2010 with the testimony of the

third expert called by the Chamber. 19 28 witnesses

testified before the Chamber between 7 January and

8 July 2010, including 3 victims called by their legal

13 T-107-ENG and T-109-ENG. 14 31 witnesses testified between 28 January and 14 July 2009: 29 witnesses called by the prosecution and 2 experts called by the Chamber. 15 Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 14 July 2009, ICC-01/04-01/06-2049, and Minority Opinion of Judge Fulford, ICC-01/04-01/06-2069. 16 Decision on the prosecution and the defence applications for leave to appeal the “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 3 September 2009, ICC-01/04- 01/06-2107. 17 Decision adjourning the evidence in the case and consideration of Regulation 55, 2 October 2009, ICC-01/04-01/06-2143. 18 Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, ICC-01/04-01/06-2205. 19 T-223-ENG; see also T-222-ENG (transcript of status conference on 9 December 2009).

No. ICC-01/04-01/06 12/593 14 March 2012

representative and 3 prosecution witnesses (see below). The presentation of the defence evidence commenced on 27 January 2010. iii) On 8 July 2010, the Trial Chamber imposed a second stay of proceedings because of the prosecution’s non-compliance with an order for the disclosure of the name of Intermediary 143. The Appeals 20 Chamber concluded that the orders of a Chamber are binding and the Prosecutor is obliged to comply with them (the Prosecutor’s “wilful non-compliance constituted a clear refusal to implement the orders of the Chamber”), 21 but it reversed the stay of proceedings on 8 October 2010 (indicating that a different sanction, namely a financial penalty, should have been considered). The presentation of 22 evidence resumed on 25 October 2010. Seven witnesses testified between 25 October and 1 December 2010. iv) On 10 December 2010, the defence filed an application seeking a permanent stay of proceedings, arguing, inter alia, that four of the

20 Decision on the Prosecution’s Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, 8 July 2010, ICC-01/04-01/06-2517-Red. See also Decision on Intermediaries, 12 May 2010, ICC-01/04- 01/06-2434-Red2 (public redacted version issued on 31 May 2010). 21 Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”, 8 October 2010, ICC-01/04-01/06-2582, para. 46. 22 Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”, 8 October 2010, ICC-01/04-01/06-2582. No. ICC-01/04-01/06 13/593 14 March 2012

intermediaries used by the prosecution had prepared false evidence and the Prosecutor was aware that some of the evidence connected to these individuals was untruthful, and moreover he failed in his obligation to investigate its reliability. 23 Prior to receiving the application, the Chamber had heard 30 witnesses relevant to this issue, including 3 intermediaries. The Chamber issued a Decision dismissing the defence application on 23 February 2011. 24 The presentation of the defence evidence resumed on 28 March 2011 and five final defence witnesses testified before the evidence formally closed on 20 May 2011. 11. As set out above, the presentation of evidence in the case started on 28 January 2009 and was formally closed on 20 May 2011. The Trial 25 Chamber heard 67 witnesses, and there were 204 days of hearings. 26 The prosecution called 36 witnesses, including 3 experts, 27 and the defence called 24 witnesses. 28 Three victims were called as witnesses following a request from their legal representatives. Additionally the Chamber called four experts. 29 The prosecution submitted 368 items of evidence, the defence 992, and the legal representatives 13 (1373 in

23 Requête de la Défense aux fins d’arrêt définitif des procédures, ICC-01/04-01/06-2657-tENG-Red (translation of public redacted version filed on 12 August 2011). 24 Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”, ICC-01/04- 01/06-2690-Conf, 23 February 2011, and public redacted version issued on 7 March 2011 (notified on 8 March 2011), ICC-01/04-01/06-2690-Red2. 25 T-110-Red-ENG and T-355-ENG. 26 This figure includes status conferences held in the course of the trial, the oral closing submissions and an additional hearing held on 15 November 2011 (T-107 to T-358). 27 3 witnesses were recalled; 2 witnesses testified by way of deposition; and 5 were female. Prosecution witnesses are hereinafter referred to as “P-0000 [relevant number]”. 28 4 were female. Defence witnesses are hereinafter referred to as “D-0000 [relevant number]”. 29 Ms Elisabeth Schauer (“CHM-0001”), Mr Roberto Garretón (“CHM-0002”), Ms Radhika Coomaraswamy (“CHM-0003”), and Prof. Kambayi Bwatshia (“CHM-0004”). No. ICC-01/04-01/06 14/593 14 March 2012

total). In addition to the written submissions,

30

the oral closing

arguments of the parties and participants were heard on 25 and 26

August 2011. Since 6 June 2007, when the record of the case was

transmitted to the Trial Chamber,

31

the Chamber has delivered 275

written decisions and orders and 347 oral decisions.

32

12 Article 76(2) provides that “the Trial Chamber may on its own

motion and shall, at the request of the Prosecutor or the accused, hold

a further hearing to hear any additional evidence or submissions

relevant to the sentence”. The defence requested that the Chamber

holds an additional hearing in the event of a conviction.

33

In an oral

Decision delivered on 25 November 2008, the Chamber decided there

would be a separate sentencing hearing if the accused is convicted.

34

Participation by victims

13 The Rome Statute permits victims to participate in proceedings

before the ICC. In accordance with Article 68(3) of the Statute, victims

have participated in the present case, and in particular they have

30 The prosecution filed its closing submissions on 1 June 2011, ICC-01/04-01/06-2748-Conf (public redacted version filed on 21 July 2011, ICC-01/04-01/06-2748-Red). The legal representatives of the victims filed their closing submissions on 1 June 2011: ICC-01/04-01/06-2744-Conf, see also public redacted version ICC-01/04-01/06-2744-Red-tENG (Office of Public Counsel for Victims); ICC-01/04- 01/06-2746-Conf-Corr, see also public redacted version ICC-01/04-01/06-2746-Red-tENG (legal representatives V01); ICC-01/04-01/06-2747-Conf, see also public redacted version ICC-01/04-01/06- 2747-Red-tENG (legal representatives V02). The defence filed its submissions on 15 July 2011: ICC- 01/04-01/06-2773-Conf; public redacted version filed on 11 August 2011 (ICC-01/04-01/06-2773- Red); see also ICC-01/04-01/06-2773-Red-tENG. The prosecution filed a response to the defence submissions on 1 August 2011: ICC-01/04-01/06-2778-Conf (and public redacted version filed on 16 August 2011, ICC-01/04-01/06-2778-Red). The defence replied on 15 August 2011: ICC-01/04-01/06- 2786-Conf and public redacted version notified on 17 August 2011, ICC-01/04-01/06-2786-Red; see also ICC-01/04-01/06-2786-Red-tENG. The public redacted versions of the briefs are referred to whenever possible hereinafter. 31 Decision transmitting the pre-trial record of proceedings in the case of The Prosecutor v Thomas Lubanga Dyilo to Trial Chamber I, ICC-01/04-01/06-920, 5 June 2007 (notified on 6 June 2007). 32 Information provided by the Registry (excluding Orders for the redaction of transcripts and translations) – based on Registry’s Tableau de bord. 33 Observations de la Défense sur l’interprétation et l’application de l’Article 76, 31 March 2008, ICC- 01/04-01/06-1250, para. 4. 34 T-99-ENG, page 39, lines 22-23.

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applied to introduce evidence, they have questioned witnesses and they have advanced written and oral submissions (with the leave of the Chamber), assisted by their legal representatives. 14. In the “Decision on victims’ participation” (Judge Blattmann separately and partially dissenting), the Chamber issued general guidelines concerning the participation by victims during the trial. 35 This Decision was appealed. The Appeals Chamber partially 36 confirmed and partially reversed the Decision. 37 The following overall criteria have been established in the decisions of the Trial and the Appeals Chambers:

i) Bearing in mind the current situation in the DRC and the potential difficulties in obtaining or producing copies of official identity documents, applicants may establish proof of their identity by way of a range of official and non-official documents. 38 ii) Using Principle 8 of the Basic Principles as guidance, a victim 39 is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss. 40 iii) Participation by victims at trial will first and foremost take place by way of the procedure established in Rule 89(1) of the Rules.

35 Decision on victims’ participation, 18 January 2008, ICC-01/04-01/06-1119, paras 106 - 109. 36 Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432. 37 Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims’ Participation of 18 January 2008, 11 July 2008, ICC-01/04-01/06-1432. 38 ICC-01/04-01/06-1119, para. 87. 39 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the United Nations General Assembly, resolution 60/147, 16 December 2005. 40 ICC-01/04-01/06-1119, paras 90-92 and ICC-01/04-01/06-1432, paras 31-39. No. ICC-01/04-01/06 16/593 14 March 2012

iv) Only those who suffered harm as a result of the crimes charged may be considered victims in the case. Applicants need to demonstrate a link between the harm they suffered and the crimes faced by the accused, 41 and they should demonstrate in written applications that they are victims of these offences. v) “[P]ursuant to Article 68(3) of the Statute, victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.” 42 Participation is to be decided on the basis of the evidence or issues under consideration at any particular stage in the proceedings and victims wishing to participate should set out in a discrete written application the nature and the detail of the proposed intervention. 43 vi) In accordance with Rule 131(2) of the Rules, victims have the right to consult the record of the proceedings, including the index, subject to any restrictions concerning confidentiality and the protection of national security information. In principle, victims have the right to access and receive notification of all public filings and those confidential filings which concern them (as identified by the parties), insofar as this does not breach any protective measures that are in place. 44 vii) Victims may request the Chamber to use its broad powers to call all the material it considers relevant for the determination of the

41 ICC-01/04-01/06-1432, paras 62-64. 42 ICC-01/04-01/06-1432, para. 61. 43 ICC-01/04-01/06-1119, paras 101-104. 44 ICC-01/04-01/06-1119, paras 105-107 . No. ICC-01/04-01/06 17/593 14 March 2012

truth, in order that the evidence identified by victims concerning the guilt or innocence of the accused is introduced (to the extent appropriate). Victims may tender evidence, examine witnesses and challenge the admissibility or relevance of evidence during the trial so long as: (i) they submit a discrete application; (ii) notice is given to the parties; (iii) the personal interests of one or more victims are affected by the evidence; (iv) there is compliance with their “disclosure obligations and [any] protection orders”; 45 (v) the Chamber determines this course is appropriate and (vi) there is consistency with the rights of the accused and a fair trial. 46 viii) Victims have the right to participate in public hearings and to file written submissions, and they may be permitted to participate in closed or ex parte hearings or to file confidential or ex parte submissions, depending on the circumstances. 47 ix) Victims’ views and concerns may be presented by a common legal representative in order to provide for the fairness and expeditiousness of the trial. 48 x) Victims may apply to the Chamber for leave to call evidence relating to reparations during the trial under Regulation 56 of the Regulations of the Court. 49 xi) Anonymous victims may participate in the trial. However, the greater the extent and significance of the proposed participation, the more likely it will be that the Chamber will require the

45 ICC-01/04-01/06-1432, para. 104. 46 ICC-01/04-01/06-1119, paras 108-111; ICC-01/04-01/06-1432, paras 93-104. 47 ICC-01/04-01/06-1119, para. 113. 48 ICC-01/04-01/06-1119, paras 115 – 116 and 123 – 126. 49 ICC-01/04-01/06-1119, paras 119-122. No. ICC-01/04-01/06 18/593 14 March 2012

victim to identify himself or herself.

50

15 The total number of individual victims authorised to participate in

the proceedings is 129 (34 female and 95 male victims). Once the

51

Chamber received the parties’ observations on their applications and

reviewed the reports prepared by the Victims Participation and

Reparations Section under Regulation 86(5) of the Regulations of the

Court, it concluded, on a prima facie basis, that each of these

52

individuals were victims of the crimes charged against the accused.

53

In accordance with the Statute the Trial Chamber examined, on a case-

by-case basis, the link between the harm allegedly suffered, the

victims’ personal interests and the charges against the accused.

16 While all 129 victims claimed they had suffered harm as a result of

the enlistment or conscription of children under the age of 15, or their

use to participate actively in the hostilities, many also alleged they had

50 ICC-01/04-01/06-1119, paras 130-131. 51 Given that in the case of 6 victims, one of their parents who was authorised to participate received the same reference number as the primary victim, there are 123 reference numbers. Approximately 28 victims were under 18 at the time of the Chamber’s Decision authorising them to participate in the proceedings. 52 In total, the Chamber received 6 reports and 3 supplementary reports: ICC-01/04-01/06-1275-Conf- Exp; ICC-01/04-01/06-1380-Conf-Exp; ICC-01/04-01/06-1501-Conf-Exp; ICC-01/04-01/06-1503- Conf-Exp; ICC-01/04-01/06-1532-Conf-Exp; ICC-01/04-01/06-1823-Conf-Exp; ICC-01/04-01/06- 2000-Conf-Exp; ICC-01/04-01/06-2474-Conf-Exp; ICC-01/04-01/06-2695-Conf-Exp. 53 The first ruling is the “Decision on the applications by victims to participate in the proceedings”, issued on 15 December 2008, corrigendum issued on 13 January 2009, ICC-01/04-01/06-1556-Corr with public Anx1. The confidential ex parte annex and the redacted confidential annex with the caseby-case analysis of the applications covered by this first decision are contained in ICC-01/04-01/06- 1563, Conf-Exp-AnxA1 and ConfAnxA2 respectively. The public redacted annex with the case-bycase analysis of this first decision is ICC-01/04-01/06-1861-AnxA1. The second decision is the “Decision on the applications by 3 victims to participate in the proceedings”, 18 December 2008, ICC- 01/04-01/06-1562. The confidential ex parte annex and the redacted confidential annex with the caseby-case analysis of the applications covered by the second decision are included in ICC-01/04-01/06- 1564-Conf-Exp-AnxA1 and Conf-AnxA2 respectively. The public redacted annex with the case-bycase analysis of this second decision is ICC-01/04-01/06-1861-AnxA2. The third decision is the “Decision on the applications by 7 victims to participate in the proceedings”, 10 July 2009, ICC-01/04- 01/06-2035, with Conf-ExpAnxA containing the confidential ex parte case-by-case analysis of these applications. The confidential and public redacted annexes of this third decision are ICC-01/04-01/06- 2065-Conf-Anx1 and Anx2. The fourth decision is the “Decision on the applications by 15 victims to participate in the proceedings”, 13 December 2010, public redacted version of the corrigendum of the decision issued on 8 February 2011, ICC-01/04-01/06-2659-Corr-Red with AnxA-Red2. The fifth decision is the “Decision on the applications by 7 victims to participate in the proceedings”, 30 June 2011, public redacted version issued on 25 July 2011, ICC-01/04-01/06-2764-Red and AnxA-Red.

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suffered harm as a result of other crimes, such as sexual violence and

torture or other forms of ill treatment, which are not the subject of

charges against the accused.

54

17 The victims who have been granted permission to participate in this

trial are, in the main, alleged former child soldiers, although some are

the parents or relatives of former child soldiers and one is a school.

Since some of the victims were still children when they submitted their

applications, their parents, relatives or others have acted on their

behalf. The Chamber accepted that the individual who acted for a

child did not need to be their parent or legal guardian – indeed it

permitted children to participate directly without an adult

representing them.

55

18 Many of the victims in the case were granted protective measures

and, in particular, anonymity because of their vulnerable position

living in areas of ongoing conflict. Consequently, of 129 victims, the

identities of only 23 have been disclosed to the parties and participants

in the proceedings. However, the Chamber found that:

[w]hile the safety and security of victims is a central responsibility of the Court, their participation in the proceedings cannot be allowed to undermine the fundamental guarantee of a fair trial. The greater the extent and the significance of the proposed participation, the more likely it will be that the 54 30 victims (18 female and 12 male) referred to acts of sexual violence which they either suffered or witnessed. These are victims a/0078/06, a/0056/07, a/0007/08, a/0047/06, a/0048/06, a/0057/07, a/0063/07, a/0124/08, a/0126/08, a/0059/07, a/0055/07, a/0058/07, a/0226/06, a/0162/07 (see ICC- 01/04-01/06-1563-Conf-Exp-AnxA1), a/0407/08 (see ICC-01/04-01/06-1564-Conf-Exp-AnxA1), a/0026/10, a/0027/10, a/0028/10, a/0029/10, a/0030/10, a/0031/10, a/0033/10, a/0035/10, a/0037/10, a/0333/10, a/0334/10, a/0336/10, a/0738/10, a/0739/10, a/0740/10 (see ICC-01/04-01/06-2659-AnxA- Red2). 30 victims (5 female, 25 male) referred to acts of torture which they either suffered or witnessed. These are victims a/0050/06, a/0237/06, a0238/06, a/0054/07, a/0056/07, a/0060/07, a/0229/06, a/0230/06, a/0224/06, a/0123/08, a/0047/06, a0048/06, a/0052/06, a/0122/08, a/0124/08, a/0125/08, a/0126/08, a/0130/08, a/0058/07, a/0236/06, a/0227/06, a/0221/06 (see ICC-01/04-01/06- 1563-Conf-Exp-AnxA1) and a/0249/09, a/0060/09, a/0053/09, a/0249/09 (see ICC-01/04-01/06-2035- Conf-Exp-AnxA), a/0031/10, a/0333/10, a/0336/10, a/0738/10 (see ICC-01/04-01/06-2659- AnxA- Red2). 55 Public Annex 1 to Corrigendum to "Decision on the applications by victims to participate in the proceedings", 13 January 2009, ICC-01/04-01/06-1556-Corr-Anx1, paras 67-72.

No. ICC-01/04-01/06 20/593 14 March 2012

Chamber will require the victim to identify himself or herself. Accordingly, when resolving a request for anonymity by a victim who has applied to participate, the Chamber will scrutinise carefully the precise circumstances 56 and the potential prejudice to the parties and other participants. […]

19 The Chamber formulated certain key principles for those

individuals with dual status as victims and witnesses. 57 Whilst the

Chamber indicated that their security should not be compromised, it

also established that individuals with dual status do not accrue rights

above and beyond those of someone who is solely a victim or a

witness. 58

20 Common legal representatives have appeared in court for the

participating victims, who have been divided into two groups

represented by two teams of external counsel. 59 Additionally, the

Office of Public Counsel for Victims (“OPCV”) was authorised to

continue representing four dual status victims. Through their legal 60

representatives the victims made opening statements, examined 61

witnesses 62 and requested leave to introduce evidence. 63 They were

permitted to make written and oral submissions.

21 The Chamber authorised three victims to give evidence as witnesses

during the trial and evidence was presented on behalf of a school. 64

These three witnesses, who testified in January 2010, were granted in-

court protective measures that included voice and face distortion and

56 ICC-01/04-01/06-1119, para. 131. 57 ICC-01/04-01/06-1119, paras 132-134. 58 Decision on certain practicalities regarding individuals who have the dual status of witness and victim, 5 June 2008, ICC-01/04-01/06-1379, para. 52. 59 Referred to as V01 and V02 team(s) or group of victims hereinafter. 60 T-105-ENG, page 12, line 23 to page 13, line 12. 61 T-107-ENG, page 36, line 5 et seq. 62 The Chamber allowed the legal representatives to question 25 witnesses (the 4 Chamber witnesses, 14 prosecution witnesses and 7 defence witnesses). 63 The Chamber authorised the legal representatives of the victims to submit 13 items of evidence. 64 Decision on the request by victims a/0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, 26 June 2009, ICC-01/04-01/06-2002-Conf paras 39-40; public redacted version filed on 9 July 2009, ICC-01/04-01/06-2032-Anx.

No. ICC-01/04-01/06 21/593 14 March 2012

pseudonyms. 65 The position of these three witnesses is discussed in greater detail below.

65 See T-225-Red-ENG, T-227-Red-ENG, T-228-Red-ENG, T-230-Red-ENG, T-234-Red-ENG, T- 235-Red-ENG. No. ICC-01/04-01/06 22/593 14 March 2012

III. OVERVIEW OF THE PARTIES AND PARTICIPANTS SUBMISSIONS

A. PROSECUTION SUBMISSIONS 22. The principal factual allegations against the accused commence on 15 September 2000 when it is suggested he became President of the Union des Patriotes Congolais (“UPC”). It is said that he held this position at all material times thereafter. His ambition is described as gaining power in Ituri, but since he was leading a rebel movement this was unachievable without a military force. In unequivocal terms, it is the prosecution’s assertion that the accused agreed with others to gain power in Ituri through the recruitment of “young persons”. It is alleged that the co-perpetrators were establishing an army, notwithstanding their public promise to end years of ethnic fighting. 66 23. The prosecution asserts that in reality the recruitment began when military training in Uganda became a possibility in 2000. The accused and his co-perpetrators launched the first wave of young Hema fighters who would later become the armed wing of the UPC. This led the accused and his co-perpetrators to become closely associated with the UPC and the Hema militia (which are said to have been indistinguishable) and it is alleged they used children to gain power in Ituri. 67 24. His Hema connections enabled Thomas Lubanga to cultivate an external profile as a key political player in Iturian politics, and this included the declaration he sent to the political authorities of Uganda on behalf of the co-perpetrators and others who had revolted against 66 ICC-01/04-01/06-2748-Red, para. 7. 67 ICC-01/04-01/06-2748-Red, para. 8. No. ICC-01/04-01/06 23/593 14 March 2012

the Armée Populaire Congolaise (“APC”), the armed wing of the Rassemblement Congolais pour la Démocratie – Kisangani/Mouvement de Libération (“RCD-ML”), 68 in the summer of 2000. The accused became Minister of Defence in the RCD-ML, the government then in power in the DRC, in 2001. It is alleged that together with his co-perpetrators he broke away from the RCD-ML in April 2002. 69 25. The UPC and its military wing, the FPLC, took power in Ituri in 70 September 2002. It is said that at this stage Thomas Lubanga acknowledged that the UPC/FPLC had had a joint military and political profile since 2000. In particular, in April and August 2002 he recognised the group’s military actions, and in October 2002 he wrote to the DRC government asking for national recognition, having described his power and territorial reach in Ituri. 71 26. The need for a more substantial army led to increased recruitment of young people – regardless of age – by targeting schools and the general public, and through coercive campaigns in the villages. It is suggested that during the relevant period this inevitably led to the conscription, enlistment and use of children below 15 years of age, even if they were not specifically targeted. Furthermore, no attempt was made to check the ages of the recruits. 72 27. The FPLC – which, as set out above, became the UPC’s military wing – was formally created in September 2002. The prosecution 68 The Chamber refers herein to the RCD-ML. However, on occasion, the acronym RCD/KIS-ML has been used when necessary. 69 ICC-01/04-01/06-2748-Red, para. 9. 70 The letters “RP” were added to the end of “UPC” in September 2002. See T-342-ENG, page 35, lines 15 – 16 (D-0019) and T-125-Red-ENG, page 17, line 19 to page 19, line 20 (P-0041). However, the Chamber notes that the witnesses usually referred to the “UPC” and often treated the UPC and FPLC interchangeably. Herein, the Chamber refers to the UPC and the UPC/RP as “UPC”, and the UPC with its army the FPLC as the UPC/FPLC. 71 ICC-01/04-01/06-2748-Red, para. 10. 72 ICC-01/04-01/06-2748-Red, para. 11. No. ICC-01/04-01/06 24/593 14 March 2012

argues this was the final phase of the execution of the common plan to take over Ituri by military means. It is suggested that it was a 73 professional body, with trained officers and soldiers. It had an intricate and organised hierarchy, with headquarters in Bunia; three sectors and several brigades (with approximately 1000 soldiers in each); and up-todate communications systems. 74 28. During the following 11 months, Thomas Lubanga (who it is contended was jointly President of the UPC and Commander-in-chief of the FPLC) directed the military to complete the conquest of Ituri. He is said to have given the orders for the battles at Mongbwalu, Bambi, Lipri and Kobu, and, by controlling the finances, it is suggested he ensured that the military was properly equipped with funds, ammunition, weapons and vehicles. 75 29. It is the prosecution’s submission that, together with his Chief of Staff and other military commanders, the accused orchestrated campaigns in order to recruit soldiers of all ages, including those below the age of 15 years who were trained and sent to the front line. 76 30. The accused gained, and thereafter used, the support of Gegere wise men to raise awareness in the villages. The FPLC recruited children by abduction, and it put pressure on the population to permit recruitment and to accept the enlistment of children during the recruitment campaigns. 77 31. Eric Mbabazi, a G5 and top military commander who headed the morale and discipline division of the FPLC, is alleged to have been 73 ICC-01/04-01/06-2748-Red, para. 12. 74 ICC-01/04-01/06-2748-Red, para. 12. 75 ICC-01/04-01/06-2748-Red, para. 13. 76 ICC-01/04-01/06-2748-Red, para. 14. 77 ICC-01/04-01/06-2748-Red, para. 15. No. ICC-01/04-01/06 25/593 14 March 2012

particularly responsible for recruiting children. He reported any difficulties that arose to his superiors. 78 32. Following their recruitment, the children were sent to one of 20 military camps set up throughout Ituri where they received standard military training from UPC/FPLC commanders. 79 It is alleged they were beaten, whipped, imprisoned and inadequately fed, and young girls were raped. They were encouraged to drink alcohol and to take drugs, leading to frequent intoxication. 80 33. It is contended Thomas Lubanga either knew that children under 15 years of age were being conscripted or enlisted or he was at least aware that this was an inevitable consequence of what was occurring. Despite this knowledge, the recruitment drive continued, as part of the execution of the joint plan. He frequently saw child soldiers, and even his own personal protection unit included children aged between 13 and 17. The accused apparently received a copy of a document from one of the national secretaries to Eric Mbabazi which referred to the presence of child soldiers who were aged between 10 and 16 years. 81 34. The prosecution alleges that the use of young people, including children under the age of 15, continued throughout the period of the charges. This escalated when the fighting was intense and it drew the attention of the Organisation of the United Nations (“UN”) and various humanitarian organisations to this phenomenon. It is argued that in order to dispel the concerns of the international community about the use of child soldiers, the accused issued false demobilisation orders, while, in reality, the position remained unchanged. Thomas 78 ICC-01/04-01/06-2748-Red, para. 16. 79 ICC-01/04-01/06-2748-Red, para. 17. 80 ICC-01/04-01/06-2748-Red, para. 18. 81 ICC-01/04-01/06-2748-Red, para. 19. No. ICC-01/04-01/06 26/593 14 March 2012

Lubanga visited a training camp two weeks after issuing an order of this kind where children significantly under the age of 15 were visible, including amongst the bodyguards of the senior commanders. 82 35. The prosecution submits that the crimes were committed in the context of a conflict of a non-international character, and the involvement and influence of various States did not internationalise the armed conflict to which Mr Lubanga’s UPC/FPLC was a party at the relevant time. 83 36. Not all the facts included in this summary fall within the parameters of the facts and circumstances described in the charges as confirmed in the Decision on the Confirmation of Charges. For instance, as noted by the Chamber in various previous decisions, the use of girl soldiers as sexual slaves together with the resulting unwanted pregnancies have not been included. As already indicated, the Chamber has ensured that this Judgment does not exceed the facts and circumstances described in the charges. B. DEFENCE SUBMISSIONS 37. The defence presented a bifurcated case. The first part, which was introduced between 27 January 2010 and 1 December 2010, challenged the testimony of all the prosecution’s child soldier witnesses. The prosecution, in turn, called various rebuttal witnesses. 84 In light of the evidence given at this stage, the defence argued that the proceedings should be stayed because they had been “irremediably vitiated by serious breaches of the fundamental principles of justice [and] the

82 ICC-01/04-01/06-2748-Red, para. 20. 83 ICC-01/04-01/06-2748-Red, paras 21-60. 84 One further witness related to this part of the defence was called from 14 to 18 April 2011. No. ICC-01/04-01/06 27/593 14 March 2012

norms of a fair trial” . 85 38. The three main contentions of the defence in this regard were (i) that four of the prosecution’s intermediaries (Intermediary 143, P-0316, P-0321, and P-0031) were involved in soliciting false testimony from all the prosecution witnesses who were called to give evidence as former child soldiers; (ii) one of the participating victims (said to be an 86 important Congolese politician) solicited false testimony, and the Congolese authorities fraudulently intervened in the investigations; 87 and (iii) the prosecution failed to fulfil its obligations either to investigate all the relevant exculpatory circumstances or to effect timely and appropriate disclosure. 88 39. In its closing submissions, the defence requests the Chamber to consider, mutatis mutandis , the facts and arguments rehearsed in this application for a permanent stay of the proceedings, which have demonstrated “numerous serious failures” on the part of the prosecution. 89 In particular, the defence sets out what it argues to be the lack of any proper investigation by the prosecution into the reliability of the evidence it called (including the failure to verify the identity of its witnesses or the credibility of their allegations), along with the use of documents which lacked any guarantee of reliability. 90 It is suggested that in light of this alleged misconduct, it is impossible for the Chamber to attach sufficient weight, i.e. “beyond a reasonable doubt”, to any of the evidence introduced by the prosecution, thereby 85 ICC-01/04-01/06-2657-tENG-Red, para. 5. 86 ICC-01/04-01/06-2657-tENG-Red, paras 21, 29 – 68, 75 – 137, 149 – 183 and 184 – 195; and ICC- 01/04-01/06-2773 Red-tENG, paras 5 – 9. 87 ICC-01/04-01/06-2657-tENG-Red, paras 25, 200 – 228 and ICC-01/04-01/06-2773-Red-tENG, paras 10 – 12. 88 ICC-01/04-01/06-2657-tENG-Red, paras 23, 263 - 285 and ICC-01/04-01/06-2773-Red-tENG, paras 13 – 17. 89 ICC-01/04-01/06-2773-Red-tENG, paras 3 and 14. 90 ICC-01/04-01/06-2657-tENG-Red, paras 229 et seq. No. ICC-01/04-01/06 28/593 14 March 2012

rendering a guilty verdict unsustainable. 91 40. The second part of the defence evidence (presented between 30 March and 14 April 2011) focussed on the individual criminal responsibility of Mr Lubanga. Five defence witnesses, including four UPC insiders, testified on various aspects of the substantive allegations against the accused. 41. The defence argues in its final submissions that none of the evidence presented at trial proves beyond reasonable doubt that children under the age of 15 were enlisted and conscripted by the FPLC, or were used to participate actively in hostilities, during the period covered by the charges. It is further argued the Prosecutor 92 failed to call any former child soldiers who were under the age of 15 at the relevant time, and this, taken alone, casts doubt over the merits of the prosecution’s submissions. 93 It is also submitted that the allegation of the prosecution that the UPC had 20 camps is unfounded: D-0019 mentioned that the UPC only had 3 camps (Mandro, Rwampara and Bule), and the witnesses who refer to other camps are said to be unreliable. 94 42. The defence submits that i) between September 2002 and May 2003 the conflict in Ituri was international in character, and ii) there was 95 no conflict (either international or non-international) in Ituri between late May 2003 and 13 August 2003. On this basis, it is suggested the crimes charged under Article 8 of the Statute could not have been

91 ICC-01/04-01/06-2773-Red-tENG, para. 17. 92 ICC-01/04-01/06-2773-Red-tENG, paras 700 – 763. 93 ICC-01/04-01/06-2773-Red-tENG, para. 736. 94 ICC-01/04-01/06-2773-Red-tENG, paras 762, 808 – 809. 95 ICC-01/04-01/06-2773-Red-tENG, paras 681 and 689. No. ICC-01/04-01/06 29/593 14 March 2012

committed during that latter period. 96 43. It is argued that the “common plan”, which forms the basis of charging the accused as a co-perpetrator, was not criminal and the allegation in this regard is, in any event, founded on inaccurate facts. 97 The defence denies the accused formed a political and military alliance with APC dissidents between July 2000 and March 2002. It is said the 98 UPC was not a military organisation in 2000, and Mr Lubanga did 99 not personally contribute to the armed rebellion in Bunia between April and August 2002. 100 The defence contends that the accused was in custody outside Ituri when the common plan was implemented, 101 and there is no evidence that he was involved in its formulation. The 102 defence submits his participation in government (as President of the UPC) cannot be equated with participation in a common plan for the purposes of criminal liability for these alleged offences. It is emphasised that the UPC executive, which included Mr Lubanga, was chased out of Bunia in March 2003, and as a result the accused was not in the DRC for the majority of the period between March and May 2003. During this time, the UPC executive was unable to meet, and it is suggested there is no evidence that its members were in a position to communicate. Therefore, it is argued there is no support for the existence of a “common plan” between March and May 2003. 103 44. It is contended the accused did not play a central role in the military

96 ICC-01/04-01/06-2773-Red-tENG, paras 694 – 699 and ICC-01/04-01/06-2786-Red-tENG, paras 105 – 109. 97 ICC-01/04-01/06-2773-Red-tENG, paras 764 – 772. 98 ICC-01/04-01/06-2773-Red-tENG, paras 773 – 776. 99 ICC-01/04-01/06-2773-Red-tENG, paras 777 – 786. 100 ICC-01/04-01/06-2773-Red-tENG, paras 787 – 801. 101 ICC-01/04-01/06-2773-Red-tENG, para. 784. 102 ICC-01/04-01/06-2773-Red-tENG, para. 787. 103 ICC-01/04-01/06-2773-Red-tENG, paras 797 – 801. No. ICC-01/04-01/06 30/593 14 March 2012

structure of the FPLC (which was headed by Floribert Kisembo) 104 and that he did not personally contribute to the recruitment or training of recruits, or to their allocation or use. 105 The defence suggests that although Mr Lubanga visited the Rwampara training camp in February 2003, the speech he gave on that occasion does not constitute an “essential contribution” to the process of recruitment. Further, it is said that he did not visit any other training camps or participate in any of the recruitment operations. 106 On the contrary, it is submitted the enlistment, training and use of FPLC soldiers was within the sole jurisdiction of the military hierarchy under the leadership of dissident soldiers of the APC and Chief Kahwa. 107 Accordingly, the defence submits the accused did not make an “essential contribution” to the commission of the crimes with which he is charged. 108 45. The defence argues that the testimony of several witnesses demonstrates there were no children under the age of 15 amongst the soldiers assigned to guard the accused. 109 46. As to the mental element, the defence contends there is no evidence to suggest the accused either knew or should have known that there were children under the age of 15 in the FPLC, or that he was obliged by his position as President and Commander-in-chief of the UPC/RP to ensure all the recruits were over the age of 15. 110 It is further submitted there is no evidence demonstrating that he was aware of any widespread practice of compulsory conscription of children under the

104 ICC-01/04-01/06-2773-Red-tENG, paras 802 – 817. 105 ICC-01/04-01/06-2773-Red-tENG, paras 821 – 857. 106 ICC-01/04-01/06-2773-Red-tENG, paras 827 – 845. 107 ICC-01/04-01/06-2773-Red-tENG, paras 849 – 857. 108 ICC-01/04-01/06-2773-Red-tENG, para. 857. 109 ICC-01/04-01/06-2773-Red-tENG, paras 846 – 848. 110 ICC-01/04-01/06-2773-Red-tENG, paras 858 – 889. No. ICC-01/04-01/06 31/593 14 March 2012

age of 15 or their use by way of participation in the hostilities. 111 47. The defence argues that “at no time did the accused approve, accept or tolerate the enlistment of children under the age of 15 years old” and that “each time he found himself in a position to exert his authority” Mr Lubanga implemented measures prohibiting the recruitment of child soldiers and ensuring their demobilisation. 112 Between September 2002 and March 2003, and between the end of May and 13 August 2003, the accused is said to have issued a formal ban on the enlistment of minors and to have been active in implementing demobilisation measures for anyone under the age of 18 years in the FPLC and the other armed groups. Accordingly, it is 113 submitted the accused did not have the intention required by Article 30 for the crimes with which he is charged. 114 48. Moreover, the defence contends that the accused’s position as the UPC President (and de jure Commander-in-Chief of the FPLC) does not lead to the conclusion that he was in a position to ensure that every recruit was older than 15 years of age, particularly since he is not charged with responsibility as a commander under Article 28 of the Statute but instead he is prosecuted under Article 25(3)(a). The defence argues it is impermissible for the accused to be convicted on any basis other than as someone with responsibility under Article 25(3)(a). As set out above, it is the defence submission that the evidence demonstrates that when Mr Lubanga received information that there were children under the age of 18 within the FPLC, he immediately

111 ICC-01/04-01/06-2773-Red-tENG, paras 881 – 889. 112 ICC-01/04-01/06-2773-Red-tENG, paras 890 – 957. 113 ICC-01/04-01/06-2773-Red-tENG, paras 890 – 957. 114 ICC-01/04-01/06-2773-Red-tENG, para. 957. No. ICC-01/04-01/06 32/593 14 March 2012

took steps to ensure they were demobilised. 115 It is submitted there is no evidence demonstrating that the accused ordered the recruitment of children under 15 or their use in hostilities. To the contrary, it is argued the only instructions he gave were to order their demobilisation. 116 The defence suggests the prosecution is prohibited from relying on any alleged omissions by the accused as part of its theory of “control” (in the sense that he allegedly failed to prevent recruitment by his subordinates). 117 Further, it is contended that the prosecution has not demonstrated how any contribution by the accused amounted to the sine qua non necessary for the commission of these alleged crimes. 118 49. The defence highlights certain items of evidence in this regard. It is suggested it was simply a matter of conjecture on the part of P-0041 that the accused presided over any of the military meetings – indeed, it is said there was no basis for this supposition. It is argued that the 119 UPC logbooks reveal that the Chief of Staff took all the relevant decisions and, as a result, their relationship fails to provide evidence of “effective control” on his (the accused’s) part. 120 The defence submits P-0055 indicated that he had not witnessed meetings between Mr Lubanga and the Chief of Staff or other commanders. It is said P-0055 merely asserted that the G5 was able to meet with the Chief of Staff and the accused, without indicating whether this happened. 121 The defence relies on the suggested acceptance by the prosecution that the troops of Commander Kakwavu only remained in the UPC between

115 ICC-01/04-01/06-2773-Red-tENG, paras 858-864. 116 ICC-01/04-01/06-2773-Red-tENG, paras 806 and 890 et seq. 117 ICC-01/04-01/06-2773-Red-tENG, para. 818. 118 ICC-01/04-01/06-2773-Red-tENG, paras 802 – 845. 119 ICC-01/04-01/06-2786-Red-tENG, paras 33 – 34. 120 ICC-01/04-01/06-2786-Red-tENG, para. 35. 121 ICC-01/04-01/06-2786-Red-tENG, paras 36 – 37 and 43. No. ICC-01/04-01/06 33/593 14 March 2012

August 2002 and 6 March 2003. On this basis, it is argued Mr Lubanga is not responsible for any recruitment by this group. It is contended 122 that the monthly report relied on by the prosecution does not indicate that forced recruitment occurred in the villages. On the contrary, it is suggested it proves that the recruitment was voluntary and, additionally, there is no evidence it was seen by the accused. 123 50. The defence submits that the demobilisation orders were meant to be executed, having been transmitted down the chain of command. However, difficulties were encountered, and although the accused asked for reports and to be kept up-to-date, the military leadership found that implementation was difficult, particularly vis-à-vis the selfdefence forces. 124 51. As regards the suggested order from the accused on his return to Ituri that all children under 18 should be demobilised, it is said the evidence demonstrates that during the fighting in May 2003 to regain Bunia from the Ugandans, there were fighters from a number of groups (FPLC members loyal to Floribert Kisembo, Parti pour l’Unité et la Sauvegarde de l’Intégrité du Congo (“PUSIC”) dissidents loyal to Chief Kahwa, commanders Tchaligonza and Kasangaki, the self defence groups and armed civilians) who render it impossible to determine which fighters, including children, were part of the UPC. The defence argument, therefore, is that the accused – in good faith – ordered demobilisation, albeit in difficult circumstances. 125 In the context of the assertion by the prosecution that from September 2002 the self-defence forces were part of the UPC/FPLC, the accused does not contest the

122 ICC-01/04-01/06-2786-Red-tENG, para. 38. 123 ICC-01/04-01/06-2786-Red-tENG, paras 41 – 42. 124 ICC-01/04-01/06-2773-Red-tENG, paras 890 – 928. 125 ICC-01/04-01/06-2773-Red-tENG, paras 934 – 948. No. ICC-01/04-01/06 34/593 14 March 2012

suggestion that in September 2002 the forces of Chief Kahwa and dissidents from the APC joined together to form the FPLC. However, it is alleged there is no evidence that all the villages of Ituri with selfdefence forces joined the FPLC, thereby removing the opportunity of guaranteeing their own security. The defence relies on Mr Lubanga’s meeting with the leaders of the self-defence forces in February 2003, in order to discuss demobilisation, in support of its argument that the self-defence forces were still in existence at that time and were acting autonomously (it is noted that the summary of this meeting is not contested by the prosecution). 126 C. VICTIMS SUBMISSIONS 52. The OPCV, in its capacity as legal representative of victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06 addressed as part of its closing submissions the various issues of law that have arisen in the case, along with the matters that directly concern the four participating victims it represents. Summaries of these discrete arguments are set out at the appropriate stage of this judgment. Counsel has particularly rehearsed in detail the evidence that is said to corroborate the evidence of these dual-status witnesses. 127 53. On the substantive factual matters arising in the case, the OPCV takes issue with the defence contentions as regards the documents that it is claimed call into question elements of the identifying information for these four victims. It is argued that the practices at the civil registry and in other organisations within the DRC have had an adverse impact on the position of the participating victims. It is suggested there is general recognition that documents relating to identity from 126 ICC-01/04-01/06-2773-Red-tENG, paras 922 – 933. 127 ICC-01/04-01/06-2744-Red-tENG, paras 48 et seq. No. ICC-01/04-01/06 35/593 14 March 2012

the period relevant to the charges are at risk of containing serious flaws, and the defence arguments on this issue are described as being, certainly in part, speculative. 128 Otherwise, it is contended the oral testimony of these four participating victims should be accorded more weight than the out-of-court statements that they or other witnesses have made. The OPCV maintains that credible explanations exist for the various contradictions and inconsistencies in their accounts, 129 and the criticisms of their evidence do not reduce the weight and probative value of their testimony, which is purportedly corroborated. 130 54. It is suggested the evidence given by the participating victims has demonstrated that children under 15 years were trained in military camps between early September 2002 and 1 – 3 August 2003, 131 and that they were used to participate actively in hostilities involving the armed forces of the UPC/FPLC. It also alleged that children were 132 taken to training camps in Centrale, Mandro, Rwampara, Irumu, Bule, Bogoro and Sota. 133 55. As to the accused’s alleged criminality, it is argued he was de jure and de facto President of the UPC (with the FPLC as its armed wing). As Commander-in-Chief of the armed forces it is said he was informed of all the military operations that were implemented by the general staff, and he had responsibility for “logistical organisation” and securing supplies. The OPCV argues that he “maintained direct and regular contact with the ranking military leaders of the UPC/FPLC”,

128 ICC-01/04-01/06-2744-Red-tENG, paras 32 and 33. 129 ICC-01/04-01/06-2744-Red-tENG, para. 46. 130 ICC-01/04-01/06-2744-Red-tENG, para. 47. 131 ICC-01/04-01/06-2744-Red-tENG, paras 38 - 51. 132 ICC-01/04-01/06-2744-Red-tENG, paras 42 – 45. 133 ICC-01/04-01/06-2744-Red-tENG, para. 50, and ICC-01/04-01/06-2747-Red-tENG, para. 59. No. ICC-01/04-01/06 36/593 14 March 2012

either by way of meetings at his residence or via Motorola radios. 134 56. It is alleged that children under the age of 15 were amongst his bodyguard and, to his knowledge, within the bodyguards of other “ranking military leaders”. Similarly, the OPCV argues he would have been aware of their presence amongst the recruits at the various UPC/FPLC training camps, given his regular visits. He is said to 135 have provided them with encouragement. 136 57. Evidence is identified to the effect that the accused “issued public calls” to mobilise the Hema population, and he allegedly implemented or contributed to a policy of encouraging young recruits (including those under 15 years of age) to participate in the war effort. 137 58. On the issue of the steps taken to demobilise child soldiers, the OPCV submits these only began in February 2003, and that prior to that time the self-defence committees in Ituri regularly sent recruits for training, many of whom joined the UPC/FPLC. 138

59 It is alleged the accused is a “direct perpetrator” of the alleged crimes, 139 most particularly because he invited the Hema population to send children who were below the age of 15 for military training 140 and because he had recruits of that age in his own bodyguard. Additionally, it is argued that he is guilty as a “co-perpetrator” on 141 the basis of his capacity as President of the UPC and Commander-in-

134 ICC-01/04-01/06-2744-Red-tENG, para. 52. 135 ICC-01/04-01/06-2744-Red-tENG, para. 53. 136 ICC-01/04-01/06-2744-Red-tENG, para. 54. 137 ICC-01/04-01/06-2744-Red-tENG, para. 54. 138 ICC-01/04-01/06-2744-Red-tENG, para. 55. 139 ICC-01/04-01/06-2744-Red-tENG, para. 56. 140 ICC-01/04-01/06-2744-Red-tENG, para. 57. 141 ICC-01/04-01/06-2744-Red-tENG, para. 58. No. ICC-01/04-01/06 37/593 14 March 2012

Chief. 142 60. Finally, it is suggested that various acts of inhuman or cruel treatment, along with allegations of sexual slavery, should be borne in mind when “considering” his criminal responsibility. 143 61. The legal representatives of the V01 group of victims similarly advanced submissions on various legal and factual matters that have been addressed at the appropriate stages of this judgment. They join the OPCV in its submissions as to the accused’s alleged criminal responsibility, particularly regarding his role as President and Commander-in-Chief of the UPC when a campaign to recruit minors under the age of 15 years was launched and pursued. Broadly 144 similar arguments are advanced as regards demobilisation, in which it is emphasised that these initiatives were allegedly not implemented. 145 62. It is suggested that the presence of children in the ranks of the UPC was part of a “phenomenon of child soldiers [that] was seen in the Democratic Republic of the Congo as from the time of the war triggered by the AFDL in 1996-1997”, 146 and “the use of child soldiers in armed groups was the rule, not the exception”. 147 63. It is contended the use of child soldiers was a deliberate policy of which the accused was aware, and that as a result young recruits 148 were sent to military training camps; children below 15 years of age fought in battles; and some of the victims endured severe

142 ICC-01/04-01/06-2744-Red-tENG, para. 59. 143 ICC-01/04-01/06-2744-Red-tENG, paras 61 and 62. 144 ICC-01/04-01/06-2746-Red-tENG, paras 30 – 32. 145 ICC-01/04-01/06-2746-Red-tENG, paras 34 – 37. 146 ICC-01/04-01/06-2746-Red-tENG, para. 44. 147 ICC-01/04-01/06-2746-Red-tENG, para. 47. 148 ICC-01/04-01/06-2746-Red-tENG, paras 49 – 51. No. ICC-01/04-01/06 38/593 14 March 2012

mistreatment, which took different forms. 149 It is argued the conditions

at the camps were closer to a concentration camp than to barracks. 150

64 Broadly similar arguments have been deployed on behalf of the V02

group of victims. The accused’s position and his alleged authority is

particularly emphasised, 151 as is the recruitment policy that is said to

have resulted in “a large number of children under the age of fifteen

years [being compelled] to join the FPLC, which forcibly recruited

groups of children in several locations in Ituri […] in August 2002.” 152

The personal involvement of FPLC commanders and (on one occasion)

the accused is stressed, 153 along with the instances of “voluntary”

enlistment. As with other representatives, the ineffective nature of 154

the demobilisation programme is emphasised. 155

65 Generally, it is suggested “there are substantial grounds to believe

that the FPLC used children under the age of 15 years to participate

actively in the hostilities.” The core of these submissions are set out 156

as follows:

[…] Thomas Lubanga Dyilo was present at the time and place of the forcible enlistment of children under the age of fifteen years into the FPLC, and, as President and Commander-in-Chief of the FPLC and the coordinator of the implementation of the common plan with other members of the hierarchy with a view to bolstering the UPC/RP and FPLC war effort, he even gave a speech before the young FPLC recruits, including those under the age of fifteen years, urging them to complete their military training and to prepare to participate in 157 military operations.

66 In this context it is suggested that the accused’s criminal liability as

149 ICC-01/04-01/06-2746-Red-tENG, para. 62. 150 ICC-01/04-01/06-2746-Red-tENG, para. 64. 151 ICC-01/04-01/06-2747-Red-tENG, paras 20 – 22. 152 ICC-01/04-01/06-2747-Red-tENG, para. 47. 153 ICC-01/04-01/06-2747-Red-tENG, para. 48. 154 ICC-01/04-01/06-2747-Red-tENG, para. 49. 155 ICC-01/04-01/06-2747-Red-tENG, paras 51 – 52. 156 ICC-01/04-01/06-2747-Red-tENG, para. 58 et seq. 157 ICC-01/04-01/06-2747-Red-tENG, para. 98.

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a co-perpetrator under Article 25(3)(a) of the Statute has been established. 158

158 ICC-01/04-01/06-2747-Red-tENG, page 22. No. ICC-01/04-01/06 40/593 14 March 2012

IV. FACTUAL OVERVIEW

A. THE BACKGROUND TO THE CONFLICT IN ITURI 67. This case is concerned with events that took place between early September 2002 and 13 August 2003 in Ituri in the DRC. Ituri is a district of Orientale Province in the north east of the DRC, bordering Uganda, with population estimates ranging from 3.5 to 5.5 million people. 159 Beginning in 1999, ethnic tensions and competition for resources in the district escalated into a devastating conflict. 160 Events that occurred during the latter part of this turmoil are the subject of this case. The following short summary draws, in the main, on undisputed evidence in this case that includes the testimony of the Chamber’s expert witness Roberto Garretón (CHM-0002) and the prosecution’s expert Gérard Prunier (P-0360), in addition to a number of other prosecution and defence witnesses. The Chamber has indicated the extent to which the evidence or the issues in this context are in dispute. 68. It is to be observed at the outset that the defence challenges the general reliability of the evidence of Gérard Prunier (P-0360), criticising his lack of adequate sources and alleging that some of the information in his report is biased against Thomas Lubanga, the UPC or indeed the Hema community as a whole. However, the defence 161

159 Report by expert witness Roberto Garretón (CHM-0002), EVD-CHM-00005, page 15 (the translated English version can be found in ICC-01/04-01/06-1655-Anx-tENG, page 13); Report of expert witness Gérard Prunier (P-0360), EVD-OTP-00403 at DRC-OTP-0203-0091; EVD-OTP-00623, para. 12. 160 EVD-OTP-00403 at DRC-OTP-0203-0091 to DRC-OTP-0203-0099. This conflict was extensively documented in the “Special report on the events in Ituri, January 2002 – December 2003” by the United Nations Organization Mission in the Democratic Republic of the Congo (“MONUC report”) of 16 July 2004, admitted into evidence in this case as EVD-OTP-00623. 161 ICC-01/04-01/06-2773-Red-tENG, paras 664 – 666. No. ICC-01/04-01/06 41/593 14 March 2012

also relies on his evidence as regards the involvement of the governments of the DRC, Uganda, and Rwanda in the conflict in Ituri during the period of the charges, 162 the security situation in Ituri at the time, 163 the UN Mission in the DRC (“MONUC”) 164 and the UPC’s political strategy. 165 69. Overall, bearing in mind the totality of the evidence in this area and the witness’s response to questioning, the Chamber found Gérard Prunier (P-0360) to be a credible and reliable witness and has relied on his testimony and his report to establish the factual background set out in this section, as well as to assist with the analysis of the nature of the armed conflict in part IX.

70 The two expert witnesses addressed the DRC’s colonial past in considerable detail. Regardless of whether the origins of the conflict the Chamber is concerned with are to be found in that history, it is essentially too remote to be of direct relevance to the present charges. Instead, a convenient starting point is May 1997, when following a war that lasted nine months, Laurent Kabila came to power in Zaire which was re-named the “Democratic Republic of Congo”. 166 President Kabila was assassinated in 2001, and he was succeeded by his son, Joseph Kabila. 167 By this time, there were at least ten conflicts within the country involving nine national armies and nineteen irregular armed forces. 168 Six of these conflicts took place either in Orientale Province

162 ICC-01/04-01/06-2773-Red-tENG, paras 668 – 673. 163 ICC-01/04-01/06-2773-Red-tENG, para. 674. 164 ICC-01/04-01/06-2773-Red-tENG, paras 675 – 677. 165 ICC-01/04-01/06-2773-Red-tENG, para. 678. 166 EVD-CHM-00005, pages 8 and 12 (ICC-01/04-01/06-1655-Anx-tENG, pages 8 and 11). 167 EVD-CHM-00005, page 10 (ICC-01/04-01/06-1655-Anx-tENG, page 9). 168 EVD-CHM-00005, page 11 (ICC-01/04-01/06-1655-Anx-tENG, page 10). No. ICC-01/04-01/06 42/593 14 March 2012

(in which Ituri is located) or in Ituri itself. 169 B. THE HEMA-LENDU CONFLICT 71. Ituri is fertile and rich in resources such as gold, diamonds, oil, timber and coltan, 170 which many groups, inside and outside the DRC, sought to exploit. 171 72. Experts have suggested that much of the violence in Ituri during the period from 1999 to 2003 was initially economically motivated, and that the conflict was due in significant part to the involvement of members of the Ugandan national army (the Ugandan People’s Defence Force or “UPDF”), who exploited social unrest for their own economic advantage. 172 In August 1998, members of the UPDF supporting the RCD rebels occupied Orientale Province as part of the effort to overthrow President Kabila, and by November 1998 the UPDF had established a base in Bunia. 173 73. The DRC has close to 450 different ethnic groups within its borders. 174 In Ituri alone there are approximately 18 different ethnic groups, including the Lendu, the Ngiti and the Hema (and its sub-clan, the Gegere or Hema North). 175 74. Belgian colonial rule had emphasised the ethnic divisions between the Hema and the Lendu, whilst favouring the former. 176 Even after

169 EVD-CHM-00005, page 11 (ICC-01/04-01/06-1655-Anx-tENG, page 10). 170 EVD-CHM-00005, page 15 (ICC-01/04-01/06-1655-Anx-tENG, page 14); T-193-ENG, page 61, lines 2 – 11 and page 88, line 16 to page 89, line 8 (CHM-0002); EVD-OTP-00403 at DRC-OTP-0203- 0092. 171 EVD-OTP00623, paras 16 and 27; EVD-OTP-00403 at DRC-OTP-0203-0096 and DRC-OTP-0203- 102. 172 EVD-OTP-0405 at DRC-OTP-0203-0019 to DRC-OTP-0203-022 and EVD-OTP-0403 at DRC- OTP-0203-0115; EVD-OTP-00623, para. 6. 173 EVD-OTP-00623, para. 18 and Annex II; EVD-OTP-00403 at DRC-OTP-0203-0095. 174 EVD-CHM-00005, page 5 (ICC-01/04-01/06-1655-Anx-tENG, page 4). 175 EVD-OTP-00623, para. 12; EVD-OTP-00403 at DRC-OTP-0203-0092 to DRC-OTP-0203-0093. 176 EVD-OTP-00403 at DRC-OTP-0203-0093 to DRC-OTP-0203-0094. No. ICC-01/04-01/06 43/593 14 March 2012

Congo declared its independence from Belgium, the Hema remained

the landowning and business elite. In 1999, 75 of the 77 large farms 177

formerly owned by Belgian colonists before President Mobutu’s

“Zairisation” programme belonged to members of the Hema

community. 178 Powerful Hemas involved in business transported

goods from Ituri across the border into Uganda without paying import

taxes. 179

75 In 1998/1999, some Hema concessionaires reportedly tried to evict

Lendu inhabitants forcibly from their land, which led to armed

confrontation. 180 The violence gradually spread throughout the district

of Ituri, and the conflict widened into a confrontation between the

Hema and Lendu communities. 181 In addition, soldiers from the UPDF

initially supported certain Hema landowners and were allegedly

responsible for attacks on Lendu villages. The Lendu began to create 182

self-defence forces and these militias attacked Hema villages with the

support of individual Ugandan officers, the Congolese pre-transition

government and certain rebel movements. 183 The Hema also created

self-defence committees for their own protection. 184 The nature of the

self-defence forces and their relationship with the UPC/FPLC

(particularly whether they continued to operate independently of the

177 EVD-OTP-00403 at DRC-OTP-0203-0094; and ICC-01/04-01/06-0096 and EVD-CHM-00005, page 16 (ICC-01/04-01/06-1655-Anx-tENG, page 15). 178 EVD-OTP-00403 at DRC-OTP-0203-0094. 179 T-153-Red-ENG, page 83, line 4 to page 88, line 16 and T-154-Red-ENG, page 8, lines 10 – 25 (P- 0043); EVD-OTP-0403 at DRC-OTP-0203-0096 (footnote 82). 180 EVD-OTP-00403 at DRC-OTP-0203-0096 to DRC-OTP-0203-0097; T-156-ENG, page 39, line 4 to page 41, line 9 (P-0360); EVD-OTP-00623, paras 4, 17 and 19. 181 EVD-OTP-00623, paras 4, 5 and 18 - 26. 182 EVD-OTP-00403 at DRC-OTP-0203-0097 and DRC-OTP-0203-0101; EVD-OTP-00623, paras 19 – 21. 183 EVD-OTP-00403 at DRC-OTP-0203-0098 to DRC-OTP-0203-0101 and EVD-OTP-00623, para. 4. 184 T-160-Red2-ENG , page 38, line 11 to page 39, line 25 (testimony of P-0017). It was also reported that in some Hema localities each family was supposedly given weapons to defend themselves, EVD- OTP-00623, para. 21.

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UPC/FPLC after September 2002) are addressed below. 185 76. From 1999 to the middle of 2003, a series of opposing rebel faction leaders struggled for political power in Ituri. 186 According to a MONUC report, “[t]he competition for the control of natural resources by combatant forces, exacerbated by an almost constant political vacuum in the region, [was] a major factor in prolonging the crisis in Ituri.” The same report suggested that the local ethnic problems 187 “would not have turned into massive slaughter without the involvement of national and foreign players” including the Ugandan and Rwandan armies. 188 77. In 1999, the rebel group with nominal control in Ituri at the time, the RCD, split into two factions, the RCD-Kisangani headed by Ernest Wamba dia Wamba and supported by Uganda, and the RCD-Goma (“RCD-G”), supported by Rwanda. 189 78. Soon afterwards in October 1999, the UPDF decided to create a new province called “Kibali-Ituri” 190 and General James Kazini, the commander in charge of the Ugandan army in the DRC, appointed a Hema activist named Adèle Lotsove Mugisa as the provisional governor of the new province. 191 79. After this decision, violence escalated in Ituri. By November 1999 ,

185 See Section X(B)(5)(h). 186 EVD-OTP-00623, para. 6. 187 EVD-OTP-00623, para. 7. 188 EVD-OTP-00623, para. 19. 189 EVD-OTP-00403 at DRC-OTP-0203-0098; EVD-OTP-00623, paras 18 and Annex I B. 190 However, the province continued to be referred to as simply “Ituri”. 191 Later, Adèle Lotsove was replaced by Ernest Uringi Pa Ndolo, and then in 2002, Jean-Pierre Molondo-Lompondo was installed as governor. T-179-Red-ENG, page 20, line 24 to page 22, line 24 ; EVD-OTP-0403 at DRC-OTP-0203-0097 and DRC-OTP-0203-0099 to DRC-OTP-0203-0102; and EVD-OTP-00623, para. 20. No. ICC-01/04-01/06 45/593 14 March 2012

7,000 people had been killed and 100,000 displaced by the fighting. 192

Over the next year and a half, a series of political upheavals and

rapidly shifting military alliances helped to fuel the continued

conflict. 193

80 In March 2000, a UN inter-agency assessment mission in Ituri

reported that the humanitarian situation was “close to catastrophic”. 194

C. THE UPC

81 Against this background, the UPC was created on 15 September

2000 195 Although Thomas Lubanga was one of the UPC’s founding

members and its President from the outset, the nature of the group 196

when it was created is a matter of dispute in this case.

82 In the summer and fall of 2000, there was a mutiny of Hema officers

and soldiers in the APC (the military wing of the RCD-ML) against

Ernest Wamba dia Wamba. Members of this mutiny included Bosco 197

Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza,

Floribert Kisembo and Chief Kahwa Panga Mandro. 198 Following

negotiations with the Ugandan authorities, in the summer of 2000 the

mutineers left for training in Uganda. 199

192 EVD-OTP-0403 at DRC-OTP-0203-0098. 193 EVD-OTP-0403 at DRC-OTP-0203-0098 to DRC-OTP-0203-0102 and EVD-OTP-00623, paras 5 – 6 and 20 – 23. 194 EVD-OTP-00623, Annex II. 195 EVD-OTP-00661 (UPC Statute) (another version of the UPC Statute dated 15 September 2000 was given EVD-OTP-00715); EVD-OTP-00662 (UPC Programme); T-342-ENG, page 9, line 21 to page 10, line 7 and T-343- ENG, page 41, lines 20 – 23 (D-0019). 196 Thomas Lubanga’s name or signature appears on the list of UPC founders in documents EVD-OTP- 00662 (in this document his signature appears under the designation “Le President”), EVD-OTP-00726 and EVD-OTP-00661. Additionally, Thomas Lubanga’s curriculum vitae indicates that he was the UPC President since 2000, EVD-OTP-00621. 197 T-156-ENG, page 56, lines 4 – 6 (P-0360); T-343- ENG, page 4, lines 1 – 11 and page 6, lines 7 – 10 (D-0019); EVD-OTP-00623, Annex I B. 198 T-168-Red-ENG, page 19, lines 3 – 14 and page 37, lines 11 – 25 (P-0012) ; T-343-ENG, page 3, line 25 to page 4, line 11 (D-0019). 199 T-343-ENG, page 13, lines 7 – 16 (D-0019); T-168-Red-ENG, page 33, lines 3 – 25 (P-0012).

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83 The precise nature of the UPC at that time and the identity of those responsible for the training in Uganda are disputed issues in the case. These topics are analysed in greater detail below in the chapter dealing with the individual criminal responsibility of the accused. 200 84. On 6 November 2000, Ernest Wamba dia Wamba was overthrown by Mr Mbusa Nyamwisi, who was supported by the Hema leader Jean Tibasima and the Hema militia. In January 2001, the Ugandan 201 Colonel Edison Muzoora of the UPDF seized control of the province of Ituri. 202 85. By January 2001, a number of smaller splinter militias had emerged, which had ties with the Ugandan, Rwandan or Congolese forces and the rebel groups. 203 As a result, by the end of 2001 there had been a sharp increase in ethnically-targeted attacks on villages and violence against civilians. 204 86. In early 2002, Thomas Lubanga occupied the position of Minister of Defence in the RCD-ML (the group that controlled Ituri at the time). 205 87. During the Sun City Peace negotiations in South Africa in April 2002, Mr Mbusa Nyamwisi, as President of the RCD-ML, shifted his allegiance to the Kinshasa government and he decided to create an 200 See Section XI. 201 T-168-Red-ENG, page 34, line 2 to page 36, line 18 (P-0012); EVD-OTP-00403 at DRC-OTP- 0203-0100 to DRC-OTP-0203-0101. 202 EVD-OTP-00403 at DRC-OTP-0203-0101. 203 EVD-OTP-00623, paras 18 and 23. In addition, Uganda created the Front de Libération du Congo (“FLC”) at this time in order to try to unite Ugandan-supported rebel groups in one organisation under the leadership of Jean-Pierre Bemba. EVD-OTP-0403 at DRC-OTP-0203-0101 to DRC-OTP-0203- 0102. 204 EVD-OTP-0403 at DRC-OTP-0203-0101 and EVD-CHM-00005, pages 16 and 20 – 21 (ICC- 01/04-01/06-1655-Anx-tENG, pages 15 and 19). 205 EVD-OTP-00621 (curriculum vitae of Thomas Lubanga); T-124-Red-ENG, page 78, lines 2 – 14 (testimony of P-0041, stating that in April 2002, Thomas Lubanga was the Minister of Defence for the RCD-ML); T-168-Red-ENG, page 27, lines 6 – 24 (testimony of P-0012, stating that by February or March 2002, Thomas Lubanga had already been appointed the Minister of Defence); T-344-Red-ENG, page 8, lines 11 – 18 (D-0019). No. ICC-01/04-01/06 47/593 14 March 2012

integrated Hema-Lendu army for the RCD-ML. 206

88 Thereafter, certain individuals (allegedly the accused was among

them) decided to abandon the RCD-ML 207 and a number of new

militias were organised. As a consequence, the conflict in Ituri was

driven to “new extremes of ethnic fragmentation”. 208 On 17 April 2002

a political declaration was issued calling for the departure of Mr

Mbusa Nyamwisi. Following this declaration, Hema militia 209

members including Chief Kahwa, 210 Floribert Kisembo, Bosco

Ntaganda, commanders Tchaligonza, Kasangaki and Bagonza and

others, mutinied against the RCD-ML. 211 The alleged participation of

the accused in these events and his relationship with the aforesaid

individuals is analysed in the chapter dealing with individual criminal

responsibility. 212

89 In June 2002, 213 when the accused was in Kampala in order to attend

a meeting with a group that included John Tinanzabo, Richard

Lonema, Jean-Pascal Ndukute, and Nestor Bamaraki, 214 the Ugandan

authorities arrested Thomas Lubanga and nine of his companions,

later transferring them to Kinshasa where they were kept under house

206 T-179-Red-ENG, page 37, lines 14 – 25 (P-0014); EVD-OTP-0403 at DRC-OTP-0203-0102 to DRC-OTP-0203-0106. 207 T-340-ENG, page 37, line 7 to page 41, line 4; T-343-ENG, page 49, line 25 to page 52, line 6 and page 69, lines 12 – 15 (D-0019). 208 EVD-OTP-0403 at DRC-OTP-0203-0103 to DRC-OTP-0203-0106. See also T-179-Red-ENG, page 37, line 14 to page 39, line 23 (P-0014). This is, at least in part, a contentious issue in the case, namely whether Thomas Lubanga personally organized the overthrow of the RCD-ML. 209 EVD-D01-00050; T-343-ENG, page 62, line 13 to page 63, line 17 and page 66, line 21 to page 67, line 10 (D-0019). 210 T-340-ENG, page 53, line 13 to page 54, line 22 (D-0019). 211 T-168-Red-ENG, page 29, lines 3 – 13 (P-0012); T-340-ENG, page 55, line 15 to page 57, line 2 and T-343-ENG, page 76, line 10 to page 77, line 9 (D-0019). 212 See Section XI. 213 T-344-Red-ENG, page 17, lines 4 – 7 (D-0019); T-179-Red2-ENG, page 79, lines 12 – 16 (P-0014); T-125-Red-ENG, page 9, lines 6 – 9; T-126-Red-ENG, page 7, lines 21 – 24 (P-0041). 214 T-179-Red2-ENG, page 80, line 21 to page 81, line 9 (P-0014) and T-125-CONF-ENG, page 2, lines 16 – 24 and T-125-Red2-ENG, page 4, line 18 to page 5, line 12 (P-0041).

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arrest.

215

The conditions of detention of Mr Lubanga and the

delegation of tasks to, and communication on his part with, his alleged

co-perpetrators and other UPC members are considered in detail in the

chapter dealing with individual criminal responsibility.

216

90 In early August 2002, RCD-ML dissidents (backed by Uganda),

attacked Bunia and, after several days of fighting, took control of the

217

town, ousting Mr Mbusa Nyamwisi and the RCD-ML. The APC

218

forces were driven out and Governor Lompondo fled the city on

foot.

219

It is, however, a matter of contention in this case whether the

UPC was responsible for forcing the RCD-ML out of Bunia. This, as

with other contested issues, is discussed below.

220

91 Within this context, the prosecution submits that the accused,

jointly with his co-perpetrators, committed the crimes of conscription,

enlistment and use of children under the age of 15, from 1 September

2002 to 13 August 2003.

215 T-125-Red2-ENG, page 8, line 11 to page 11, line 4 and T-126-Red-ENG, page 7, lines 21 to page 9, line 9 (P-0014); T-181-Red2-ENG, page 8, line 25 to page 9, line 14 (P-0014); T-168-Red-ENG, page 40, lines 4 – 5 and page 41, lines 21 –24 (P-0012); T-340-ENG, page 45, lines 1 – 25 and T-344- Red-ENG, page 18, line 23 to page 19, line 12 (D-0019); T-174-Red2-ENG, page 30 line 18 to page 31, line 2 (P-0055). 216 See Section XI. 217 EVD-OTP-0403 at DRC-OTP-0203-0104 to DRC-OTP-0203-0105; T-344-Red-ENG, page 2, line 19 to page 3, line 7. The rebels call themselves the Front pour la Réconciliation et la Paix (“FRP”) in their declaration, EVD-OTP-00386/ EVD-OTP-00663. The extent to which the FRP was the UPC under another name is contested in this case. Thomas Lubanga’s role in the takeover of Bunia is also contested. The prosecution alleges that he orchestrated and oversaw the attack whereas the defence alleges that he was not involved in the armed rebellion that overthrew Mr Mbusa Nyamwisi (it is observed that Mr Lubanga was detained in Kinshasa at the time) and instead it is suggested he merely took political advantage of a rebellion which he did not lead, in order to take power after its success. 218 T-156-ENG, page 55, lines 15 – 19 (P-0360); EVD-OTP-00386/EVD-OTP-00663, T-125-Red- ENG, page 13, line 1 to page 15, line 2 (P-0041); T-179-Red2-ENG, page 76, lines 11 – 17 (P-0014); T-168-Red-ENG, page 42, line 18 to page 43, line 9 (P-0012); T-340-ENG, page 59, line 24 to page 62, line 5 (D-0019); T-160-Red2-ENG, page 73, lines 2 – 5 and T-162-CONF-ENG, page 5, lines 5 – 10 (P-0002). 219 EVD-OTP-00403 at DRC-OTP-0203-0105 and T-168-ENG, page 43, lines 5 – 7. 220 See Section XI.

No. ICC-01/04-01/06 49/593 14 March 2012

V. THE EVALUATION OF EVIDENCE

Burden of Proof

92 Under Article 66 of the Statute, the accused is presumed to be innocent until the Prosecutor has proved his guilt. 221 For a conviction, each element of the particular offence charged must be established “beyond reasonable doubt”. 222

Evidence

93 Evidence was introduced during the trial in oral, written and audiovisual form. This included the viva voce testimony of sixty-seven witnesses (including expert witnesses) who appeared before the Chamber in person and via a video link. Two witnesses gave their evidence by way of sworn depositions (Article 69(2) of the Statute and Rule 68 of the Rules). Written statements were admitted pursuant to Rule 68 of the Rules. 223 Documents and other material such as transcripts of interviews, videos, the records from a variety of organisations, letters, photographs and maps were either introduced during the oral evidence of witnesses or by counsel (in the latter case, following a written application).

94 This Judgment is based on the entire proceedings and the Chamber’s evaluation of the evidence under Article 74(2) of the Statute. The Chamber has assessed the reliability of individual pieces 221 Article 66(1) and (2) of the Statute. 222 Article 66(3) of the Statute. 223 See, e.g., Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses, 15 January 2009, ICC-01/04-01/06-1603. A French translation was filed on 27 January 2011: Décision relative à la requête de l’Accusation aux fins d’admission des déclarations préalablement enregistrées de deux témoins, 15 January 2009, ICC-01/04-01/06-1603tFRA. No. ICC-01/04-01/06 50/593 14 March 2012

of evidence and their probative value in the context of any other

admissible and probative material.

95 The parties and participants were responsible for identifying the

evidence that is relevant to the Article 74 Decision in their final

submissions. During the course of giving directions as to the timetable

for the closing stages of the case on 1 April 2011, the Chamber stated:

So far as the bar table documents are concerned, it is likely that we will only consider them to the extent that they are referred to in your written closing submissions. So if there are bar table documents which at the end of the case you consider to have relevance and importance, you must identify the part of the document that you rely on, and you must set out a short explanation of the point or points that you make in relation to that document and the section of it that you have identified. If you fail to refer to a bar table document or you fail to refer to parts of a bar table document, you should work on the basis that there is a very real risk that we will simply not take it into consideration. We do not intend to read each and every one of the documents that you have respectively submitted, guessing at what might be the unexplained relevance of the particular piece of paper. These proceedings should not be conducted on the basis of judicial guesswork.

Similarly, we have heard a great deal of oral evidence. Some of it, on analysis, may well prove to have greater relevance than other parts of the evidence that we have heard, and there is a duty on you all to indicate the principal facts, the principal parts of the oral evidence that we have heard that you rely on, coupled with a sufficient explanation as to why you say the particular piece of evidence or section of evidence has relevance to your case, either in support of the case that you are making or by way of criticism of the case for the other side.

Now, it may be that the Bench will consider some of the evidence that you have not identified. That, of course, is a matter entirely for us if we choose to do so. But for those parts that you consider to be relevant, you must flag it 224 up, and I hope that’s clear.

96 In the Order on the timetable for closing submissions, dated 12

April 2011, the Chamber set out as follows:

5 For the documents that have been admitted into evidence without having been introduced during the examination of a witness ( viz . the bar table documents), as set out by the Chamber during the hearing on 1 April 2011 in

224 T-342-ENG, page 64, line 6 to page 65, line 7.

No. ICC-01/04-01/06 51/593 14 March 2012

their final submissions the parties and participants are to identify the documents, or parts thereof, that are relied on, and to provide a sufficient explanation of relevance. 6. Similarly, the parts of the oral evidence relied on by the parties and participants and the documents relied on during the examination of witnesses must be clearly identified. There is a duty on the parties and participants to indicate the principal facts arising out of the oral evidence that 225 are relied on, and to provide a sufficient explanation of relevance. 97. These directions were not the subject of objection or suggested variation. The Chamber has focussed particularly on the matters raised by the parties and participants in their closing submissions, and it reviewed other items of evidence as appropriate.

98 Article 74(2) of the Statute directs the Chamber to “base its decision only on evidence submitted and discussed before it at the trial”. In the Chamber’s view, the phrase “discussed before it at the trial” encompasses not only the oral testimony, together with any documents and other items, such as video recordings, that were “discussed” during the hearings, but also any items of evidence that were “discussed” in the written submissions of the parties and the participants at any stage during the trial ( e.g. documents introduced by counsel pursuant to a written application). The key is that the evidence upon which the Chamber bases its Article 74 Decision must have been introduced during the trial and have become part of the trial record, through the assignment of an evidence (EVD) number. 99. Article 74(2) of the Statute must also be read in conjunction with Article 69(4), which provides that:

The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia , the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of 225 ICC-01/04-01/06-2722. No. ICC-01/04-01/06 52/593 14 March 2012

Procedure and Evidence. 100. The Appeals Chamber has held that Article 69(4) of the Statute is a mandatory provision that requires the Trial Chamber to rule on the admissibility of each item of submitted evidence “at some point in the proceedings”. 226 The determination of admissibility is to be made in light of “the relevance, probative value and the potential prejudice of each item of evidence”. 227 101. The combined effect of Articles 69(4) and 74(2) of the Statute is that the Chamber’s Article 74 Decision is to be based only on evidence that (i) has been “submitted”; (ii) has been “discussed […] at trial”, in the sense that it is part of the trial record; and (iii) has been found to be admissible by the Chamber. 228 In reaching its verdict, the Chamber has considered only the materials that satisfy these three criteria.

Oral Evidence

102 When evaluating the oral testimony of a witness, the Chamber has considered the entirety of the witness’s account; the manner in which he or she gave evidence; the plausibility of the testimony; and the extent to which it was consistent, including as regards other evidence in the case. The Chamber has assessed whether the witness’s evidence conflicted with prior statements he or she had made, insofar as the relevant portion of the prior statement is in evidence. In each instance the Chamber has evaluated the extent and seriousness of the inconsistency and its impact on the overall reliability of the witness. 226 The Prosecutor v. Bemba, Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled "Decision on the admission into evidence of materials contained in the prosecution's list of evidence'', 3 May 2011, ICC-01/05-01/08-1386, para. 37. 227 ICC-01/05-01/08-1386, para. 37; see also Article 69(4) of the Statute. 228 Rule 64(3) of the Rules (“Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber”). No. ICC-01/04-01/06 53/593 14 March 2012

103 The Chamber has made appropriate allowance for any instances of imprecision, implausibility or inconsistency, bearing in mind the overall context of the case and the circumstances of the individual witnesses. For example, the charges relate to events that occurred in 2002 and 2003. Memories fade, and witnesses who were children at the time of the events, or who suffered trauma, may have had particular difficulty in providing a coherent, complete and logical account. There are other potential reasons why a witness’s evidence may have been flawed and the Chamber, when assessing his or her testimony, has taken these considerations into account and they are reflected in its overall assessment of the account in question. 104. In certain instances, the Chamber has not relied on part of a witness’s account whilst accepting other aspects of his or her evidence, thereby acknowledging that it is possible for a witness to be accurate on some issues and unreliable on others. Nonetheless, when the Chamber rejected part of a witness’s testimony, it has invariably considered the impact of that decision as regards the reliability of the remainder of the individual’s evidence. 105. The Chamber called a psychologist who gave expert testimony on the psychological impact of a child having been a soldier and the effect of trauma on memory. 229 This provided useful background evidence when the Chamber assessed the accounts of the individuals in this category. 106. The Chamber has considered the individual circumstances of each witness, including his or her relationship to the accused, age, vulnerability, any involvement in the events under consideration, the

229 See T-166-ENG and EVD-CHM-00001 and EVD-CHM-00002. No. ICC-01/04-01/06 54/593 14 March 2012

risk of self-incrimination, possible prejudice for or against the accused

and motives for telling the truth or providing false testimony.

Evidence other than direct oral evidence

107 The Rome Statute framework provides the Chamber with a

considerable degree of flexibility as regards the evidence it receives, as

analysed by the Chamber in its Decision on the admissibility of four

documents:

230

19 There are four key factors arising from the provisions contained within the statutory framework which provide the necessary starting-point for an investigation of the Trial Chamber's general approach to this issue ( the admissibility of evidence other than direct oral evidence) .

20 First, the chamber's statutory authority to request the submission of all evidence that it considers necessary in order to determine the truth: Article 69(3).

21 Second, the Chamber's obligation to ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused: Article 64(2).

22 Third, although the Rome Statute framework highlights the desirability of witnesses giving oral evidence - indeed, the first sentence of Article 69(2) requires that "[t]he testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or the Rules of Procedure and Evidence" - the second and third sentence of Article 69(2) provide for a wide range of other evidential possibilities: "[t]he Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused." Therefore, notwithstanding the express reference to oral evidence from witnesses at trial, there is a clear recognition that a variety of other means of introducing evidence may be appropriate. Article 68, which is expressly referred to in the first sentence of Article 69(2) as providing instances when there may be a departure from the expectation of oral evidence, deals directly with the particular exigencies of trials before the ICC, and most particularly there is an express recognition of the potential vulnerability of victims and witnesses, along with the servants and agents of a State, which may require "special means" to be used for introducing evidence. The Court is enjoined to

230 ICC-01/04-01/06-1399-Corr, 13 June 2008 (corrigendum issued on 20 January 2011).

No. ICC-01/04-01/06 55/593 14 March 2012

consider the range of possibilities that exist to afford protection, subject always to the rights of the accused and the need for the trial to be fair and impartial.

23 Fourth, Article 69(4) of the Statute confers on the Chamber a broad power to make decisions as regards evidence: "[t]he Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of witness, in accordance with the Rules of Procedure and Evidence" and by Article 64(9) the Trial Chamber has the power to "[r]ule on the admissibility or relevance of any evidence." Therefore, the Court may rule on the relevance or admissibility of evidence, and Rule 63(2) provides that "[a] Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9 to assess freely all evidence". It follows that the Chamber has been given a wide discretion to rule on admissibility or relevance and to assess any evidence, subject to the specified issues of "fairness".

24 Therefore, summarising these four key factors, the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited - at the outset - the ability of the Chamber to assess evidence "freely". Instead, the Chamber is authorised by statute to request any evidence that is necessary to determine the truth, subject always to such decisions on relevance and admissibility as are necessary, bearing in mind the dictates of fairness. In ruling on admissibility the Chamber will frequently need to weigh the competing prejudicial and probative potential of the evidence in question. It is of particular note that Rule 63(5) mandates the Chamber not to "apply national laws governing evidence". For these reasons, the Chamber has concluded that it enjoys a significant degree of discretion in considering all types of evidence. This is particularly necessary given the nature of the cases that will come before the ICC: there will be infinitely variable circumstances in which the court will be asked to consider evidence, which will not infrequently have come into existence, or have been compiled or retrieved, in difficult circumstances, such as during particularly egregious instances of armed conflict, when those involved will have been killed or wounded, and the survivors or those affected may be untraceable or unwilling - for credible reasons - to give evidence.

108 With evidence other than direct oral evidence, the Chamber has

made allowance for the potential problems that accompany any lack of

opportunity to question the individual(s) who originally supplied the

information. The extent to which this is relevant and may cause

prejudice depends on the nature and circumstances of the particular

evidence. The situations (as indicated in the preceding quotation) are

infinitely variable and the Chamber has approached this issue on a

No. ICC-01/04-01/06 56/593 14 March 2012

case-by-case basis. 109. With documents, the Chamber has assessed the contents of the particular document, its provenance and any other relevant material. To the extent known, the Chamber has considered the document’s author, as well as his or her role in the relevant events and the chain of custody from the time of the document’s creation until it was submitted to the Chamber. The indicia of reliability have been assessed on a broad basis and the Chamber has borne in mind that a document, although authentic, may be unreliable.

Corroboration

110 Rule 63(3) of the Rules prohibits the Chamber from “impos[ing] a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court”. The extent to which a piece of evidence, standing alone, is sufficient to prove a fact at issue is entirely dependent on the issue in question and the strength of the evidence. Accordingly, once again the Chamber has adopted a caseby-case approach.

Circumstantial Evidence

111 Nothing in the Rome Statute framework prevents the Chamber from relying on circumstantial evidence. When, based on the evidence, there is only one reasonable conclusion to be drawn from particular facts, the Chamber has concluded that they have been established beyond reasonable doubt. 231

231 The Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", 3 February 2010, ICC-02/05-01/09-73, para. 33. No. ICC-01/04-01/06 57/593 14 March 2012

Expert Witnesses

112 When assessing the testimony of expert witnesses, the Chamber has considered factors such as the established competence of the particular witness in his or her field of expertise, the methodologies used, the extent to which the findings were consistent with other evidence in the case and the general reliability of the expert’s evidence.

Interpretation and Translation

113 Simultaneous interpretation has been used throughout the trial because the evidence in this case was given in a number of different languages. While this has generally been of an appropriate standard, on some occasions concerns were expressed as to its accuracy. 232 Following a breakdown of the recording equipment during the trial, the Registry introduced various measures to ensure the interpretation was correct, and it conducted a full revision of a large number of the Swahili transcripts. 233 While no complaint was made in the final submissions regarding the accuracy of the interpretation, the Chamber has borne in mind that this was a problem that needed to be addressed on a number of occasions.

114 In addition, the Chamber has borne in mind the difficulties that sometimes arose when interpreting or understanding particular words, such as the names of people and places.

Protective Measures

115 Measures to protect the identity of many of the witnesses in this 232 See, e.g., Decision on discrepancies between the English and the French Transcripts and related issues, 18 June 2009, ICC-01/04-01/06-1974. 233 See, e.g., Registry report to the Chamber on Swahili interpretation matters, 11 May 2010, ICC- 01/04-01/06-2431 (reclassified as “public” on instruction of Trial Chamber I dated 17 May 2010). No. ICC-01/04-01/06 58/593 14 March 2012

case were ordered by the Chamber due to concerns for their personal safety or that of their families. For similar reasons, many witnesses 234 are referred to in this Judgment by number rather than by name and certain details that might reveal their identities have been omitted. It is to be emphasised that whenever the Chamber ordered protective measures for witnesses, the parties and participants were aware of the relevant identifying information. 116. To ensure the effectiveness of the protective measures ordered by the Chamber, testimony was frequently heard in “private session”, which the public was unable to follow. Pursuant to Articles 64(7) and 67(1) of the Statute, the Chamber has instructed the parties and, to the extent necessary, the participants to undertake a comprehensive review of the transcripts of the closed-session testimony, and it has ordered the public reclassification of any portions that do not contain information which may create a security risk. Confidential information has been included to the greatest extent possible in this Judgment, whilst avoiding creating any security risks, and in some instances it has been necessary to cite the parties’ submissions rather than the relevant transcript references.

117 In addition to the in-court protective measures discussed above, the Chamber authorised redactions to certain documents, which the parties requested in order to protect various categories of sensitive information. These redactions were reviewed by the Chamber and some were lifted during the course of the trial. The Chamber is satisfied that no further disclosure is possible under the present circumstances.

234 All expert witnesses testified without protective measures, as did 7 prosecution witnesses and 14 defence witnesses. No. ICC-01/04-01/06 59/593 14 March 2012

The Accused’s Statement

118 The accused chose not to testify under oath, as is his right under Article 67(1)(g) of the Statute. No adverse inference has been drawn from this decision. The accused opted to make an unsworn statement to the Chamber in accordance with Article 67(1)(h) of the Statute. 235

The defence challenge to the entirety of the prosecution’s evidence

119 In its final submissions, the defence asserts that the prosecution failed to fulfil its obligations as regards disclosure and to investigate exculpatory circumstances, arguing that these suggested failures “impair the reliability of the entire body of evidence presented at trial by the Prosecution” to such an extent that it cannot support findings “beyond all reasonable doubt”. 236 The prosecution argues that it met its disclosure and investigative obligations, and it is submitted that the proceedings have not been vitiated in the manner complained of. 237 120. The Chamber is unpersuaded by the suggested violations of the prosecution’s statutory duties, particularly since the Chamber took measures throughout the trial to mitigate any prejudice to the defence whenever these concerns were expressed. Additionally, the Chamber kept these obligations on the part of the prosecution permanently under review. 121. Throughout the trial, the Chamber addressed any potential prejudice to the accused arising from incomplete or late disclosure.

235 T-357-ENG, page 48, line 16 to page 49, line 19. 236 ICC-01/04-01/06-2773-Red-tENG, paras 13-18. 237 ICC-01/04-01/06-2778-Red, paras 108-110. No. ICC-01/04-01/06 60/593 14 March 2012

Taking incomplete disclosure first, amongst other measures, the Trial

Chamber stayed the proceedings on two occasions when it concluded

that the lack of disclosure rendered a fair trial impossible. 238 When the

prosecution invoked Article 54(3)(e) of the Statute as a basis for non-

disclosure of certain materials, the Chamber ordered the disclosure of

alternative evidence or summaries, in order to prevent any unfairness

to the accused. 239

122 Late disclosure was addressed in a number of other ways. For

example, following the disclosure of documents relevant to the

questioning of witness P-581 after his testimony had finished, the

Chamber granted the defence request for the witness to be recalled. 240

Another example is provided by the prosecution’s late disclosure of

documents in early 2011. On that occasion, even though the agenda for

closing submissions had been set, the Chamber indicated to the

defence that it would be permitted to raise this issue if it “considered

that there are consequences that need to be addressed evidentially

following any order of disclosure that we make”. 241

123 Whenever violations of the prosecution’s statutory obligations have

238 See Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution for the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008, ICC-01/04-01/06-1401; see also Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with VWU, 8 July 2010, ICC-01/04-01/06-2517-Conf. A public redacted version was issued on 8 July 2010, ICC-01/04-01/06-2517-Red. 239 Reasons for Oral Decision lifting the stay of proceedings, 23 January 2009, ICC-01/04-01/06-1644, and Decision issuing Annex accompanying Decision lifting the stay of proceedings of 23 January 2009, 23 March 2009, ICC-01/04-01/06-1803. 240 T-310-Red2-ENG, page 69, line 13 to page 70, line 7 and T-316-ENG, page 9, lines 13 – 19 and page 11, lines 17 – 22; see also T-326-ENG, page 3, line 3 to page 4, line 5; page 6, line 12 to page 7, line 12 and page 9, lines 3 – 11 (ordering the prosecution to provide a report on disclosure-related issues following the late disclosure of a document relating to witness P-0031); Decision on the prosecution’s disclosure obligations arising out of an issue concerning witness DRC-OTP-WWWW- 0031, 7 December 2010, ICC-01/04-01/06-2656-Conf. A public redacted version was issued on 20 January 2011, ICC-01/04-01/06-2656-Red. 241 T-352-Red-ENG, page 17, line 24 to page 18, line 17.

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been demonstrated, the Chamber has evaluated whether, and to what extent, they affect the reliability of the evidence to which they relate. In each instance, any problems that have arisen have been addressed in a manner which has ensured the accused has received a fair trial.

No. ICC-01/04-01/06 62/593 14 March 2012

VI. THE DEVELOPMENT OF THE PROSECUTION’S INVESTIGATION

124 Given the specific circumstances of the case, and in particular the defence submissions that the reliability of the entire body of prosecution evidence is affected, 242 the Chamber has set out the history to the investigations extensively in order to demonstrate the extent of the problems the investigators faced and the background to the considerable reliance that the prosecution placed on certain intermediaries (as addressed in a later section). A. THE OPENING OF THE INVESTIGATION 125. The investigation by the Office of the Prosecutor was opened on 23 June 2004, following the referral of the case from the DRC. 243 In the Decision on Intermediaries, the Chamber ordered the prosecution to call an appropriate representative “to testify as to the approach and the procedures applied to intermediaries”. 244 As a result, Bernard Lavigne (P-0582), who had been recruited to lead the relevant investigation team, 245 and one of the investigators, Nicolas Sebire (P- 0583), were called to give evidence. Although they were not necessarily accurate on every issue, the Chamber found both of these witnesses to be essentially reliable, and unless the contrary is indicated, the Chamber has accepted their testimony (as set out

242 ICC-01/04-01/06-2773-Red-tENG, paras 1 – 18. 243 Prosecution’s Response to the Defence’s « Requête de la Défense aux fins d’arrêt définitif des

procédures », 31 January 2011, ICC-01/04-01/06-2678-Conf (public redated version filed 29 March 2011, ICC-01/04-01/06-2678-Red), para. 1.

244 ICC-01/04-01/06-2434-Red2, para. 146. 245 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 7, line 23 to page 9, line 8 and page 13, line 2 to page 14, line 20. No. ICC-01/04-01/06 63/593 14 March 2012

below).

246

B. THE CREATION OF THE TEAM

126 The Deputy Prosecutor decided the investigation team for the DRC

was to be led by a francophone magistrate,

247

in order to provide “legal

control” of their work so as to avoid some of the difficulties

encountered at other similar institutions,

248

and the Prosecutor

appointed P-0582 as the “team leader” ( chef d’enquête, responsable

d’équipe ).

249

His first task was to recruit a team,

250

given that when he

arrived in June 2004 there were only two people working on the

case.

251

Overall, approximately 12 team members were recruited.

252

They included individuals who had worked for various non

governmental organisations (“NGOs”),

253

or who had other experience

in the field of international justice and human rights.

254 255

127 Between 2004 and 2007, P-0582 focussed on the

256

, inter alia,

246 This conclusion is equally relevant to the sections in which the evidence of P-0582 and P-0583 is set out below. 247 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, lines 11 – 14. 248 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, 15 – 19. 249 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, lines 5 – 7. 250 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, line 12. 251 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 14 – 16. 252 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 14 – 16. 253 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, line 23; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition- Red2-ENG, page 42, lines 14 – 18; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06- Rule68Deposition-Red2-ENG, page 42, lines 18 – 20. 254 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 42, lines 21 – 22. 255 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 42, lines 23 – 24. 256 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 8, lines 12 – 21.

No. ICC-01/04-01/06 64/593 14 March 2012

protection of witnesses, 257 and he set up a protection programme

within the OTP. 258

128 Michael De Smedt was P-0582’s direct supervisor, and he reported

to the Prosecutor of the Court. 259

C. THE INITIAL PROCESS OF GATHERING EVIDENCE

129 The process of gathering evidence began following P-0582’s arrival

at the Court. 260 He indicated that they verified or cross-checked the

material already in their possession against “open sources”, as well as

by reference to items on the internet and other general

documentation. They were assisted in the task of gathering and 261

analysing this information by the technical and logistical support

section. 262 They received several reports and documents about the

DRC, including from well-known international, and various local, 263 264

NGOs. However, P-0582 was surprised by the differences between 265

the reports from the NGOs and the situation that confronted the

investigation team during its work. 266

257 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, line 25 to page 14, line 2. 258 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 16 – 17. 259 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 22 – 23. 260 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 13 – 14. 261 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 14 – 19. 262 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 20 – 22. 263 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 22 – 25. 264 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 1 – 3. 265 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 3 – 5. 266 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 14 – 18.

No. ICC-01/04-01/06 65/593 14 March 2012

130 P-0582 in an interview with the War and Peace Institute 267 stated

the following:

[…] Investigators also sometimes find it difficult to corroborate information provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise,” says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that “human rights and humanitarian organizations are lousy criminal investigators. They are not producing . 268 forensic evidence that can be used by a prosecutor

131 P-0582 confirmed that this reflects what he said. 269 As regards the

comments of William R. Pace, 270 the Coalition for the ICC convenor, P-

0582 said that although he would not go so far as to say that

humanitarian groups are “lousy” investigators, nonetheless

investigations carried out by humanitarian groups, in his opinion, are

more akin to general journalism than a legal investigation. 271

132 P-0583 stated that at the beginning of their work, the only

information available to the investigation team was an analysis of the

DRC prepared by the OTP, which included a list of potential

incidents. 272 This information related specifically to the Ituri region of

the DRC. 273

133 In particular, documentary material was not available to the

investigators, especially in the first months, which would have

enabled them to understand the geographical and historical context of

267 EVD-D01-00774 is the relevant article from the Wall Street Journal. 268 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 46, lines 14 – 20. 269 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 46, line 23. 270 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 5 – 6. 271 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 6 – 9. 272 T-334-Red2-ENG, page 11, lines 4 – 14. 273 T-334-Red2-ENG, page 11, lines 15 – 17.

No. ICC-01/04-01/06 66/593 14 March 2012

the issues they were dealing with. However, they participated in

meetings aimed at providing information about the country. A

regional expert offered some minimal information and the MONUC

reports on the situation were reasonably precise. 274 Debriefings

followed the first reports of the missions. 275 Therefore, from the outset

there were informal mechanisms for passing on information regarding

the situation in Ituri, both then and earlier. 276

134 The investigative team was subject to significant pressure, including

from within the OTP as well as the Court more generally, because it

was felt necessary to make progress. 277 The first major group of reports

were analysed in 2004. 278

135 The initial missions were very difficult for a number of reasons, 279

but most particularly because of the lack of external support for the

Court’s activities in the field. 280 At a local level, various UN agencies

helped the investigation team. However, there were contradictions 281

and inconsistencies in the approach of the UN that created real

problems for the OTP’s investigators, and when assistance was sought

the UN sometimes declined or imposed excessive constraints. 282

274 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, line 22 to page 54, line 6. 275 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 7 – 9. 276 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 9 – 11. 277 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, line 23 to page 55, line 3. 278 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, line 4. 279 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 2 – 4. 280 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 5 – 8. 281 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 8 – 12. 282 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 12 – 24.

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Because of these difficulties, it was impossible to find witnesses

quickly, and the team was unable to provide them with security. 283 284

Nonetheless, following the first exploratory missions, they gathered

information, documentation and the names of certain potential

witnesses, 285 and the UN frequently provided assessments to the

investigative teams. 286

D. THE FOCUS OF THE INVESTIGATION

136 By 2004 the emerging focus was Ituri: 287 the OTP analysts proposed

(and the Prosecutor accepted) that they should work particularly in

this region of eastern Congo. 288 Therefore, although the OTP continued

to consider other provinces within the DRC, this is where the

investigative team began working. 289 However, the relevant

documentation arrived in a piecemeal fashion. 290

137 P-0582 gave evidence that they identified the militia groups that

appeared to bear responsibility for acts of violence within the

jurisdiction of the Court. 291 At the relevant time, there were a number

of different groups. Some were set up on the initiative of particular

individuals; others were created by neighbouring countries or were

283 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, line 25 to page 24, line 1. 284 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 1 – 2. 285 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 3 – 4. 286 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 36, lines 18 – 20. 287 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 4 – 8. 288 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 9 – 14. 289 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 8 – 19. 290 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 19 – 24. 291 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 1 – 4.

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the result of splits within the militias. 292 However, in his view, the only

militias were, in essence, the UPC (primarily drawn from the Hema 293

population), 294 the Front des Nationalistes Intégrationnistes (“FNI”) and

the Force de Résistance Patriotique en Ituri (“FRPI”) (comprising, in the

main, members of the Lendu community and some Alur) . 295

138 Individuals were recruited from particular ethnic groups, and P- 296

0582 suggested that they committed acts of violence of all types,

including pillage and murder. 297 The armed groups created systematic

insecurity, 298 and different militias controlled the various regions

within Ituri. 299 For instance, Mudzipela was a Hema-dominated

neighbourhood to which the UPC had easier access than other armed

groups, and therefore P-0582 considered it was highly probable that

UPC soldiers contributed to the prevailing insecurity. 300

139 Ultimately they decided to focus on two specific militia groups, 301

the UPC and the FNI/FRPI, and the first mission to Bunia took place in

September 2004. 302

292 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 1 – 6. 293 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 8 – 9. 294 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 13 – 14. 295 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 10 – 12. 296 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 15 – 17. 297 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 17 – 19. 298 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 36, lines 8 – 10. 299 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 36, lines 14 – 15. 300 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 36, lines 10 – 13. 301 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 3 – 4. 302 T-334-Red2-ENG, page 11, lines 15 – 23.

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140 P-0582 said that they travelled to Kinshasa as part of an official visit,

during which they began meeting various people who were

potentially useful for their investigations. 303 They were unable to visit

east Congo, 304 but they received assurances as to collaboration by the

DRC, 305 and they met field officers from MONUC. 306

141 They acted under the requirement imposed on the prosecution by

the Statute to investigate both incriminating and exculpatory

evidence, 307 and they exercised a degree of caution about the

documents they received, given their role was not the same as that of

representatives of NGOs. 308

142 P-0582 suggested that although they began working in 2004, they

did not discover any material to justify an investigation before 2005. 309

There was a degree of international and local pressure, once it was

known that officials from the Court had arrived in the country. 310 The

OTP needed to carry out its investigations, notwithstanding the

continued presence of the militias in Ituri in 2004 311 ( e.g. in Bunia there

were militias in some of the neighbourhoods), and the UN did not

303 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 18 – 21. 304 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 18 – 19. 305 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 23 – 24. 306 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 24 – 25. 307 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 14 – 19. 308 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, line 20 to page 21, line 2. 309 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 10 – 12. 310 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 13 – 15. 311 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 15 – 17.

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consistently maintain peace throughout the territory. 312 The first

missions encountered considerable difficulties because arrangements

for their arrival had not been put in place. 313

143 They met activists, including certain “militant activists”, during

their initial mission who wanted to provide information, and this led

them to identify the first intermediaries. It follows that from the 314

outset they selected individuals who could assist with potential

witnesses, because direct contact was not always possible. 315

Furthermore, given the security issues for the witnesses, the

prosecution rapidly decided that it was necessary to use

intermediaries (this issue is addressed in considerably greater detail

hereafter). 316

144 In 2005 the investigation teams began to determine their objectives,

although these varied because of changes in the choices of the OTP

and the way in which it conducted its cases (as a result, inconsistent 317

requests were made to the investigators) and it was difficult for them

to determine clear goals, along with the means to attain them. 318 P-

0582 suggested that the OTP hesitated in formulating its objectives and

the steps to be taken to attain them. On occasion, the investigators 319

312 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 17 – 19. 313 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 7 – 9. 314 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 14 – 20. 315 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, line 21 to page 23, line 1. 316 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, line 24 to page 23, line 1. See, paras 151 to 168. 317 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 8 – 10. 318 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 10 – 24. 319 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 20 – 24.

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focussed on a single militia or a single incident whereas, at other times,

they concentrated on several militias or the use of children generally. 320

145 However, eventually a decision was made to pursue a principal

charge and thereafter the investigation teams knew exactly what had

to be done, and they were able to investigate and identify the potential

witnesses. Their first objective was to ensure the safety of these 321

individuals. 322

146 P-0582 did not recall when the Prosecutor decided to prosecute

Thomas Lubanga for child-soldier-related offences, 323 although the

witness remembered there was a meeting when it was decided that

they would only try to prosecute the accused on this basis, following 324

an evaluation of the available documentation. 325 The analysts

concluded that Ituri during the relevant period was where the most

significant acts of violence had occurred, for which up to three militias

were responsible. 326

147 At the time of the investigations, UN agencies had received

information to the effect that some individuals were falsely presenting

themselves at demobilisation centres as former child soldiers from the

militias in order to join the reintegration programme. The 327

320 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 28, lines 8 – 23. 321 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, line 25 to page 25, line 3. 322 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 25, lines 3 – 8. 323 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 29, lines 20 – 23. 324 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 29, lines 23 – 25. 325 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 30, lines 4 – 6. 326 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 30, lines 6 – 12. 327 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, lines 13 – 22.

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investigation team was aware that the militias often included very young people, although P-0582 was not personally aware of individuals having falsely claimed that they had been child soldiers in the militias. 328 Nonetheless, the witness acknowledged that it became known in Bunia that a threatened witness might be relocated and some individuals treated this as an opportunity to secure free rehousing. 329 E. THE DETAILED PROCESS OF GATHERING EVIDENCE 148. The interviews with witnesses in Bunia did not start before 2005. 330 The investigators in the field were responsible for identifying witnesses and they visited various locations in order to gather information, by way of a screening exercise which required taking statements. 331 149. The screened information was provided to the analysts, together 332 with a broader team within the OTP. These individuals were responsible for determining whether a statement should be taken (leading potentially to testimony before the Court) and assessing the status of the individual. If someone became a suspect, his or her 333 rights were protected by securing the assistance of counsel, in

328 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 13, line 22 to page 14, line 7. 329 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 41, lines 17 – 20. 330 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 22 – 23. 331 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 7 – 11. 332 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 11 – 13. 333 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 14 – 19. No. ICC-01/04-01/06 73/593 14 March 2012

accordance with Article 55(2) of the Statute. 334

150 After the screening process, the investigators and the Prosecutor’s

team considered whether to call the witness at trial. 335 If it was decided

the individual should testify, there would be a further, longer

interview. 336

F. SECURITY ISSUES

151 During 2004 and 2005, the security situation in Bunia and the rest of

Ituri evolved in an inconsistent manner. 337 During P-0582’s first visit to

Bunia, he heard gunfire from AK-47s in the neighbourhood of

Mudzipela; indeed, every evening during the course of that mission 338

he was aware of the sound of shooting. 339

152 MONUC was operating in Bunia: it conducted security assessments

and it liaised with the investigators on the security situation. 340 Their

ability to go outside the central UN base was limited, both in order to

leave Bunia and to travel at night. 341 P-0582 was told by his contacts

within the justice system and the police force that armed groups were

still active, particularly on the outskirts of Bunia and more generally

334 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 20 – 24. 335 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 76, lines 1 – 4. 336 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 76, lines 9 – 11. 337 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 34, lines 10 – 13. 338 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 34, lines 15 – 17. 339 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 34, lines 18 – 19. 340 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 34, lines 24 – 25. 341 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 34, line 25 to page 35, line 4.

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within Ituri. 342 P-0583 indicated that according to intelligence received

from the MONUC security forces, the UPC and FRPI militia forces

were still active in those areas and that violent incidents had occurred

at the beginning of 2005. 343

153 P-0582 gave evidence that armed groups established roadblocks on

the routes linking Bunia with the other towns or with the border,

where they collected “taxes”. This hindered – indeed, effectively 344

stopped – the delivery of supplies by road. 345 P-0583 provided a

broadly similar account. 346 He indicated that the security situation had

a marked impact on the office’s ability to undertake its work because it

was impossible for the team to go to the villages and meet with

potential witnesses, and there were limited meeting places. 347 P-0583

said the only way of contacting these individuals was to rely on

intermediaries. 348

154 The serious security situation affected the investigators’ duty of

protection. 349 P-0582 indicated that operating in an open way was

effectively impossible because the local population and the press were

aware of the arrival of investigators from the Court and the nature of

their work. Any foreigner seen in Bunia was assumed to be from the 350

342 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 5 – 7. 343 T-334-Red2-ENG, page 12, lines 18 – 25. 344 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 8 – 11. 345 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 11 – 12. 346 T-334-Red2-ENG, page 11, line 24 to page 12, line 7. 347 T-334-Red2-ENG, page 13, lines 1 – 8. 348 T-334-Red2-ENG, page 15, lines 1 – 8. 349 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 35, lines 15 – 17. 350 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, lines 5 – 8.

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ICC. 351 This made the investigators’ job particularly delicate and it

created risks. Indeed, they did everything possible to hide the fact that

they were conducting an investigation. 352 Their position was made

more problematic because the local population did not distinguish

between officials from the Registry, the OTP and other sections from

within the Court. 353

155 P-0582 indicated that MONUC soldiers were attacked by militia

groups and he estimated that more than twelve of its soldiers were

killed “after skirmishes with the militia groups” in 2005. 354 MONUC

soldiers accompanied the investigators on visits outside Bunia. 355 One

of the investigators reported that his vehicle was hit by bullets during

a mission to a village, when he was escorted by armoured vehicles

from MONUC. 356 The investigators were at risk of being attacked

during their investigations or of becoming involved in confrontations

between MONUC troops, who accompanied regular Congolese

soldiers of the Forces Armées de la République Démocratique du Congo

(“FARDC”), and the armed opposition groups. 357 Therefore, the

witness suggested that Bunia was insecure, particularly given the lack

of a police force capable of maintaining law and order. The work of 358

the Court was not always welcome, which led to the risk of attacks on

351 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, lines 11 – 14. 352 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, lines 20 – 23. 353 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 37, line 24 to page 38, line 3. 354 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, lines 7 – 9. 355 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, line 10. 356 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, lines 11 – 12. 357 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, lines 13 – 16. 358 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, lines 17 – 18.

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investigators or their abduction. 359

156 It was considered that all the witnesses – not just from the

prosecution – were at risk, regardless of whether individual threats

were credible. 360 Given these clear dangers, the witnesses quickly

expressed their anxiety lest their identities or the fact that they were in

contact with the investigators became known. This led to the 361

adoption of a very specific and rigorous policy for investigators and

witnesses 362 – which slowed down the work of the OTP 363 – because the

priority was their security. 364

157 A team was established, called the GCU (the Gender and Children’s

Unit), which dealt with psychological support and other issues 365

relating to witnesses. 366 However, P-0582 indicated that the

Operational Support Unit (“OSU”) was specifically responsible for

witness protection, although it did not become operational until mid

2005 as regards assessing security and witness protection. P-0582 367

suggested that prior to its establishment, the OSU nonetheless existed

in an early form with responsibilities that were limited to providing

359 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 38, lines 21 – 25. 360 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 41, lines 13 – 15. 361 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 39, lines 7 – 11. 362 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 39, lines 11 – 12. 363 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 39, lines 18 – 20. 364 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 39, lines 20 – 21. 365 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 43, lines 1 – 3. 366 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 42, lines 3 – 4. 367 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 43, lines 9 – 13 and 16 – 17.

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support for investigations in the field. 368

158 The Victims and Witnesses Unit (“VWU”), as a unit of the Registry,

was created at the outset, 369 and it worked with the prosecution’s

investigation team in Bunia. 370 The system proposed by the

investigators, if there were risks or threats to witnesses following an

assessment into the security situation, was to react by way of an initial

rapid response by the OTP followed by intervention on the part of the

witness protection unit of the Registry. 371 P-0582’s work, particularly in

2006, was to resolve any difficulties between the OTP and the Registry

as regards witness protection, 372 and there were some notable

disagreements between the VWU and the OTP as to the protection to

be provided to certain individuals. 373

159 Several militias were investigated for threatening witnesses. 374

However, the real problem was not the threat from the various groups

but rather the risk of an individual being identified by members of his

or her community, village or family as having cooperated with the

Court. 375 In particular, those who assisted were worried about being

identified by the people they had spoken about, 376 given most of the

368 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 43, lines 13 – 17. 369 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 43, lines 21 – 22. 370 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 43, lines 22 – 23. 371 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 44, lines 2 – 5. 372 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 44, lines 7 – 9. 373 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 44, lines 21 – 25. 374 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 46, lines 23 – 25. 375 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 11 – 13. 376 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 13 – 16.

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witnesses mentioned the names of the militia leaders who did not

want to be implicated. The witnesses were at risk from these 377

individuals, who were in a position to threaten them. 378

160 The OTP did not normally contact the families of witnesses, given

the danger that information would be provided to the political or

military leaders who were still in Bunia, thereby exposing the 379

witness to the risk of immediate abduction. Security became the 380

primary concern of the investigation team. 381

161 For similar reasons, the investigators did not go to the schools the

children had allegedly attended and they did not try to secure any

school records. The Hema community in Bunia had a reputation as 382

being the best educated and they ran well-organised schools. 383 The

investigators did not want to raise the suspicions of the Hema

intellectuals who may have had links with the political or military

movements, and the investigators would have been immediately 384

identified if they had visited the neighbourhoods. 385

162 There was no field office in 2004 and 2005 at the time when P-0582

377 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, lines 17 – 22. 378 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 47, line 22 to page 48, line 3. 379 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 32, line 13 to page 33, line 6. 380 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 1 – 3. 381 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 8 – 11. 382 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 12 – 23. 383 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 15 – 19. 384 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 20 – 21. 385 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 33, lines 21 – 23.

No. ICC-01/04-01/06 79/593 14 March 2012

went to interview the first group of witnesses. 386 The office was set up

over a period until it was fully operational in 2006. At the outset, it 387

was necessary, but not always easy, to find premises that were

sufficiently discreet for meetings with the witnesses. 388 Until the field

office was set up, the investigators identified a variety of different

places for the interviews. Churches were sometimes used, but 389

caution had to be exercised because of the role of clergy in the political

life in Ituri and the need not to attract attention, 390 and locations such

as libraries, schools, deserted areas and rented houses were utilised. 391

Although the UN refused to provide space, the investigators

nonetheless needed to be protected by an armed force such as

MONUC. 392 Eventually, a solution was found. 393

163 Some NGOs refused to cooperate with the Court, 394 whilst others

were interested in assisting either informally or formally. NGOs 395

asked the investigators to treat the information they provided on a

confidential basis. 396 Some representatives of the UN, in contrast with

certain members of the organisation’s hierarchy, provided the

386 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, lines 14 – 18. 387 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, lines 18 – 19. 388 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 73, lines 2 – 3. 389 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 77, lines 5 – 7. 390 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 77, lines 8 – 11. 391 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 77, lines 12 – 15. 392 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, lines 20 – 22. 393 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, line 23 to page 73, line 1. 394 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 16 – 23 and page 71, lines 3 – 4. 395 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 71, lines 4 – 6. 396 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 71, lines 7 – 9.

No. ICC-01/04-01/06 80/593 14 March 2012

investigators with considerable assistance. 397

164 The investigators relied on UN flights since they could not use the

internal Congolese airlines. 398 At the beginning, they rented cars rather

than utilise UN vehicles because the latter were immediately

identifiable. 399 Eventually, the Court purchased vehicles similar in type

to the sizeable number used by NGOs, which were unidentifiable. 400

165 On average an investigator stayed in the field for ten days, although

this varied because, for instance, some interviews lasted longer than

others; on occasion the interviews were cancelled at the last minute; or

a new witness needed to be interviewed urgently. 401 The investigators

lost motivation given the absence of a field office and the need to find

apartments, 402 which sometimes provided them with only a floor and a

duvet, and no shower; these were not the best long-term conditions,

although things improved considerably after the field office was

built. 403

166 The investigation teams tried to work in rotation. There was a team

member in the field as frequently as possible during the first months, 404

but because there were only a few investigators it was not possible to

have someone in the field permanently. This would have been the

397 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 71, lines 9 – 13. 398 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 73, lines 6 – 9. 399 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 18 – 21. 400 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 21 – 25. 401 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 3 – 6. 402 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 8 – 10. 403 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 10 – 13. 404 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 14 – 16.

No. ICC-01/04-01/06 81/593 14 March 2012

correct approach, according to P-0582. 405

167 To summarise, from the outset of the investigation, human rights

activists gave the investigators the names of potential witnesses, since

they had “seen these people and they knew what they were going to

say”. 406 Because of their long-term presence, 407 it was considered that

the activists were better placed than the investigators, and particularly

it did not cause any surprise when the activists spoke with

representatives of MONUC or had discussions with villagers. 408 The

investigators could not move about freely without being threatened 409

and witnesses were endangered if the investigators spoke directly

with them. As a result, the investigating team or some of the activists

suggested the latter should act as intermediaries. 410 Therefore, from

early on, even with the assistance of the intermediaries, the

investigators were restricted as to the timing and the location of any

meetings, and they had to act discreetly. P-0583 gave evidence that 411 412

the only solution to the security problem was to use intermediaries,

who enabled the team to contact witnesses. 413

168 The implications of the choices made in the course of the

investigation are discussed as necessary in the relevant sections. Many

405 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 16 – 18. 406 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 48, lines 9 – 13. 407 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 48, lines 13 – 15. 408 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 48, lines 15 – 20. 409 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 48, lines 21 – 22. 410 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 48, line 22 to page 49, line 2. 411 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 3 – 5. 412 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 5 – 7. 413 T-334-Red2-ENG, page 13, lines 9 – 11.

No. ICC-01/04-01/06 82/593 14 March 2012

– although by no means all – of the evidential difficulties in this case as far as the prosecution is concerned have been the result of the involvement of three particular intermediaries (P-0143, P-0316 and P- 0321), in the circumstances that are described below. G. DETERMINING THE AGES OF CHILDREN 169. A recurring issue in the context of this part of the evidence is whether some of the intermediaries encouraged a number of young witnesses to lie about aspects of their past, including their ages. 170. P-0582 indicated that at the relevant time, the civil administration in the DRC functioned only to a limited extent, and the conditions the 414 team were operating under were not ideal for establishing, with ease, the age of the alleged child soldiers. 415 This issue was the subject of ongoing internal discussions within the OTP as to the policy to be adopted for collecting evidence in this context. P-0582, as an 416 investigation leader, was not alone in considering that a prosecution forensic expert should be instructed immediately, in order to provide at least an approximate idea of age. 417 However, the Executive Committee within the OTP was of the view that the statements given by the witnesses sufficiently indicated that the relevant individuals were below 15 years of age. 418 It was also anticipated that confirmation would be provided in the interviews with the officers (or with others with responsibility) that there was general awareness that children

414 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 20 – 21. 415 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, line 22 to page 15, line 1. 416 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 1 – 4. 417 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 11 - 23. 418 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, line 21 to page 16, line 2. No. ICC-01/04-01/06 83/593 14 March 2012

under 15 years were involved. 419 P-0582 indicated that there was an

important debate within the OTP on this problem once the forensic

expert raised the issue at the very start of the investigations (at the end

of 2004). 420

171 When the investigators had finally identified 5 or 6 children who

came within the classification of child soldiers on the basis of their

statements, it was considered necessary to confirm their ages through

objective evidence. 421 The investigators requested civil status

documents, although they did not personally collect them from the

relevant offices of the civilian administration in Bunia 422 (this issue is

developed elsewhere). A doctor saw the children, and the 423 424

investigators were informed that, within the Hema community,

children could not be baptised before a certain age. 425

172 Against the background that P-0582 was involved personally, as a

team leader, with 5 or 6 alleged former child soldiers, it is important to

note that the investigators did not speak with their families to arrange

interviews with the children or their relatives. 426 The main concern of

the investigators was the security of the children, particularly if they

were attacked because of their contact with the investigators. 427

419 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 3 – 5. 420 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 6 – 9. 421 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 14 – 17. 422 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 17 – 23. 423 See para. 173. 424 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, line 24. 425 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 1 – 6. 426 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 8 – 12. 427 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 21 – 25.

No. ICC-01/04-01/06 84/593 14 March 2012

Therefore, the policy of the OTP was to not meet with the families in order to avoid endangering them: it was feared that a member of the extended family might reveal to the militia leaders the identity of the individual who had provided the information. 428 This policy was applied to all the witnesses and it was only varied on an exceptional basis. 429 173. P-0582 did not ask the village chiefs ( chefs de collectivité ) about the child soldiers, given their close association with the militias that were under investigation (although there were some discussions on other issues). 430 Additionally, the investigators did not request the files of the alleged child soldiers from the headmasters or directors of the relevant schools, in order to cross-check their ages. 431 However, Intermediary 143 (who was one of the principal intermediaries), in the context of the general problems relating to children, was asked by the investigators whether he was aware of school registers that listed the children, thereby potentially establishing whether individual children could be linked with particular classes of students within identified age ranges. 432 Intermediary 143 carried out some research and provided certain documents, which were photocopied. He was directed not to 433 try to obtain birth certificates from the Mayor’s Office in Bunia or

428 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 5 – 9. 429 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 15 – 18. 430 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, line 19 to page 19, line 7. 431 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 12 – 15. 432 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 16 – 24. 433 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 3 – 7. No. ICC-01/04-01/06 85/593 14 March 2012

Mudzipela. 434 Instead, particular families were asked if birth

certificates could be obtained, and, if so, Intermediary 143 requested

them from the authorities, in order to pass these documents to the

investigators. 435

174 It is important to note that the prosecution was not seeking to verify

whether particular children were listed in the relevant school registers;

instead – bearing in mind that the Hema community was supposed to

be better educated than other communities – they wanted to establish

whether, at a particular age, a child would be in an identified class. 436

Therefore, P-0582 did not attempt to go to the schools where the

relevant individuals had indicated they had been enrolled. 437

175 The Independent Electoral Commission of the DRC (“IEC”), the

body that issues voter I.D. cards, was set up during this time, 438 but,

according to P-0582, it only provided the ages of parents rather than

their children: he suggested that children were not registered in the 439

electoral lists. 440 The Chamber notes, however, that P-0582 was wrong

in this regard, given the IEC documents containing their names shown

to P-0007, P-0008, P-0010 and P-0294, which were introduced into

evidence by the defence. Moreover, the evidence before the Chamber 441

434 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 5 – 8. 435 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 8 – 12. 436 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 13 – 17. 437 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 17 – 21. 438 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 15 – 16. 439 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 16 – 18. 440 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 18 – 19. 441 Material from the Independent Electoral Commission relating to these witnesses were admitted into evidence by the Chamber’s decision ICC-01/04-01/06-2664-Conf of 17 December 2010 (a public redacted version was issued on 16 March 2011, ICC-01/04-01/06-2664-Red): EVD-D01-01005, EVD-

No. ICC-01/04-01/06 86/593 14 March 2012

was that the investigators did not know the members of the electoral

commission and they did not want to contact them in an indiscreet

way. 442 Whilst acknowledging the difficult circumstances in the field at

the time of the investigation, this failure to investigate the children’s

histories has significantly undermined some of the evidence called by

the prosecution.

176 The prosecution relies on expert reports relating to the X-ray

examination of bones and teeth, and it is suggested that these may

help determine the age of witnesses P-0007, P-0008, P-0010, P-0011, P-

0157, P-0213, P-0294, P-0297 and P-0298. 443 The defence submits that

the experts recognised the limitations of assessing age in this way, and

argues that it is necessary for the Chamber to approach this evidence

with caution. 444 These examinations were not meant to determine a

person’s age with precision; furthermore, the model is based on

European and American populations rather than those from Sub-

Saharan Africa, and the methodology has not been updated for 50

years. Therefore, it is suggested this approach will only provide an

D01-01006, EVD-D01-01025, EVD-D01-01026, EVD-D01-01027, EVD-D01-01028, EVD-D01- 01030 and EVD-D01-01031. An earlier decision ICC-01/04-01/06-2596-Conf of 26 October 2010 had admitted into evidence another voting card (EVD-D01-00762). A public redacted version of this latter decision was issued on 17 November 2010 (ICC-01/04-01/06-2596-Red). The Chamber notes that the probative value of the material from the Independent Electoral Commission is disputed by the legal representative of victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06, who are P-0007, P-0008, P- 0010, and P-0011 respectively. Counsel submits that the voting cards and the personal information contained in the database of the DRC Independent Electoral Commission lack probative value because, at the time in Ituri, the administrative procedures for issuing identity documents were seriously flawed and it was possible for anyone to obtain identity documents “containing information which may or may not have been accurate, at his or her convenience” (ICC-01/04-10/06-2744-Red-tENG, para. 33). Statements by witnesses P-0007, P-0008 and P-0010 on the circumstances of obtaining voting cards (with inaccurate information) were admitted into evidence by decision ICC-01/04-01/06-2694 of 2 March 2011(corrigendum of the decision issued 9 March 2011, ICC-01/04-01/06-2694-Corr): EVD- OTP-00655, EVD-OTP-00658 and EVD-OTP-00660 with related material EVD-OTP-00656, EVD- OTP-00657 and EVD-OTP-00659. 442 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, lines 19 – 23. 443 ICC-01/04-01/06-2748-Red, paras 358 and 359. 444 ICC-01/04-01/06-2773-Red-tENG, paras 92 – 94.

No. ICC-01/04-01/06 87/593 14 March 2012

approximate answer, particularly given it is not an exact science. 445 The

Chamber accepts that this material needs to be treated with care, not

least because analysis of this kind, based on X-rays, was principally

developed to measure biological rather than chronological age. 446

Catherine Adamsbaum (P-0358), a forensic expert, stated that this

means of measurement becomes less precise after 15 years of age, 447

and the extent of the range, or the margin, of error is uncertain. 448

There may be differences depending on ethnicity, and the Chamber

accepts the evidence that “[…] the x-ray evaluation of a bone age is to

be used with great caution. It is not a precise method, far from it, but it

still can give us an indication as to the bone-maturation age of an

individual.” 449 Socio-economic factors can also have an effect. 450 P-0358

testified that in this field “medical assessment is not an exact science”,

and all estimates were based on age ranges. There are no reasons for 451

doubting the validity of this approach.

177 Furthermore, the Court notes that the prosecution invited the

Chamber to draw conclusions as to the age of various witnesses when

it had presented markedly contradictory evidence on this issue. 452 The

445 ICC-01/04-01/06-2773-Red-tENG, paras 93 – 96. 446 T-172-Red-ENG, page 88, line 17 to page 89, line 25. 447 T-172-Red-ENG, page 90, lines18 – 19. 448 T-172-Red-ENG, page 91, lines 12 – 16. 449 T-172-Red-ENG, page 92, lines 4 – 25. 450 T-172-Red-ENG, page 93, lines 16 – 22. 451 T-173-ENG, page 43, line 7 to page 44, line 5. 452 For example, for P-0008, see EVD-OTP-00428, T-172-Red-ENG, page 47, line 7 et seq. The expert concluded that the witness was aged at least 19 on 5 December 2007 and was therefore born before December 1988, contrary to the witness’ account which was 1989 (T-135-Red3-ENG, page 64, lines 12 – 14). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748- Red, para. 425, For P-0157, see EVD-OTP-00435, T-172-Red-ENG, page 53, lines 13-22: the expert report indicates the witness was born before December 1988 (thereby contradicting the witness who said he was born in 1991, see T-185-Red2-ENG , page 63, line 7). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748-Red, para. 511. For P-0294, see EVD- OTP-00440 and T-172-Red-ENG, page 69, line 23 to page 70, line 11: the expert report indicates the witness was born before December 1989 (contradicting his testimony that he was born in 1991, see T- 150-Red2-ENG, page 44, lines 13 – 14; T-151-Red2-ENG, page 53, lines 15 – 17). The prosecution relies on the evidence of this witness as to his age at ICC-01/04-01/06-2748-Red, para. 365.

No. ICC-01/04-01/06 88/593 14 March 2012

No. ICC-01/04-01/06 89/593 14 March 2012

VII. INTERMEDIARIES

A. THE ISSUE 178. The fundamental question raised by the defence under this heading is whether, during the investigations leading to this trial, four of the intermediaries employed by the prosecution suborned the witnesses they dealt with, when identifying or contacting these individuals or putting them in touch with the investigators, and whilst carrying out risk assessments. 453 It is suggested, inter alia , that if this possibility is established, then any witnesses the intermediaries had dealings with should not be relied on. Indeed, it is argued that if this impropriety is substantively made out, the reliability of the prosecution’s contentions in this case as a whole will be called into question. 454 179. This issue was the central focus of the defence application seeking a permanent stay of the proceedings for abuse of process. 455 In its decision on this aspect of the defence application, the Chamber held that:

197 This is undoubtedly an important and a highly contentious issue in the case, but in the judgment of the Chamber the alleged abuse on the part of the prosecution, even taken at its highest, would not justify staying the case at this stage. Given the ability of the Court to resolve all the relevant factual issues in due course […] and bearing in mind this application only relates to one, albeit significant, area of a wider case, it would be a disproportionate reaction to discontinue the proceedings at this juncture. 198. Contrary to the submission of the defence, the Chamber will be able, in due course, to reach final conclusions on the alleged impact of the involvement of the intermediaries on the evidence in this case, as well as on the wider alleged prosecutorial misconduct or negligence based on the suggested failure by the Office of the Prosecutor to supervise or control the 453 ICC-01/04-01/06-2657-tENG-Red, paras 27 and 28. 454 ICC-01/04-01/06-2773-Red-tENG, paras 1 – 18. 455 ICC-01/04-01/06-2657-tENG-Red. No. ICC-01/04-01/06 90/593 14 March 2012

individual intermediaries and to act on indications of unreliability (together with the consequences of any adverse findings in this regard, which the 456 defence alleges taints all the prosecution's evidence). 180. It needs to be emphasised that with many of the witnesses in this category who came into contact with the intermediaries, the Chamber has recognised that they may well have given a truthful account as to elements of their past, including their involvement with the military, whilst at the same time – at least potentially – lying about particular crucial details, such as their identity, age, the dates of their military training and service, or the groups they were involved with. As regards this aspect of the case, the Chamber needs to be persuaded beyond reasonable doubt that the alleged former child soldiers have given an accurate account on the issues that are relevant to this trial ( viz. whether they were below 15 at the time they were conscripted, enlisted or used to participate actively in hostilities and the circumstances of their alleged involvement with the UPC). 181. For the reasons analysed above, the prosecution submits that, due to the difficulties in the DRC and the OTP’s lack of a police force, it was necessary to rely on intermediaries. It is suggested that their 457 role was limited, in the sense that the intermediaries were excluded from the decision-making process and, save exceptionally, when the witnesses were screened and interviewed. 458 182. It is argued by the Prosecutor in those circumstances that the intermediaries simply played a supporting role. 459

456 ICC-01/04-01/06-2690-Red2. 457 ICC-01/04-01/06-2678-Red, para. 14. 458 ICC-01/04-01/06-2678-Red, para. 17. 459 ICC-01/04-01/06-2678-Red, para. 38. No. ICC-01/04-01/06 91/593 14 March 2012

B. THE DEVELOPING USE OF INTERMEDIARIES

183 P-0582 testified that there was an instruction that the intermediaries

were not supposed to know the objectives of the investigation team. 460

It was suggested that in order to survive, the intermediaries had to

avoid being aware of too many details. To the extent possible, the 461

investigators did not provide them with information, 462 in order to

ensure that the intermediary, the investigator and the witness would

not be compromised. 463 Therefore, it was suggested that the

intermediaries were not given any substantive information about the

case. 464 Indeed, it was asserted that the latter was too complicated to

enable discussion with anyone who was not a member of the

investigation division. 465 Additionally, the differences and variations in

the objectives meant that many intermediaries ceased asking for

information about the investigators’ activities and focussed instead on

getting to know the witnesses. 466 P-0582 indicated that the

intermediaries were unaware of the questions that the witnesses were

asked. 467

184 It was accepted that, in reality, the intermediaries were activists,

most of whom were fully aware of developments within the sphere of

460 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 63, lines 4 – 5. 461 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 63, lines 6 – 9. 462 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 63, lines 12 – 13. 463 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 63, lines 13 – 17. 464 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 13 – 16. 465 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 17 – 19. 466 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 19 – 22. 467 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 23 – 24.

No. ICC-01/04-01/06 92/593 14 March 2012

international criminal justice and the objectives of the investigators. 468

P-0582 acknowledged that the intermediaries consulted internet sites

in order to keep up-to-date with the progress of the investigations

(along with broader issues concerning international criminal justice

just referred to) even before the investigators arrived in the DRC. 469

However, P-0582 said the investigators were reluctant to discuss their

developing objectives. 470

185 Although P-0582 was not present at all the screenings or during the

interviews – and accordingly he could not say if intermediaries were

ever present – nonetheless they were not authorised to participate. 471

Indeed, P-0582 said that it was out of the question for intermediaries to

be present. 472

186 After each witness was screened, a representative of the prosecution

division, as opposed to the intermediary 473 (who did not contribute to

this process), decided whether he or she should be interviewed. 474

187 P-0582 indicated that to his knowledge, no member of the office

asked intermediaries to tell potential witnesses to lie to the

investigators during their interviews or in court. 475 Indeed, he said that

he was unaware of any information that demonstrated that

468 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 63, line 25 to page 64, line 2. 469 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 64, lines 2 – 4. 470 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 64, lines 5 – 8. 471 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 1 – 3. 472 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 5 – 7. 473 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 16, lines 12 – 17. 474 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 3 – 6. 475 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 7 – 12.

No. ICC-01/04-01/06 93/593 14 March 2012

intermediaries had asked witnesses to lie during the screening process

or in court. The quality of work of the intermediaries he was aware 476

of, coupled with their correct behaviour (as he assessed it) indicated

that the information received from them was valid. 477

188 P-0582 explained that it was considered necessary to avoid

intermediaries who were not serious in their offer to help the Court,

and the investigators did not use intermediaries who were trying to

gain publicity or money by introducing witnesses to the OTP. 478

189 During the identification phase, depending on the competence of

the intermediary, the latter might be shown photographs so as to

establish if an individual was known or lived in a particular area. 479

190 P-0582 explained that there were two categories of intermediaries. 480

Those in the first category assisted in identifying witnesses and they

facilitated contact between the witnesses and the investigators. 481 They

helped with health problems, issues relating to threats and any lack of

understanding on relevant issues. 482 These individuals, who were often

activists, were said to be reasonably professional in their management

of the safety and security of the witnesses. 483

476 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, lines 18 – 23. 477 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, line 23 to page 18, line 2. 478 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 21 – 25. 479 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 66, lines 4 – 8. 480 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, line 10. 481 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 11 – 13. 482 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 14 – 16, and page 65, lines 13 – 14.. 483 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 49, lines 17 – 20.

No. ICC-01/04-01/06 94/593 14 March 2012

191 Intermediaries in this category generally contacted the investigators

because of information in their possession or because they knew

witnesses who could be helpful. 484 Following a request from the

investigators, the intermediaries would collect the witnesses from their

homes, organise meetings and ensure they were not seen with the

investigators. 485

192 It was important to compile a reasonably accurate file on each

witness without raising suspicions within his or her family or

village. 486 These were extremely delicate missions, and an error could

lead to the identification of the individual and abduction or assault at

the hands of one of the militias. Additionally, the work of the 487

investigators would have been undermined if it was alleged that a

witness had been tracked down by soldiers following contact with the

Court. P-0582 suggested that the intermediaries, through their 488

professionalism, made it possible to introduce the investigators to

children in the best possible circumstances. 489

193 The second category of intermediaries assisted by contributing to

the evaluation of the security situation. 490 These individuals included,

inter alia , some members of MONUC; soldiers of the Congolese armed

forces; and anyone with useful information, for instance, on the

484 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, line 25 to page 62, line 2. 485 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 10 – 15. 486 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 15 – 17. 487 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 18 – 20. 488 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 20 – 22. 489 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, line 22 to page 63, line 1. 490 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 50, lines 17 – 21.

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security situation. 491

194 P-0582 stressed that the two categories of individuals overlapped. 492

The term “intermediary” began to be used in the summer of 2004, but

intermediaries only received contracts much later. 493

195 There was no formal recruitment procedure for selecting

intermediaries. An intermediary was simply someone who could 494

perform this role; there was no process of candidacy or application

and instead it was a matter of circumstance. 495 Two or three activists

became intermediaries simply because they quickly offered to identify

potential witnesses. 496 P-0583 stated that the criteria used to identify

suitable individuals to act in this capacity depended on the

opportunities and the events confronting them. However, the team

could not use those who had been involved in the fighting or who had

perpetrated crimes. 497

196 Over time, when it was felt necessary to place the relationship with

the intermediaries on a more formal basis, limited contracts of

employment were proposed. 498 However, there was a tension between

the need to give a more formal appearance to the intermediaries’

491 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 51, line 22 to page 52, line 5. 492 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 68, lines 1 – 8. 493 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, lines 9 – 12. 494 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, line 14. 495 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, lines 14 – 16. 496 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, lines 17 – 20. 497 T-334-Red2-ENG, page 15, lines 9 – 18. 498 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 53, lines 21 – 23.

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function and the risks they ran in the field. 499 They did not want the

latter to be subordinated to the former. It was suggested that the 500

highest investigative standards expected by the Court did not reflect

the reality of the situation in the field, 501 and the central problem of the

security of the witnesses. The intermediaries were an integral part of

the protection system. In this context, P-0582 indicated his belief that 502

the intermediaries’ security was a primary constraint. 503

197 The investigation team carried out some verification of the

intermediaries, based on the information available to them. 504 In some

instances (in the absence of contrary information), their background

was sufficiently demonstrated by the reports on their human rights

activities in the field (as confirmed by the NGOs) along with the risks

they had taken in order to conduct successful investigations. 505 This

approach was not applicable to intermediaries who were not

recognised human rights activists, and who were, for instance,

engaged in more discreet activities. 506 The investigators attempted as

far as possible to obtain information on the intermediaries, but

obtaining information was risky because it could expose them to a

499 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 1 – 3. 500 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 4 – 5. 501 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 5 – 10. 502 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 10 – 12. 503 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 54, lines 13 – 14. 504 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 4 – 5. 505 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 5 – 9. 506 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 10 – 12.

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disproportionate level of risk. 507

C. PAYMENT TO INTERMEDIARIES

198 P-0582 suggested that the majority of the intermediaries were not

paid 508 and did not request payment. 509 However, if they travelled as

part of their activities, their expenses for transport and communication

were reimbursed. 510 “Up to a certain point” it had not been proposed

to pay intermediaries for their work, because it was undertaken on a

voluntary basis. 511 P-0582 suggested the investigators were very

stringent when reimbursing costs. 512

199 P-0582 indicated that in the majority of cases intermediaries were

reimbursed in the most transparent manner possible, either because

they had the documents justifying the claim, or in the absence of

documents, a flat rate was paid based on the investigators’

understanding of the local situation. For example, in relation to a trip 513

by an intermediary using a motorcycle from Bunia to Mongbwalu, the

investigators would establish the cost of the trip with officers from

organisations such as MONUC. 514

200 All the reimbursements to intermediaries were on the basis of an

507 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 55, lines 12 – 16. 508 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, lines 8 – 10. 509 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, line 10. 510 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, lines 11 – 14. 511 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, lines 15 – 17. 512 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, lines 18 – 21. 513 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 58, line 25 to page 59, line 3. 514 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 59, lines 4 – 8.

No. ICC-01/04-01/06 98/593 14 March 2012

expense declaration form. 515 Initially, investigators paid an advance to

the intermediaries, but later it was decided that these payments were 516

to be set out and justified in a document, to which the supporting

material such as invoices or statements had been attached. 517 This was

recorded in the OTP’s database. 518

201 The arrangements, as described by P-0582, covered the period from

2004, when the Court was still in its infancy, until 2007 when it became

an operational institution. 519

202 P-0582 stressed that witnesses were not paid to answer questions. 520

If they received money, it was compensation for expenses, such as

transport, meals and communications; this was on a fixed basis

because it was very difficult to estimate particular costs. 521 If the

individual was staying at a hotel or with a family, they were given an

allowance to cover additional expenses. 522 The investigative team was

concerned primarily with not being viewed as paying extravagant

amounts to witnesses, thereby seeming to promise money in exchange

for evidence. 523 Striking the right balance was not easy, and one of the

515 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 60, lines 1 – 2. 516 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 60, lines 2 – 4. 517 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 60, lines 5 – 10. 518 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 60, lines 10 – 11. 519 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 60, lines 15 – 17. 520 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 12 – 13. 521 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 13 – 19. 522 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 20 – 21. 523 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 14, lines 21 – 24.

No. ICC-01/04-01/06 99/593 14 March 2012

intermediaries gave the investigators an indication of certain costs. 524

Although the investigators often had documents setting out the

amounts for certain items (such as the use of telephones), 525 for costs

such as food and lodging, the intermediaries assisted in assessing the

relevant level of compensation. 526

D. CONTRACTS WITH INTERMEDIARIES

203 With time it became apparent that certain intermediaries were so

indispensable that they had to be provided with some form of more

appropriate compensation. 527 A special contract was devised that spelt

out the duties of the intermediary, including the protection of the

witnesses. 528

204 Whilst P-0582 worked for the OTP, three intermediaries were

employed under these contracts. The three intermediaries who 529

signed contracts with the Court were P-0316, Intermediary 143 and

Intermediary 154. 530

205 P-0582 was aware of the risk that the intermediaries might

manipulate the investigators they dealt with. 531 For instance, it was

suggested that the initial approval of P-0316 as an intermediary was

based on the value of the information he provided, which was rapidly

524 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 1 – 6. 525 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 6 – 8. 526 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 15, lines 8 – 10. 527 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 59, lines 9 – 11. 528 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 59, lines 11 – 15. 529 Transcript of Deposition on 16 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 59, lines 16 – 18. 530 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 59, line 25 to page 60, line 5. 531 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 18 – 19.

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confirmed, enabling the investigators to advance their knowledge of the case. This intermediary came from the government. P-0582 532 533 acknowledged that with informers there was a bias in the information they provided (that, it was said, was clear to the investigators), 534 and checks were made with other sources to establish if P-0316 was engaging in a degree of manipulation. 535 E. INDIVIDUAL INTERMEDIARIES 206. As set out above, in the Chamber’s Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”, the Chamber described the evidence relating to the allegations raised by the defence against the prosecution intermediaries. At that stage of the proceedings, the Chamber found that even if the defence submissions were accepted at their highest “that the Prosecutor knew that there were doubts as to the integrity of the four intermediaries, staying the proceedings, as an exercise of judgment, would be disproportionate”. 536 The Chamber decided that it would be able to reach final conclusions on the alleged impact of the involvement of the intermediaries (and the wider alleged prosecutorial misconduct or negligence) during the later stages of the trial. 537 207. In order to assess the role played by each of the four main intermediaries discussed below, and to determine whether the evidence given by the witnesses they had contacts with is reliable, the

532 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 6 – 9. 533 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 10 – 11. 534 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 11 – 14. 535 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 19, lines 15 – 18. 536 ICC-01/04-01/06-2690-Red2, para. 199. 537 ICC-01/04-01/06-2690-Red2, para. 198. No. ICC-01/04-01/06 101/593 14 March 2012

Chamber has considered each intermediary’s involvement with the OTP and the relevant witnesses, as well as the particular evidence given by those witnesses.

1 Intermediary 143

a) Background

208 In its Decision on Intermediaries, the Chamber described the evolution of the position of Intermediary 143 leading to an order for disclosure of his identity to the defence. 538 It set out the evidence relating to Intermediary 143’s involvement with the prosecution witnesses, 539 and concluded that it was strictly necessary to disclose his identity to the defence for the purposes of conducting necessary and meaningful investigations and to secure a fair trial for the accused. 540 The Chamber also found that the evidence did not meet the criteria for ordering him to be called as a witness in the proceedings. 541 However, the prosecution was instructed to call a witness who could give evidence on the approach and the procedures applied by the prosecution in relation to intermediaries during the investigations. 542 In addition, the prosecution was ordered to provide further information on the intermediaries and to disclose the known contacts between the intermediaries and the witnesses, and between the intermediaries. 543

538 ICC-01/04-01/06-2434-Red2, paras 40 and 41. 539 ICC-01/04-01/06-2434-Red2, paras 43 – 47. 540 ICC-01/04-01/06-2434-Red2, para. 143. 541 ICC-01/04-01/06-2434-Red2, para. 143. 542 ICC-01/04-01/06-2434-Red2, paras 146 and 150 (iv). 543 ICC-01/04-01/06-2434-Red2, paras 147 and 150 (i, ii and v). No. ICC-01/04-01/06 102/593 14 March 2012

209 Intermediary 143 introduced numerous witnesses to the OTP, 544 five of whom were called by the prosecution. It is noteworthy that, 545 according to a contact chart provided by the prosecution, 546 the following lengthy list of potential witnesses were first contacted via Intermediary 143: DRC-OTP-WWWW-0006, trial witness P-0007, trial witness P-0008, DRC-OTP-WWWW-0009, trial witness P-0010, trial witness P-0011, trial witness P-0031 (who was also an intermediary), DRC-OTP-WWWW-0132, DRC-OTP-WWWW-0137, DRC-OTP- WWWW-0155, DRC-OTP-WWWW-0170, DRC-OTP-WWWW-0176, DRC-OTP-WWWW-0179, DRC-OTP-WWWW-0216, DRC-OTP- WWWW-256, DRC-OTP-WWWW-267, DRC-OTP-WWWW-0278, DRC-OTP-WWWW-0279, DRC-OTP-WWWW-0280, DRC-OTP- WWWW-0281, DRC-OTP-WWWW-0282 and DRC-OTP-WWWW- 287. In addition, he had contact with the following witnesses: DRC- 547 OTP-WWWW-0028, DRC-OTP-WWWW-0030, DRC-OTP-WWWW- 0156, DRC-OTP-WWWW-0178, DRC-OTP-WWWW-0243. Finally, he was in touch with intermediaries P-0316 and P-0321, amongst others. 548

b) The evidence from P-0582 and P-0583

210 P-0582 considered that Intermediary 143 must have introduced himself to the investigators, but he was not sure exactly how. 549 P-0582 suggested that Intermediary 143 made it possible for the investigators

544 Table of contacts, EVD-D01-01039, No. 72. 545 P-0007, P-0008, P-0010, P-0011 and P-0031. Intermediary 143 also introduced prosecution witnesses P-0006 and P-0009, who were withdrawn. 546 Table of contacts, EVD-D01-01039, No. 72. 547 EVD-D01-01039, No. 72. 548 T-324-Red2-ENG, page 24, line 24 to page 26, line 16 and EVD-D01-01039, No. 72. 549 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 22 – 24. No. ICC-01/04-01/06 103/593 14 March 2012

to identify several children who could testify. 550

211 Intermediary 143 identified a number of child witnesses who,

according to their statements, were under 15 years of age. 551 Thereafter

he maintained contact with the witnesses, and informed the

investigators as to the state of their health, and any difficulties they

were experiencing. Additionally, Intermediary 143 provided more 552

general information about the security situation in Bunia, and he 553

resolved individual problems (such as threats to witnesses and

organising medical treatment). 554

212 As far as the investigators were concerned, the former child soldiers

introduced to the OTP by Intermediary 143 had been recruited into the

military apparatus of the UPC. 555 P-0582 suggested that Intermediary

143 was aware that the investigators were looking for children who

were under the age of 15 at the relevant time, 556 against the

background that determining age was not easy. 557

213 During the early months, the objectives of the investigation were

not precisely formulated because the investigators were collecting

information and they were open to any suggestions, depending on the

550 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 2 – 4. 551 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 21, line 22 to page 22, line 1. 552 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 2 – 7. 553 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 8 – 9 and 19 - 19. 554 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 22, lines 20 – 25. 555 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 25, lines 11 – 13. 556 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 25, lines 16 – 18. 557 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 25, lines 19 – 21.

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documentation they received. 558 Indeed, at the outset they thought that

they were going to be dealing with massacres and other atrocities. 559

However, once they received information from Intermediary 143 and

others ( e.g. investigators from the UN) that during the fighting

children under the age of 15 had been used systematically, a decision

was taken by the OTP to investigate this issue further. Intermediary 560

143 was not provided with any particular criteria, given the

investigators were open to any new information. 561

214 Although Intermediary 143 made suggestions as to individuals the

investigators might meet, 562 he did not establish the criteria for

identifying witnesses but instead he had been asked if he knew militia

members, 563 and, following a request from the investigators, he

introduced children who were to be assessed by them. 564 However, in

practice, Intermediary 143 often identified children for the prosecution

before investigators asked him to do so, although P-0582 did not 565

know the precise manner in which this occurred. 566

215 The OTP asked Intermediary 143 to provide documents for the child

558 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 4 – 8. 559 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, lines 11 – 16. 560 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 24, line 17 to page 25, line 3. 561 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 25, lines 4 – 8. 562 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 11 – 12. 563 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 9 – 10. 564 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 23, lines 17 – 19. 565 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 2 – 7. 566 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, lines 6 – 9.

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soldiers because he was in the best position to obtain them. 567 The children or their legal guardians were asked for their civil status documents, which were given to the investigators by the intermediaries. 568 The evidence set out hereafter reveals that this process of verification was often not undertaken satisfactorily as regards the witnesses who had contact with the principal intermediaries dealt with in this section. 216. P-0582 indicated that on the basis of several meetings, as well as the assessment of the investigators who had direct links with Intermediary 143, he was quite content with the management of the child soldier witnesses and any relevant security measures. P-0582 explained that 569 Intermediary 143 undertook the work assigned to him and they discussed his future role. 570 It was P-0582’s estimation that Intermediary 143 had a “really high idea of his activities and responsibilities and the fact that he was working for a cause that […] was dear to him”. 571 The children never mentioned any problems with him. 572 217. The relationship between P-0031 (a trial witness and intermediary as noted above) and Intermediary 143 was not good. Although they were both human rights activists, one of them accused the other of

567 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 26, line 24 to page 27, line 2. 568 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 27, lines 6 – 8. 569 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 29, lines 18 – 22. 570 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 29, lines 23 – 24. 571 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 29, line 24 to page 30, line 1. 572 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 30, lines 3 – 5. No. ICC-01/04-01/06 106/593 14 March 2012

wanting to poison him. 573

c) The Other Evidence

218 The defence argues that the evidence overall demonstrates that

Intermediary 143 suborned prosecution witnesses. 574

219 It has been established that the Office of the Prosecutor employed

Intermediary 143 under contracts that were regularly renewed

between 1 June 2005 and 2010. 575

220 P-0581 stated that Intermediary 143 arranged travel and transport

for witnesses on behalf of the OTP, and he obtained identification 576

papers. 577 He secured the consent of some of the witnesses’ guardians

in order to take X-rays. As discussed above Intermediary 143 was

involved with issues concerning the safety and the health of some of

the witnesses. He also acted on behalf of some victims. 578

221 The prosecution called Witnesses P-0007, P-0008, P-0010 and P-0011

(all introduced to the OTP by Intermediary 143), each of whom

claimed at trial to have been recruited into the UPC when they were

under the age of 15. Intermediary 143 also introduced P-0006 and P-

0009 to the Office of the Prosecutor, who were withdrawn from the list

of trial witnesses but whose written statements were before the Pre-

573 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 20, lines 9 – 11. 574 ICC-01/04-01/06-2657-tENG-Red, para. 149. See also ICC-01/04-01/06-2773-Red-tENG, para. 5. 575 EVD-D01-01053; EVD-D01-01040, No. 202; EVD-D01-01052; EVD-D01-01051; EVD-D01- 01046; EVD-D01-01047; EVD-D01-01049; and EVD-D01-01050. 576 See, e.g., EVD-D01-00932, EVD-D01-00784, EVD-D01-00891, EVD-D01-00893 and EVD-D01- 00931. 577 Intermediary 143 assisted P-0297 in obtaining an identity card. T-302-CONF-ENG, page 53, line 20 to page 54, line 21 and EVD-D01-00295. Intermediary 143 also provided the birth certificates for Witnesses P-0007 (EVD-OTP-00085), P-0008 (EVD-D01-00055), P-0010 (EVD-D01-01102) and P- 0011 (EVD-D01-00059). This is recorded in the metadata of the aforesaid exhibits. See also EVD- D01-00926, a receipt reimbursing Intermediary 143 for birth certificates obtained. 578 First Report to Trial Chamber I on Victims’ Applications Under Regulation 86(5) of the Regulations of the Court, 11 April 2008, ICC-01/04-01/06-1275-Conf-Exp-Anx2, pages 6, 8, 12 and 216.

No. ICC-01/04-01/06 107/593 14 March 2012

Trial Chamber at the stage of the confirmation of charges. 579 All six individuals were authorised to participate in the current proceedings as victims (P-0006 is a/0051/06, P-0007 is a/0047/06, P-0008 is a/0048/06, P-0009 is a/0049/06, P-0010 is a/0050/06, and P-0011 is a/0052/06). 580

(1) The evidence of P-0007 and P-0008 and evidence relevant to their assessment (a) P-0007

222 P-0007 and P-0008 are alleged former child soldiers who have also been authorised to participate in the proceedings. P-0007 testified that although during his meeting with representatives from the OTP in 2005 (having been introduced by Intermediary 143) he confirmed that all of his answers were accurate, in fact at the time he did not know his true date of birth. 581 In August 2005, the witness apparently told the IEC that his year of birth was 1986, and he gave them a name that differed from the one provided by him to the prosecution. 582 His birth certificate (dated November 2005) records the year of his birth as 1990. 583 223. Although the witness gave his names in evidence, he explained that his parents, brothers and sisters call him by different names, and later in his testimony he indicated that he had used two further names. 584 He also stated that he was born in 1987 (he repeated this date in 585

579 ICC-01/04-01/06-803tEN. 580 ICC-01/04-01/06-1861-AnxA1. 581 T-148-Red2-ENG, page 34, lines 6 – 18. 582 EVD-D01-01031 (extract from the IEC database). 583 EVD-D01-01103. 584 T-148-Red2-ENG, page 17, lines 20 – 24; T-149-Red2-ENG, page 47, line 5 to page 48, line 18. 585 T-148-Red2-ENG, page 18, lines 14 – 17. No. ICC-01/04-01/06 108/593 14 March 2012

November 2010). 586 224. In these circumstances his reliability is profoundly called into question, given the considerable, and essentially unexplained, differences as to the date of birth of this witness, in his oral testimony and in the documentary evidence. 225. The witness gave contradictory testimony concerning the names of his father (this is discussed further below).

226 The witness testified that when he was 15 years old (during his second year of secondary education), soldiers from the UPC abducted him outside his school. 587 Thereafter, he was sent for military training (this was at the beginning of 2003). He stayed at a training centre in 588 Irumu 589 for about a month. 590 Later, he became a bodyguard in Bunia to a UPC commander, 591 once he had spent two to three months at the camp at Mandro, 592 and he fought in battles at Bogoro, 593 Lipri and Bunia. 594 It follows from the above that he completed his training in March or April 2003. 227. It is suggested by the defence that P-0007 gave an implausible account regarding certain aspects of his time in the UPC. He said that Chief Kahwa and Mr Bagonza were both commanders at the material time. Similarly P-0007 maintained that Commander Bagonza was 595

586 EVD-OTP-00655. 587 T-148-Red2-ENG, page 22, line 17 to page 24, line 3. 588 T-148-Red2-ENG, page 21, lines 6 – 16. 589 T-149-Red2-ENG, page 67, lines 4 – 16. 590 T-148-Red2-ENG, page 54, line 25 to page 55, line 1; T-149-Red2-ENG, page 80, lines 10 – 12. 591 T-148-Red2-ENG, page 59, lines 20 – 23. 592 T-148-Red2-ENG, page 56, lines 10 – 13; T-149-Red2-ENG, page 44, lines 18 – 20. 593 T-149-Red2-ENG, page 9, lines 15 – 20; T-150-Red2-ENG, page 19, line 17 to page 20, line 4. 594 T-149-Red2-ENG, page 18, lines 6 – 13. 595 ICC-01/04-01/06-2773-Red-tENG, paras 122 - 124, T-148-Red2-ENG, page 58, lines 11 – 12 and T-149-Red2-ENG, p. 7, lines 2 – 3. No. ICC-01/04-01/06 109/593 14 March 2012

present at meetings at the residence of the UPC Chief of Staff. 596 The defence suggests that the evidence has established that Commander Bagonza was killed in 2002. 597 However, although there is evidence that Mr Bagonza died, there is no clear evidence as to the date of his death and the Chamber accordingly discounts this particular criticism. 228. P-0007 stated that Chief Kahwa was in charge while he was at the camp in Mandro in early 2003. Furthermore, he maintained that 598 Thomas Lubanga and Chief Kahwa were present at the end of his training at Mandro, around March or April 2003. 599 The defence relies on the testimony of D-0019 to argue that the evidence establishes that Chief Kahwa left the UPC at the end of 2002. The defence also refers 600 to a UPC decree dated 2 December 2002 formally removing Chief Kahwa from his position as UPC defence minister. 601 It is not disputed by either party that this document originates from the UPC, and the Chamber accepts its authenticity. This evidence thus contradicts P- 0007’s testimony that Chief Kahwa was present at, and in charge of, Mandro camp in 2003. 229. Further, it is significant that when P-0007 met with prosecution investigators in 2005, he did not mention that he had participated in, and had been wounded during, the battle of Dele, which he described as the “most difficult” battle he had fought in. 602 When questioned about this omission by the defence, the witness suggested that he

596 T-149-Red2-ENG, page 6, line 14 to page 7, line 3. 597 ICC-01/04-01/06-2773-Red-tENG, referring to testimony of D-0026. 598 T-148-Red2-ENG, page 56, lines 4 – 9, and page 58, lines 1 – 13. 599 T-148-Red2-ENG, page 50, line 2 to page 53, line 9; T-149-Red2-ENG, page 43, lines 22 – 25 and page 44, lines 6 – 8. 600 ICC-01/04-01/06-2773-Red-tENG, referring to T-340-ENG, page 48, line 9 to page 49, line 14, in which it is stated that Chief Kahwa resigned from the UPC at the end of October 2002 (testimony of D- 0019). 601 EVD-D01-01089. 602 T-150-Red2-ENG, page 10, lines 14 – 18. No. ICC-01/04-01/06 110/593 14 March 2012

failed to refer to this battle at that stage because he had spoken about many events that had happened in his life, and he felt that it was not necessary to say anything about it and, additionally, if he talked about it he would be asked a lot of questions. 603 He also suggested that he remembered telling the investigators in 2005 that he had been injured during the battle of Dele. This is contradicted by the fact that during 604 questioning by the prosecution in 2005, the witness is recorded as having said he was injured near Lipri (the first battle). 605 As read out in court, at paragraph 50 of his 2005 statement to OTP investigators, he gave an account of the wound and its consequences which was at variance with his testimony before the Court. 606 Accordingly, the Chamber does not consider that his account on these issues is reliable. 230. When asked to explain the discrepancies between his in-court testimony and his earlier statements to the prosecution, P-0007 stated that “I told [the investigators] certain things, but I also withheld a certain amount of information, because I was afraid that such information would reveal my identity and I will be at danger.” 607

(b) P-0008

231 P-0008 is an alleged former child soldier who has also participated in the proceedings as a victim. P-0008 maintained, during his evidence, that he was the cousin of Witness P-0007, and he gave a name that 608 differs slightly from the one on his voting card. 609 He said he was born

603 T-150-Red2-ENG, page 10, line 8 to page 11, line 11. 604 T-150-Red2-ENG, page 11, lines 15 – 17. 605 T-150-Red2-ENG, page 17, line 21 to page 18, line 12. 606 T-150-Red2-ENG, page 18, line 21 to page 19, line 16. 607 T-149-Red2-ENG, page 93, lines 3 – 8. 608 T-135-Red3-ENG, page 4, line 25 – page 5, line 6. 609 Compare T-135-CONF-ENG, page 64, lines 14 – 16 with EVD-OTP-00659. No. ICC-01/04-01/06 111/593 14 March 2012

in 1989 610 and he provided the names of his parents. 611 P-0008’s

testimony before the Court on this issue partially contradicts the

information on his birth certificate (obtained by P-0143 on 11 August

2005), which states that he was born in 1991 and lists names for his

parents that, to an extent, differ from those given in Court. 612 The

witness’s electoral card indicates that he was born in 1987. 613

232 P-0008 suggested that soldiers from the UPC forcibly enlisted him at

the beginning of 2003, whilst he was attending school. 614 He underwent

military training for two weeks 615 at the UPC camp in Irumu, 616 at the

conclusion of which he was deployed as a bodyguard. 617 He fought at

the battles of Lipri and Barrière. However, his account, viewed 618 619

overall, is contradictory and implausible. The description of his

abduction changed significantly, in that in evidence he said that he

was taken by soldiers after he fled home from school, whilst in his 620

statement of July 2005 he said “[o]ne day at the beginning of 2003, on a

date I am not able to give, the UPC militia arrived in the village, at the

time, when I lived with my family, to have a meeting with the civilian

population. I don’t know why this meeting nor what was discussed at

the meeting took place because I didn’t take part in it. On the evening

of the same day, a group of these militias arrived at my home and

610 T-135-CONF-ENG, page 65, lines 12 – 14. 611 T-135-CONF-ENG, page 64, line 25 to page 65, line 11. 612 EVD-D01-00055 and metadata. 613 See extract of the IEC database, EVD-D01-01028. See also the declaration on the electoral card, EVD-OTP-00658. 614 T-135-Red3-ENG, page 7, lines 2 – 18 and page 12, lines 13 – 16 and T-137-Red-ENG, page 21, line 19 to page 22, line 5. 615 T-137-Red2-ENG, page 47, lines 18 – 20. However, in his 2005 interview with the prosecution he claimed he was trained for two months: ICC-01/04-01/06-T-137-Red2-ENG, page 47, line 10. 616 T-135-Red3-ENG, page 9, lines 10 – 16. 617 T-135-Red3-ENG, page 22, line 23 to page 23, line 3. 618 T-135-Red3-ENG, page 24, lines 14 – 15 and lines 18 – 21. 619 T-135-Red3-ENG, page 24, line 17. 620 T-135-Red3-ENG, page 7, line 2 to page 8, line 1.

No. ICC-01/04-01/06 112/593 14 March 2012

ordered me to follow them to undergo military training.” 621 233. In his witness statement he suggested that they walked to the camp at Irumu from Sota (a distance that was not very far), 622 whilst in evidence his account was that they went by vehicle (taking about two hours). 623 P-0008 claims that Chief Kahwa and Mr Bagonza were commanders at the time at which he states he became a member of the UPC, at the beginning of 2003. As with P-0007, the defence argues 624 that the evidence has established that Chief Kahwa left the UPC at the end of 2002. 625 The defence also contends that the witness’s allegations as regards Mr Bagonza are implausible since he was killed in 2002. 626 As set out above, the Chamber considers that there is insufficient evidence as to the date of Commander Bagonza’s death. However, there is evidence that Chief Kahwa was not a UPC commander in 2003. 234. P-0008 suggested that he failed to tell the investigators in his statement of July 2005 that he had fought at Barrière because of the amount he had to say, and (“probably”) because of lack of time and the amount of information. 627 In evidence, the witness said that he stayed at Mandro for a single day whilst in his 2005 statement he 628 suggested he was there for 2 months. 629 He suggested he was unable to give names for any of his siblings because he has not seen them for

621 T-137-Red2-ENG, page 34, lines 19 – 25. 622 T-137-Red2-ENG, page 41, lines 1 – 5. 623 T-135-Red3-ENG, page 9, line 22 to page 10, line 18 and T-137-Red-ENG, page 41, line 13 to page 42, line 12. 624 T-135-CONF-ENG, page 12, line 16 and page 40, lines 18 - 23. 625 ICC-01/04-01/06-2773-Red-tENG, para. 125. 626 ICC-01/04-01/06-2773-Red-tENG, para. 125. 627 T-137-Red2-ENG, page 73, lines 13 – 19. 628 T-138-Red2-ENG, page 5, lines 3 – 5. 629 T-137-Red2-ENG, page 72, lines 13 – 18. No. ICC-01/04-01/06 113/593 14 March 2012

“such a long time”. 630 Similarly, he could not recall whether he saw his parents after he joined the UPC. 631 235. The prosecution argues that “the fact that P-0008 admitted in open court that he had raped a girl during one of the battles in which he was fighting ought to be a factor in assessing his credibility”. 632

(c) Matters common to P-0007 and P-0008

236 P-0031 testified that he had been in close contact with P-0007 and P- 0008 soon after they left the army, and that at the time they indicated they had been enlisted by the UPC/FPLC. He also gave evidence 633 about a record that was kept of children who had been associated with armed groups, indicating that P-0007 was 14 years old and P-0008 11 years old on the date that they arrived at the centre, although he did not know which social worker had drafted the document. However, 634 during questioning by the defence, P-0031 stated that although P-0008 gave the age of 11 when he arrived at the centre, “over time we discovered that the child’s age was not 11 years” and in fact he was older, although P-0031 could not remember the precise age. 635 237. Moreover, documentary evidence tends to demonstrate that P-0007 and P-0008 lied about having attended school in a particular town in the year 2001-2002 and at the beginning of the 2002-2003 academic year, because the records establish they were both at school in a different location altogether. The relevant documents indicate that P- 0007 and P-0008 were in the 1 st year of secondary school in 2001-2002

630 T-137-Red2-ENG, page 13, lines 4 – 6. 631 T-137-Red2-ENG, page 14, lines 19 – 25. 632 ICC-01/04-01/06-2748-Red, para. 427. 633 T-201-CONF-ENG, page 72, line 22 to page 74, line 25. 634 T-200-Red2-ENG, page 89, line 1 to page 90, line 18, referring to EVD-OTP-00474. 635 T-202-CONF-ENG, page 67, line 14 to page 69, line 4. No. ICC-01/04-01/06 114/593 14 March 2012

at a school other than the one they claimed to have attended. The

names of the two witnesses are to be found under “ Classe 2e C/O ” [2

nd

Year of Secondary School], under Section V “left during the course of

the year”.

636

There are no sustainable reasons for concluding that these

records are forgeries or that they are inaccurate.

238 Witnesses P-0007 and P-0008 were re-interviewed by the

prosecution on 7 and 8 January 2010, following their evidence before

637

the Chamber.

638

They accepted that the family relationships were

significantly different from the description provided by each of them

earlier.

639

The re-interview also demonstrates that P-0008 had lied in

the relevant documents as to his mother’s name. Similarly, P-0007

640

appears to have lied in evidence as to his father’s name.

641

During

these post-testimony interviews they each provided various names for

their siblings that had not been forthcoming during their oral

642

evidence.

643

636 EVD-D01-00181, page 4243 and EVD-D01-00182, page 4231. See also EVD-D01-00183. 637 Prosecution’s Omnibus Application Concerning Disclosure by the Defence and other procedural issues related to the Prosecution’s preparation for the Defence case, 2 October 2009, public redacted version filed 5 October 2009, ICC-01/04-01/06-2144-Red and Second Decision on Disclosure by the defence and Decision on whether the prosecution may contact defence witnesses, 19 November 2009, public redacted version issued 20 January 2010, ICC-01/04-01/06-2192-Red, para. 66. 638 P-0007: EVD-D01-00752; EVD-D01-00753 and EVD-D01-00754. P-0008: EVD-D01-00750 and EVD-D01-00751. 639 EVD-D01-00750, page 0380, lines 286-298 (re-interview of P-0008). EVD-D01-00752, page 0618, lines 3758 - 372 (re-interview of P-0007). See also EVD-D01-00753, page 0633, lines 35 – 56. 640 P-0008’s birth certificate (obtained by P-0143 in 2005) gives one set of names for his mother, EVD- D01-00055. In his January 2010 interview with the prosecution, P-0008 provided two entirely different names. EVD-D01-00750, page 0380, lines 299 to page 0381, line 317. 641 In his testimony before the Court, P-0007 suggested two names for his father. T-148-CONF-ENG, page 18, lines 2 – 3. However, P-0007 stated in his re-interview that his father’s name was entirely different from the one he previously set out (EVD-D01-00753, page 0636, lines 146-157 and page 0639, lines 254 -256) and that the name given during his testimony actually belonged to a different, but close, family member. EVD-D01-00753, page 0636, line 169 to page 0637, line 191. 642 P-0007: EVD-D01-00753, page 0639, line 267 et seq; P-0008: EVD-D01-00750, page 0383, line 407 et seq. 643 P-0007 omitted to name several of his brothers and sisters. T-149-CONF-ENG, page 48, line 24 to page 51, line 4. P-0008 stated during his testimony that he had forgotten the names of his brothers and sisters. T-137-Red2-ENG, page 13, lines 5- 6.

No. ICC-01/04-01/06 115/593 14 March 2012

(d) D-0012

239 The defence relies on the evidence of D-0012 to challenge the credibility of P-0007 and P-0008. D-0012 joined the UPC army after arriving in Bunia. 644 Although he could not recall the year, he went into the military three months before the departure of Governor Lompondo. 645 D-0012 served as a soldier in the UPC until he was demobilised (following the arrival of the French forces). He became 646 a bodyguard for one of the UPC commanders after he joined the army, 647 and in due course he worked for a number of other commanders. 648 240. D-0012 stated that throughout the time that he was in the army, P- 0007 and P-0008 were attending school, although following the disorder only some of the schools were functioning in the town they lived in. 649 The witness believes that P-0007 and P-0008 stayed in that town for one or two years. 650 The prosecution argues that since D-0012 joined the UPC/FPLC army before Governor Lompondo was chased out ( i.e. before August 2002), and remained there until the French military arrived ( i.e. July 2003), he would not have known whether P- 0007 and P-0008 were soldiers during this period. 651 241. The Chamber considers that although the witness’s evidence was somewhat contradictory as to whether he saw the family of D-0007 and D-0008 during this time, 652 he indicated he had seen them when he

644 T-248-Red2-ENG, page 38, line 18 to page 39, line 4. 645 T-248-Red2-ENG, page 38, line 25 to page 39, line 2. 646 T-248-Red2-ENG, page 39, lines 5 – 7. 647 T-248-CONF-ENG, page 39, lines 13 – 17. 648 T-248-CONF-ENG, page 39, lines 19 – 25. 649 T-248-CONF-ENG, page 40, lines 15 – 19. 650 T-248-CONF-ENG, page 40, line 19. 651 ICC-01/04-01/06-2748-Conf, para. 430. 652 T-248-CONF-ENG, page 40, lines 20 – 23. No. ICC-01/04-01/06 116/593 14 March 2012

spent a year in the same town D-0007 and D-0008 lived in while he was serving in the army. Even though the witness could not say 653 with complete certainty that P-0007 and P-0008 had not served as soldiers whilst he was away, nevertheless when he left for the army they were not in any armed force and when he returned it was not suggested by anyone that they had joined a military group. 654 Furthermore, in all of the places the witness travelled to as a soldier, there was no mention of P-0007 and P-0008. 655 When the witness returned from Uganda in 2005 or 2006, he was told P-0007 and P-0008 had left to study elsewhere. 656 242. The prosecution further argues that the evidence of P-0007, P-0008 and D-0012 must be viewed against the information provided by the parents of P-0007 and P-0008, to the effect that they had been pressured by UPC/FPLC members to say that their children had not been in the UPC/FPLC army, along with D-00012’s account that he had been visited by two representatives of the UPC prior to testifying. 657 243. Notwithstanding these contentions by the prosecution, the Chamber has accepted the evidence of D-0012: in contrast with the testimony of P-0007 and P-0008, this witness gave a measured and entirely credible account, which was internally consistent. He met with at least two individuals prior to giving his statement to the OTP, 658 but the Chamber accepts he was not put under any material pressure. 659 While D-0012 could not say definitively that P-0007 and P-0008 were not in the army, he gave credible evidence that, to the best of his 653 T-248-CONF-ENG, page 40, line 20 to page 41, line 15 and page 43, lines 6 – 9. 654 T-248-Red2-ENG, page 41, lines 17 – 21. 655 T-248-Red2-ENG, page 41, lines 22 – 25. 656 T-248-CONF-ENG, page 42, lines 13 – 19. 657 ICC-01/04-01/06-2748-Conf, para. 431. 658 T-249-CONF-ENG , page 6, line 1 to page 7, line 14. 659 T-249-CONF-ENG , page 7, line 24 to page 8, line 1; T-249-CONF-ENG , page 9, lines 15 – 18. No. ICC-01/04-01/06 117/593 14 March 2012

knowledge, this was not the case. 244. During their re-interviews with the prosecution, P-0007 and P-0008 accepted that they had lied about the relationships within their family. 660

(e) P-0496 and P-0497

245 P-0496 and P-0497 provided written statements which were admitted into evidence on 17 June 2010 following the joint agreement of the parties. 661 These two individuals addressed some of the issues concerning the credibility of P-0007 and P-0008. However, their accounts were not tested by questioning under oath, and this written material does not overcome the profound underlying difficulties with the credibility of these two witnesses, as extensively rehearsed above.

(f) Conclusions as to P-0007 and P-0008

246 The prosecution relies on the evidence of these witnesses in its submissions on the facts. In essence, it is argued that they provided 662 detailed and credible evidence as to their abduction, training and participation in hostilities, and it is suggested that there are reasonable explanations for “the few minor discrepancies in their evidence”. 663 The defence submits that P-0007 and P-0008 lied about aspects of their family relationships as well as issues relating to their identity, their schooling, their recruitment in the armed forces and their participation

660 EVD-D01-00750, page 0380, lines 286-298 (re-interview of P-0008). EVD-D01-00752, page 0618, lines 3758 - 372 (re-interview of P-0007). See also EVD-D01-00753, page 0633, lines 35 – 56. 661 T-303-Red-ENG, page 29, line 18 to page 30, line 2. 662 ICC-01/04-01/06-2748-Red, paras 407-432. 663 ICC-01/04-01/06-2748-Red, para. 432. No. ICC-01/04-01/06 118/593 14 March 2012

in hostilities. 664 The OPCV submits that corroboration has been provided as regards the names and dates of birth of P-0007 and P-0008 and that the criticisms by the defence as to their identity are based on unreliable documents and hearsay evidence. With reference to its previous submissions in response to the abuse of process application, the OPCV suggests that any apparent contradictions arising from the documentary material should be viewed against the background of the serious faults in the registration system in the DRC. 665 The OPCV further contends that P-0496 has provided relevant confirmatory material. 666 Finally, the OPCV argues that there is no reason for concluding that the evidence that tends to undermine the in-court testimony of these witnesses should be preferred to their sworn evidence. 667 247. The Chamber’s assessment of these two witnesses is that the weaknesses and contradictions in their evidence (particularly as to their ages and true identities) along with the evidence of D-0012 undermine the reliability of their testimony. The difficulties with their accounts are not satisfactorily or sufficiently explained by fears for their safety or that of their family. The Chamber is unable to rely on the evidence of either witness in these circumstances.

(2) The evidence of P-0010 and evidence relevant to her assessment (a) P-0010

248 P-0010 is an alleged former child soldier who is participating in the

664 ICC-01/04-01/06-2773-Red-tENG, paras 97 – 124, 133 – 147 and ICC-01/04-01/06-2786-RedtENG, paras 81-84. 665 ICC-01/04-01/06-2744-Red-tENG, paras 31 – 33. 666 ICC-01/04-01/06-2744-Red-tENG, paras 34 and 35. 667 ICC-01/04-01/06-2744-Red-tENG, para. 46. No. ICC-01/04-01/06 119/593 14 March 2012

proceedings as a victim. P-0010 was born in the DRC. 668 Although at

one stage in her evidence she said that she was born during a

particular month in 1989, 669 she also gave evidence that she does not

know the day or the month; 670 furthermore, she did not obtain a copy

of her birth certificate, 671 and she does not know who provided the

copy annexed to her application to participate as a victim. Her birth 672

certificate indicates that she was born in 1988 673 and her electoral card

gives a different date: 1986. 674

249 P-0010 gave evidence that she did not finish her schooling (during

the fourth grade) because she was enlisted in the UPC armed forces 675

during 2002. She said this happened after Governor Lompondo had 676

left Bunia, 677 when the witness and her mother fled with a group of

people who were trying to reach Beni in order to avoid the Lendu. 678

As part of her testimony she maintained that UPC soldiers enlisted her

at Dele (where there is a slaughterhouse), about 7 kilometres outside

Bunia on the road to Beni. 679 However, the defence put to the witness

that at page 10 of her application to participate in the proceedings as a

victim, she gave a radically different account, namely that she had

enlisted at the stadium in Bunia, which P-0010 said she did not

remember. 680

668 T-144-CONF-ENG , page 12, lines 19-24. 669 T-144-CONF-ENG , page 12, line 25 to page 13, line 3. 670 T-145-Red2-ENG, page 47, lines 14 – 22. 671 T-145-Red2-ENG, page 48, lines 22-25. 672 T-145-Red2-ENG, page 59, lines 1-7. 673 EVD-D01-01102. 674 EVD-D01-00762. 675 T-144-Red2-ENG , page 14, lines 6-12. 676 T-144-Red2-ENG , page 35, lines 21-23. 677 T-145-Red2-ENG, page 3, lines 16-17. 678 T-144-Red2-ENG , page 18, lines 6-21. 679 T-144-Red2-ENG , page 14, line 20 to page 15, line 8 and T-145-Red-ENG, page 56, lines 13-14 and page 60, lines 16 – 19. 680 T-145-Red-ENG, page 56, lines 16-24.

No. ICC-01/04-01/06 120/593 14 March 2012

250 The witness testified that she was 13 years old at the time she was abducted. During the examination of the witness, the defence 681 suggested to her that when completing her application to participate as a victim she had set out that she was “barely 15 years old” at the time of her enlistment, which the witness said she did not recall. 682 The witness’s electoral card lists her year of birth as 1986. In a post- 683 testimony interview with the OPCV, the witness stated that she intentionally lied about her date of birth in order to obtain this document. 684 Finally in this regard, the “Individual case story” that relates to this witness gives her birth year as 1987. 685 The Chamber has considered the circumstances in which this was provided, namely when P-0010 met with an official from MONUC. 686 251. It is suggested in the “Individual case story” that P-0010 was forcibly enlisted by the APC towards the end of 1999, and that she 687 subsequently underwent military training in Rwampara prior to fighting under the orders of a particular commander. It is recorded that she transferred at the end of 2001 to Mahagi, and only joined the UPC when the latter attacked in 2002. Finally, it is set out that she ultimately left the UPC in July 2003. Witness P-0010, whilst denying 688 she met a MONUC agent, identified a representative from another organisation 689 with whom she discussed what happened to her during her time in the army, from her enlistment onwards. 690 However, in her testimony before the Chamber, P-0010 did not agree that she had been 681 T-144-Red-ENG , page 15, line 5. 682 T-145-Red-ENG, page 56, line 25 to page 57, line 5. 683 EVD-D01-00762. 684 EVD-OTP-00660. 685 EVD-D01-00082. 686 T-208-CONF-ENG, page 39, lines 6 – 11 . 687 EVD-D01-00082. 688 EVD-D01-00082. 689 T-145-CONF-ENG, page 70, lines 12 - 16. 690 T-145-CONF-ENG, page 71, lines 1 - 3. No. ICC-01/04-01/06 121/593 14 March 2012

enlisted in the APC prior to joining the UPC. 691

252 P-0010’s account was that after the UPC soldiers stopped her at

Dele, she was sent with others to a training centre at Rwampara 692 for

two weeks, and thereafter (during 2002) 693 they were taken to Mandro

by Chief Kahwa. 694 When she completed her training, she was

appointed as a bodyguard to a particular UPC commander. Again, it 695

is of note that when interviewed by the prosecution in September and

October 2005, P-0010 indicated that the commander selected her after

she had fought at Libi and Mbau. 696

253 P-0010 stated that Commander Pepe was the Commander of the

(UPC) camp. However, D-0037 and D-0007 testified that he was a 697

member of the APC and not the FPLC. 698

254 The witness recognised herself in a portion of a video recording 699 as

the figure standing in the centre of the screen with her hands together

in front of her body . 700 The witness also recognised one of her friends,

whom she said was an escort. 701 The witness suggested that this video

was filmed in Rwampara. 702 She identified a person who was leading

songs as a man she saw when they were visiting Rwampara that

day. The witness indicated that Bosco Ntaganda, the accused and the 703

691 T-145-Red2-ENG, page 66, line 23 to page 67, line 14 and page 72, line 24 to page 73, line 16. 692 T-144-Red2-ENG , page 15, lines 2 – 10 and page 21, lines 14-15. 693 T-144-Red2-ENG , page 35, lines 21-23. 694 T-144-Red2-ENG , page 15, lines 9 – 11. 695 T-145-Red2-ENG, page 63, line 8 to page 64, line 1. 696 T-145-Red2-ENG, page 65, line 2 to page 66, line 13. 697 T-144-Red2-ENG, page 33, line 17. 698 T-349-ENG, page 19, lines 19 – 24 (D-0037); T-348-ENG, page 26, lines 4 – 21 (D-0007). The prosecution suggests that there may have been two different Commanders with the name of Pepe, ICC- 01/04-01/06-2778-Red, footnote 172. 699 EVD-OTP-00570. 700 T-145-Red2-ENG , page 13, lines 2-10. 701 T-145-Red2-ENG , page 13, line 12 to page 14, line 8. 702 T-145-Red2-ENG, page 26, lines 9-14. 703 T-145-Red2-ENG, page 18, line 24 to page 19, line 2.

No. ICC-01/04-01/06 122/593 14 March 2012

Minister of Defence had arrived in order to visit the recruits. 704 In one

section the witness said the person on the screen was Thomas 705

Lubanga. 706 They were singing battle songs. 707 The witness stated that

she saw Thomas Lubanga for this first time during this visit. 708

255 In another section, 709 the witness said the people moving toward a

vehicle in the video were leaving, including Bosco Ntaganda, 710

Thomas Lubanga and the Minister of Defence. The witness also 711

identified a bodyguard in the video: a uniformed soldier, who was

shorter than the others. 712 She did not know his name or his age, but

said that he was “younger” 713 and a “kadogo”, probably around 10

years old. 714

256 The witness was asked to identify the people in the video, and she

stated that the ones who had sticks and wore military uniforms were

almost at the end of their training, 715 unlike those in civilian clothing. 716

257 There is a body of evidence (considered hereafter) that tends to

undermine the reliability of the detail of this witness’s account in

certain important respects. However, the video material, to a

significant extent, “speaks for itself” and it falls therefore (along with

the account of the witness as regards its content) into a separate

category.

704 T-145-Red2-ENG, page 19, lines 3 to 8. 705 T-145-Red2-ENG, page 19, line 11. 706 T-145-Red2-ENG, page 19, lines 11-15. 707 T-145-Red2-ENG, page 38, lines 6-8. 708 T-145-ENG, page 24, lines 20-23. 709 Minutes 00:36:50 to 00:37:42 of Video EVD-OTP-00570 (DRC-OTP-0120-0293); T-145-Red2- ENG, page 21, lines 24-25. 710 T-145-Red2-ENG, page 21, lines 24 to page 22, line 10. 711 T-145-Red2-ENG, page 22, line 25 to page 23, line 2. 712 T-145-Red2-ENG, page 23, lines 12-15. 713 T-145-Red2-ENG, page 23, lines 16-19. 714 T-145-Red2-ENG, page 23, line 24 to page 24, line 2. 715 T-145-Red2-ENG, page 24, lines 3-12. 716 T-145-Red2-ENG, page 24, lines 12-14.

No. ICC-01/04-01/06 123/593 14 March 2012

(b) D-0005 and D-0006

258 Witnesses D-0005 and D-0006 gave evidence that they first met P-

0010 in Mahagi when she was a soldier in the APC. 717

259 D-0005 recognized P-0010 in a photograph shown to her in court. 718

She said that P-0010 was already a soldier in the APC armed forces

when they met. 719 Furthermore, she confirmed the place of birth

indicated by P-0010, although she testified that P-0010 was born in

1985 (and not in 1989 as stated by P-0010 in the course of her

testimony). 720 D-0005 gave evidence that P-0010 joined the UPC. 721 In

an interview with the prosecution conducted after she had completed

her evidence, P-0010 confirmed that she knew D-0005. 722

260 D-0006 was 17 years of age when he joined the UPC. He 723

recognised P-0010 on the photograph he was shown in the course of

his testimony, 724 and he confirmed the place of birth she had given in

her testimony. 725 When they met, D-0006 was serving as a soldier in the

UPC and P-0010 was a member of the APC; indeed, P-0010 told D- 726 727

0006 that she had been in the APC for a long time. 728 D-0006 described

the APC as an armed group that had been created before the UPC. 729 P-

0010, along with others from the APC, joined the UPC when they were

717 T-261-Red2-ENG, page 17, lines 16 – 20 (D-0005); T-254-Red-ENG, page 49, lines 14 – 24 , page 52, line 21 to page 53, line 1 and page 54, lines 10 – 12 (D-0006). 718 T-261-CONF-ENG, page, 16, line 23 to page 17, line 11 and page 19, lines 18 – 20; EVD-D01- 00112. 719 T-261-Red2, page 17, lines 16 – 24. 720 T-261-CONF-ENG, page 18, lines 2 – 7. 721 T-261-Red2-ENG , page 18, line 10 to page 19, line 12. 722 EVD-D01-00742, page 0379, lines 127-143. 723 T-254-Red-ENG, page 79, line 23 to page 80, line 4. 724 T-254-CONF-ENG, page 47, lines 17 – 22 and page 48, lines 3 – 4; EVD-D01-00112. 725 T-255-CONF-ENG, page 8, line 18. D-0006 stated she was born in one of two localities, one of which corresponds to the place of birth given by P-0010 (T-144-CONF-ENG , page 12, lines 19-24). 726 T-254-Red-ENG, page 52, lines 6 – 11. 727 T-254-Red-ENG, page 52, line 21 to page 53, line 1. 728 T-254-Red-ENG, page 62, line 19 to page 63, line 1. 729 T-254-Red-ENG, page 54, line 10.

No. ICC-01/04-01/06 124/593 14 March 2012

fighting in Mahagi. 730

261 D-0006 said that P-0010 was either his age or he was a year older,

having been born on 18 April 1985, 731 although he later stated that he

did not know her age. 732 Following her evidence, P-0010 confirmed

that she knew D-0006, 733 although in evidence she had denied knowing

anyone by that name. The prosecution advances a detailed argument 734

that the testimony of D-0006 is unreliable. The Chamber does not 735

accept the prosecution’s criticisms, in that D-0006 provided an entirely

credible account of his knowledge of P-0010. Although he could not

give evidence about every aspect of her life, 736 such as information as

regards her parents, he testified in detail about other aspects of her 737

history, including other members of her family. 738 The Chamber notes,

however, that this evidence did not coincide by any means entirely

with the account of P-0010. 739

262 The Chamber was impressed generally by the detail and internal

consistency of the evidence of D-0006, and has determined that he was

an essentially credible and reliable witness.

(c) Conclusions as to P-0010

263 The defence suggests that “the authenticity of [P-0010’s electoral

730 T-254-Red-ENG, page 49, lines 22 – 24. 731 T-254-Red-ENG, page 46, lines 1 – 4 (D-0006’s age) and page 66, lines 13 – 18 (P-0010’s age in relation to D-0006). 732 T-255-Red2-ENG, page 12, lines 22 – 24. 733 EVD-D01-00743, page 0396, line 224. 734 T-145-CONF-ENG , page 74, lines 3 – 8. 735 ICC-01/04-01/06-2748-Conf, paras 401 – 402. 736 He did not know P-0010’s ethnicity, although he stated she had told him where she came from (T- 255-CONF-ENG, page 9, line 25 to page 10, line 2). 737 T-255-Red2-ENG, page 9, lines 15 – 18 (name of her parents) and page 10, lines 3 – 4 (father’s profession). 738 T-255-CONF-ENG, page 9, lines 19 – 24. 739 T-145-Red2-ENG, page 47, lines 7 – 10.

No. ICC-01/04-01/06 125/593 14 March 2012

card] is established by the extract from the IEC database” 740 and that her explanation – to the effect that she provided false information in order to obtain an official document 741 – is implausible. 742 The prosecution contends that P-0010’s explanation is corroborated by the account of witnesses P-0007 and P-0008 and it is consistent with other evidence. The OPCV submits that any apparent contradictions 743 arising from the documentary material should be viewed against the background of the serious faults in the registration system in the DRC and it suggests that P-0010’s birth certificate has low probative value while the electoral card lacks any probative value. 744 264. While the defence submits that the “Individual case story” document contains the correct date of birth and refers to D-0005’s testimony of having met a MONUC representative together with P- 0010, it is challenged by the prosecution on the basis of P-0010’s own 745 evidence and a discrepancy between the date of the interview on the document and the date of the visit as recounted by D-0005. 746 In addition, the prosecution points out that according to the evidence given by the experts P-0358 and P-0359, “it is scientifically possible for [P-0010] to have been under the age of 15 at the time of her recruitment in late 2002”. 747 265. The OPCV submits that there is no reason for concluding that the evidence that tends to undermine the in-court testimony of this

740 ICC-01/04-01/06-2773-Red-tENG, para. 151, referring to EVD-D01-00762. 741 EVD-OTP-00660. 742 ICC-01/04-01/06-2773-Red-tENG, para. 154. 743 ICC-01/04-01/06-2778-Red-tENG, para. 102. 744 ICC-01/04-01/06-2744-Red-tENG, paras 31 – 33. 745 ICC-01/04-01/06-2773-Red-tENG, paras 155 and 156. 746 ICC-01/04-01/06-2748-Red-tENG, para. 399, referring to T-145-Red2-ENG page 69, lines 16 – 21 and page 70, lines 2 – 16 and ICC-01/04-01/06-2778-Red, para. 95. 747 ICC-01/04-01/06-2748-Red, para. 400, referring to EVD-OTP-00430. No. ICC-01/04-01/06 126/593 14 March 2012

witness should be preferred to her sworn evidence. 748 The defence, on the other hand, points to various contradictions and inconsistencies in the documentary evidence and her testimony concerning her enlistment and activities within the UPC, 749 and emphasises that P- 0010 materially benefited, in a significant way, from her participation as a witness in the trial. 750 266. The defence suggests that P-0010’s account of the interruption to her schooling in 2002 during her 4 th year 751 is contradicted by the relevant school register, 752 which is said to show that in 2002 she was not registered at that institution. 753 In all the circumstances, the Chamber accepts the considerable evidence that this witness was in the APC between 1999 and 2002, 754 which significantly casts doubt over her account of her schooling and the circumstances in which she joined the UPC. 267. The OPCV argues that P-0010’s evidence on being enrolled in the FPLC was corroborated by D-0005, and it is not disputed by the defence. 755 The prosecution submits that the testimony of D-0005 is not credible, as it is suggested that she should have known certain facts of which she was ignorant. Although at one stage D-0005 gave an 756 NGO an incorrect account as regards her service as a child soldier, 757 the Chamber was impressed by what was, overall, an internally

748 ICC-01/04-01/06-2744-Red-tENG, para. 46. 749 ICC-01/04-01/06-2773-Red-tENG, paras 160 – 162. 750 ICC-01/04-01/06-2773-Red-tENG, para. 167. 751 T-144-Red2-ENG , page 13, lines 13-16 and page 18, lines 6 – 8. 752 EVD-D01-00180; T-294-ENG, page 22, line 19 – page 23, line 13. 753 ICC-01/04-01/06-2773-Conf, para. 157. 754 EVD-D01-00082, which states that P-0010 was forcibly recruited by the APC in 1999 and remained with this group until her integration into the UPC in 2002); the testimony of D-0005 and D-0006. 755 ICC-01/04-01/06-2744-Red-tENG, para. 36. The OPCV points out that the defence only questions the age of P-0010 when she was enrolled, and not the enrollment itself (footnote 117). 756 ICC-01/04-01/06-2748-Conf, para. 403. 757 T-261-Red2, page 26, lines 13 – 21 (D-0005). No. ICC-01/04-01/06 127/593 14 March 2012

consistent and persuasive account under oath, which the Chamber accepts.

268 Whilst the Chamber accepts that at some stage P-0010 may have served as a soldier within the UPC, it is not satisfied beyond reasonable doubt that this occurred when she was under 15 years of age. The internal contradictions in her accounts, as extensively canvassed herein, including the unexplained differences as to her date of birth in both her testimony and the documentary evidence, together with the strength of the conflicting external evidence, mean that she is not a witness that the Chamber is able to rely on as regards many aspects of the relevant detail of her account. However, the video material and her comments on it, as set out above, remain essentially unaffected by these criticisms.

(3) The evidence of P-0011 and evidence relevant to his assessment (a) P-0011

269 P-0011 is an alleged former child soldier who was authorised to participate in the proceedings. P-0011 gave in evidence what he said was his name 758 and indicated he has not been known by any other names, including nicknames. 759 Substantial discrepancies and difficulties, however, emerged on this issue. First, he had not told the OTP prior to giving evidence about one of the names he supplied in his testimony (stating simply that he had not wanted to mention it), 760 and similarly, that name does not appear on his birth certificate. 761 At

758 T-138-CONF-ENG, page 52, lines 9 – 10. 759 T-138-Red2-ENG, page 53, lines 4 – 12. 760 T-139-CONF-ENG, page 48, lines 17 – 22. 761 EVD-D01-00059. No. ICC-01/04-01/06 128/593 14 March 2012

page 21 of his application to participate in these proceedings as a

victim (“Certification of a child after leaving an armed group”) the

name provided also contains a material variation. 762 He testified that

his sister or grandmother had suggested that latter name, 763 although it

is to be noted that this variation also appears on an investigator’s note

dated 27 March 2008 (albeit with a slightly different spelling). He 764

indicated that when he was younger he was called by another name

that was not the one he was given at birth, 765 which he recalled having

provided to a representative of the OTP. 766

270 He stated that he was born in 1992, 767 a date indicated to him by

members of his family, and in particular his grandmother had 768

suggested it to him prior to his first meeting with one of the

representatives of the OTP. 769 However, this date differs from the date

in his original witness statement (provided to the investigators in July

2005). The witness stated this latter date was a mistake that he had 770

made. 771

271 The evidence he gave on where he attended school 772 is inconsistent

and contradicts the information set out at paragraph 14 of his

statement to OTP investigators. When asked about these 773

contradictions P-0011 stated that he was unaware of the truth, which

762 T-139-CONF-ENG, page 49, lines 11 –13. 763 T-139-CONF-ENG, page 49 line 14 to page 50 line 6. 764 EVD-D01-01087. 765 T-139-CONF-ENG, page 51, lines 10 – 12. 766 T-139-Red2-ENG, page 51, lines 14 – 22. 767 T-138-CONF-ENG, page 53, line 24 to page 54 line 2. 768 T-138-Red2-ENG, page 54, lines 3 – 5. 769 T-139-Red2-ENG, page 2, lines 13 – 19 and page 57, line 17 to page 58, line 1. 770 T-139-CONF-ENG, page 58, lines 2 – 7. 771 T-139-Red2-ENG, page 58, lines 8 – 15. 772 T-138-CONF-ENG, page 54, lines 10 – 16; T-139-CONF-ENG, page 67, line 20 to page 68, line 7, page 71, lines 5 – 6 (location of one of the schools), page 74, line 16 to page 75, line 8 and page 77, lines 2 – 7. 773 T-139-CONF-ENG, page 71, line 7 to page 72, line 9.

No. ICC-01/04-01/06 129/593 14 March 2012

he must have forgotten, but he thought the information given in the

statement was correct. 774

272 P-0011 initially suggested that he joined the UPC in July 2002 and

he remained in military service with this group until July 2003. 775

However, in his application to participate as a victim, he indicated that

he had been enlisted in January 2003 and had fought throughout the 776

year 2003 and the first three months of 2004. When the application 777

was put to him during his examination, P-0011 gave evidence to the

effect that he had been enlisted in July 2002 and left the military in

March 2003. 778 The circumstances of his joining the UPC are equally

uncertain. The witness suggested at paragraph 20 of his statement to

the OTP that he "met a group of UPC soldiers who suddenly appealed

to [him] to join them and to join their army and receive military

training and to fight the Lendu enemies". P-0011 said that the 779

interpreter had made an error during the interview, and that he had 780

been enlisted by force. 781 However, the witness was notably

inconsistent on this issue, in that he said during his evidence that

when his studies were interrupted during the war, in addition to

digging for gold, he voluntarily signed up for military service with 782

the UPC, 783 and that he was not enlisted by force but went

voluntarily. 784

273 A possible explanation for his willingness to join the UPC was given

774 T-139-Red2-ENG, page 72, lines 12 – 15 and page 74, lines 2 – 9. 775 T-138-Red-ENG, page 57, line 24 to page 58, line 3 and page 58, lines 11 – 18. 776 T-140-Red2-ENG, page 18, lines 3 – 5 and page 19, lines 1 – 2. 777 T-140-Red2-ENG, page 19, lines 15 – 20. 778 T-140-Red2-ENG, page 19, line 22 to page 20, line 5. 779 T-139-Red2-ENG, page 82, lines 12 – 19 and page 83, lines 3 – 8. 780 T-140-Red2-ENG, page 8, lines 10 – 22. 781 T-140-Red2-ENG, page 8, lines 23 – 25. 782 T-138-Red-ENG, page 57, lines 13 – 20. 783 T-138-Red-ENG, page 57, line 24 to page 58, line 3. 784 T-138-Red-ENG, page 58, lines 4 – 10; T-140-Red2-ENG, page 9, lines 1 – 5.

No. ICC-01/04-01/06 130/593 14 March 2012

at paragraph 21 of his July statement to the OTP in which he had described how he had joined the organisation to avenge his mother’s death. 785 However, when this was read out in Court, P-0011 stated that although the statement had been re-read to him and he had confirmed its accuracy, this first statement to the prosecution contained errors whilst his second statement was correct. The witness testified that 786 his mother had been alive when he entered military service, and accordingly he did not agree with the relevant part of the statement that was read to him. 787 The witness later testified that his mother died after he had left to join the military. 788 However, in a transcribed interview dated 8 January 2010, P-0011 suggested that his mother is aware of his testimony before the Court. 789 Further evidence indicating that P-0011’s mother is alive was given by D-0024, which the Chamber has accepted. 790 274. An additional element of confusion is provided by P-0011’s application to participate in the proceedings before the Court, in which he indicated at page 11, in section D (entitled “Information Regarding the Alleged Crimes”) that he had been forcibly enlisted by Bosco Ntaganda in 2003. It was further indicated that “[a]fter two months 791 of training in Bule, [he] was sent for combat throughout the year 2003 and even during the first few months of 2004.” 792 The witness said in evidence that he did not remember very well, but that the reference to

785 T-140-Red2-ENG, page 11 line 9 to page 12, line 1. 786 T-140-Red2-ENG, page 12, line 5 to page 14, line 13. 787 T-140-Red2-ENG, page 15, line 15 to page 16, line 13. 788 T-140-Red2-ENG, page 17, lines 10 – 17. 789 EVD-D01-00745, page 0082 at lines 1173 – 1175. 790 T-246-CONF-ENG, page 8, lines 1 – 9. 791 T-140-Red2-ENG, page 18, lines 3 – 18. 792 T-140-Red2-ENG, page 18 lines 16 – 18. No. ICC-01/04-01/06 131/593 14 March 2012

training and forceful enlistment by Bosco Ntaganda was not true. 793 275. There was some minor difficulty in P-0011’s evidence in relation to where he was enlisted, as he gave two different names. 794 At one stage the witness said that they are in the same place. 795 It became apparent that there is a relatively insubstantial distance between the two locations when they were shown to the witness on a map, although they are clearly not in the same place. 796 276. During his evidence, P-0011 said he was in the fourth year when his studies were interrupted at the outbreak of war and he remained at home to help with farm work. 797 He completed that academic year when he left military service. However, in an earlier account P-0011 798 had said that he had finished his fourth year before he enlisted. 799 277. The witness’s evidence was contradictory as regards certain events with a particular friend. In evidence, P-0011 said they enlisted in the army at the same time, travelling to Bule with soldiers. 800 However, in his July 2005 statement at paragraph 21, he stated they were not together when he joined the UPC militia. 801 When asked about this discrepancy, P-0011 insisted that he had told the investigators that he had been with his friend and that the UPC soldiers took them to Bule. 802 278. His evidence was that soldiers took him to Lopa in a Toyota Stout

793 T-140-Red2-ENG, page 18, lines 23 – 25. 794 T-139-CONF-ENG, page 88, lines 7 – 12. 795 T-139-CONF-ENG, page 88, lines 15 – 22. 796 T-140-Red2-ENG, page 3, line 11 to page 5, line 21; EVD-D01-00060. 797 T-138-Red2-ENG, page 56, lines 5 – 10. 798 T-139-Red2-ENG, page 79, line 22 to page 80, line 1. 799 T-139-Red2-ENG, page 68, lines 5 – 10. 800 T-140-Red2-ENG, page 6, line 17 to page 7, line 7. 801 T-140-Red2-ENG, page 7, lines 8 – 23. 802 T-140-Red2-ENG, page 7, lines 13 – 23. No. ICC-01/04-01/06 132/593 14 March 2012

vehicle and from there by foot to a military camp at Bule. 803 There they

started training after they had built their accommodation, and that 804

after four months he was given his equipment including uniforms and

a weapon. 805 Later, he said he fought during battles at Barrière 806 and

Lipri. 807 However, although he testified that Barrière was the first

battle he took part in, he failed to mention this to the OTP 808

investigators in July 2005. His first statement to the OTP, under the

heading “Active participation in UPC attacks on Lipri” includes the

following: “I have a very clear and unforgettable memory of that day

because there it was the first time I ever killed a person.” 809 The

witness said that this description was incorrect, because he killed for

the first time at Barrière. 810

279 P-0031 confirmed that he remembered P-0011 from the context of

his work. 811

280 It was a highly unusual feature of this witness’s evidence that in

advance of his meeting with representatives of the OTP in July 2005,

he had written the names of some of the main localities he was to

mention in his statement on his jeans. 812 When asked about this, the

witness gave a distinctly confused explanation, including that he had

done it for the “pleasure of it” before he had met the investigator. 813

803 T-138-Red2-ENG, page 62, line 11 to page 63, line 19. 804 T-140-Red2-ENG, page 29, line 24 to page 30, line 12. 805

T-140-Red2-ENG, page 30, lines 13 – 21.

806 T-140-Red2-ENG, page 41, lines 2 – 4. 807 T-139-Red2-ENG, page 17, line 14 to page 19, line 1. 808 T-140-Red2-ENG, page 41, lines 2 – 4. 809 T-140-Red2-ENG, page 41, line 23 to page 42, line 1. 810 T-140-Red2-ENG, page 42, lines 2 – 11. 811 T-202-CONF-ENG, page 74, lines 1 – 3. 812 EVD-D01-00062. 813 T-140-Red2-ENG, page 62, line 1 to page 63, line 1.

No. ICC-01/04-01/06 133/593 14 March 2012

(b) D-0024

281 D-0024, a member of P-0011’s family, 814 said he was born in 1990, or between 1990 and 1991. D-0024 gave evidence as to P-0011’s 815 schooling and the places where he lived that contradicts the evidence of P-0011. 816 282. During the period of conflict between the Ngiti and the Lendu around 2002/2003, D-0024 sometimes met P-0011 and one of his close relatives in the market, and she indicated that P-0011 never served as 817 a soldier. 818 She was asked how she knew that P-0011 had never been a member of an armed group and she replied he was someone she saw because he was a very close family relative. 819 283. The prosecution challenges the evidence of D-0024. It is suggested that her evidence on P-0011 not being in an armed group is vague and unsubstantiated, and that she was not in a position to know whether he was in the army. 820 284. Although D-0024 was not in a position to be aware, at all relevant times, of the situation as regards P-0011 (she testified she fled the area for two weeks in 2002 821 and at one point during the war she feared that P-0011 and one of his close relatives were dead), 822 the Chamber found her evidence convincing, and – in the main – internally consistent. In all the circumstances, she provides some supporting

814 T-246-CONF-ENG, page 7, lines 13 – 16. 815 T-246-Red2-ENG, page 10, lines 13 – 15. 816 T-246-CONF-ENG, page 18, lines 12 to page 20, line 14 and page 26, lines 7 – 9 and 16 – 17; T- 247-CONF-ENG, page 4, lines 5 – 8. 817 T-247-CONF-ENG, page page 9, line 12 to page 12, line 16. 818 T-246-CONF-ENG, page 28, lines 7 – 12. 819 T-246-Red2-ENG, page 28, lines 19 – 21. 820 ICC-01/04-01/06-2748-Red, paras 392 – 394. See also EVD-D01-00745, page 77, lines 1011-1012. 821 ICC-01/04-01/06-T-247-CONF-ENG, page 10, line 19 to page 11, line 8. 822 ICC-01/04-01/06-T-247-CONF-ENG, page 11, line 25 to page 12, line 6. No. ICC-01/04-01/06 134/593 14 March 2012

evidence for the suggestion that P-0011 did not serve as a child soldier within the UPC, although taken alone her account is inconclusive.

(c) Conclusions as to P-0011

285 The OPCV submits that the name and date of birth of P-0011 have been confirmed and the documents used by the defence to question his identity are unreliable, and it is suggested the allegations made by the accused in his abuse of process application as regards this witness are speculative. The OPCV submits any contradictions that are apparent 823 from these documents should be analysed taking into account the serious faults in the registration system in the DRC. 824 The OPCV further submits that P-0011 was recruited by the UPC military in July 2002 and remained within the group until July 2003, 825 and it suggests there is no reason why the subsequent out-of-court statements of other witnesses and the information they generally provided that tends to contradict this testimony should be given greater weight than his own account. 826 It is also argued that any contradictions and inconsistencies in P-0011’s (and other victims’) evidence can be explained by their concerns about security and the lapses of memory that are linked to trauma and stress. 827 286. The prosecution submits that it is reasonable that the witness could not recall exactly what he told investigators 4 years earlier. 828 287. The defence contends that it is inexplicable that the legal representative of P-0011 (the OPCV) contests the probative value of the

823 ICC-01/04-01/06-2744-Red-tENG, paras 31 and 32. 824 ICC-01/04-01/06-2744-Red-tENG, para. 33. 825 ICC-01/04-01/06-2744-Red-tENG, para. 37. 826 ICC-01/04-01/06-2744-Red-tENG, para. 46. 827 ICC-01/04-01/06-2744-Red-tENG, para. 46. 828 ICC-01/04-01/06-2778-Red, para. 103. No. ICC-01/04-01/06 135/593 14 March 2012

witness’s birth certificate, since this document purportedly established his identity and age for the purposes of his application to participate and for reparations (it was annexed thereto). 829 288. Given the internal contradictions and the confusion within the evidence of P-0011 (as set out above), and taking into account the evidence of D-0024, the Chamber has real doubts as to the suggestion that P-0011 served as a child soldier within the UPC in the circumstances he described, namely when he was under 15 years of age and during the period covered by the charges. The internal contradictions in his accounts, as extensively canvassed hereinbefore, together with the conflicting external evidence, mean that he is not a witness that the Chamber is able to rely on as regards the detail of his account.

(4) Other matters concerning the reliability and integrity of Intermediary 143

289 In the course of 2007 and 2008, Intermediary 143 submitted some questionable financial requests, several of which were considered 830 excessive and unjustified by representatives of the OTP. 831 290. An internal OTP report of 23 February 2006 which dealt with an incident in early January 2006 concerning three potential witnesses, called into question the credibility and reliability of Intermediary 143. 832

829 ICC-01/04-01/06-2773-Red-tENG, para. 190. 830 EVD-D01-01086. 831 EVD-D01-01086, page 0170 to page 0174. 832 EVD-OTP-00641, page 3/5. No. ICC-01/04-01/06 136/593 14 March 2012

(5) Assessment of Intermediary 143

291 Given the pattern of unreliability as regards the witnesses introduced by Intermediary 143 and called to give evidence during the trial (P-0007, P-0008, P-0010 and P-0011), the Chamber accepts that there is a real risk that he played a role in the markedly flawed evidence that these witnesses provided to the OTP and to the Court. Bearing in mind this consistent lack of credibility as regards the trial witnesses he introduced to the investigators, and particularly focussing on the cumulative effect of their individual accounts, it is likely that as the common point of contact he persuaded, encouraged or assisted some or all of them to give false testimony. The Chamber accepts that the accounts of P-0007, P-0008, P-0010 and P-0011 were or may have been truthful and accurate in part, but it has real doubts as to critical aspects of their evidence, in particular their age at the relevant time. Although other potential explanations exist, the real possibility that Intermediary 143 corrupted the evidence of these four witnesses cannot be safely discounted. 2. Intermediary P-0316

292 The Chamber first considers the evidence relating to the role and credibility of P-0316 before turning to the witnesses whose testimony may have been affected.

a) Background

293 In its Decision on Intermediaries, the Chamber described the evolution of the position of Intermediary P-0316, and including the evidence of P-0015 who revealed the identity of Intermediary P-0316 to

No. ICC-01/04-01/06 137/593 14 March 2012

the defence on 16 June 2009. 833 The Chamber noted that several

witnesses gave evidence to the effect that Intermediary P-0316 may

have misused his position; this amounted to the allegation that he

possibly “persuaded or invited witnesses to give false testimony to the

Court.” 834 The Chamber instructed the prosecution to call Intermediary

P-0316 as a witness in order to address the allegations levelled against

him, the conflicts in the evidence and the contacts between the

intermediaries. 835

294 P-0316 fulfilled a support role 836 for the prosecution, on a

contractual basis, 837 between 19 November 2005 838 and 31 March

2006 However, his work for the OTP (for which he was paid) 839

spanned a longer period, in that it had started at least by April 2005 840

and continued once his contract ended, extending through until

2008 Although P-0316 stated that his functions did not involve 841

contact with, or providing transportation for, the witnesses (or other

individuals), 842 the defence confronted him with a receipt signed by

him indicating that he had received $30 for transport relating to, and

his communication with, three witnesses. 843

295 It is noteworthy that this intermediary had contact with the

following lengthy list of potential witnesses: (first contact via P-0316)

833 ICC-01/04-01/06-2434-Red2, paras 21 – 23 and 38, 39. 834 ICC-01/04-01/06-2434-Red2, para. 140. 835 ICC-01/04-01/06-2434-Red2, para. 141. 836 T-331-Red2-ENG, page 6, lines 3 – 18. 837 T-328-Red2-ENG , page 11, line 4 to page 12, line 8. 838 T-328-Red2-ENG , page 11, lines 15 – 19. 839 T-331-Red2-ENG, page 7, lines 18 – 19. 840 T-328-Red2-ENG, page 9, lines 1 – 7. 841 T-328-Red2-ENG , page 12, lines 4 – 8; T-332-Red-ENG, page 37, lines 5 – 13 ; See also, by way of exemple, the receipts for expenses spanning the relevant years: EVD-D01-00411 (January 2008); EVD-D01-00355 (December 2005); EVD-D01-00308 (January 2008); EVD-D01-00364 (December 2007) and EVD-D01-00365 (February 2006). 842 T-331-Red2-ENG, page 7, lines 9 – 15. 843 T-331-Red2-ENG, page 7, line 20 to page 8, line 1; EVD-D01-00355.

No. ICC-01/04-01/06 138/593 14 March 2012

DRC-OTP-WWWW-0020, DRC-OTP-WWWW-0021, DRC-OTP- WWWW-0035, DRC-OTP-WWWW-0147, DRC-OTP-WWWW-0156, 844 DRC-OTP-WWWW-0159, DRC-OTP-WWWW-0161, DRC-OTP- WWWW-0175, DRC-OTP-WWWW-0178, DRC-OTP-WWWW-0249, DRC-OTP-WWWW-0268, DRC-OTP-WWWW-0270 and DRC-OTP- WWWW-0314. He also had contact with DRC-OTP-WWWW-0250 (first contact via P-0316 and Individual 183), DRC-OTP-WWWW-0303 (first contact via P-0321), 845 trial witness P-0015 (potentially first contact via P-0316), trial witness P-0038 (potentially first contact via P- 0316), DRC-OTP-WWWW-0028 846 (first contact via the associate of P- 0316), DRC-OTP-WWWW-0183, 847 DRC-OTP-WWWW-0163 and DRC- OTP-WWWW-0166. 296. Witnesses P-0015, D-0016 (DRC-OTP-WWWW-0035) and P-0038 are relevant to this intermediary. Their particular evidence is addressed below.

b) The evidence from P-0582 and P-0583

297 P-0316 was introduced to P-0583 in April 2005. P-0582 considered 848 that P-0316 had good knowledge of the region and the various parties to the conflict, and he knew individuals who were involved in the events. 849 P-0583 began working with P-0316 in April 2005 and this continued, although with varying frequency, until his (P-0583’s) departure from the Court in September 2007. 850 At the time when the

844 DRC-OTP-WWWW-0035 was called by the defence as D-0016. 845 EVD-D01-01039, No. 133. 846 DRC-OTP-WWWW-0028 testified in the Katanga and Ngudjolo case, see ICC-01/04-01/06-2702- Red, paras 30 - 43. 847 DRC-OTP-WWWW-0183 is referred to hereinafter as “Individual 183”. 848 T-334-Red2-ENG, page 55, lines 3 – 10. The person who introduced P-0316 to P-0582 is identified at T-334-CONF-ENG, page 53, line 24 to page 54, line 2. 849 T-334-Red2-ENG, page 16, line 24 to page 17, line 16 and pge 18, line 11. 850 T-334-Red2-ENG, page 57, lines 7 – 11. No. ICC-01/04-01/06 139/593 14 March 2012

team began working with P-0316, P-0583 was the lead investigator and

acted as the focal point for, and was most in contact with, P-0316. 851

The first requests made to P-0316 by the OTP were to identify potential

witnesses, based on his knowledge of the Ituri situation. 852 This was at

an early stage, a few months after the departure of the Operation

Artemis contingent. 853

298 P-0582 considered that all the intermediaries he knew behaved in a

“sufficiently correct way” and did not ask anyone to tell lies, 854 but he

suggested that P-0316 was not very comfortable with children and

victims. 855 P-0583 similarly stated that while P-0316 was very

successful in providing reliable information and that they trusted him,

the role of an intermediary in the sense of taking care of children or

witnesses, in contrast to merely putting them in contact with the

prosecution, did not suit him very well. It was suggested that P- 856

0316 identified and provided reliable information about members of

certain militias; 857 he was the main intermediary for the OTP as regards

identifying militia members; 858 he travelled to locations which the

investigators could not visit in order to contact witnesses; 859 he

introduced witnesses to the OTP, some of whom were not known to

the prosecution 860 (for instance P-0015 861 and D-0016 862 ); he arranged

851 T-334-Red2-ENG, page 18, line 24 to page 19, line 6. 852 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 8 – 10. 853 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 10 – 14. See Section IX on the nature of the armed conflict. 854 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 17, line 7 to page 18, line 2. 855 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 9, lines 1 – 3. 856 T-334-Red2-ENG, page 17, lines 10 – 16; T-335-Red2-ENG, page 8, lines 10 to 25 and page 9, line 11. 857 T-334-Red2-ENG, page 17, lines 6 – 9, page 55, lines 17 – 20, and page 57, lines 19 – 23 (P-0583). 858 T-334-Red2-ENG, page 57, lines 16 – 23 (P-0583). 859 T-334-Red2-ENG, page 18, lines 4 – 11 (P-0583). 860 T-334-Red2-ENG, page 63, lines 21 – 24 and page 67, line 20 to page 68, line 5 (P-0583). 861 T-264-Red2-ENG, page 22, lines 11 – 22 and T-264-CONF-ENG, page 61, lines 15 – 24 (P-0015).

No. ICC-01/04-01/06 140/593 14 March 2012

their travel; 863 and he obtained identification papers. 864 P-0316

regularly provided information on the security situation in Bunia and

in Ituri in general, and P-0583 was frequently in contact with him for

information as to what was happening in the field. 865 As regards

“unknown” individuals, P-0316 informed P-0583 about a number of

“witnesses” who were officers of the UPC or other groups who could

be contacted. 866 This was around the time of the first missions, at the

end of 2004 or beginning of 2005. 867 During the more formal phase of

P-0316’s work, it was one of his responsibilities to put the OTP in

contact with individuals who had not yet been identified. 868

299 P-0583 recalled that P-0316 was not asked to provide identity cards

for those he introduced to the OTP, although when he told the OTP

that someone of interest had been identified, the individual concerned

would be asked to bring any relevant documents. 869

300 P-0583 indicated that he found P-0316 to be intelligent and

professional, and his reliability and credibility were demonstrated in

the work he undertook and the way he responded to questions

862 T-256-CONF-ENG, page 8, line 24 to page 9, line 6 (D-0016). 863 T-334-Red2-ENG, page 19, line 23 to page 20, line 1; T-335-Red2-ENG, page 33, lines 7 – 13; T- 336-Red2-ENG, page 9, lines 14 – 19 (P-0583); See also, by way of exemple, expense receipts relating to travel arrangements for witnesses: EVD-D01-00684 (P-0583 testified that the code used for P-0316 was “DRC-SS05”, T-334-Red2-ENG, page 64, lines 17 – 20);EVD-D01-00357; EVD-D01-00758 and EVD-D01-00725. 864 T-336-Red-ENG, page 10, lines 10 – 21 (P-0583) and page 58, line 11 to page 59, line 8 (P-0038); See also, by way of example, the expense receipts relating to documents prepared for witnesses: EVD- D01-00682 and EVD-D01-00382. 865 T-334-Red2-ENG, page 66, lines 1 – 9 (P-0583); P-0582 also contacted P-0316 concerning security related questions, Transcript of Deposition on 17 November 2010, ICC-01/04-01/06- Rule68Deposition-Red2-ENG, page 8, lines 7 – 14 and Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 61, lines 21 – 24. 866 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 61, lines 15 – 20. 867 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 62, lines 4 – 12 (P-0583). 868 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 63, lines 5 – 12 (P-0583). 869 T-334-Red2-ENG, page 67, line 20 to page 68, line 5.

No. ICC-01/04-01/06 141/593 14 March 2012

addressed to him. 870 He usually found the contact details for those identified by the team. P-0583 was asked if he had communicated 871 any doubts or concerns regarding P-0316’s work to his superiors, and although he indicated that there were the normal discussions that occurred when using an “intermediary informer”, his view was P-0316 was better at providing information than taking care of witnesses. 872 301. P-0583 did not raise any specific concerns about using P-0316 and he did not reassess the testimony of witnesses introduced by him, in addition to the usual, systematic verification process for the contents of witness statements. 873 There was a process of reassessment whenever new evidence came to light. 874 302. Notwithstanding the favourable assessment set out above, evidence was given as to reservations concerning P-0316. P-0583 noted that he was not appointed to work as a liaison officer and explained that the relevant panel, which he had not been a part of, did not find P-0316 to be more capable than the other candidates. 875 Of considerably greater significance, when first asked to give details relating to his background and his then occupation, P-0316 provided information about his professional obligations towards the DRC government ( viz. his work for the Congolese intelligence services, the Agence Nationale de Renseignement , “ANR”) that were capable of undermining his impartiality. 876 P-0583 could not recall if he saw a copy of P-0316’s curriculum vitae (dated 5 December 2004) 877 or whether he was aware of

870 T-334-Red2-ENG, page 25, lines 1 – 15. 871 T-334-Red2-ENG, page 25, lines 15 – 18. 872 T-335-Red2-ENG, page 8, lines 10 – 25 and page 9, line 11. 873 T-335-Red2-ENG, page 13, lines 12 – 22. 874 T-335-CONF-ENG, page 13, lines 22 – 25. 875 T-334-Red2-ENG, page 69, line 16 to page 70, line 8. 876 T-334-CONF-ENG, page 56, lines 3 – 11 (P-0583). 877 EVD-OTP-00597. No. ICC-01/04-01/06 142/593 14 March 2012

it. 878 P-0583 recalled, however, that although P-0316 had introduced

himself as a member of that body, he said it no longer paid him. 879

303 At the beginning of 2006, this information was set out in his

curriculum vitae . 880 P-0583 could not recall asking him whether he

continued to work for the intelligence services after that time. 881

Instead, P-0583 believed that P-0316’s background was a guarantee

that he was capable of providing the team with the information

necessary to locate individuals of interest, but it was also a reason to

check thoroughly the material he provided. 882 P-0583 saw it as an

advantage that P-0316 was familiar with issues such as confidentiality

and security. The fact that P-0316 might have been working for this 883

national body therefore did not cause him any particular concerns. 884

The witness never came into contact with P-0316’s superiors from

within the intelligence services; indeed, he was not aware of any 885

contact between the OTP and this intermediary’s managers. 886

However, although P-0583 said he generally appreciated P-0316’s

work, he could not entirely trust him because of his professional

obligations towards the DRC government and because he started

working for other investigators without informing P-0583. 887

304 P-0582 indicated that in that part of the DRC it was difficult to say

who was working for whom. 888 He gave evidence that it was possible

878 T-334-Red2-ENG, page 56, lines 18 – 24. 879 T-335-CONF-ENG, page 14, line 24 to page 15, line 13. 880 T-335-Red2-ENG, page 14, line 24 to page 15, line 6. 881 T-335-Red2-ENG, page 15, lines 6 – 13. 882 T-335-Red2-ENG, page 15, line 23 to page 16, line 8. 883 T-334-CONF-ENG, page 17, line 17 to page 18, line 3. 884 T-335-Red2-ENG, page 16, lines 9 – 13. 885 T-335-CONF-ENG, page 19, lines 4 – 8. 886 T-335-Red2-ENG, page 19, lines 9 – 13. 887 T-334-Red2-ENG, page 25, line 19 to page 26, line 6. 888 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 65, lines 16 – 17.

No. ICC-01/04-01/06 143/593 14 March 2012

to buy information or people who would provide information for a

small amount of money. P-0583 indicated that the OTP was aware of 889

the nature of P-0316’s relationship with the government and that the

investigators talked about P-0316 probably having links to the

President of the Republic. 890 However, P-0582 did not believe that the

mandate of the Court was compromised on account of P-0316’s work

for the DRC intelligence services (in his view, he probably continues to

work for them). 891 P-0582 was particularly concerned with P-0316’s

capacity to give information regarding security. 892 He investigated

whether the material provided by P-0316 was reliable, although he

said checks of this kind were also conducted for other individuals who

assisted in a similar way. 893

305 As regards payments to P-0316, he was reimbursed for his expenses,

including transporting witnesses, and, additionally, he received a

small amount of pay (P-0583 thought this was calculated on the basis 894

of the G3 post within the UN system). 895

306 P-0583 gave evidence about a “Receipt for Reimbursement” to

“DRC-SS05” 896 (the code used for P-0316) 897 and another similar

receipt (for travelling to locate a witness). P-0583 agreed that 898 899

889 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 65, lines 17 – 20. 890 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 66, lines 2 – 4. 891 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 66, lines 5 – 6. 892 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 66, line 25 to page 67, line 1. 893 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 67, lines 2 – 8. 894 T-334-Red2-ENG, page 19, line 20 to page 20, line 1. 895 T-334-Red2-ENG, page 23, lines 16 – 22. 896 EVD-D01-00353. 897 T-334-Red2-ENG, page 64, lines 12 – 20. 898 T-334-Red2-ENG, page 64, line 24 to page 65, line 3; EVD-OTP-00611. 899 T-334-Red2-ENG, page 65, lines 21 – 25.

No. ICC-01/04-01/06 144/593 14 March 2012

$44.56 appeared to be the daily salary paid to P-0316, 900 although he

said the payment varied, depending on the work he undertook. 901

307 P-0583 suggested that initially P-0316 did not work under a contract

and he was simply remunerated for the work he undertook. 902 He

signed a receipt for his pay at the end of a mission, which reflected the

hours or days he had been engaged and he was reimbursed to the

extent possible. The money was advanced by the prosecution, with 903

the agreement of the officials within the OTP. 904 P-0583 thought that P-

0316 signed a contract with the OTP towards the end of 2005 or in

2006 905 It was for a brief period of time (between one and three

months) from the beginning of 2006. P-0583 was in favour of this 906

temporary contract, because it formalised the relationship with P-0316,

so that he progressed from informant to intermediary, thereby

enabling him to provide significantly more public work for the OTP. 907

As a result, P-0316 became an openly recognised member of the

team. 908 He also provided assistance to the Registry. 909

308 P-0583 was reminded of an email he wrote on 16 May 2006, 910

wherein he noted that a payment to P-0316 should be made as soon as

possible; that it was becoming more and more difficult to justify

paying certain expenses; and that some of the information provided by

P-0316 seemed bizarre and required cross-checking. Although he

could not recall this particular email exchange, P-0583 explained that it

900 T-334-Red2-ENG, page 65, lines 4 – 8. 901 T-334-Red2-ENG, page 65, lines 9 – 14. 902 T-334-Red2-ENG, page 23, line 23 to page 24, line 9. 903 T-334-Red2-ENG, page 24, lines 9 – 13. 904 T-334-Red2-ENG, page 24, lines 16 – 20. 905 T-334-Red2-ENG, page 24, lines 21 – 25. 906 T-334-Red2-ENG, page 68, lines 17 – 21. 907 T-334-Red2-ENG, page 68, lines 22 to page 69, line 5. 908 T-334-Red2-ENG, page 69, lines 11 – 15. 909 T-334-Red2-ENG, page 69, lines 13 – 14 and page 70, lines 15 – 18. 910 EVD-D01-00391.

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must have been written after P-0316 had been turned down for a staff position and – at that time – there were no particular directives regarding payment for personnel in his position, raising the question of what payment procedures should be adopted. 911 He said that cross checking information was usual when working in these circumstances, and the word “bizarre” simply meant the 912 information was surprising. 913 309. When asked to explain what he had said concerning the justification of expenses, P-0583 indicated that he had not meant that P-0316 was unable to justify his expenses or had acted excessively, but instead that it had become difficult to justify some of them to the finance section because he was not officially working for the Court, and it was necessary to explain why he should be paid or reimbursed. 914 A receipt for P-0316’s expenses was always filed with the finance office. Over 915 time the financial section raised additional questions about his expenditure, and in due course rules and regulations had to be established to govern the reimbursement of individuals of this kind. 916 310. P-0582 did not favour formalising the work relationship with P- 0316, but the decision within the OTP was that either they had to 917 end cooperation with him completely or (as the senior officials within the OTP proposed) he was to be given a contract, which recognised that he was to work “more in the light […] and not so much in the

911 T-335-Red2-ENG, page 9, line 23 to page 10, line 9. 912 T-335-Red2-ENG, page 10, lines 10 – 20. 913 T-335-Red2-ENG, page 12, lines 8 – 23. 914 T-335-Red2-ENG, page 11, lines 6 – 22. 915 T-335-Red2-ENG, page 11, lines 17 – 22. 916 T-335-Red2-ENG, page 11, line 24 to page 12, line 4. 917 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 67, line 21 to page 68, line 9. No. ICC-01/04-01/06 146/593 14 March 2012

dark”. 918 Due to the contract, it was necessary to describe P-0316’s

work, including his relationship with the investigators. In the event, 919

this intermediary continued to provide the investigators with security

information drawn from his networks that they otherwise would not

have had access to. 920

311 Although P-0316’s contract ended on 31 March 2006, he still carried

out the same functions as an intermediary. He was responsible for a 921

number of witnesses; he knew where to find them; and he was one of a

small number of people in this position, because the investigators did

not want to involve others in the management of witnesses. 922

Therefore, he continued to work with witnesses and he provided field

information. 923

Incident with P-0316 and P-0143

312 P-0582 was asked to consider two investigator’s notes (EVD-D01-

00383 and EVD-D01-00384), 924 and he indicated there were several

levels of management that were engaged by an incident described

therein, which generated a significant amount of discussion about

their dealings with intermediaries. 925 In summary, two investigators

918 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 68, lines 9 – 13. 919 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 68, lines 15 – 20. 920 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 68, lines 21 – 24. 921 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 68, line 25 to page 69, line 7 (P-0582). 922 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 3 – 6 (P-0582). 923 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 6 – 7 (P-0582). 924 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 2, lines 3 – 4. 925 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 2, lines 20 – 22.

No. ICC-01/04-01/06 147/593 14 March 2012

had particular difficulties concerning P-0143 and P-0316. 926

313 P-0582 gave evidence that P-0316 told the investigators that three

children who were potential witnesses had been interviewed by the

Congolese police services. 927 However, investigations carried out by

the investigators revealed that this was inaccurate. 928 P-0582

understood that the UN had confirmed that harassment alleged by P-

0316 was a falsehood. 929

314 By way of detail, P-0316 had told the OTP that three children from

the FNI/FRPI who were interviewed by “Office 2” (the intelligence

service of the Congolese Ministry of the Interior) 930 had felt threatened

as a result, causing at least two of them to leave Bunia. The OTP 931

asked P-0316 to locate these individuals. 932 However, the investigators

discovered that they had not, in fact, left Bunia and they asked P-0143

to review the situation. 933 He indicated to the OTP that the children

had not been interviewed at Office 2 and they had not been

threatened. Furthermore, apart from one of them going home for

Christmas, they had not left Bunia. 934 According to the Investigator’s

Report on this incident, P-0143 stated “the whole incident would have

been made up in order to gain attention and therefore some economic

926 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 2, line 23 to page 3, line 1 (P-0582). 927 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 3, lines 1 – 4. 928 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 3, lines 4 – 6. 929 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 75, lines 5 – 8. 930 See EVD-D01-00383, footnote 1. 931 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 21 – 23; EVD-D01-00383, para. 4. 932 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 69, lines 21 – 24; EVD-D01-00383, para. 6. 933 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 2 – 5; EVD-D01-00383, para. 5. 934 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 6 – 8; EVD-D01-00383, paras 8, 10, 13 and 14.

No. ICC-01/04-01/06 148/593 14 March 2012

gain. In addition, he conceded that the lack of expertise in dealing with former child soldiers from the side of the original intermediary might have accentuated the incident.” 935 315. P-0582 concluded that although the truth had not been told, it was difficult to determine who was responsible. 936 The main report on this incident was immediately transferred to the head of investigations because the issue was too important to remain at team level. 937 Therefore, the information was provided to those responsible for the situation in the DRC (including the relevant prosecuting counsel). 938 The incident was sufficiently serious that they required permission from Michel De Smedt and the Prosecutor of the Court before they could continue working with the witnesses affected by this incident. 939 Counsel with trial responsibility remained the direct supervisor for the investigators on all issues concerning the development of the investigation and any potential prosecution. Michel De Smedt and 940 Ekkehard Withopf (the latter was lead counsel in the case) were consulted, and Michel De Smedt said that both intermediaries had to be retained. 941 316. Notwithstanding these issues, P-0582 (who was working on witness security as opposed to the investigation) considered the information

935 See EVD-D01-00383, para. 16. 936 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, lines 16 –20. 937 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 5, lines 12 – 15. 938 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 3, lines 11 – 16. 939 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 6, lines 4 – 6. 940 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 7, lines 2 – 9. 941 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 72, lines 9 – 18. No. ICC-01/04-01/06 149/593 14 March 2012

provided by P-0316 was useful and interesting;

942

it was of good

quality; and, in comparison with other sources, entirely credible. P-

943

0582’s view was that there were considerable interests at stake and

that they did not want to lose a trusted source of information on the

basis of a single incident.

944

He accepted that intermediaries could be

manipulative and they had their own agendas.

945

317 P-0582 was referred to the last paragraph of the investigator’s note

from 13 February 2006,

946

where it is set out that: “[t]he investigators

have decided not to establish further initial contacts with former child

soldiers through intermediary [P-0316], as he proved to be unreliable

in his approach.” P-0582 suggested this was because the female

947

investigators had taken sides, and had decided that P-0143 – unlike P-

0316 – was somebody who could be trusted.

948

318 P-0582 was referred to a note written on 23 February 2006.

949

The

following is set out at the bottom of page 3:

Meeting with intermediaries [P-0143] and [P-0316] to clarify origin of false information on harassment by undetermined official authorities of three former child soldiers screened by investigators in December 2005: after talking to both intermediaries, it was made clear to investigators that the three children screened in December 2005 were never the object of harassment because of their contact with ICC investigators. However, each intermediary’s version differed significantly, raising doubts about their

942 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 18, lines 17 – 21. 943 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 6, lines 12 – 14. 944 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 71, line 23 to page 72, line 1. 945 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 70, line 23 to page 71, line 1. 946 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG,

page 72, lines 21 – 23; EVD-D01-00384.

947 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 73, lines 1 – 3; EVD-D01-00384 at DRC-OTP-0232-0277. 948 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 73, lines 8 – 10. 949 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 6 – 9; EVD-OTP-00641.

No. ICC-01/04-01/06 150/593 14 March 2012

credibility and reliability. Relevant MONUC representatives that were alerted in December 2005, namely the Human Rights and the Child Protection section, were informed accordingly about the outcome of the 950 falsehood of the harassment.

319 P-0582 maintained that the female investigators believed that P-0316

had lied. 951

320 This incident revealed, therefore, that one of these intermediaries

had invented a story for the investigators on a potentially highly

significant issue, and some of those working for the OTP considered it

was likely to have been P-0316. 952

321 Finally, before leaving this incident, an investigator noted within

the relevant reports that it was the other intermediary’s impression

that one of the children involved in the incident and introduced to him

by P-0316 appeared to have been “coached”. 953 Furthermore, DRC-

OTP-WWWW-0028 (one of the three children) gave evidence before

Trial Chamber II (the transcripts of his testimony were admitted in the

present proceedings) 954 that he had been encouraged to lie by

Individual 183, 955 who was acting as P-0316’s assistant in relation to his

work as an intermediary. 956

950 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, lines 11 – 20. 951 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 74, line 21 to page 75, line 8. 952 Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 71, lines 17 – 18. 953 EVD-D01-00384 at page DRC-OTP-0232-0276. 954 ICC-01/04-01/06-2702-Red, paras 30 - 43. 955 The Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-T-221-Red-ENG, page 24, line 16 to page 25, line 8, page 36, line 1 to page 37, line 4 and page 38, lines 6 – 9 (P-0316 is No. 12 and P-0183 is No. 14 in the list which is referred to). 956 T-337-CONF-ENG, page 15, lines 10-24 (P-0038); T-335-CONF-ENG, page 16, line 20 to page 17, line 4 (P-0583) ; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06-Rule68Deposition- CONF-ENG, page 63, line 18 to page 64, line 8 (P-0582).

No. ICC-01/04-01/06 151/593 14 March 2012

c) The Other Evidence

322 It is the defence submission that P-0015 and D-0016 demonstrated in

evidence that P-0316 persuaded them to make false statements to the

Prosecutor, which he helped prepare. 957

323 P-0316, however, denied being aware that P-0015 and D-0016 were

potential witnesses for the Court, 958 and he gave evidence to the

Chamber that D-0016, P-0015 and P-0038 were not introduced to the

OTP at his initiative. Three witnesses and P-0583 (as discussed 959 960

below) contradicted this latter assertion. 961

(1) P-0015

324 P-0583 indicated that P-0015 was introduced to the investigators by

P-0316 in 2005, 962 whilst P-0316 appeared to maintain that the OTP told

him to locate P-0015, having pointed him out in a photograph. 963

325 P-0582 stated that P-0316 was present at the first relevant meeting in

Kampala on 3 October 2005, 964 and he helped organise the interviews

that were held in Bunia between P-0015 and the investigators in

November 2005, although he did not participate when they took

place. P-0316, on the other hand, maintained that he had not 965

957 ICC-01/04-01/06-2773-Red-tENG, paras 6 and 363, referring to ICC-01/04-01/06-2657-ConftENG, paras 35 to 68. 958 EVD-D01-00372, page 0486, line 1157 to page 0487, line 1205; EVD-D01-00377, page 0489, line 14 to page 0499, line 349 and page 0499, line 354 to page 0512, line 806. 959 T-332-Red2-ENG, page 30, line 8 to page 33, line 4; page 42, line 20 to page 47, line 2; T-333- Red2-ENG, page 16, line 19 to page 17, line 6. 960 T-256-CONF-ENG, page 8, line 16 to page 9, line 6 (D-0016 ) ; T-264-Red2-ENG, page 64, line 4 to page 65, line 24 (P-0015); and T-337-CONF-ENG, page 19, line 18 to page 20, line 9 (P-0038). 961 T-335-Red2-ENG, page 31, lines 4 - 10 (D-0016 is referred to as Witness 0035) and page 84, line 10 – 24 (P-0583). 962 EVD-OTP-00629, paras 47 and 48 and T-335-CONF-ENG, page 84, lines 15- 24. 963 T-332-Red2-ENG, page 45, line 10 to page 46 line 20. 964 T-334-Red2-ENG, page 38, line 19 to page 39, line 2 and T-335-CONF-ENG, page 83, line 19 to page 84, line 6 and page 84, line 25 to page 85, line 7. 965 T-336-Red2-ENG, page 9, lines 14 – 19; T-334-Red2-ENG, page 38, line 24 to page 39, line 2.

No. ICC-01/04-01/06 152/593 14 March 2012

participated in, still less attended, the meeting between P-0015 and the investigators in October or November 2005. Although he could not 966 recall whether he had been in Kampala at the time of the first meeting, 967 a receipt indicates that he claimed expenses from the OTP to cover travel and accommodation costs in Kampala from 25 September to 5 October 2005. 968 326. P-0583, at paragraph 48 of his written statement, indicated that P- 0015 was unwilling to leave his militia, contrary to the evidence of P- 0316. 969 P-0583 stated that he was surprised when P-0015 told him that he had come to give information and to cooperate, but that he did not want to leave his armed group. 970 327. P-0583 failed to verify the identity of P-0015 by examining the team’s archives, and later he unsuccessfully attempted to check his identity (along with others) in the Congolese voters’ database. 971 He also enquired of the Tribunal de Grande Instance as to whether P-0015 was registered with the civil registry, but he was unable to recall the result. 972 328. P-0583 gave evidence that although it was the general policy of the investigation team to ask witnesses if they knew the names of other individuals who were supposedly members of military or political units, he did not do this for P-0015. 973 However, the team moved rapidly from one investigation to another, and the resources available and other obstacles impeded the process of verifying the content of the 966 T-332-Red2-ENG, page 48, line 20 to page 49, line 1 and page 49, lines 16 – 20. 967 T-332-Red2-ENG, page 49, lines 2 – 5. 968 EVD-OTP-00611. 969 T-335-Red2-ENG, page 85, lines 8 – 21. 970 T-335-Red2-ENG, page 85, lines 16 – 18. 971 T-336-Red2-ENG, page 10, line 25 to page 11, line 10. 972 T-336-Red2-ENG, page 11, lines 10 – 16. 973 T-336-Red2-ENG, page 13, lines 6 – 16. No. ICC-01/04-01/06 153/593 14 March 2012

statements and determining the credibility of the witnesses.

974

329 P-0583 noted that at paragraphs 151 and 152 of his statement, P-0015

gave details on how he joined the FNI when he left the UPC and on his

position within the FNI.

975

P-0583 suggested that this information was

effectively unverifiable.

976

330 P-0015 stated at the beginning of his evidence on 16 June 2009,

when called by the prosecution:

This is contrary to the statement given to the OTP and that's why I wanted to make the statement and explain why I came here. That's why I met the OTP's intermediary who told me the following. He said, you have to change your name, you have to change your identity. Don't give the true story that took place; in other words, there was a story that they were telling to the witnesses. And I say that they're crooks. Why is it that I say that they're crooks and swindlers? Well, instead of letting me tell the true story of what took place and instead of letting me describe all of the events that I lived through, they are inventing statements in order to manipulate the 977 investigation.

331 The witness stated that the intermediary in question was P-0316.

978

332 When P-0015 later testified between 17 and 22 March 2010, he gave

evidence that P-0316 had asked him to change his name and to

provide a story from a newspaper or a journal about weapons and

ammunition going to Bunia via Uganda.

979

He also gave him

instructions on which name to use. P-0015 produced a report card

980

for the year 2002/2003 bearing what he said is his true name.

981

333 P-0015 was told by P-0316 to provide particular information on

974 T-336-Red2-ENG, page 13, lines 15 – 23. 975 T-336-CONF-ENG, page 14, lines 12 – 17. 976 T-336-CONF-ENG, page 16, lines 8 – 23. 977 T-192-Red2-ENG, page 6, lines 8 – 18. 978 T-192-CONF-ENG, page 5, line 18. 979 T-264-Red2-ENG, page 64, lines 9 – 22; T-265-Red2-ENG, page 9, lines 9 – 14 and page 10, lines 2 – 6. 980 T-264-CONF-ENG, page 64, line 19 – page 65, line 5. 981 T-192-CONF-ENG, page 6, line 7; T-265-REd2-ENG, page 25, lines 15 – 19, EVD-D01-00123.

No. ICC-01/04-01/06 154/593 14 March 2012

weapons to the OTP investigator, and the latter thereafter asked P-

0015 to relay this material to another organisation, which in turn

discovered that it was false 982 (P-0583 confirmed that he set up a

relevant meeting which took place). 983 P-0015 stated that P-0316 had

falsely told an investigator from the OTP that he (P-0015) lived in the

countryside. P-0316 had bought him a ticket for a trip to Kampala even

though P-0015 was living there at that time. 984 P-0015 confirmed that

because he was living in Kampala he did not, in reality, have any

transportation or accommodation costs. 985 D-0016 identified P-0015 on

a photograph 986 and gave evidence as to where he lived. 987 On P-0316’s

direction he gave false details about his military training and his

schooling. 988 The idea, he said, was to provide the investigator with P-

0316’s “story”. 989 Each morning, in meetings at the hotel with the

intermediary prior to the interview, he was given an outline of the

account he was to provide to the investigators. 990 The witness said:

The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to 991 school and where I had had military training.

334 P-0015 indicated that P-0316 told him to hide his Hema ethnicity

and his identity (he suggested that the name he was told to use was

not a Hema or Iturian name), so that any investigation into his past

982 T-264-Red2-ENG, page 68, lines 5 – 24. 983 T-335-Red2-ENG, page 88, line 17 to page 89, line 7. 984 T-265-Red2-ENG, page 9, line 23 – page 10, line 13. 985 T-265-Red2-ENG, page 10, lines 9 – 13. 986 EVD-D01-00113; T-257-CONF-ENG, page 6, line 1 – 8. D-0016 used a name that closely resembles the name that P-0015 indicated in testimony was his real name (T-192-CONF-ENG, page 6, line 7). 987 T-257-CONF-ENG, page 7, lines 19 – 25. 988 T-264-Red2-ENG, page 70, lines 11 – 19. 989 T-264-CONF-ENG, page 70, lines 11 – 19. P-0015 referred to the first name of P-0316. 990 T-264-Red2-ENG, page 33, lines 4 – 8. 991 T-265-Red2-ENG, page 21, lines 11 – 13.

No. ICC-01/04-01/06 155/593 14 March 2012

would be very difficult for the prosecution. 992 He falsely told the investigators, at P-0316’s instigation, that his parents were dead in order to stop the police from investigating them. 993

335 P-0015 said that P-0316 invented a rank for him as a soldier and provided a matching identity document (although P-0316 apparently did not specify that he should say he had been part of the UPC). In 994 his account to the investigators, P-0015 claimed to have served in a position and at a rank that would have necessitated in-depth knowledge on his part of particular military issues. 995 However, he maintained he did not know a great deal about the structures and the organisation of the UPC, or who commanded the various brigades. 996 When audio extracts were played to him during his interview with the prosecution, P-0015 was unable to identify the commanders who were referred to by individual code names. In addition, despite the 997 position he had claimed to occupy in the FNI, he was unable to 998 describe its political or military structure and could not explain the meaning of this acronym. 999

336 When P-0583 was informed that P-0015 had told the Court that he had lied about his identity, he expressed his surprise because during his interview P-0015 had provided a significant amount of detail about the events he had witnessed, and P-0583 formed the impression that he was credible. 1000 P-0583 was also surprised because through P-

992 T-265-Red2-ENG, page 22, lines 19 – 25; T-265-CONF-ENG, page 23, lines 10 – 13. 993 T-265-CONF-ENG, page 20, line 21 – page 21, line 8; EVD-OTP-00729, para. 10. 994 T-265-Red2-ENG, page 13, lines 10 – 14. 995 EVD-OTP-00729, paras 41, 89-94 and 97. 996 EVD-OTP-00729, para. 170. 997 EVD-OTP-00738, paras 23, 35 – 37 and 43. 998 T-336-CONF-ENG, page 16, lines 11 – 13 (excerpt of statement read out during the examination of P-0583). 999 EVD-OTP-00729, paras 10 and 149-150; EVD-OTP-00738, para. 17. 1000 T-334-Red2-ENG, page 37, lines 7 – 13.

No. ICC-01/04-01/06 156/593 14 March 2012

0015’s intermediary (namely P-0316) he made contact with someone in another city in the DRC who had information about a militia leader of interest. 1001 This individual referred to the name P-0015 later claimed was his false name, thereby at the time appearing to corroborate P- 0015’s identity. 1002 337. The prosecution contends that the evidence of P-0015 is suspect for several reasons, including the length of time he waited before recanting his original testimony to the OTP, the fact that he refused to provide a photograph to prosecution investigators so that it could be shown to his grandparents, and by reference to particular factors relating to his family. It is emphasised that P-0015 testified that he 1003 was threatened at one point by four men, including a UPC soldier, an event which he reported to the prosecution at the time. 1004 The prosecution also refers to the testimony of P-0583 in relation to the fact that the prosecution’s interview of P-0015 was carried out over several days, as according to P-0583 it is “difficult to imagine that you can learn a story and memorise it and repeat in the same way over several days”. 1005 338. As to the threats made to him, however, P-0015 explained that the soldier had been looking for him because they had “business” and their “own internal conflict”, and he may have thought that P-0015 had money. 1006 In addition, when asked why he had not informed the prosecution earlier about the false nature of his statements, P-0015 referred to security concerns and said he had been threatened by P-

1001 T-334-Red2-ENG, page 37, lines 13 – 16. 1002 T-334-Red2-ENG, page 37, lines 16 – 20 and page 38, lines 2 - 13. 1003 ICC-01/04-01/06-2678-Red, para. 64. 1004 ICC-01/04-01/06-2678-Red, para. 64. 1005 ICC-01/04-01/06-2678-Red, para. 66, relying on T-334-Red2-ENG, page 39, lines 3 – 13. 1006 T-264-Red2-ENG, page 35, lines 1 – 4. No. ICC-01/04-01/06 157/593 14 March 2012

0316 on numerous occasions. 1007 He also gave evidence to the effect that he had been subjected to pressure from his family and the Hema community due to his appearance in The Netherlands as a witness. 1008 339. The Chamber’s assessment of P-0015 is that the numerous weaknesses in the details of the account he provided the investigators in 2005 tend to indicate that he gave, at that stage, a significantly false story as to his identity and his alleged involvement with the UPC. Furthermore, when P-0015’s testimony is coupled with the evidence of P-0583 concerning the circumstances in which he was introduced to the OTP and the October and November 2005 interviews, there is a persuasive basis for concluding that P-0316 lied to the Chamber as regards his dealings with P-0015. In all the circumstances, the Chamber finds that P-0015 has given a wholly credible account during his oral evidence (as opposed to what he said to the investigators in 2005) – which is supported by other evidence, as rehearsed above – that P-0316 went to significant lengths to persuade him to give a false account to the OTP, in part to secure financial benefits. In these circumstances, the Chamber has only relied on P-0015’s evidence to the extent that it relates to P-0316.

(2) P-0038

340 This witness is an alleged former UPC soldier. He joined Laurent Kabila’s army in 1997 when he was 13 years old. 1009 He was disarmed later that year, 1010 and joined the UPC in 2001 1011 as a result of the

1007 T-264-Red2-ENG, page 51, lines 1 – 9 and lines 16 – 22 and page 71, lines 1 – 12. 1008 T-264-Red2-ENG, page 54, line 23 to page 58, line 12. 1009 T-113- Red-ENG , page 30, lines 3 – 9. 1010 T-113- Red-ENG , page 30, lines 18 – 24. 1011 T-113- Red-ENG , page 31, line 12. The English transcript refers to the year 2000. However, in light of the evidence given and the prosecution’s question, the French transcript with its reference to the year 2001 is correct (T-113-Red-FRA, page 31, line 4). No. ICC-01/04-01/06 158/593 14 March 2012

latter’s recruitment campaign. It follows he does not allege that he was

a child soldier below the age of 15 within the UPC. The witness

described the training camps of the UPC, 1012 and the extensive use that

was made of child soldiers for various tasks including fighting, 1013 and

acting as bodyguards and as ‘wives’ of commanders. 1014 The witness

received extensive weapons training, including in Rwanda, and 1015 1016

he was involved in battles at Mongbwalu, 1017 Komanda, Kobu and

Bunia. 1018 The witness gave considerable evidence about the

recruitment of children under the age of 15 by the UPC and their use

to participate actively in hostilities (see below). 1019

341 It is first to be noted that P-0038 contradicts the evidence of P-0316.

The latter gave evidence to the effect that P-0038 had already been in

contact with the investigators of the Court, and he was only asked to

find his contact details after the OTP had supposedly lost track of P-

0038 P-0316 stated he was able to find a telephone number for P- 1020

0038, which he provided to the investigators. 1021 P-0038 said a friend of

his knew he had been involved in fighting and introduced him to P-

0316, who put him in contact with an OTP investigator. 1022 Witness P-

0038 indicated that when he met P-0316 they discussed his experience

in the military, and P-0316 named individuals in the UPC and asked

1012 T-113- Red-ENG , page 37, line 24 to page 38, line 5 and page 59, lines 21 – 22. 1013 T-114- Red-ENG , page 82, lines 9 – 11. 1014 T-114- Red-ENG , page 82, line 21 to page 83, line 3. 1015 T-114- Red-ENG , page 7, lines 3 – 4 and page 7, line 16 to page 8, line 3. 1016 T-113- Red-ENG , page 35, lines 5 – 8. 1017 T-113-Red-ENG, page 48, line 24 to page 49, line 8. 1018 T-113-Red-ENG, page 52, lines 6 – 9. 1019 See paras 688, 801, 814, 821-824, 851-853, 915 and 1074. 1020 T-333-Red2-ENG, page 16, line 19 to page 17, line 6. 1021 T-333-Red2-ENG, page 17, lines 15 – 21. 1022 T-337-CONF-ENG , page 45, lines 2 – 5 and T-336-Red2-ENG, page 43, line 4 to page 44, line 20 (P-0038’s friend worked together with P-0316 in the same national institution, T-333-CONF-ENG, page 24, lines 16 – 21); P-0316 testified that P-0038 had already been in contact with the investigators and that he did not introduce him, T-333-Red2-ENG, page 16, line 21 to page 17, line 6.

No. ICC-01/04-01/06 159/593 14 March 2012

him whether he knew them. 1023 Thereafter, P-0316 suggested he should

see a representative of the OTP. P-0038 stated he was in contact with 1024

P-0316 1025 and described his relationship to P-0316’s two colleagues,

one of whom was a member of P-0038’s extended family. 1026 P-0038

portrayed Individual 183 as P-0316’s right-hand man, somebody who

assisted him with his tasks for the Court. Also of note is that P-0038 1027

stated he had prepared notes for use during his meetings with the

investigators and he gave a convoluted explanation as to why he had

suggested showing these notes to the investigators in a foreign

country, due to security concerns. 1028

342 As to his credibility, P-0038 claims that he was a member of the

UPC between 2001 and 2005, 1029 and he maintained in evidence that he

served as Chief Kahwa’s bodyguard in April 2002. 1030 The defence

submits that the witness’s description of his military activities

alongside Chief Kahwa are false, given the school records demonstrate

that he was enrolled in school in Bunia until July 2002. 1031

343 P-0038 stated he left school in November 2001 and returned to

continue his studies in 2003. 1032 However, during the trial, he was

shown records from the school he attended in 2001/2002. He identified

himself among students listed in the school’s records. 1033 P-0038’s name

1023 T-336-Red2-ENG, page 45, line 23 – page 46, line 5 and T-337-CONF-ENG, page 8, line 9 to page 9, line 6. 1024 T-336-Red2-ENG, page 46, lines 5 – 6. 1025 T-337-Red2-ENG, page 34, lines 15 – 17. 1026 T-336-Red-ENG, page 77, line 14 to page 78, line 4; T-337-CONF-ENG, page 14, lines 9 – 16 (the two colleagues P-0038 refers to are the ones who worked with P-0316 in the Congolese intelligence services). 1027 T-337-Red2-ENG, page15, lines 10 - 24 . 1028 T-337-Red2-ENG, page 23, line 10 to page 29, line 20; EVD-D01-00395 (notes). 1029 T-113-Red2-ENG , page 31, lines 13 – 15. 1030 T-114-Red2-ENG, page 43, line 13 – 18; page 46, lines 9 – 12. 1031 ICC-01/04-01/06-2773-Red-tENG, para. 457. 1032 T-113-Red2-ENG, page 31, lines 12 – 18; T-114-Red2-ENG, page 48, lines 11 – 16. 1033 T-114-Red2-ENG, page 50, line 24 to page 51, line 14.

No. ICC-01/04-01/06 160/593 14 March 2012

was listed in the column entitled “Authorised to repeat”, 1034 and the

document does not explain why students in that column are entitled to

repeat. The defence suggested the records indicate that P-0038 was at

school during the 2001/2002 year (contrary to his evidence), rather

than being in the UPC. 1035 The witness insisted he did not complete the

school year. The defence argued the students who left the 1036

institution halfway through the school year were listed in Column E of

the relevant document, under the heading “Left in the Course of the

Year”, 1037 and given his name is not in that column, he must have

completed the year. 1038

344 In the view of the Chamber, the witness gave a plausible

explanation as to why his name did not appear in Column E, as

follows:

A. I didn't complete the school year in this institution because I was allowed to repeat the year. It doesn't say why, but I know that I didn't take the exams. Because here I can't see where this has been said. Well, in fact, it says who repeated the year or went back to class, but it doesn't say why. It mentions those who left in the course of the year. It says, "Left in the course of the year," but there's no reference to those who repeated the year, and 1039 there's no reference to the reasons for which this was done.

The other evidence on this issue does not undermine this explanation.

345 The defence also challenges P-0038’s evidence that he re-enrolled in

school during the 2003/2004 year and was a student during the day

and a soldier at night, on the basis that this suggestion is

“implausible”. The witness explained that, at the time he returned 1040

1034 T-114-Red2-ENG, page 51, lines 4 – 11. 1035 T-114-CONF-ENG, page 51, line 12 – page 52, line 13. 1036 T-114-Red2-ENG, page 52, lines 11 – 12. 1037 T-114-Red2-ENG, page 51, line 25 to page 52, line 4. 1038 ICC-01/04-01/06-2773-Red-tENG, para. 457, referring to EVD-D01-00172, page 4017. 1039 T-114-Red2-ENG, page 52, lines 11 – 18. 1040 ICC-01/04-01/06-2773-Red-tENG, para. 458.

No. ICC-01/04-01/06 161/593 14 March 2012

to school in 2003, there was no UPC presence in Bunia during the day but there were patrols during the night. He stated that even though he was studying, he was under the orders of the UPC and in that sense he was a soldier. He stated he had been told “the army is not finished, it continues”. 1041 The Chamber is of the view that P-0038’s account is plausible and that he understood that he was a member of the UPC even if he also attended school. 346. The Chamber is unpersuaded by the defence arguments on the suggested weaknesses of this witness’s evidence, particularly concerning his military involvement and the fact that he described activities within the “UPC/RP”, along with a military structure and hierarchy, which it is alleged only existed from September 2002. 1042 Viewed globally, the witness gave detailed and credible evidence on his activities both before and after the establishment of the FPLC. 347. The other significant criticism of the witness by the defence is that the Court funded a significant element of his expenditure from May 2007 to February 2009, and his school fees for a complete academic year. 1043 P-0038 gave detailed evidence on the costs covered by the Court while he was under its protection leading up to his testimony between May 2007 and February 2009. 1044 P-0038 stated that when he was recalled as a witness he did not make any requests to the OTP, or any other organ of the Court, for compensation, care or relocation and he did not stipulate any conditions before giving evidence. The Chamber is of the view that the costs during this period were paid in the context of the protection programme provided by the Court. He

1041 T-114-Red2-ENG, page 55, lines 3 – 21. 1042 ICC-01/04-01/06-2773-Red-tENG, para. 459. 1043 ICC-01/04-01/06-2773-Red-tENG, para. 54. 1044 T-337-Red2-ENG, page 37, line 1 to page 40, line 5. No. ICC-01/04-01/06 162/593 14 March 2012

received no more than the amount provided by the standard compensation and care scheme for witnesses. The evidence on this issue did not materially undermine the witness’s account. The fact that a witness is in the ICC protection program does not, without more, undermine his or her credibility. 348. This was a measured witness, whose account was internally consistent and he gave a wholly credible account. Discrete aspects of his testimony where this was not the case will be addressed below. Notwithstanding his connection with P-0316, the Chamber has concluded he was a reliable witness whose evidence is truthful and accurate. Indeed, P-0038 stated he and P-0316 never talked about what he was supposed to say to the OTP and P-0316 did not tell him to provide false stories to the prosecution, nor did P-0316 promise the witness rewards for giving particular information to the investigators. P-0038 added that the investigator had told him not 1045 to talk to P-0316 about the contents of the meetings with the OTP. 1046 The Chamber accepts P-0038 may have prepared notes to assist during the meetings and it observes his explanation on providing the notes to the investigators is unclear, but in contrast to the situation regarding D-0016 described below, there is no evidence to support the assumption that he was prepared in order to give false testimony. 349. The defence challenges to the witness’s evidence on his recruitment and Thomas Lubanga’s visit to Mandro camp, as well as other identified areas of his evidence, will be addressed later in this Judgment. 1047 The impact of this witness’s evidence is considered in the

1045 T-336-Red2-ENG, page 78, lines 11 - 25. 1046 T-336-Red2-ENG, page 78, line 11 to page 78, line 25 to page 79, line 7; T-337-Red2-ENG, page 13, lines 4 – 9. 1047 ICC-01/04-01/06-2773-Red-tENG, paras 461 – 475. No. ICC-01/04-01/06 163/593 14 March 2012

Chamber’s overall conclusions, set out below.

(3) D-0016

350 P-0316 told P-0583 that D-0016 (known by the prosecution as DRC- OTP-WWWW-0035) was an officer in the UPC, a commander who had participated with his troops in a number of attacks, 1048 and as a result he asked P-0316 to arrange a meeting with this potential witness. 1049 351. D-0016, however, maintained in his evidence before the Court that P-0316 persuaded him to lie to the OTP. The lies are said to have included the suggestion that D-0016 was one of the children who had been enrolled into the armed wing of the UPC by Thomas Lubanga, 1050 and that other children, including from his own family, had been enlisted into the army. 1051 D-0016 stated he and P-0316 agreed the witness was to allege falsely that young girls had given birth whilst in the army. 1052 352. D-0016 met several times with P-0316, first in a café and thereafter in an office of one of his friends, and P-0316 indicated he was looking for “someone to say something about Mr Thomas Lubanga” to the OTP’s investigators. 1053 D-0016 was introduced to the investigators at the Hellénique restaurant in Bunia, 1054 and later he met with them again in Kampala, 1055 between 30 September and 5 October 2005 and

1048 T-335-Red2-ENG, page 31, lines 14 – 20 (P-0583). 1049 T-335-Red2-ENG, page 31, lines 4 – 10 (P-0583). 1050 T-257-Red-ENG, page 2, lines 15 – 21 and page 3, line 11 to page 4, line 3. 1051 T-256-Red-ENG, page page 12, lines 2 – 8 and page 22, lines 1 – 4. 1052 T-256-Red-ENG, page 12, lines 8 – 10 and page 21, line 20 to page 22, line 1. 1053 T-256-Red2-ENG, page 9, lines 20 – 25 and page 11, lines 6-13. 1054 T-257-Red-ENG, page 41, lines 19 – 23. 1055 T-258-Red-ENG, page 10, lines 7 – 23. No. ICC-01/04-01/06 164/593 14 March 2012

then in Bunia on 12 November 2005. 1056

353 D-0016 indicated he and P-0316 went over the subjects on which he was to lie whilst they were travelling over two days before the meetings in Kampala, as well as during the time he was in Kampala. 1057 They met prior to every interview with the investigators, in order to discuss the false evidence he was to give and they met again in the 1058 evening to prepare for the following day. 1059

354 D-0016’s evidence was that he had never served in the army, but he and P-0316 planned the lies that he was to repeat; and in the morning before he left for the interviews, he was given the answers to the questions. 1060

355 D-0016 testified that during their preparatory meetings, they wrote down the names of people who were in the army as well as the names of villages where battles were fought, and he read these out. 1061 It is to be noted in relation to this issue that in one of the interviews between the prosecution and D-0016 there is mention of a notebook he compiled shortly before the interviews in which he had noted down the names of the places he had visited during the war. 1062 P-0583 testified that the interview with D-0016 was a difficult one – it was not easy to follow his account and P-0583 was not impressed by the

1056 T-258-Red-ENG, page 10, lines 7 – 11; See transcripts of interviews: EVD-OTP-00533 to EVD- OTP-00551. 1057 T-256-Red-ENG, page 28, lines 8 – 16; T-258-Red-ENG, page 12, lines 11 – 19. 1058 T-256-Red-ENG, page 28, lines 13 – 16. 1059 T-258-Red-ENG, page 8, lines 9 – 13. 1060 T-258-Red-ENG, page 15, line 19 to page 16, line 2. 1061 T-256-Red-ENG, page 15, line 21 to page 16, line 8. 1062 See extract of interview read out in court during the examination of P-0583, T-335-Red2-ENG, page 68, line 5 to page 69, line 25. T-335-Red2-ENG, page 68, line 5 to page 69, line 25 (P-0583); Notebook, pages: EVD-D01-00387, EVD-D01-00388, EVD-D01-00389 and EVD-D01-00390. This notebook is mentioned during the interview EVD-OTP-00546, page 1836, line 916 to page 1839, line 1009.

No. ICC-01/04-01/06 165/593 14 March 2012

information he provided. 1063 However, P-0583 did not suspect that D-

0016 had been rehearsed or prepared when he was interviewed. 1064

356 D-0016’s evidence was that P-0316 would buy him drinks and he

gave him a small amount of money in return for these lies, 1065 and

promised he would go to “the country of the white people”. 1066 When

D-0016 was subjected to pressure for allegedly having told lies about

the accused, P-0316 wrote a fake threatening letter (which the witness

suggested contains the latter’s fingerprint), 1067 so as to help him leave

Bunia. 1068 As instructed by P-0316, D-0016 gave this letter to a court

official. 1069 The prosecution was unable to locate this document and it

was uncertain whether the original had been in its possession. The 1070

original was unavailable to the Chamber as a result of this uncertainty

or negligence, although a copy and a translation were discussed in the

course of P-0316’s testimony. 1071

357 The defence argues that D-0016 provided material in accordance

with the agreed plan. 1072 He said he had been a UPC soldier; he

referred on several occasions to the presence of child soldiers under

the age of fifteen; and he indicated that at least one young girl child

1063 T-335-Red2-ENG, page 81, line 18 to page 82, line 5. 1064 T-334-Red2-ENG, page 34, line 24 to page 35, line 4. 1065 T-256-Red-ENG, page 16, lines 9 – 14. 1066 T-256-Red-ENG, page 16, lines 17 – 21. 1067 EVD-D01-00120, discussed at T-257-Red2-ENG, page 29, line 21 to page 30, line 5. 1068 T-257-Red2-ENG, page 27, line 9 to page 28, line 8, page 30, lines 6 – 9 and page 32, lines 8 – 13. 1069 T-257-Red2-ENG, page 28, lines 4 – 8 and page 33, lines 6 – 15. 1070 The defence was never provided with the original of EVD-D01-00120, which the prosecution states cannot be located within its files. When questioned about this, the prosecution was also unable to say whether it had ever had possession of the original of this document. T-332-Red2-ENG, page 38, line 17 to page 39, line 25 and ICC-01/04-01/06-2678-Red, footnote 155. P-0316 denied ever having heard about such a letter (T-332-Red2-ENG, page 36, line 22 to page 37, line 1). 1071 See, for example, T-329-Red-ENG, page 14, line 3 to page 15, line 10; EVD-D01-00120 and EVD- OTP-00612 (translation). 1072 ICC-01/04-01/06-2657-tENG-Red, paras 35 – 40.

No. ICC-01/04-01/06 166/593 14 March 2012

soldier had gone off to battle. 1073 The defence additionally suggests that

substantial inconsistencies in the statements D-0016 gave to the OTP

demonstrate they were false. 1074 The Chamber is of the view that the

witness provided a confused account of the time when he purportedly

joined the UPC 1075 and, although he described himself as a UPC officer,

he was unaware of the name of the group’s armed wing (the FPLC). 1076

358 In all the circumstances, the defence invites the Chamber to

conclude that the statements given to the investigators in October and

November 2005 by D-0016 were the result of P-0316’s invitation to him

to lie. 1077

359 As set out above, P-0583 gave evidence that D-0016 was identified

and introduced by P-0316, and was described by him as a former UPC

officer who had participated with his troops in a number of attacks. 1078

However, P-0316 denied having introduced potential witnesses to the

OTP who were previously unknown to the prosecution, and he 1079

suggested that he was simply aware that D-0016 was among the

demobilised children, and he looked for him on the basis of a

photograph provided by the OTP. 1080 This conflicts directly with the

evidence of P-0583. 1081

1073 EVD-OTP-00535, page 1407, lines 43-49, page 1430, line 788 to page 1431, line 810, EVD-OTP- 00540, page 1614, line 520 to page 1616, line 579 and EVD-OTP-00541, page 1645, line 52 to page 1647, line 93. 1074 ICC-01/04-01/06-2657-tENG-Red, paras 43 – 45. 1075 EVD-OTP-00535, page 1409, lines 104-121, page 1413, line 235 to page 1418, line 399, page 1421, line 500 to page 1422, line 518, page 1423, lines 566-573, page 1424, lines 575-592. 1076 EVD-OTP-00537, page 1492, lines 686-694. 1077 ICC-01/04-01/06-2657-Conf-tENG, paras 45 and 46. 1078 T- 335-Red2-ENG, page 31, line 4 –20 and EVD-OTP-00629, para. 41. As mentioned above, P- 0582 testified that introducing potential witnesses who were unknown to the prosecution was one of P- 0316’s responsibilities, see Transcript of Deposition on 17 November 2010, ICC-01/04-01/06- Rule68Deposition-Red2-ENG, page 63, lines 6 – 12. 1079 T-331-Red2-ENG, page 40, lines 9 – 11. 1080 T-332-Red2-ENG, page 30, lines 8 – 11, page 31, line 3 and page 33, line 22 – page 34, line 3. 1081 T-335-Red2-ENG, page 31, lines 4 – 10.

No. ICC-01/04-01/06 167/593 14 March 2012

360 Moreover, P-0583 agreed that from 25 September onwards, D-0016

and P-0316 were in Kampala together for several days prior to a

number of days of interviews 1082 (during which, as set out above, D-

0016 used notes). 1083 P-0316 maintained that the interviews in Kampala

marked the end of his contact with D-0016. 1084 This was contradicted

by D-0016. 1085

361 P-0316 gave evidence that he was unaware of any security problems

relating to D-0016 1086 and he had not told the Office of the Prosecutor

that a threatening letter had been found at Witness D-0016’s home. 1087

By way of contradiction, in a telephone conversation with the

investigators on 11 January 2008, P-0316 said D-0016 had found a letter

containing death threats on his doorstep (this also contradicts the

statement that P-0316 had no contact with D-0016 after the

interviews). P-0316 explicitly denied having written the letter or 1088

having encouraged D-0016 to give false information about his

security. 1089

362 The prosecution argues that it has not been demonstrated that P-

0316 solicited D-0016 to provide false incriminating evidence against

the accused. The prosecution points to the statement by D-0016 that 1090

he did not personally receive money from the OTP whilst he was in

Kampala for his interview in 2005, 1091 despite the fact that the

1082 T-335-CONF-ENG, page 53, line 24 to page 56, line 1; EVD-D01-00114; EVD-OTP-00629, para. 42. 1083 EVD-OTP-00546, page 1836, line 916 to page 1839, line 1002. 1084 T-332-Red2-ENG, page 35, lines 9 – 13; T-328-Red2-ENG, page 37, lines 15 – 17. 1085 T-257-Red2-ENG, page 27, line 9. 1086 T-329-Red2-ENG, page 16, lines 8 – 12 and T-332-Red2-ENG, page 35, line 24. 1087 T-332-Red2-ENG, page 36, line 25 to page 37, line 1. 1088 EVD-D01-01042, No. 31. 1089 T-329-Red2-ENG, page 13, line 12 to page 14, line 21 and page 16, lines 8 – 11. 1090 ICC-01/04-01/06-2678-Red, para. 52. 1091 ICC-01/04-01/06-2678-Red, para. 53, discussing testimony from D-0016, see: ICC-01/04-01/06-T- 257-Red2-ENG, page 20, lines 12 – 17 and T-258-Red-ENG, page 21, line 21 to page 22, line 15.

No. ICC-01/04-01/06 168/593 14 March 2012

prosecution later showed D-0016 a video in which he received cash from P-0583. 1092 363. At paragraph 43 of P-0583’s statement, he stated D-0016 complained that P-0316 had taken part of the money he had been given to pay for the hotel and his food. 1093 P-0583 explained D-0016 had used the money for purposes other than paying for the hotel and therefore P- 0316, on his own initiative, took this money to pay for the hotel and for food. 1094 P-0583 indicated P-0316 provided a consistent and believable explanation regarding this incident. 1095 364. The Chamber has approached the evidence of D-0016 with a degree of caution, given he provided a detailed and untruthful account to the prosecution with a view to financial gain. 1096 Whilst the witness denies that he was subjected to threats from either Dieudonné Mbuna 1097 or the UPC, 1098 at several points in his evidence he indicated he felt pressure from members of the community and members of his family, 1099 because of the statement he had made to the OTP’s investigators. However, it needs also to be observed that he gave a clear and broadly consistent account as to serious alleged wrongdoing on the part of P-0316. 365. When D-0016’s account is coupled, first, with the evidence of P-0583 as regards the circumstances in which he was introduced to the OTP and, second, the involvement of P-0316 in the October and November 2005 interviews, there is a persuasive basis for concluding the latter 1092 T-258-Red2-ENG page 28, lines 1 – 25; EVD-OTP-00532 at 01:10. 1093 T-335-Red2-ENG, page 49, lines 21 – 24. 1094 T-335-Red2-ENG, page 50, lines 7 – 11. 1095 T-335-Red2-ENG, page 51, lines 9 – 18. 1096 T-256-Red-ENG, page 16, lines 9 – 14. 1097 T-257-Red2-ENG, page 31, lines 19 – 20. 1098 T-257-Red2-ENG, page 31, lines 21 – 25. 1099 T-257-Red-ENG, page 27, lines 11 – 13. No. ICC-01/04-01/06 169/593 14 March 2012

lied to the Chamber as regards his dealings with D-0016. For these

reasons, the Chamber finds that D-0016 has given credible evidence –

supported by other material, as rehearsed above – and in particular the

Chamber accepts P-0316 went to significant lengths to persuade him to

give a false account to the OTP, in part for financial gain.

(4) P-0316’s professional obligations towards the

DRC government

366 As set out earlier, at all material times, the Prosecutor was aware

that P-0316 had held a position of responsibility linked to his national

government through his work for the Congolese intelligence

services 1100 and, moreover, at least one other member of staff from the

same organisation assisted him with his work for the OTP. 1101

367 P-0316 set out during his evidence the detail of the duties he

performed within the intelligence services 1102 and his contacts with,

and loyalty to, his government. 1103 The witness said:

From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government in my service. However, there were sometimes perhaps circumstances in which I might have worked 1104 outside of this capacity, but I always remained loyal to my government.

368 The Chamber is particularly concerned that the prosecution used an

individual as an intermediary with such close ties to the government

1100 T-334-Red-ENG, page 17, line 17 to page 18, line 3 (P-0583); it was set out in his curriculum vitae (EVD-OTP-00597) and his personal history form (EVD-OTP-00598) when he applied. 1101 T-331-CONF-ENG, page 78, line 23 to page 79, line 23 (P-0316 insisted that his colleague merely acted as a driver); T-337-CONF-ENG, page 15, lines 10-24 (P-0038); T-335-CONF-ENG, page 16, line 20 to page 17, line 4 (P-0583) ; Transcript of Deposition on 17 November 2010, ICC-01/04-01/06- Rule68Deposition-CONF-ENG, page 63, line 18 to page 64, line 8 (P-0582); EVD-D01-00371 (Receipt covering costs for both P-0316 and P-0183); EVD-D01-01043 (Excerpt from the prosecution’s table of communication). 1102 T-327-CONF ENG, page 12, line 7 to page 16, line 2; T-330-CONF ENG, page 21, lines 18 – 22; See also EVD-OTP-00597 and EVD-OTP-00598. 1103 T-327-CONF ENG, page 14, lines 20 – 23; T-327-Red2-ENG, page 15, lines 1 – 7 ; T-332-Red2- ENG, page 49, lines 10 – 15. 1104 T-327-Red2-ENG, page 14, lines 20 – 23.

No. ICC-01/04-01/06 170/593 14 March 2012

that had originally referred the situation in the DRC to the Court. He not only introduced witnesses to the investigators, but he was also involved in the arrangements for their interviews. Given the likelihood of political tension, or even animosity, between the accused and the government, it was wholly undesirable for witnesses to be identified, introduced and handled by one or more individuals who, on account of their work or position, may not have had, to a sufficient degree or at all, the necessary qualities of independence and impartiality. Whilst it is acceptable for individuals in this category to provide information and intelligence on an independent basis, they should not become members of the prosecution team. Moreover, any information and intelligence they provide should be verified and scrutinised by the prosecution, in order to avoid any manipulation or distortion of the evidence.

(5) False information and credibility issues

369 In October 2008, P-0316 maintained to the prosecution that his assistant (Individual 183) and his family had been murdered, allegedly by a rebel movement. He suggested the dead man’s fellow students had informed him of the death and that the killers were now pursuing him (P-0316). 1105 When questioned on this matter in October 2009 and again in November 2010, P-0316 reiterated this claim. 1106 However, these assertions are false, given the prosecution has asserted

1105 EVD-D01-01004 at DRC-OTP-0230-0460 and 0461. The account P-0316 gave to the prosecution at a later stage differs to the extent that he said his relatives informed him, and his parents had not been killed, EVD-D01-00372, page 0457, line 162 to page 0458, line 242. 1106 EVD-D01-00372, page 0457, line 162 to page 0458, line 242; See also T-332-Red2-ENG, page 12, line 20 to page 17, line 10; T-331-Red2-ENG, page 81, line 24 to page 82, line 10. No. ICC-01/04-01/06 171/593 14 March 2012

“confidently” that Individual 183 is alive. 1107 370. An investigator’s note dated 18 June 2010 concerning events that had taken place between 2006 and 2009 in relation to P-0316 indicates that members of the prosecution investigation team had serious doubts about his credibility. 1108 An entry for 16 May 2008 relates that a referral for protection for P-0316 was never submitted to the VWU because “the threats (SMS messages and visits to houses) claimed by Intermediary 316 could not be proven and he and his family gave different versions of these incidents.” 1109 371. An entry from 30 May 2008 sets out that P-0316 “was told that the OTP had found out about some financial issues which do not correspond to what Intermediary 316 initially said. It was reiterated that Intermediary 316 must be truthful about everything”. 1110 The investigator’s note for 29 September 2008 indicates that OSU field officers “reported that [P-0316] continued to play games and provide false information on available houses. […] The field staff reported being suspicious about [the intermediary’s] intentions.” 1111 On 14 April 2009, having received a set of invoices from P-0316 for medical expenses, “OSU field officers considered that the expenses seemed exaggerated and that the receipts should be confirmed with the relevant medical centres and pharmacy”. 1112

1107 EVD-D01-01004 at DRC-OTP-0230-0461; EVD-D01-01043 (Excerpt from the prosecution’s table of contacts indicating that the OTP had been able to reach P-0183 by telephone); the prosecution confirmed in court that P-0183 is still alive: T-332-Red2-ENG, page 5, line 7 to page 6, line 12. 1108 EVD-D01-01004. 1109 EVD-D01-01004 at DRC-OTP-0230-0457. 1110 EVD-D01-01004 at DRC-OTP-0230-0458. 1111 EVD-D01-01004 at DRC-OTP-230-0460. 1112 EVD-D01-01004 at DRC-OTP-230-0464. No. ICC-01/04-01/06 172/593 14 March 2012

(6) Conclusions as to P-0316

372 During his testimony before the Court between 9 and 12 November 2010, P-0316 repeatedly contradicted the information in the prosecution’s records, the testimony of P-0582 and P-0583 and his own prior statements to the prosecution, most notably as regards his relationship with D-0016, P-0038 and P-0015, his knowledge of a threatening letter allegedly received by D-0016 and his activities on behalf of the investigative division.

373 Bearing in mind especially P-0316’s lack of credibility, the Chamber is of the view that there are strong reasons to conclude he persuaded witnesses to lie as to their involvement as child soldiers within the UPC. 374. This conclusion potentially affects the Chamber’s attitude to the witnesses called by the prosecution at trial with whom P-0316 had contact (P-0015 and P-0038). As set out above, the Chamber has concluded that the evidence of P-0015 cannot be relied on as to the substance of the charges. However, the Chamber has determined that the evidence of P-0038 is not affected in the same way, having scrutinised his evidence (see above). 3. Intermediary P-0321

375 In its Decision on Intermediaries, the Chamber observed that several witnesses had given evidence to the effect that intermediary 321 possibly misused his position and may have “persuaded or invited witnesses to give false testimony to the Court”. 1113 The Chamber instructed the prosecution to call P-0321 as a witness in order to 1113 ICC-01/04-01/06-2434-Red2, para. 140. No. ICC-01/04-01/06 173/593 14 March 2012

resolve this criticism, the relevant discrepancies in the evidence and

the issue of contact between the intermediaries. 1114

376 The Chamber has considered below the evidence relating to the role

and credibility of this intermediary, as well as the evidence of the

other witnesses whose credibility may be affected.

a) Background

377 P-0321 carried out various tasks for the prosecution, which began

when a representative of the Office of the Prosecutor contacted P-0321

in January 2007 and asked him to re-establish contact with P-0157 1115

and to set up a meeting with the investigators. 1116 P-0321 received

direct telephone instructions from the OTP for this initial mission. 1117

378 Thereafter, P-0031 contacted P-0321, and he was asked to organise a

meeting between several children and the OTP representative P-0581

in Bunia. 1118 P-0321 was initially contacted by telephone, 1119 and

subsequently P-0581 1120 gave him instructions in person. 1121

379 The OTP then asked P-0321 to organise further meetings with

various children in another town. 1122 P-0321 said that the investigators

contacted him after each interview. 1123

380 P-0321 was asked to give the children money once the interviews

1114 ICC-01/04-01/06-2434-Red2, para. 141. 1115 T-308-CONF-ENG, page 47, lines 10 – 12 (P-0321); EVD-D01-01039, at DRC-D01-0003-5879; EVD-D01-01041, No 1. 1116 T-308-CONF-ENG, page 46, line 1 to page 47, line 12 (P-0321). 1117 T-308-Red2-ENG, page 46, line 11 to page 47, line 12 (P-321). 1118 T-308-CONF-ENG, page 62, lines 9 – 25 (P-0321). 1119 T-300-Red2-ENG, page 25, lines 6-16 (P-581). 1120 T-308-CONF-ENG, page 52, line 23 – page 53 page 12. 1121 T-300-Red2-ENG, page 25, lines 6 – 22 (P-0581). 1122 T-309-CONF-ENG, page 2, lines 20 to page 3, line 6 (P-0321). 1123 T-309-Red2-ENG, page 21, lines 14 -20.

No. ICC-01/04-01/06 174/593 14 March 2012

were finished to enable them to return home. 1124 Following the

interviews, the investigators instructed P-0321 to distribute mobile

telephones to various witnesses. 1125

381 In December 2007, at the request of the OTP, P-0321 talked to P-

0297 about the arrangements for the latter’s accommodation. 1126 Soon

after, again on the instructions of the investigators, P-0321

accompanied P-0297 and another individual to an airport. In 1127

January 2008, the investigators contacted P-0321 about P-0213, 1128

whose position is considered in detail below. 1129

382 Thereafter, P-0321 remained in touch with one of the OTP

investigators. This continued once P-0321 was relocated in January 1130

2008 P-0581 was in contact with P-0321 on at least two occasions in

2008 1131 and at least once in 2009. 1132 P-0581 gave evidence on how

intermediaries working for the OTP were usually paid (but he could

not recall if the relevant records were completed for P-0321). 1133

383 On this basis, it is suggested by the defence that for more than a

year, P-0321 acted on the instructions of the OTP and under the latter’s

supervision, as regards a number of potential witnesses in this case,

and including trial witnesses P-0157, P-0213 (first contact via P-0321),

P-0293 (first contact via P-0321), P-0294 (first contact via P-0321), P-

1124 T-309-Red2-ENG, page 21, lines 22 – 23. 1125 T-309-Red2-ENG, page 2, line 20 to page 3, line 2 and page 21, line 24 to page 22, line 14; T-310- Red2-ENG, page 18, lines 14 – 24 (P-0321). 1126 EVD-D01-01039, No 134. 1127 EVD-D01-01039, No 134 and P-0321: T-310-CONF-ENG, page 35, line 13 to page 36, line 14. 1128 T-322-CONF-ENG, page 23, lines 5-18 (P-0321). 1129 See paras 394-406. 1130 T-320-Red2-ENG, page 42, lines 6 – 8 (P-0321). 1131 EVD-D01-01039, No 134. T-302-CONF-ENG, page 6, lines 9 - 18. 1132 EVD-D01-01039, No 134. 1133 T-302-Red2-ENG, page 11, line 23 to page 12, line 13 (P-0581).

No. ICC-01/04-01/06 175/593 14 March 2012

0297 (first contact via P-0321) and P-0298 (first contact via P-0321). 1134

b) The relevant witnesses

384 The Chamber has initially considered the evidence of the relevant defence witnesses before turning to the account of the prosecution witnesses whose reliability may be affected because they were first contacted by P-0321.

(1) D-0003 and D-0004

385 The defence relies on the evidence of two defence witnesses, D-0003 and D-0004, in support of a submission that P-0321 encouraged young boys (including P-0213, P-0294, P-0297 and P-0298) to claim falsely to the OTP that they had been enlisted into the armed wing of the UPC. 1135 386. The prosecution suggests that D-0003 and D-0004 “succumbed to pressure” exerted on them by a person named Cordo, other UPC officials and village chiefs in order to persuade them to testify in favour of the accused. 1136 The prosecution submits that the substance of their evidence is flawed. 1137

(a) D-0003

387 D-0003 maintained that P-0321 told children that an NGO would assist them to secure schooling and to learn a trade, and they would receive money. According to D-0003, P-0321 told him that in order 1138 to be paid, he must lie and say one of the individuals who was later 1134 ICC-01/04-01/06-2657-tENG-Red, paras 75 – 80. 1135 ICC-01/04-01/06-2657-tENG-Red, para. 81. 1136 ICC-01/04-01/06-2748-Red, paras 454, 456, 459 – 461. 1137 ICC-01/04-01/06-2748-Red, paras 462 – 469. 1138 T-239-Red2-ENG, page 23, lines 6 – 13 and page 34, lines 5- 10. No. ICC-01/04-01/06 176/593 14 March 2012

called by the prosecution as a witness was a former child soldier whose mother had died. As part of this plan, D-0003 accompanied 1139 him to a meeting with the prosecution investigators. 1140 D-0003 testified that P-0321 asked him to pretend to be related to the individual just mentioned. 1141 The witness said he signed several documents for the OTP using different names. 1142 388. D-0003 admitted lying to the OTP investigators for financial gain. 1143 He also admitted attempting to secure a financial reward in return for giving evidence in favour of Thomas Lubanga (although his evidence was that his offer to assist was turned down by members of the UPC who said they did not want to buy his testimony). It follows that D- 1144 0003’s contact with individuals within the UPC hierarchy 1145 prior to testifying raises the risk that his testimony may be unreliable, given his desire to profit from any evidence he provided. Furthermore, the witness had come under pressure, including from his community 1146 and members of his own family, 1147 before he gave evidence. In the circumstances, the Chamber has focussed carefully on the risk that the evidence he gave may have been the result of his wish for personal financial gain (notwithstanding his account of the reaction of the UPC members) or following pressure or coercion.

1139 T-239-Red2-ENG, page 31, lines 17 – 20. 1140 T-239-Red2-ENG, page 31, line 12 to page 32, line 12. 1141 T-239-CONF-ENG, page 52, line 1 to page 54, line 4. 1142 T-240-Red-ENG, page 4, line 12 to page 5, line 21. 1143 T-240-Red-ENG, page 6, lines 24 – 25. 1144 T-241-Red2-ENG, page 16, lines 10 – 15. 1145 T-241-Red2-ENG, page 13, line 9 to page 14, line 6 and page 14, line 23 to page 15, line 4. 1146 T-240-Red-ENG, page 13, line 23 to page 14, line 15. 1147 T-239-Red2-ENG, page 46, lines 14 – 22. No. ICC-01/04-01/06 177/593 14 March 2012

(b) D-0004

389 D-0004 testified that P-0321 asked him and a number of others 1148

from his neighbourhood to maintain falsely to the OTP that they had

been enlisted into the UPC’s army, 1149 and to lie about issues such as

their names, 1150 where they lived and their ages. 1151 D-0004 described

the circumstances in which he suggested he met P-0321 in 2008. The 1152

witness claims P-0321 said to him and others that if they wished to

earn money and to study, and if they desired a good life, then they

should state falsely that they had been child soldiers, 1153 having been

forcibly enlisted by the accused. D-0004 also testified that he 1154

travelled using different names, with a false student card provided to

him by the OTP that gave incorrect information as to his name, age

and village. 1155

390 The prosecution highlights another witness’s testimony that,

contrary to D-0004’s evidence about having made up stories at the

instigation of P-0321, he underwent military training in the UPC and

thereafter served in its army, at least for several weeks. 1156

391 Questions as to the credibility of D-0004 are raised by a number of

factors. First, he originally lied about having been a child soldier,

given his later account was that he had never served in the military. 1157

1148 He stated they were four in total and he provided the names of the other three individuals, T-242- CONF-ENG, page 22, lines 6 – 7. 1149 T-242-Red2-ENG, page 21, line 5 to page 23, line 8; T-245-Red2-ENG, page 11, line 25 to page 12, line 25. D-0004 stated that although P-0321 sent him away at the first meeting when D-0004 told him that he had not been a child soldier, P-0321 came back and told them to lie. 1150 T-243-CONF-ENG, page 14, lines 1 – 7. 1151 T-243-Red2-ENG, page 17, lines 8 – 13. 1152 T-242-Red2-ENG, page 5, lines 23 – 24; T-245-CONF-ENG, page 5, lines 12 – 17. 1153 T-245-Red2-ENG, page 12, lines 18 – 20. 1154 T-242-Red2-ENG, page 7, lines 3 – 11. 1155 T-243-Red2-ENG, page 14, lines 8 – 16, page 15, line 21 to page 16, line 3 and page 16, line 23 to page 17, line 7 and T-245-Red2-ENG, page 58, line 22 to page 59, line 24. 1156 ICC-01/04-01/06-2678-Red, para. 97. 1157 T-245-Red2-ENG, page 12, line 5; T-242-Red2-ENG, page 21, lines 13– 15.

No. ICC-01/04-01/06 178/593 14 March 2012

Second, the witness stated he was put under pressure by his community and individuals affiliated with UPC when they suspected he had given evidence against the accused. 1158 This raises the possibility that his testimony was the result of coercion. 392. Finally, whilst the witness’s evidence is generally internally consistent, there are particular issues which are relevant to his credibility. D-0004 gave evidence about having been subjected to pressure from particular villagers because it was assumed that he was testifying against Thomas Lubanga for money, which led D-0004 and another individual to make up a story for the prosecution in order to be relocated. At one stage the prosecution asked the witness if he 1159 was lying to the Court because of pressure from the villagers and members of the UPC. The witness replied “Yes, I accept”, although he also challenged the suggestion that he was lying. He later denied he 1160 had been coerced into testifying. 1161 393. The Chamber has treated the serious suggested improprieties that this witness has alleged against P-0321 with particular care.

(2) P-0213

394 Witness P-0213 is an alleged former child soldier who gave evidence he was born in 1991 1162 and he provided his place of birth to the Chamber. He suggested soldiers from the UPC abducted him 1163 on three occasions, 1164 although he gave inconsistent testimony on the

1158 T-242-Red2-ENG, page 13, lines 1 – 21; T-245-Red2-ENG, page 28, lines 11 – 23, page 32, line 2 to page 36, line 18, page 42, lines 16 – 21 and page 43, lines 13 – 17. 1159 T-245-Red2-ENG, page 42, line 22 to page 43, line 2 and page 43, line 20 to page 44, line 4. 1160 T-245-Red2-ENG, page 57, line 21 to page 58, line 8. 1161 T-245-Red2-ENG, page 60, lines 7 – 10. 1162 T-132-Red2-ENG , page 6, lines 12–13. 1163 T-133-CONF-ENG, page 17, lines 14–19. 1164 T-132-Red2-ENG , page 9, lines 18-19. No. ICC-01/04-01/06 179/593 14 March 2012

circumstances surrounding these incidents. 1165 Moreover, his interview

with prosecution investigators in 2007 is inconsistent with his

testimony before the Chamber on this issue. 1166

395 He said that after his first abduction he was sent for training in the

Lopa 1167 and Bule camps, 1168 and he took part in a battle against

Ugandan troops in Bunia. Previously, he had been assigned to the 1169

accused’s residence on security duty. With respect to his 1170

demobilisation, he gave evidence about having gone to different

organisations where he received “kits” (including clothing and shoes),

and he spoke of his wish to receive training. 1171 However, in an earlier

statement to the prosecution the witness had stated he was never

demobilised. 1172 He explained in Court that he said this because he was

frightened, 1173 although the reasons for this alleged fear were never

satisfactorily explained.

396 The defence suggests the testimony of P-0213 is false for a number

of reasons. 1174 First, P-0213 gave his name to the Chamber and he

indicated it was his only name and he did not use any other. 1175 When

the defence suggested another name, he said it was a nickname used

by the children when they were playing, but he insisted it was not his

1165 Concerning his first abduction, see: T-132-Red2-ENG , page 9, line 20 to page 11, line 10, but see T-134-Red2-ENG, page 2, line 25 to page 14, line 9. Concerning the second abduction: T-132-Red2- ENG , page 15, line 13 to page 16, line 4 and T-133-Red2-ENG, page 73, line 15 to page 76, line 24. Concerning the third abduction: T-134-Red2-ENG , page 43, line 21 to page 45, line 23. 1166 T-134-Red2-ENG, page 3, line 17 to page 10, line 21. 1167 T-132-Red2-ENG , page 11, lines 16 – 25. 1168 T-132-Red2-ENG , page 24, line 20 to page 25, line 10. 1169 T-132-Red2-ENG , page 47, lines 19 – 25. 1170 T-132-Red2-ENG , page 45, lines 8 – 11. 1171 T-133-Red2-ENG, page 30, line 24 to page 36, line 10. 1172 T-133-Red2-ENG, page 30, lines 12–18. 1173 T-133-Red2-ENG, page 30, lines 19–23. 1174 ICC-01/04-01/06-2773-Red-tENG, paras 226 – 259. 1175 T-133-CONF-ENG, page 15, line 25 to page 16, line 7.

No. ICC-01/04-01/06 180/593 14 March 2012

name. 1176 397. A school register indicates P-0213 was born in 1989 at a different location to the one he gave to the Chamber. 1177 However, it has been established by expert evidence that the entry for the year “1989” overwrites a previous entry which is partially visible underneath 1178 (the underlying reference cannot be made out). This entry is potentially unreliable in these circumstances, and the Chamber has placed little reliance on it. 398. Second, P-0213 gave evidence that he attended a particular school where he was born, between the first and the fourth year, 1179 although his schooling was interrupted at the end of third year when he was enlisted in the army. 1180 He also said he attended the same school (save for the interruption just referred to) until the “ sixième ,” the end of elementary school. 1181 He gave evidence that he began his fifth year at a school in Bunia, but he returned in the middle of the year to where he was born. He completed the fifth and sixth year at his former elementary school. 1182 399. As mentioned above, D-0029, who has been a teacher for many years, and now works as a school inspector for the town of Bunia 1183 (following his work as a “school coordinator” in the schools of the Anglican community in the DRC), 1184 gave evidence on school records in the DRC. He indicated there was no primary school with the name 1176 T-133-CONF-ENG, page 16, lines 8 – 15. 1177 EVD-D01-00054, page 0140, No 2297. 1178 EVD-OTP-00639, page 0324. 1179 T-133-CONF-ENG, page 25, line 22 to page 26, line 20. 1180 T-133-Red2-ENG , page 62, lines 2 – 21 and T-132-Red2-ENG, page 6, line 24 to page 7, line 9. 1181 T-132-Red2-ENG , page 6, line 16 page 7, line 9. 1182 T-133-CONF-ENG, page 26, line 21 to page 27, line 16. 1183 T-293-Red-ENG, page 7, line 5 and page 8, lines 19 – 20. 1184 T-293-Red-ENG, page 7, lines 8 – 10, page 8, lines 14 – 15 and lines 23 – 24 and page 10, lines 1 – 11. No. ICC-01/04-01/06 181/593 14 March 2012

referred to by P-0213 (where he claimed he attended during his first

few years of schooling). His evidence was that the relevant school is 1185

in a different locality to the one referred to by P-0213. 1186

400 In addition, D-0003 stated that of the nine children living in his

immediate neighbourhood, including P-0297 and P-0213, none were

child soldiers. He conceded “[i]t is true that we did make up stories 1187

for the money, but it is true that no child had been a child soldier.” 1188

D-0004 testified that P-0213 and P-0297 had agreed to give evidence in

the Netherlands to the effect that Thomas Lubanga had enrolled them

in the army, although neither of them had been soldiers. 1189 Moreover,

D-0036 testified he had known P-0213 from at least 1998 onwards, 1190

and he never served as a soldier. 1191 Although the Chamber has

approached D-0003 and D-0004’s testimony with caution, they clearly

support the evidence of D-0036 and certain other material that the

Chamber has considered. In light of this other evidence, the Chamber

has concluded that D-0003’s and D-0004’s testimony raises serious

doubts about the credibility and reliability of P-0213.

401 D-0002 1192 also gave evidence that contradicted P-0213. He

recognised the latter in a photograph and he indicated the name P- 1193

0213 provided as his nickname was in fact part of his real name, 1194

which he used to enrol in school. 1195

1185 T-293-Red-ENG, page 21, lines 19 – 24. 1186 T-293-Red-ENG, page 22, lines 2 – 5. 1187 T-239-Red2, page 48, lines 1 – 5 and 10 – 20. 1188 T-239-Red2, page 48, lines 3 – 5. 1189 T-242-Red2, page 11, lines 19 – 23 and page 12, lines 7 – 13. 1190 T-350-Red2, page 41, lines 15 – 20. 1191 T-350-Red2, page 43, lines 5 – 11. 1192 T-239-CONF-ENG, page 27, lines 14 – 19 and page 28, lines 15 – 23. 1193 T-236-CONF-ENG, page 29, lines 1 – 12; EVD-D01-00106. 1194 T-236-CONF-ENG, page 28, lines 19 – 23. 1195 T-236-CONF-ENG, page 34, lines 5 – 9.

No. ICC-01/04-01/06 182/593 14 March 2012

402 D-0002 gave evidence that P-0213 started primary school 1196 in a different location to the one the latter had indicated. He testified 1197 that P-0213 moved town and changed schools, although his education was interrupted because the new school was destroyed in fighting in the spring of 2003. 1198 The witness said that there is documentary evidence, which contradicts the evidence of P-0213, as to the schools 1199 he attended, although in the judgment of the Chamber this material has potentially been tampered with, rendering it unreliable. 1200 Otherwise, the Chamber has considered the detail of D-0002’s evidence on the issue of P-0213’s schooling 1201 and whereabouts. 1202

403 The prosecution suggests that elements of the evidence from D-0002 were weak and that the witness was evasive and argumentative, and may have been influenced by the kind of pressure that it is alleged has been directed at many of the witnesses. However, the evidence does 1203 not support this suggestion, and the Chamber found him to be credible and reliable. No sustainable reason has been advanced as to why he would lie about P-0213.

404 This evidence, considered overall, raises serious questions as to the reliability of P-0213. The documentary and oral evidence strongly indicates he did not tell the truth about his age, his education and his military service. At the close of his evidence, the witness testified that 1196 T-236-CONF-ENG , page 32, line 4. 1197 T-236-CONF-ENG, page 30, lines 8 – 20 (D-0002). 1198 T-236-Red2-ENG, page 32, lines 6 – 8. 1199 EVD-D01-00054, page 0140, No 2297; T-236-CONF-ENG , page 48, line 25 to page 49, line 2, page 49, line 22 to page 53, line 2 (D-0002). 1200 EVD-OTP-00639, page 0324. 1201 For the detail of this evidence see: T-236-CONF-ENG , page 32, lines 9 – 13. T-236-CONF-ENG , page 34, lines 5 – 8. T-236-CONF-ENG , page 34, lines 8 – 9. T-236-CONF-ENG , page 30, line 18 to page 31, line 18 and page 44, lines 20 – 22; T-237-CONF-ENG, page 8, line 11 to page 10, line 8. T- 237-CONF-ENG, page 12, lines 10 – 16 and page 13, lines 3 – 4. 1202 T-236-CONF-ENG , page 30, line 18 to page 31, line 18; T-237-CONF-ENG, page 12, lines 9 – 17. T-236-CONF-ENG, page 35, line 17 to page 36, line 22. 1203 ICC-01/04-01/06-2748-Conf, paras 489 and 490.

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he had not given the real name of his mother. 1204 According to the witness:

It's something which we planned. We didn't want to give my identity, my date of birth, the names of my parents, and the place where I studied. These are things which I discussed with – with my relatives. So what I said in Beni is the truth. And I told them that if they come here, that they need to know 1205 that the name that I gave is not my name. It’s not my identity. 405. P-0213 explained that his uncle was a member of the UPC and that his testimony had caused considerable problems within his family. 1206 However, the witness also stated that he had given his mother’s true name, and he said “[i]t’s my name, which wasn’t given, because she thought that I would be put to harm here, and she was afraid, and so she gave an identity”. P-0213 stated he had told the truth during his 1207 testimony, although it is unclear whether P-0213 had, in fact, used 1208 his true name in evidence.

Conclusion as to P-0213

406 The extent of the inconsistencies and the other problems with this witness’s evidence supports the suggestion that he provided an account that was false, at least in part. Moreover, the fact he was introduced to the prosecution investigators by P-0321 raises additional concerns that the latter may have influenced his testimony. In light of all these circumstances, the Chamber concludes that P-0213 is not a witness who can safely be relied upon.

1204 T-134-Red2-ENG, page 76, lines 2 – 3. 1205 T-134-Red2-ENG, page 76, lines 3 – 8. 1206 T-134-CONF-ENG, page 77, lines 2 – 15. 1207 T-134-Red2-ENG, page 76, line 15 to page 77, line 1. 1208 T-134-Red2-ENG, page 77, lines 16 – 18. No. ICC-01/04-01/06 184/593 14 March 2012

(3) P-0294

407 P-0294 is an alleged former child soldier. He gave evidence as to his

place and date of birth (the latter was in 1991). 1209 In court he testified

his mother told him the location and the year of his birth, and his 1210

brother informed him of the precise date. 1211 In a written statement, the

witness explained that one of his brothers saw his birth certificate in

hospital (he gave conflicting accounts as to the brother he was

referring to). P-0294 said he joined the APC in late 2000, and in 1212 1213

due course he met Commander Pepe, who asked him to go to

Uganda, 1214 where he was invited to train other recruits (although he

said he had not undergone training himself because he had lied to the

Commander about having already completed his training). 1215

Thereafter, he went to Mandro, 1216 for approximately a month 1217 for

compulsory training. 1218 P-0294 testified that the group of Hema

soldiers there later became known as the UPC. 1219 The witness

succeeded in running away, but later he returned to the army of the 1220

UPC and became a guard for one of the commanders. This role 1221 1222

ended when the commander in question went to Mandro. 1223 P-0294

said he took part in battles at Songolo, 1224 Bule and Kasenyi, 1225 and he

1209 T-150-CONF-ENG, page 44, lines 13 – 14 and 23 – 25. 1210 T-151-CONF-ENG, page 63, lines 14 – 17. 1211 T-150-Red2-ENG, page 44, lines 13 – 19; T-151-Red2-ENG, page 53, line 21 to page 54, line 7. 1212 T-151-CONF-ENG, page 54, line 8 to page 55, line 2. 1213 T-150-Red2, page 46, line 9 to page 47, line 8, page 47, line 25 to page 48, line 8 and page 49, lines 24 – 25; T-151-Red2, page 88, lines 12 – 23 and page 92, lines 17 – 21 and page 93, lines 11 – 14. 1214 T-150-Red2-ENG, page 61, lines 23 – 24. 1215 T-150-Red2-ENG, page 63, lines 21 – 23 and page 66, lines 16 – 22. 1216 T-150-Red2-ENG, page 70, lines 5 – 24. 1217 T-152-Red2ENG, page 4, lines 12 – 18. 1218 T-150-Red2ENG, page 71, lines 7 – 17 and page 74, line 14 to page 75, line 19. 1219 T-150-Red2-ENG, page 71, lines 7 – 18. 1220 T-150-Red2-ENG, page 81, lines 2 – 8; T-152-Red2-ENG, page 4, lines 19 – 22. 1221 T-150-Red2-ENG, page 82, lines 4 – 6, page 83, lines 2 – 6 and lines 17 – 19; page 84, lines 3 – 10. 1222 T-150-CONF-ENG, page 84, line 22 to page 85, line 22. 1223 T-151-Red2-ENG, page 27, lines 11 – 9. 1224 T-151-Red2-ENG, page 21, line 20 to page 22, line 2; T-152-Red2-ENG, page 14, lines 4 – 13.

No. ICC-01/04-01/06 185/593 14 March 2012

served as one of the security guards at the residence of Thomas

Lubanga. At the time of the battle of Bunia (2003) the witness 1226 1227

suggested he was serving with a unit of the UPC. 1228 After the battle,

he ran away, 1229 and joined PUSIC. 1230 He stayed with PUSIC for about

a month and a half, 1231 and after having apparently rejoined the UPC

for a short period (his testimony is unclear on this), he was 1232

demobilised. 1233

408 There are significant grounds for suggesting that P-0294 provided

an account that, in important respects, was untruthful. For instance,

with respect to his age, the voter registration card bearing P-0294’s

name and photograph, along with the extract of the register of the

independent electoral commission, give his date of birth as mid

1987 1234 The certificate of family reunification indicates that in July

2004 P-0294 was 16 years old (meaning he was born in 1988). When 1235

asked about the age on the certificate, P-0294 said he had not given his

correct age and he did not really know how old he is. 1236 He

maintained he made an agreement with the child he was then with to

change his own age so as to pass himself off as the other boy’s little

brother. P-0294 then insisted he was born in 1991 and knew this 1237

because his mother had shown him the relevant document, 1238

although earlier he had testified that he had never seen any

1225 T-151-Red2-ENG, page 26, lines 13 – 16. 1226 T-151-Red2-ENG, page 33, lines 8 – 24; T-152-Red2-ENG, page 18, lines 19 – 25. 1227 T-152-Red2-ENG, page 21, line 14. 1228 T-152-Red2-ENG, page 21, lines 15 – 17. 1229 T-151-Red2-ENG, page 38, lines 9 – 13; T-152-Red2-ENG, page 24, lines 6 – 9. 1230 T-151-Red2-ENG, page 38, line 21 to page 39, line 12. 1231 T-152-Red2-ENG, page 24, line 22 to page 25, line 3. 1232 T-151-Red2-ENG, page 41, line 13 to page 42, line 9. 1233 T-151-Red2-ENG, page 42, lines 10 – 13. 1234 EVD-D01-00764 and EVD-D01-01006. 1235 EVD-D01-00069 at page DRC-OTP-0160-0188. 1236 T-151-Red2-ENG, page 62, lines 6 – 8. 1237 T-151-Red2-ENG, page 62, lines 9 – 17. 1238 T-151-Red2-ENG, page 62, line 22 to page 63, line 2.

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documentation relating to his date of birth. 1239

409 Another document shown to the witness ( viz. the attestation in lieu

of a primary school leaving certificate) 1240 indicates he was born in the

place he claimed in mid 1988. 1241 The witness said he recognised the

certificate and although some details were correct, the year of his birth

(1988) was incorrect. This was because the individual who had

registered him at school had entered an incorrect date, which was

thereafter used on all of his school records. 1242 D-0029, a teacher who is

currently a school inspector, 1243 suggested in his testimony that the

individual with responsibility for issuing this certificate would have

referred to a register when filling in the necessary information. As 1244

discussed above, D-0029 also indicated the school records were not

always accurate. 1245 The register of a particular school for the year 2000

provides details of an individual with the same name and place of

birth as indicated by P-0294, with a date of birth in early 1988. P- 1246

0294 said he was unaware of this document and he insisted he had

completed the 6 th year of primary school in a different institution,

located in another town. 1247

410 P-0293, who is P-0294’s mother, gave evidence that P-0294 was 1248

born in 1991. 1249 She testified he began primary school in the town of

his birth, although he moved to the home of another of his father’s

1239 T-150-Red2-ENG, page 44, lines 20 – 22. 1240 “Attestation Tenant Lieu Du Certificat De Fin D’Etudes Primaires”. 1241 EVD-D01-00071. 1242 T-151-Red2-ENG, page 85, lines 20 – 25 and page 86, lines 2 – 12. 1243 T-293-Red-ENG, page 8, line 8 to page 10, line 11. 1244 T-296-Red-ENG, page 44, line 10 to page 45, line 1 and page 46, lines 1 – 6. 1245 T-296-Red-ENG, page 7, line 25 to page 8, line 20 and page 9, lines 4 – 17. 1246 EVD-D01-00072, page 2, No. 3. There are two entries with the number 3. P-0294 is listed under the second entry. 1247 T-151-CONF-ENG, page 86, line 19 to page 88, line 7. 1248 T-153-CONF-ENG, page 17, line 24 to page 18, line 3 and page 18, lines 11 – 14. 1249 T-153-Red2-ENG, page 34, lines 1 – 8.

No. ICC-01/04-01/06 187/593 14 March 2012

wives. In due course he returned to his home town to continue his studies. She confirmed that he spent his sixth year at the primary 1250 school he had indicated. 1251 411. The prosecution contends that the (inconsistent) school records and electoral documents are unreliable and that P-0294 and P-0293’s evidence should be “preferred over these documents”. It is 1252 suggested by the prosecution that this witness gave honest and sincere testimony and his mother (P-0293) and P-0031, along with the demobilisation and reunification certificates, corroborates his testimony. 1253 In all the circumstances, the Chamber has no doubt that the material rehearsed above, viewed cumulatively, casts considerable doubt over the witness’s evidence, particularly as regards his assertion that he was born in 1991. No sufficient explanation has been provided as to why the majority of the documentary records suggest that the year of his birth was 1987 or 1988.

412 It is suggested by the defence that P-0294 “used” the military career of his brother to invent part or all of his account of his service as a soldier. 1254 The defence called a witness to support this contention. 1255 The prosecution argues that this evidence is flawed and it observes 1256 that the witness conceded at one stage that “[…] everyone said that he [P-0294] was a soldier. However, I really do not know, however, whether [P-0294] really was a member of any movement at all.” 1257 The prosecution also relies on the witness’s evidence that “in Ituri there

1250 T-153-CONF-ENG, page 35, lines 14 – 19. 1251 T-153-CONF-ENG, page 37, lines 1 – 11. 1252 ICC-01/04-01/06-2748-Red, paras 366 – 368. 1253 ICC-01/04-01/06-2748-Red, para. 369; ICC-01/04-01/06-2778-Red, para. 97. 1254 ICC-01/04-01/06-2773-Red-tENG, paras 260-261; ICC-01/04-01/06-2657-tENG-Red, para. 133. 1255 ICC-01/04-01/06-2773-Conf-tENG, para. 261. 1256 ICC-01/04-01/06-2748-Conf, paras 371 and 372. 1257 ICC-01/04-01/06-2748-Conf, paras 371 and 372. T-253-CONF-ENG, page 25, lines 12 – 15. No. ICC-01/04-01/06 188/593 14 March 2012

was fighting and everyone said that he was a soldier”. 1258 The Chamber understands this to mean “in Ituri there was fighting and everyone [claimed to be] a soldier”, which is consistent with the witness’s account when considered overall. Before he made this statement the witness explicitly indicated P-0294 had not been a soldier, and when questioned on these particular words, the witness stressed the prosecution had “not really understood”. 1259 413. It is striking that much of the information provided by P-0294 on his personal and military activities is identical to that of his brother. 1260 At first he denied any knowledge of the armed group his brother belonged to. Later, P-0294 accepted he was aware of some of the 1261 details of his brother’s military activities but said he had not wanted to talk about him because he was afraid. 1262 In all the circumstances, the Chamber is persuaded that P-0294 used his brother’s circumstances to contribute to the account he provided the Chamber as to his own activities. 414. In addition, P-0294 accepted that the name he had provided as his mother’s name in order to obtain a reunification certificate was not her real name but was instead the mother of a companion. P-0293 1263 testified that it was the name of a different relative of P-0294. 1264 P-0294 also admitted he lied to a centre that was involved with demobilisation, about his relationship to the person who had

1258 ICC-01/04-01/06-2748-Conf, para. 371. 1259 See the transcript referenced in ICC-01/04-01/06-2748-Conf, footnotes 1026 and 1027. 1260 See for a description of the relevant circumstances ICC-01/04-01/06-2773-Conf-tENG, paras 260 – 261 with the corresponding transcript references. 1261 T-151-Red2-ENG, page 72, lines 8 – 11 and page 73, line19 to page 74, line 6. 1262 T-151-Red2-ENG, page 76, lines 11 – 19 and page 77, lines 11 – 23. 1263 T-151-CONF-ENG, page 66, line 20 to page 67, line 10. 1264 T-153-CONF-ENG, page 29, lines 4 – 13. No. ICC-01/04-01/06 189/593 14 March 2012

accompanied him 1265 and as regards his own age. 1266

Conclusion as to P-0294

415 This evidence, considered cumulatively, raises serious questions as to the reliability of P-0294. The documentary and oral evidence establishes he did not tell the truth about his age, and there are real concerns he lied about his military service. Moreover, the fact that P- 0294 was introduced to prosecution investigators by P-0321 raises additional concerns because of the real possibility that he may have influenced this witness’s testimony. Given P-0294’s credibility and the reliability of his evidence are seriously at issue, the Chamber is unable to rely on his account.

(4) P-0297

416 Witness P-0297 is an alleged former child soldier. He gave evidence he was 20 years old in May 2010, 1267 and he provided details of where he was born and lived, and the neighbourhood where his parents now reside in Bunia. 1268 He suggested that UPC soldiers enlisted him on two occasions. 1269 417. The defence submits that the evidence provided by two witnesses, as well as certain documentary evidence demonstrates he lived in a particular neighbourhood of Bunia from birth 1270 and he had not been a

1265 T-151-Red2-ENG, page 43, lines 2 – 12. 1266 T-151-Red2-ENG, page 62, lines 6 – 17. 1267 T-285-Red2-ENG, page 7, lines 8 – 9. 1268 T-285-CONF-ENG, page 7, line 18 to page 8, line 5. 1269 T-285-Red2-ENG, page 44, lines 5 – 6 and page 44, line 18 to page 45, line 18 (first time); T-286- Red2-ENG, page 6, line 15 – page 7 line 14, page 8, line 16 to page 13, line 15 (second time). 1270 T-242-Red3-ENG, page 6, lines 20 – 22 (D-0004 stated that P-0316 instructed them not to reveal that they lived in that particular neighbourhood); T-245-CONF-ENG, page 11, line 25 to page 12, line 1 (D-0004 stated that P-0297 was with him in Bunia when they met P-0321 for the first time). The defence suggests that the matriculation records of a primary school tend to indicate that in 1997 P-0297

was living in a particular neighbourhood of Bunia: EVD-D01-00145, page 3396, No 443/97.

No. ICC-01/04-01/06 190/593 14 March 2012

soldier in the armed wing of the UPC. 1271 418. The head of an avenue in the Simbiliabo district, 1272 D-0036, testified he had known P-0297 since about 1996, 1273 and that P-0297 lived in the neighbourhood in 2002/2003 and did not leave until 2007 when “a young man came and misled a certain number of young persons”. 1274 D-0036 testified that P-0297 was never a soldier. D-0036 also gave 1275 evidence about a telephone conversation he had with P-0297 at the end of December 2010, during which the latter apparently asked him to refrain from saying that he had not been a soldier if he went to the Netherlands. 1276 D-0036 stated it was P-0321 “who had taken these children, and it’s because of him that they went and narrated all of what they said.” 1277 The prosecution suggests that D-0036’s lack of detailed knowledge of the family circumstances of some of the witnesses, and his evidence that he had not prepared a list of the other children in P-0297’s family because he had not realised that such a question would be asked, demonstrates he “came prepared to address certain issues but could not answer questions when taken outside his script”. 1278 The Chamber rejects this assessment. The Chamber found D-0036’s evidence to be detailed, generally consistent and persuasive. Given D-0036 admitted there were some errors as regards the notebook he introduced, it has disregarded this item, 1279 but otherwise, the Chamber has relied on his testimony.

1271 ICC-01/04-01/06-2773-Red-tENG, paras 301 – 306. 1272 T-350-Red2-ENG, page 39, lines 5 – 9. 1273 T-350-Red2-ENG, page 46, lines 2 – 11. 1274 T-350-Red2-ENG, page 46, line 12 to page 47, line 4. 1275 T-350-Red2-ENG, page 47, lines 10 – 16. 1276 T-350-Red2-ENG, page 47, line 25 to page 48, line 9. 1277 T-350-Red2-ENG, page 49, lines 4 – 6. 1278 ICC-01/04-01/06-2748-Red, paras 474 - 475. 1279 EVD-D01-01099 (notebook); T-351-CONF-ENG, page 35, lines 18 – 21 and page 37, line 9 – page 39, line 3. No. ICC-01/04-01/06 191/593 14 March 2012

419 P-0297 gave evidence on the schools he attended between 2004 and 2006, following his studies and his recruitment as a soldier. 1280 However, the documentary evidence tends to indicate that someone with his identity attended one of those schools in October or November 1997 1281 (when he was allegedly living elsewhere). The prosecution argues document EVD-D01-00144 “proves nothing” because it is “nothing more than several pages stapled together” and because, in contrast to other pages, the school year is missing from the top of the page the defence contends is relevant for P-0297. 1282 The Chamber does not accept these submissions. The relevant document contains the school’s official stamp on each page and, although the school year does not appear on the material page, there is no credible evidence to support the contention that it is a forgery, and particularly that the relevant page (3315) was improperly inserted or that the relevant entry (number 24 on the list) is false. P-0297’s name appears on the school list of prize-winners in 1999-2000, 1283 and for the year 2000-2001 his name is entered under the heading “unclassified” on the same list. 1284 Furthermore, as observed by the defence, 1285 there was a possible contradiction between P-0297’s testimony that his last service in the military was for about three months under Mathieu Ngudjolo in 2004/2005 1286 and his suggestion he resumed his schooling in 2004, 1287

1280 T-289-CONF-ENG, page 8, line 19 – 21, page 9, lines 1 – 9, page 18, lines 1 – 3 and 24, line 20 to page 25, line 24 and page 26, lines 13 – 18. 1281 EVD-D01-00144, page 3315, No 24 and EVD-D01-00145, page 3935 and 3936, No 443/97. The documents contain the witness’s name as well as his father’s name, T-285-CONF-ENG, page 7, line 23. 1282 ICC-01/04-01/06-2748-Red, para. 471. 1283 EVD-D01-00146, No 28. 1284 EVD-D01-00147, page 3255, No 20. 1285 ICC-01/04-01/06-2773-Red-tENG, para. 305. 1286 T-291-Red2-ENG, page 8, line 25 to page 9, line 8. 1287 T-289-Red2-ENG, page 18, lines 1 – 3 and page 25, lines 6 – 7. No. ICC-01/04-01/06 192/593 14 March 2012

continuing until 2006. 1288 420. Another witness gave evidence that undermined P-0297’s account. He stated that P-0297 was born in Bunia and had always lived in the Simbiliabo neighbourhood, which contradicted P-0297’s evidence as to the various places he had lived. This witness gave evidence that P-0297 attended three particular primary schools, whilst P-0297 testified he commenced his primary education at an institution not referred to by the witness. He also gave detailed evidence about the members of P- 0297’s family. He indicated P-0297 had not been a child soldier in the UPC. 1289 421. It is of note that P-0297 suggested that two defence witnesses were sent to the Court by Cordo in order to state falsely that one of them and P-0297 had not served as child soldiers in the UPC. 1290 422. Although the Chamber has approached the evidence on this issue with care, the school records, prima facie , tend to indicate that, contrary to P-0297’s account, he was a student at a particular school between 1997 and 2001. 1291 P-0297 suggested the school records had been falsified at the behest of someone linked to the accused. 1292 D-0029 testified that during the war (as well as in other circumstances) school records were not always accurate. When shown document EVD- 1293 D01-00145, D-0029 agreed it contained mistakes (two students had

1288 T-289-Red2-ENG, page 25, lines 6 – 24. 1289 This witness is identified in ICC-01/04-01/06-2773-Conf-tENG, paras 294, 295, 298 and 301. The Chamber has considered the entirety of the witness’s testimony. 1290 T-285-CONF-ENG, page 15, line 16 to page 17, line 19. 1291 EVD-D01-00144, EVD-D01-00145, pages 3935 – 3936, No. 443/97, EVD-D01-00146 and EVD- D01-00147, page 3255, No 20. 1292 T-289-CONF-ENG, page 16, line 22 to page 17, line 21, page 24, line 2 to page 25, line 7, and page 27, line 17 to page 30, line 7. P-0297 also challenged the birth date included in these documents, which indicate that he would have been over 15 years of age in 2002. 1293 T-296-Red-ENG, page 9, lines 4 – 17. The witness’s evidence contained in this transcript demonstrates that many school records contained discrepancies and irregularities. No. ICC-01/04-01/06 193/593 14 March 2012

been assigned multiple registration numbers and there were discrepancies as regards dates of birth). The Chamber accepts this 1294 document should be treated with caution, but given the other relevant documents equally raise questions about P-0297’s testimony, and bearing in mind the two witnesses (D-0036 and the other individual referred to above) whose testimony tends to undermine P-0297’s truthfulness and accuracy, the Chamber is satisfied there are serious doubts about P-0297’s account as to where he lived and his schooling. 423. Focussing particularly on his age, although the school documents suggest that P-0297 was significantly over 15 years of age in 2002, 1295 the prosecution strongly relies on the expert’s examination of P-0297’s hand and wrist bones along with the dental records in support of the contention that he was under the age of 15 within the timeframe of the charges (the experts concluded that P-0297 was between 16 and 17 1296 years old in January 2008). However, as discussed above, these 1297 forensic assessments of age lack precision, and they provide an inadequate basis, taken alone, for determining an individual’s age. 424. The account of P-0297 is also materially undermined by the contradictory statements he made concerning the death of his (biological) mother. He testified that she had been killed during the war in 2002 while fleeing a Lendu attack, 1298 and he gave her name to the Court. 1299 However, in his interview in December 2009 with members of the defence team he said that although she had been

1294 T-296-CONF-ENG, page 22, line 1 to page 24, line 25. 1295 EVD-D01-00145, pages 3935 – 3936, No. 443/97. 1296 ICC-01/04-01/06-2748-Red, paras 442 and 444. 1297 EVD-OTP-00618, page 0435. 1298 T-290-Red2-ENG, page 14, line 22 to page 15, line 3 and page 23, lines 13 – 19. 1299 T-290-CONF-ENG, page 18, lines 21 – 24. No. ICC-01/04-01/06 194/593 14 March 2012

unwell, she recovered and returned home. 1300 His explanation in court

for this contradiction was that he was afraid of the investigators. 1301

425 In interview he further suggested he did not know anyone with the

name of his stepmother, 1302 yet in court a prior statement was read to

him in which he had referred to this person as someone he also calls

his mother. The Chamber is unpersuaded by the prosecution’s 1303

suggestion that these contradictions are satisfactorily explained by 1304

the fact that in the latter statement P-0297 may have been referring to

his stepmother instead of his biological mother (his father married

sisters and he referred to both of them as mother). 1305

426 This witness was introduced to the OTP by P-0321 and he denied 1306

the latter had encouraged him to lie. 1307 However, in statements taken

by the defence, he indicated: “[P-0321] told me that if I go before the

judges where Papa Thomas is in detention, I should say that I was

forcibly recruited”. When this statement was read out to P-0297 in 1308

court he said he had been afraid and denied that P-0321 told him what

to say. 1309 He also told the defence team that P-0321 “said that were we

to testify against Thomas and were he to be convicted, we would

receive money”. P-0297 suggested the investigators told him that if 1310

he was willing to testify before the Court, the judges “would be able to

1300 T-290-Red2-ENG, page 19, line 23 to page 20, line 21. 1301 T-290-Red2-ENG, page 20, lines 20 – 24. 1302 EVD-D01-00150, pages 0064, lines 412 – 417; T-290-CONF-ENG, page 19, lines 12 – 13. 1303 T-290-CONF-ENG, page 16, line 13 to page 17, line 11. There is also a screening note which indicates that he gave the name of his stepmother and said she had been killed during the war, EVD- D01-00296 at DRC-OTP-0190-0096. 1304 ICC-01/04-01/06-2748-Red, para. 472. 1305 T-290-Red2-ENG, page 17, line 12 to page 18, line 3 (P-0297). 1306 T-287-CONF-ENG, page 35, lines 7 – 9 (P-0297). 1307 T-288-Red2-ENG, page 21, lines 9 – 20. 1308 EVD-D01-00190, page 0117, line 661 to page 0118, line 696. 1309 T-288-Red2-ENG, page 23, line 10 – page 25, line 5; See also T-288-Red2-ENG, page 18 to page 27, line 4. 1310 T-289-Red2-ENG, page 4, lines 14 – 21 (EVD-D01-00191, page 0126, line 133 to page 0127, line 152).

No. ICC-01/04-01/06 195/593 14 March 2012

help” him. 1311 427. P-0297 alleged that various individuals associated with the UPC and the accused were asking why he was testifying against Thomas Lubanga, and they were exerting pressure. 1312 He said that someone affiliated to the accused told him and others to give evidence that they had not been child soldiers in the UPC and “in that way Mr. Thomas Lubanga would be freed”. P-0297 indicated that some witnesses had 1313 come to the Court to deny they had been child soldiers. 1314 This was a clear acknowledgment by the witness that, to a great extent, external factors had influenced his testimony. 428. The witness suggested he met P-0321 in 2002 whilst he was still in the UPC, although P-0321’s evidence was that he met P-0297 for the first time at the Transit and Orientation Centre (“CTO”). 1315

Conclusion as to P-0297

429 The Chamber recognises that this witness may have been confronted with difficult circumstances, but in light of the matters set out above, his account, overall, is unreliable. Notwithstanding the allegation made by P-0297 against some of the other witnesses in the case, it is likely that P-0321 persuaded or encouraged him to give false evidence. The Chamber is unable to rely on his account.

(5) P-0298

430 P-0298 is an alleged former child soldier who was authorised to 1311 T-289-Red2-ENG, page 4, line 24 to page 6, line 14. 1312 T-285-Red2-ENG, page 9, lines 21 – 25; T-288-Red2-ENG, page 27, lines 5 – 25. 1313 T-285-Red2-ENG, page 11, lines 2 – 14, page 12, lines 12 – 25 and page 15, lines 12 – 15. 1314 T-285-CONF-ENG, page 15, line 16 to page 16, line 11. 1315 T-322-CONF-ENG, page 26, lines 4 – 7; T-309-CONF-ENG, page 23, lines 21 – 23; T-308- CONF-ENG, page 9, lines 11 – 17. No. ICC-01/04-01/06 196/593 14 March 2012

participate in the proceedings (a/0002/06). He was the first witness called to give evidence on 28 January 2009, and when he reached the stage of describing his encounter with soldiers from the UPC, he said “[n]ow, as I swore before God that I would tell the truth, the whole truth, your question puts me in a difficult position with regards to my truth, because I said that I must tell the truth.” After a break, the 1316 witness was reminded he had given evidence about UPC soldiers taking his friends when he was with them en route home from school, to which the witness replied “[n]o, that’s not the case” 1317 and “[w]hat I said previously did not come from me. It came from someone else. They taught me that over three and a half years. I don’t like it. I would like to speak my mind as I swore before God and before everyone”. 1318 He said that together with his friends he had been promised clothes and many other things; he had never been to a training camp; he had been taught the details of his account; and although he had told himself that he would do what they had asked, when he came to court he decided to speak the truth. 1319 The judges then asked the witness the following question “[t]his morning you told the Court about a time when you were going home from school when some soldiers from the UPC came and took you and your friends away. Was that story from you true or false?” The witness replied “That’s not true”. 1320 431. The legal representatives who represent the witness not only submit he is young, but it is also argued he was deeply perturbed when he testified during the first day of the trial, and his account was

1316 T-110-Red2-ENG, page 35, lines 21 – 23. 1317 T-110-Red2-ENG, page 40, line 2. 1318 T-110-Red2-ENG, page 40, lines 10 – 12. 1319 T-110-Red2-ENG, page 40, lines 15 to 24. 1320 T-110-Red2-ENG, page 41, lines 19 – 22. No. ICC-01/04-01/06 197/593 14 March 2012

influenced by the presence of the accused in the courtroom. 1321

432 When the witness returned to give evidence two weeks later, his account was that he was enlisted by UPC soldiers as he was on his way home from school; 1322 he was taken first to Bule camp where he was trained, 1323 and then to Largu camp; 1324 he took part in fighting in Bule and Fataki; and he left the army in Largu with the help of his 1325 father, and thereafter he resumed his schooling in Bunia. Later, he 1326 was stopped by the UPC and taken to the camp at Centrale (where he was beaten and imprisoned in a “hole” for two days), and from there he was transferred to the camp at Mabanga, 1327 where his father found him (he arranged for his son to be collected and taken to Nizi). Finally, he returned to Bunia. 1328

433 The legal representatives submit that on this second occasion, the witness testified without duress and he was able to give his account in considerable detail for an hour without any questions being put to him. It is argued that his testimony (as given at this stage) is credible and it is suggested it supplemented his previous statements (bearing in mind he was 11 at the time of the events and 18 at the time of his court appearance). It is contended that the “core” of his testimony 1329 was confirmed by his father (P-0299), and other witnesses. 1330

434 The evidence on P-0298’s enlistment raises various difficult

1321 ICC-01/04-01/06-2746-Red-tENG, para. 53. 1322 T-123-Red2-ENG, page 4, lines 15 – 25. 1323 T-123-Red2-ENG, page 5, lines 1 – 6. 1324 T-123-Red2-ENG, page 12, lines 17 – 22. 1325 T-123-Red2-ENG, page 15, line 6 to page 16, line 10 and page 16, line 22 to page 17, line 5. 1326 T-123-Red2-ENG, page 18, lines 6 – 22. 1327 T-123-Red2-ENG, page 19, line 5 to page 20 line 17. 1328 T-123-Red2-ENG, page 20, line 18 to page 21, line 9. 1329 ICC-01/04-01/06-2746-Red-tENG, para. 53. 1330 ICC-01/04-01/06-2746-Conf-tENG, para. 54.

No. ICC-01/04-01/06 198/593 14 March 2012

questions. P-0298 said he spent about four months at the camp 1331

while P-0299, his father, gave evidence that he left school and went to

a training camp for two months. 1332 Although this is only a two-month

discrepancy, the evidence of D-0015 significantly contradicts the

account of P-0298 on this issue. She said P-0298 fled from his school

with other children, and returned about a week later, carrying a 1333

weapon. 1334 As opposed to suggesting that P-0298 obtained the weapon

at a training camp, D-0015 gave evidence that P-0298 had stolen the

weapon from a soldier 1335 and she had heard that he had been working

in the market. 1336 She acknowledged that he had wanted to join the

military and she accepted he may have spent a night at a camp, but

she emphasised that he had not become a soldier. 1337 D-0015 gave

evidence that P-0298 ran away once more, having spent two weeks at

school, and she discovered he went to see members of his family. 1338 1339

The prosecution has not advanced any submissions as to the

credibility of witness D-0015.

435 The Chamber has considered the circumstances in which she was in

a position to give evidence about P-0298, 1340 and it has reviewed a

particular reason that arose during the evidence which may have led

1331 T-124-Red2-ENG, page 25, lines 8 – 21. 1332 EVD-D01-00769, page 0295, line 270 to page 0296, line 285. 1333 T-279-Red2-ENG, page 7, lines 19 – 23 (D-0015). 1334 T-279-Red2-ENG, page 7, lines 6 – 11 (D-0015). 1335 T-279-Red2-ENG, page 8, lines 3 – 10. 1336 T-279-Red2-ENG, page 7, line 4. 1337 T-278-Red2-ENG, page 20, lines 2 – 6; T-279-Red2-ENG, page 19, line 8 to page 20, line 20. 1338 T-279-Red2-ENG, page 8, lines 19 – 22. 1339 T-279-Red2-ENG, page 8, line 22 to page 9, line 2. 1340 T-278-CONF-ENG, page 12, lines 11 – 12, page 13, lines 11 – 15 and page 14, line 14 to page 15, line 24; T-124-CONF-ENG, page 21, lines 15 – 21 and page 22, lines 10 – 11; T-119-CONF-ENG, page 39, lines 1 – 11; EVD-D01-00768, page 0272, line 909 to page 0274, line 992; EVD-D01-00771, page 0337, lines 88-94; T-278-CONF-ENG, page19, lines 14 – 15 and T-279-CONF-ENG, page 19, lines 10 – 15; EVD-D01-00769, page 0294, lines 222 – 233.

No. ICC-01/04-01/06 199/593 14 March 2012

D-0015 to lie about P-0298. 1341 However, in all the circumstances, the

Chamber found her evidence to be credible and reliable, and it casts

significant doubt over the accuracy and reliability of the account of P-

0298.

436 Nonetheless, there were other concerns as to the accuracy and

reliability of P-0298, including the contradictions and inconsistencies

between P-0298 and his father, P-0299, over the death of P-0298’s

mother. P-0298 testified that his mother was dead, 1342 but the Chamber

heard evidence, which it accepted, that she is still alive and that P-0298

saw her after the war. P-0299 confirmed that P-0298’s mother is alive

although he said he had not told his son that this was the case. 1343

437 Furthermore, D-0014 gave evidence which contradicts part of P-

0299’s testimony. 1344

438 There is a difficulty over the age of P-0298. P-0299, his father, said in

evidence that P-0298 was born in 1991 and he was in possession of his

birth certificate. 1345 While P-0298 initially stated he could not remember

his date of birth, 1346 he later indicated he was born in 1989. 1347 P-0299

confirmed this year (1989) in a re-interview 1348 and this is also

corroborated by various school documents (allowing for a 2 day

1341 EVD-D01-00768, page 0275, line 1038 to page 0276, line 1068; EVD-D01-00768, page 0277, lines 1090 to 1105; EVD-D01-00768, page 0275, lines 1055 – 1077; EVD-D01-00771, page 0337, lines 104 – 106. 1342 T-124-Red2-ENG, page 43, lines 17 – 21. 1343 T-119-CONF-ENG, page 25, 16 to page 26, line 9 and T-119-Red2-ENG, page 30, lines 3 – 4; T- 122-Red2-ENG, page 17, lines 3 – 24. 1344 See, e.g. references as identified in ICC-01/04-01/06-2773-Conf-tENG, para. 343. 1345 T-117-CONF-ENG, page 6, lines 4 – 8. The defence has not seen the birth certificate mentioned by the father, ICC-01/04-01/06-2657-tENG-Red, footnote 233. 1346 T-110-Red2-ENG, page 32, lines 3 – 6. 1347 T-123-Red2-ENG, page 53, lines 5 – 9. 1348 EVD-D01-00768, page 0270, lines 847 and 849; in a handwritten statement relating to victim participation, P-0298 indicated that he was born in 1989, EVD-D01-00340. P-0321 gave evidence to the effect that P-0298 had given this date of birth, and that he had not personally checked its veracity, T-320-CONF-ENG, page 39, line 18 to page 40, line 1.

No. ICC-01/04-01/06 200/593 14 March 2012

variation). 1349

439 The defence submits certain documents contradict the information

provided by P-0298. 1350 The school records indicate he completed his

5 th year in primary school in the school year 2001/2002. 1351 Initially, P-

0298 testified that he had finished the fifth year and had joined the

sixth grade but later in evidence he suggested his schooling was 1352

interrupted while he was in the fifth rather than the sixth grade (he 1353

said that he was abducted in 2002 just before Christmas, during the 5 th

year). 1354 P-0298 said he meant that this occurred at the turn of the year

(2002/2003). 1355 P-0299 gave evidence that P-0298 “went to school until

the 5 grade” but could not complete his schooling because he was th

abducted before Christmas 2002”. 1356 He also testified that P-0298

resumed his studies, starting and completing his sixth year at primary

school. Overall, the oral evidence accords with the available 1357

documentation save for the issue (just set out) that P-0298 was

contradictory as to whether his schooling was interrupted in the fifth

or sixth form. The school documents additionally indicate that P-0298

received a certificate of primary education in 2004 from a particular

school. Although P-0298 denied the certificate that was produced 1358

during his evidence related to him or that he had received it, he

accepted he had studied at that school. 1359 P-0299 confirmed he had

1349 EVD-D01-00155, page 3185, No 8; EVD-D01-00043, No. 0788; EVD-D01-00156, page 3806, line 6368 and EVD-D01-00042. 1350 ICC-01/04-01/06-2773-Red-tENG, paras 346 and 347. 1351 EVD-D01-00049, No. 15; EVD-D01-00162, page 4325, line 15. 1352 T-123-Red2-ENG, page 46, lines 14 – 18. 1353 T-123-Red2-ENG, page 48, lines 19 – 21. 1354 T-123-Red2-ENG, page 4, lines 2 – 25 and page 48, lines 14 – 25. 1355 T-123-Red2-ENG, page 49, lines 1 – 4. 1356 T-117-Red2-ENG, page 6, lines 18 – 19 and page 9, line 20 to page 10, line 10. 1357 T-117-Red2-ENG, page 35, lines 4 – 7. 1358 Register of certificates of the school: EVD-D01-00155, page 3185, No 8; Results for the year 2004: EVD-D01-00043; certificate with the school stamp: EVD-D01-00042. 1359 T-124-CONF-ENG, page 11, lines 9 – 14 and lines 18 – 25.

No. ICC-01/04-01/06 201/593 14 March 2012

enrolled his son at the school in question for his sixth year of primary school, although he also noted “he had given up his studies because he didn’t do well” (rather than because he was abducted). 1360 In all the circumstances, the Chamber concludes that although there were some contradictions in the evidence concerning P-0298’s schooling, none were of real significance. 440. However, when P-0298’s lies as regards his recruitment by the UPC are added to the evidence of D-0015 – that he did not serve in the military or spend time at the training camps during the relevant period – the uncertainty as to the reliability of this witness becomes clear. Although there may have been a reason for D-0015 to lie, P-0298 never explained why he said on oath that he had received material rewards and had been instructed as to the evidence he was to give. Although the Chamber accepts P-0298 may have been a soldier, there is a real possibility he was encouraged and assisted to give false testimony, and P-0321 alone has been identified as the person who was likely to have acted in this way (not least, he introduced P-0298 to the investigators). It is to be noted that P-0321’s account of P-0298’s demobilisation is irreconcilable with the accounts of P-0298 and P- 0299. P-0321 suggested P-0298 realised that he could not get anything further out of military service and in those circumstances he deserted and went to an organisation which delivered him to P-0321, who in turn persuaded P-0298’s family to take him back. However, P-0299 1361 testified that P-0298 did not take the initiative and instead he was picked up in the street by members of an NGO. 1362 P-0298 suggested he heard an NGO was looking for child soldiers to demobilise, and he

1360 T-120-CONF-ENG, page 24, lines 7 – 12. 1361 T-310-Red2-ENG, page 45, line 14 – page 46, line 20. 1362 T-122-Red2-ENG, page 19, line 23 to page 20, line 3. No. ICC-01/04-01/06 202/593 14 March 2012

found a weapon to hand over before the NGO “took charge of me and of many other children”. 1363

Conclusion as to P-0298

441 Notwithstanding the prosecution’s suggestion that P-0298’s initial testimony was merely the result of his anger, 1364 the evidence overall before the Chamber creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence. P-0298 is not a witness on whom the Chamber is able to rely.

c) The lists of children

442 A significant issue as regards this area of the case is how the various alleged former child soldiers were selected. P-0321 maintained he introduced P-0581 to all the children from a list provided to him by P- 0031 over the telephone, 1365 and to those children alone. He testified that he did not have any difficulty in finding the children on P-0031’s list and he brought them all to Bunia. 1366 The only additions to the list were said to have been P-0157 and P-0298, who had previously been in contact with the ICC, 1367 but who (on his account) P-0581 did not meet. In due course, P-0321 changed his evidence, having 1368 considered a table comparing the list given to P-0581 by an investigator, the list provided to P-0581 by P-0321 and the list of the

1363 P-0299 confirmed that P-0298 was provided with “instruction” at the NGO, T-122-Red2-ENG, page 19, lines 16 – 21. 1364 ICC-01/04-01/06-2678-Red, para. 91 citing T-123-Red2-ENG, page 30, lines 24 – 25. 1365 T-308-CONF-ENG, page 53, lines 8 – 21 and T-308-Red2-ENG, page 61, lines 9 – 25 and page 63, lines 9 – 25; T-321-Red2-ENG, page 20, lines 1 – 23. 1366 T-308-Red2-ENG, page 63, line 23 to page 64, line 7; T-320-Red2-ENG, page 55, lines 6 – 10. 1367 T-308-CONF-ENG, page 64, lines 8 – 17; T-320-CONF-ENG, page 55, lines 11 – 18. 1368 T-308-Red2-ENG, page 64, lines 12 – 17. No. ICC-01/04-01/06 203/593 14 March 2012

children ultimately introduced to P-0581 by P-0321. 1369 Confronted with this evidence, P-0321 said P-0581 did not meet five children from the initial list because they were working and did not want to meet with the OTP. 1370 443. P-0581 gave evidence that he noticed discrepancies between the list given to him by P-0321 and the list provided by the investigators. He sent P-0321’s list to his superiors and thereafter he was provided with a final list of names by the OTP via email. The screening was conducted on the basis of this final list. 1371 P-0581 had received instructions to contact P-0321 who was to send the children to him for screening (P-0321 was to contact those who were on the list). 1372 444. Focussing on the discrepancies between the list sent to P-0581, the list given to P-0581 by P-0321 and the children introduced for screening by P-0321, 1373 eight of the eleven children who P-0581 met in November 2007 were not on the list he was sent by the OTP, and the 1374 answers given by P-0321 on this issue were markedly unclear and confused. 1375 He failed adequately to explain this anomalous evidence. The Chamber found P-0581 to be a generally reliable witness, and it is likely that P-0321 did not tell the truth when he said he simply introduced P-0581 to children from a list provided to him by P-0031. 1376

1369 EVD-D01-00328. 1370 T-321-CONF-ENG, page 25, lines 11 – 21 and page 26, lines 19 – 21. 1371 EVD-D01-00314 and EVD-D01-00315 (email with a list of names sent to P-0581 by an OTP investigator); EVD-D01-00316 (list of names provided to P-0581 by P-0321); T-317-Red2-ENG, page 11, line 4 to page 12, line 7 (P-0581). 1372 T-300-Red2-ENG, page 27, lines 4 - 11. 1373 There are no overlaps on lists EVD-D01-00315 and EVD-D01-00316; T-317-Red2-ENG, page 12, lines 11 – 14. 1374 EVD-D01-00328, comparative table based on EVD-D01-00315 and EVD-D01-00316. 1375 T-321-Red2-ENG, page 25 line 11 to page 28, line 6 and T-323-CONF-ENG, page 4, line 6 to page 18, line 23 (P-0321). 1376 This general issue has, in part, been addressed above in the context of the procedures adopted by the OTP for gathering evidence (see paras 143, 167-168, 190-192, and 197). No. ICC-01/04-01/06 204/593 14 March 2012

445 An additional troubling element is that P-0321 stated that the children who he introduced to P-0581 did not come from Bunia, and 1377 he gave extensive evidence of how, having paid for his own transport, he travelled by road from Bunia to other localities. 1378 However, three of the children (P-0213, P-0297 and D-0004) gave evidence that tends to indicate they were living in Bunia in November 2007. P-0321 also 1379 contradicted himself, testifying at one stage that in November 2007, P- 0297 was living at home in Bunia. 1380

d) An organisation dealing with victims

446 Before and during the time he worked for the OTP, P-0321 (along with P-0031) acted as an intermediary for a particular organisation, 1381 which helped victims to participate in these proceedings. P-0321 introduced P-0299 to this organisation following a request from P- 0031. 1382 Furthermore, children had been put in touch with this organisation (with the assistance of P-0031) prior to being introduced to the prosecution. 1383 447. The impact of this evidence is considered in the Chamber’s overall conclusions, set out below.

1377 T-308-Red2-ENG, page 63, lines 1 - 5. 1378 T-308-Red2-ENG, page 63, lines 9 – 22. 1379 T-133-Red2-ENG, page 28, lines 3 – 13 and page 43, lines 2 – 17 (P-0213); T-287-CONF-ENG, page 33, line 22 to page 36 line 2 and page 37, lines 12 – 18 (P-0297); T-242-Red3-ENG, page 6, lines 3 – 6 (D-0004). 1380 T-322-CONF-ENG, page 27, line 1 to page 28, line 22 (P-0321) . 1381 T-320-CONF-ENG, page 7, lines 5 – 8 (P-0321); T-308-CONF-ENG, page 34, lines 8 – 12 (P- 0321). 1382 T-320-CONF-ENG, page 33, line 22 to page 34, line 6 and page 34, lines 19 – 24 (P-0321) . 1383 T-320-CONF-ENG, page 11, lines 19 – 24 (P-0321) . No. ICC-01/04-01/06 205/593 14 March 2012

e) Assessment of Intermediary 321

448 On the basis of the all the matters set above, the Chamber is satisfied that P-0321 acted on the instructions of the OTP and under the latter’s supervision for more than a year. This is relevant to a number of witnesses who (save for the first) P-0321 was the original point of contact: P-0157, P-0213, P-0293, P-0294, P-0297 and P-0298. P- 0321 was also in contact with P-0299. 449. D-0003 admitted he lied to the prosecution for financial gain at the invitation of P-0321 and he said the latter instructed him as to the account he was to provide. P-0213, P-0294, P-0297 and D-0004, according to the latter, were instructed by P-0321 to give false accounts about their names and ages, where they lived and their alleged enrolment in the UPC. Taking into account the questions raised about D-0003’s and D-0004’s evidence, the Chamber stresses that it has not relied on their testimony standing alone, but it has examined the available material in its entirety, and in particular the accounts of the individual prosecution witnesses who claimed to be former child soldiers, as well as the documentary evidence and the other relevant witnesses. P-0297’s evidence was unreliable and the Chamber has concluded there is a material risk that P-0321 persuaded or encouraged him to give false evidence. Similarly, the accounts of P- 0213 and P-0294 were generally unreliable. The Chamber does not accept the prosecution’s argument that P-0298’s initial testimony was merely the result of his anger, and it is of the view that the evidence relating to him, viewed overall, creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence.

No. ICC-01/04-01/06 206/593 14 March 2012

450 Although the Chamber does not criticise the fact that P-0321 assisted the prosecution and a victims’ organisation simultaneously, on the basis of the matters set out above the significant possibility has been established that P-0321 improperly influenced the testimony of a number of the witnesses called by the prosecution. Additionally, real doubt has been cast over the propriety of the way in which children were selected for introduction to the prosecution. 4. Intermediary P-0031

451 In the Decision on Intermediaries, the Chamber considered the evidence relevant to P-0031, who had also been called as a prosecution witness in June and July 2009. 1384 The Chamber decided that the evidence did not “meet the criteria for ordering him to be re-called in the context of the abuse of process application.” 1385

a) Background

452 P-0031 was located in Bunia during the period relevant to the charges, dealing with children in particularly difficult situations who included child soldiers. 1386 453. P-0143 put P-0031 in contact with the OTP, and he was recruited as an intermediary by the prosecution in 2005 (he continued in this role at least until 2008). 1387 P-0031 was closely associated with P-0321, and he occasionally asked the latter to undertake work for the OTP. 1388 During the course of his involvement with the OTP, P-0031 had contact with

1384 ICC-01/04-01/06-2434-Red2, paras 13, 14, 17, 18, 20 and 24. 1385 ICC-01/04-01/06-2434-Red2, para. 144. 1386 T-198-Red2-ENG, page 86, line 5 to page 87, line 14 and page 91, lines 3 – 15. 1387 Table of contacts, EVD-D01-01039, No. 23; EVD-D01-00401 and EVD-D01-00576. 1388 T-308-CONF-ENG, page 62, lines 9 – 15. No. ICC-01/04-01/06 207/593 14 March 2012

the following witnesses: P-0007, 1389 P-0008, 1390 P-0011, 1391 P-0012, 1392 P-

0046, P-0157 (first contact via P-0031), P-0293, P-0294 P- 1393 1394 1395 1396

0297, 1397 P-0298, 1398 and P-0299, 1399 and potential witness DRC-OTP-

WWWW-0110 (first contact was via P-0031). 1400

b) The evidence from P-0582

454 P-0582 gave evidence that he probably met P-0031 when he was

accompanied by other investigators. 1401 He did not trust P-0031 or have

confidence that he would be of use to their investigations. 1402

455 Throughout 2005, P-0031 furnished the prosecution with videos,

photographs and documents, and therefore he came to be viewed as a

willing and cooperative witness who was able to provide relevant

evidence. He supplied the prosecution with information concerning

the demobilisation of child soldiers. 1403

456 P-0582 was referred to page 3, paragraph 1, of an internal

prosecution report dated 23 February 2006 which sets out that:

Investigators returned his original documents after registration of the copies.

1389 T-201-CONF-ENG, page 72, lines 11 – 13 and page 74, lines 9-12 (P-0031); EVD-D01-01039, No 23. 1390 T-201-CONF-ENG, page 72, line 22 to page 73, line 2 and page 80, lines 17 – 20; T-202-CONF- ENG, page 70, lines 4 – 18 (P-0031); EVD-D01-01039, No 23. 1391 T-201-CONF-ENG, page 73, lines 3 – 7 and page 77, lines 12 – 13 (P-0031); EVD-D01-01039, No 23. 1392 EVD-D01-01039, No 11. 1393 EVD-D01-01039, No 23. 1394 T-202-CONF-ENG, page 79, lines 9 – 17 (P-0031); EVD-D01-01039, No 23. 1395 T-153-CONF-ENG, page 53, line 21 – page 54, line 10; EVD-D01-01039, No 23. 1396 T-202-CONF-ENG, page 78, lines 22-25; EVD-D01-01039, No 23. 1397 EVD-D01-01039, No 23. 1398 T-202-CONF-ENG, page 76, lines 14-22 (P-0031) . 1399 EVD-D01-01039, No 127. 1400 EVD-D01-01039, No 60. 1401 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-CONF-ENG, page 10, lines 15 – 17. 1402 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 10, line 18 to page 11, line 3. 1403 ICC-01/04-01/06-2656-Conf, para. 6.

No. ICC-01/04-01/06 208/593 14 March 2012

However, [P-0031] failed to submit new additional documents that would allegedly be in his possession. After numerous occasions in which he failed to do so, major questions arose about his credibility and intentions to collaborate with the ICC. As a consequence investigators decided to suspend 1404 contacts for the time being.

457 P-0582 gave evidence that it was believed the documentary records

referred to in the report would assist in shedding light on the potential

problems with P-0031. The latter provided a few documents to the 1405

investigators (of doubtful relevance) and although he promised

additional material, nothing was forthcoming. 1406

458 P-0582 believed it had been decided, with the agreement of Michel

De Smedt, to discontinue working with P-0031 because of a lack of

trust following the February 2006 incident. 1407

459 However, this decision was reversed once P-0031 provided certain

relevant information, and thereafter he “was evaluated by the

prosecution as being a credible trial witness”. 1408 The prosecution

called P-0031 as a witness to give evidence about child soldiers and

demobilisation.

460 It is accepted that during the relevant period the OTP paid P-0031 at

least $23,000. 1409 The prosecution suggests, with the exception of a

single payment for travel, this money supported P-0031 within the

OTP’s protection programme and it does not represent remuneration

1404 EVD-OTP-00641. 1405 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 11, lines 13 – 18. 1406 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 12, lines 3 – 5. 1407 Transcript of Deposition on 18 November 2010, ICC-01/04-01/06-Rule68Deposition-Red2-ENG, page 12, lines 15 – 18. 1408 ICC-01/04-01/06-2656-Red, paras 7 and 8. 1409 This is based on documents disclosed on 3 March 2010, ICC-01/04-01/06-2657-Red-tENG, para. 186. It is suggested by the defence that this is an underestimate, ICC-01/04-01/06-2773-Red-tENG, footnote 1331 .

No. ICC-01/04-01/06 209/593 14 March 2012

for his services as an intermediary. 1410 The accounting documents disclosed by the prosecution demonstrate P-0031 received a monthly allowance from March 2007, 1411 and as of 12 March 2010 he continued to receive allowances from the OTP for accommodation and subsistence. 1412

c) The evidence of P-0157

461 P-0157 is an alleged former child soldier who was introduced to the Office of the Prosecutor by P-0031. The accounting documents relating to P-0157 demonstrate he was also in contact with P-0143 between August and October 2006. 1413 Additionally, P-0321 indicated he had dealings with P-0157. 1414 462. P-0157 said he was born in 1991. 1415 It is to be noted, however, the documentary evidence suggests that in 2002 and 2003, P-0157 was over 15 years of age. The IEC database demonstrates P-0157 had a voter’s card, bearing his photograph and a date of birth (in 1986). 1416 Moreover, his name appears on the enrolment register for a particular school , and, at what is seemingly his entry, it is recorded P-0157 was born on an identified date in 1986. 1417 The 1991-2001 certificate award register for this school indicates that a certificate was awarded to P- 0157 (born on the same date in 1986). 1418 The witness said he did not know his date of birth. He was shown a document that came from 1419 the general inspectorate for secondary and professional education, 1410 ICC-01/04-01/06-2678-Red, para. 132. 1411 EVD-D01-00547; EVD-D01-00529 and EVD-D01-00403. 1412 EVD-D01-00988. 1413 EVD-D01-00832 and EVD-D01-00833. 1414 T-320-CONF-ENG, page 41, lines 14 – 25. 1415 T-185-Red2-ENG , page 63, line 7. 1416 EVD-D01-01031. 1417 T-188-CONF-ENG, page 63, line 24 to page 65, line 14; EVD-D01-00170 and EVD-D01-00257. 1418 EVD-D01-0169, page 0506, #42. 1419 T-188-Red2-ENG, page 66, lines 1 – 6. No. ICC-01/04-01/06 210/593 14 March 2012

which comprises a list of students in the sixth grade in the same primary school for the year 1998. At line 9 it is recorded that he was 1420 born in 1986. 1421 When the witness was asked whether it was possible that in 1998 he was in the sixth grade at this primary school, he answered, “It could be true. It’s a certified document, a document that states that.” 1422 463. The prosecution argues the school records are unreliable and they do not undermine P-0157’s testimony as to his age, 1423 and in particular the prosecution suggests that the documents appear to have been altered. The prosecution relies on the expert’s report, along with the evidence of D-0029, to the effect that different students were assigned the same matriculation number and the records contain errors as to numbering. 1424 It is argued by the prosecution that it is not necessary for the Chamber to conclude that P-0157 was under the age of 15 at the time he was conscripted. Rather, his evidence is of use as regards 1425 the recruitment and use of child soldiers by the UPC. 1426 464. There are undoubted inaccuracies in the school records that have caused the Chamber to treat them with caution. As regards the present witness, however, all the relevant entries contradict the date of birth given by P-0157 during his evidence, and he accepted he may have been in the sixth grade of primary school in 1998. Although of limited value, the x-ray evidence tends to support the suggestion that P-0157

1420 T-188-Red2-ENG, page 66, lines 7 – 14 and EVD-D01-00258. 1421 T-188-Red2-ENG, page 66, lines 15-22 and EVD-D01-00258. 1422 T-188-Red2-ENG, page 67, lines 7 – 11. 1423 ICC-01/04-01/06-2748-Red, para. 514. 1424 ICC-01/04-01/06-2748-Red, para. 514, referring to EVD-OTP-00639 and T-295-ENG, page 27, lines 3 7; T-296-CONF-ENG, page 10, line 17 to page 13, line 15 and page 16, line 18 to page 17, line 6. 1425 ICC-01/04-01/06-2748-Red, para. 515. 1426 ICC-01/04-01/06-2748-Red, paras 417 and 515. No. ICC-01/04-01/06 211/593 14 March 2012

was over the age of 15 at the time of his alleged conscription. 1427 In all the circumstances, the prosecution has not established that P-0157 was under the age of 15 at the time of his alleged recruitment and use in hostilities. 465. The prosecution argues P-0157 provided a significant and detailed account of the conscription, training and use of children by the UPC and it particularly relies on P-0157’s evidence as to having been beaten, his description of daily life at Mandro and Thomas Lubanga’s visit to the camp. 1428 The defence sought to undermine P-0157’s credibility, 1429 and in response the prosecution highlighted his evidence that certain subjects remained painful for him, along with his frank acceptance that he was unable to remember every detail. 1430 466. P-0157 gave potentially differing accounts about where he was enlisted by the UPC on his way home from school. 1431 However, he gave a credible explanation that the name of the location where he was abducted in his initial statement to the investigators was wrongly transcribed. 1432 467. He gave contradictory evidence as to the stage during his school career when this occurred. At paragraph 16 of the witness’s first statement to the investigators he indicated “[a]t the time [of the abduction] I went to [a particular] Institute […] where I was in the sixth year of primary school”. 1433 It is of note that EVD-D01-00258 1434 indicates he finished his sixth year of primary school in 1998 and the 1427 ICC-01/04-01/06-2748-Red, para. 512. 1428 ICC-01/04-01/06-2748-Red, paras 494 – 510. 1429 See, e.g., ICC-01/04-01/06-2657-Red-tENG, paras 190 – 194. 1430 ICC-01/04-01/06-2748-Red, paras 516 – 517. 1431 T-187-Red2-ENG, page 66, line 15 to page 67, line 13. 1432 T-187-CONF-ENG, page 29, line 8 to page 30, line 9. 1433 T-187-CONF-ENG , page 28, line 9 to page 29, line 1. 1434 EVD-D01-00258, page DRC-D01-0003-1749, No 49. No. ICC-01/04-01/06 212/593 14 March 2012

Certificate Issue Register for 1991-2001 1435 sets out that the witness sat

his national exams in 1998. P-0157 said in evidence that at the time of

his abduction he was in his first year of secondary school, 1436 having

just finished his sixth year of primary school. 1437

468 D-0025, who is now a teacher, 1438 knew P-0157 (he recognised him in

a photograph). They went to school together in the academic 1439 1440

year 2001/2002. D-0025 was born on 12 July 1989, and he said he 1441 1442

was younger than P-0157 1443 although he conceded that he does not

know P-0157’s age. 1444 D-0025 gave consistent evidence, which was not

materially contradicted or undermined. In all the circumstances the

Chamber has accepted his account.

469 D-0025 indicated that when the population of Bunia fled in May

2003, P-0157 went to a village, close to Bunia and joined an armed

group. 1445 He heard P-0157 had joined the FRPI. 1446 Although D-0025

was uncertain as to the exact date when he saw P-0157 dressed in a

camouflage t-shirt, he was convinced this had happened. 1447

470 P-0157 testified that he was taken in a Hilux vehicle to stadium in

Bunia 1448 and from there he was transferred to Mandro 1449 for military

1435 EVD-D01-00169, page DRC-OTP-0224-0506, No 42. 1436 T-187-CONF-ENG , page 29, lines 20-23. 1437 T-187-CONF-ENG , page 30, lines 2-9. 1438 T-259-Red2-ENG, page 11, line 1. 1439 T-259-Red2-ENG, page 11, line 17, page 12 lines 7 – 21 and page 15, lines 11 – 13, referring to EVD-D01-00121. 1440 T-259-Red2-ENG, page 12, line 22 to page 13, line 16. 1441 T-259-Red2-ENG, page 26, lines 15-17. 1442 T-259-Red2-ENG, page 10, line 3. 1443 T-259-Red2-ENG, page 13, line 23 to page 14, line 5. 1444 T-259-Red2-ENG, page 14, lines 6 – 7. 1445 T-259 -Red2-ENG , page 19, lines 2 – 25. 1446 T-259 -Red2-ENG , page 20, lines 4 – 21. Witnesses have referred to the FNI and the FRPI interchangeably. 1447 T-259 -Red2-ENG , page 21, line 25 to page 22, line 9. 1448 T-185-Red2-ENG , page 68, line 25 to page 69, line 1 and page 74, lines 14 – 21; T-187-Red2- ENG, page 36, line 14 to page 37, line 3. 1449 T-185-Red2-ENG , page 79, lines 17-20.

No. ICC-01/04-01/06 213/593 14 March 2012

training. 1450 However, in 2006 the witness told the investigators that he

walked to the stadium. When questioned about this discrepancy, P- 1451

0157 accepted there were errors in his earlier statement. 1452 He said

two particular commanders were with him throughout his time at

Mandro. 1453 However, he failed to mention one of these commanders

during his interview with the investigators over 4 days in October

2006 1454 The witness said he was unable to recount all the details at

that stage and instead he set out what he thought was important. 1455

The witness’s evidence frequently lacked detail. For instance, he could

not recall if he participated in combat during his training, 1456 although

he later indicated this had happened. 1457 He suggested he spent time at

Djugu, 1458 Bunia 1459 and Rwampara; 1460 he said he fought at

Nyankunde; 1461 and he indicated he was part of a group that was

selected to fight the Ugandans. However, he was unable to provide 1462

details of these events.

471 P-0157 testified that he deserted the UPC and joined the FNI, 1463

although during his first meeting with investigators from the OTP he

failed to mention he had originally been in the UPC 1464 (he said in

evidence this was because of the hurt caused by his membership of the

1450 T- 186-Red2-ENG , page 18, lines 4-14. 1451 T-187-Red2-ENG, page 37, lines 4-21. 1452 T-187-Red2-ENG, page 37, lines 15-22. 1453 T-188- CONF-ENG , page 5, lines 18 – 21. 1454 T-188 -Red2-ENG , page 4, line 24 to page 5, line 9. 1455 T-188- Red2-ENG , page 4 line 20 to page 5, lines 9. 1456 T-188- Red2-ENG , page 16, lines 2 – 7. 1457 T-188 -Red2-ENG , page 33, lines 13 – 23. 1458 T-186-Red2-ENG , page 38, lines 15-16. 1459 T-188-Red2-ENG, page 26, lines 12-16. 1460 T-187-Red2-ENG , page 6, lines 8-12. 1461 T-187-Red2-ENG , page 4, lines 15-17. 1462 T-188-Red2-ENG, page 31, line 14 - 19. 1463 T-187-Red2-ENG , page 10, line 25 to page 11, line 4 and page 11, line 25 to page 12, line 3; T- 188-CONF-ENG, page 43, lines 6-7. 1464 T-188-Red2-ENG, page 47, lines 19-22.

No. ICC-01/04-01/06 214/593 14 March 2012

UPC). 1465 472. P-0031, when asked about P-0157, simply described him as a child who had been a member of the FNI. 1466 The prosecution relies on P- 0321’s statement that P-0157 had been a UPC/FPLC child soldier, 1467 given he indicated that P-0157 told him about being a member of the UPC (however he failed to mention that he had also been a member of the FNI). As mentioned above, D-0025 said he heard about P-0157’s 1468 membership in the FRPI, and P-0157 testified that he had been a soldier in the FNI (he said that he joined the group in March 2003). 1469 473. The Chamber is of the view that P-0157 did not provide a credible explanation for his failure to mention that he had been a member of the UPC to the investigators and generally his account was notable for its lack of detail as regards certain significant events. In all the circumstances, the Chamber has not relied on his account.

d) Assessment of P-0031

474 The defence alleges that all of the witnesses with whom this intermediary had contact lied to the Court (P-0007, P-0008, P-0011, P- 0157, P-0293, P-0294, P-0298 and P-0299), and it is noted he was in touch with intermediaries 143 and P-0321. 1470 The defence contends he is biased against Thomas Lubanga and tailored his account to match the charges against the accused. The defence relies on the regular 1471 and considerable payments he received, and it is suggested the OTP

1465 T-188-Red2-ENG, page 48, lines 4-9. 1466 T-202-Red2-ENG, page 79, lines 9 – 17. 1467 ICC-01/04-01/06-2748-Red, para. 518. 1468 T-320-Red2-ENG, page 41, lines 2 – 13. 1469 T-188 -Red2-ENG , page 42, line 24 to page 43, line 20. 1470 ICC-01/04-01/06-2773-Red-tENG, paras 618 and 623 – 624. 1471 ICC-01/04-01/06-2773-Red-tENG, paras 619 – 622 and 629. No. ICC-01/04-01/06 215/593 14 March 2012

failed to act on information that had been in its possession since February 2006 which raised doubts as to his integrity (it is suggested these concerns were corroborated by P-0582). 1472 It is argued the logbooks and other documents he produced are unreliable, 1473 and the defence submits he accepted in evidence that children sometimes lied in order to benefit from the process of demobilisation. Furthermore, neither the intermediary nor the NGO attempted to corroborate their accounts. 1474 475. The prosecution submits “[n]o witness testified that P-0031 manipulated, coached or encouraged witnesses to lie to the Prosecution or to the Court.” It further suggests the defence has 1475 misrepresented the evidence and it has failed to establish that P-0031 was biased in his testimony. 1476 476. There is insufficient evidence to support the suggestion that P-0031 persuaded, encouraged or assisted witnesses to give false testimony. Although P-0031 had contact with numerous witnesses whose evidence the Chamber has not accepted, this is insufficient, even on a prima facie basis, to lead to the conclusion that P-0031 encouraged any of them to lie. None of the alleged former child soldiers who P-0031 dealt with suggested he influenced their evidence and the Chamber does not accept the defence assertions that P-0031 was biased against Thomas Lubanga. 1477 477. However, given his close cooperation with P-0321 and the doubts as to his reliability analysed above, the Chamber has treated P-0031’s 1472 ICC-01/04-01/06-2773-Red-tENG, paras 625 – 628. 1473 ICC-01/04-01/06-2773-Red-tENG, para. 633. 1474 ICC-01/04-01/06-2773-Red-tENG, paras 630 – 632. 1475 ICC-01/04-01/06-2778-Red, para. 119. 1476 ICC-01/04-01/06-2778-Red, paras 120 and 121. 1477 ICC-01/04-01/06-2773-Red-tENG, para. 629. No. ICC-01/04-01/06 216/593 14 March 2012

evidence with particular care. F. CONCLUSIONS ON THE CHILD SOLDIERS CALLED BY THE PROSECUTION 478. The prosecution submits that the inconsistencies within and between the accounts of the alleged former child soldiers do not necessarily mean their testimony is unreliable, and in this regard the Chamber is invited to focus on the evidence of the expert witness Ms Schauer (CHM-0001). 1478 The OPCV submits any contradictions and difficulties in the testimony of P-0007, P-0008, P-0010 and P-0011 should be viewed in the context of the trauma they may have experienced, including the stress of giving evidence. The defence 1479 also relies on part of Ms Schauer’s (CHM-0001) evidence, namely that Post Traumatic Stress Disorder can only be identified by way of a medical examination, and accordingly it is suggested it has not been demonstrated that any of these witnesses suffered from this disorder. The defence suggests Ms Schauer (CHM-0001) further testified that trauma does not affect an individual’s memory, including his or her ability to tell the truth, but instead it may make it difficult for them to speak about relevant events (as opposed to other, non-traumatic matters), and therefore the potential impact of trauma should not be considered when assessing the credibility of the witnesses. 1480 479. The Chamber has taken into account the psychological impact of the events that have been described in evidence, and the trauma the children called by the prosecution are likely to have suffered. The Chamber accepts that some or all of them may have been exposed to violence in the context of war, and this may have had an effect on their 1478 ICC-01/04-01/06- 2748-Red, paras 523 – 524. 1479 ICC-01/04-01/06- 2744-Red-tENG, para. 46. 1480 ICC-01/04-01/06- 2773-Red-tENG, paras 367 – 368. No. ICC-01/04-01/06 217/593 14 March 2012

testimony. Additionally, they were often interviewed on multiple occasions following these events. Nonetheless, for the reasons identified in the relevant analysis for each witness, the inconsistencies or other problems with their evidence has led to a finding that they are unreliable as regards the matters that are relevant to the charges in this case. 480. On the basis of the entirety of the analysis set out above, the Chamber has not accepted the prosecution’s submission that it has established beyond reasonable doubt that P-0007, P-0008, P-0010, P- 0011, P-0157, P-0213, P-0294, 1481 P-0297 and P-0298 1482 were conscripted or enlisted into the UPC/FPLC when under the age of 15 years, or that they were used to participate actively in hostilities, between 1 September 2002 and 13 August 2003. It is relevant to note that these nine individuals were identified by the prosecution at an early stage in these proceedings as demonstrating the way in which children were 1483 enlisted, conscripted and used by the FPLC. 1484 481. The Chamber has concluded that P-0038 who was over 15 when he joined the UPC gave accurate and reliable testimony. Similarly, the Chamber has acted on the evidence relating to the videos addressed by P-0010 in her evidence. The effect of this evidence is considered in the Chamber’s overall conclusions. 482. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries in the 1481 Given the mother of P-0294 (P-0293) was called to give evidence on the personal history of her son, which the Chamber is not relying on, the Chamber has not considered her evidence further. 1482 Given the father of P-0298 (P-0299) was called to give evidence on the personal history of his son, which the Chamber is not relying on, the Chamber has not considered his evidence further. 1483 Amended Document Containing the Charges, Article 61(3)(a), 22 December 2008, ICC-01/04- 01/06-1571-Conf-Anx, paras 41 – 98. A public redacted version was filed on 23 December 2008, ICC- 01/04-01/06-1573-Anx1. 1484 ICC-01/04-01/06-1573-Anx1, para. 101. No. ICC-01/04-01/06 218/593 14 March 2012

way set out above, notwithstanding the extensive security difficulties it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation. 483. As set out above, there is a risk that P-0143 persuaded, encouraged, or assisted witnesses to give false evidence; there are strong reasons to believe that P-0316 persuaded witnesses to lie as to their involvement as child soldiers within the UPC; and a real possibility exists that P- 0321 encouraged and assisted witnesses to give false evidence. These individuals may have committed crimes under Article 70 of the Statute. Pursuant to Rule 165 of the Rules, the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution. Investigations can be initiated on the basis of information communicated by a Chamber or any reliable source. The Chamber hereby communicates the information set out above to the OTP, and the Prosecutor should ensure that the risk of conflict is avoided for the

No. ICC-01/04-01/06 219/593 14 March 2012

purposes of any investigation. 1485 484. Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chamber’s Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules. In the view of the Majority, 1486 given the Chamber’s present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his son’s role as a child soldier. The Chamber’s conclusions as to the evidence of P-0298 1487 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no longer meet the relevant criteria.

1485 T-350-Red2-ENG, page 17, lines 14 – 19; see also Prosecution’s Observations on Article 70 of the Rome Statute, 1 April 2011, ICC-01/04-01/06-2716, para 11; see also, The Prosecutor v. Katanga and Ngudjolo, Decision on the Prosecution’s renunciation of the testimony of witness P-159, 24 February 2011, ICC-01/04-01/07-2731, para. 18. 1486 Decision on the applications of victims to participate in the proceedings, 15 December 2008, ICC- 01/04-01/06-1556. A corrigendum was issued on 13 January 2009, ICC-01/04-01/06-1556-Corr-Anx1. 1487 Decision on the supplementary information relevant to the applications of 21 victims, 21 July 2009, ICC-01/04-01/06-2063, paragraph 39 (c). No. ICC-01/04-01/06 220/593 14 March 2012

VIII. THE THREE VICTIMS WHO GAVE EVIDENCE

485 On 2 April 2009, one of the legal representatives for victims submitted an application for three victims, a/0229/06, a/0225/06, and a/0270/07, to participate in person in the proceedings against Thomas Lubanga. 1488 The Chamber requested additional information, 1489 and a further filing was submitted on 18 May 2009. 1490 Mr Keta filed written submissions on 22 June 2009, following discussions with the VWU concerning questions of security. 1491 On 26 June 2009, the Chamber adjourned the applications on behalf of the victims to present their views and concerns in person (these applications have not been renewed) and granted their applications to give evidence. 1492 The defence refers to their submissions made in the context of the abuse of process application. 1493 In essence, it is alleged by the defence that victim a/0270/07 instigated victims a/0229/06 and a/0225/06 to steal the identities of Thonifwa Uroci Dieudonné (D-0032) and Jean-Paul Bedijo Tchonga (D-0033) in order to claim falsely that they had been abducted by the UPC and used as child soldiers. 486. The Chamber has considered the evidence of these three victims before discussing the contradictory evidence of the relevant defence

1488 Requête soumise par le représentant légal des victimes représentées, sur le désir des victimes A/0225/06, A/0229/06 et A/210/01 de participer en personne à la procédure, 2 April 2009 (notified on 3 April 2009), ICC- 01/04-01/06-1812-Conf. 1489 T-l71-Red2-ENG, page 37, lines 4-25 and page 38, lines 1-6. 1490 Informations complémentaires concernant la «Requête soumise par le représentant légal des victimes représentées, sur le désir des victimes A/0225/06, A/0229/06 et A/270/07 de participer en personne à la procédure » déposée le 2 avril 2009, 18 May 2009, ICC-01/04-01/06-1883-Conf. 1491 Soumission, 19 juin 2009, ICC-01/04-01/06-1977-Conf. 1492 Decision on the request by victims a/ 0225/06, a/0229/06 and a/0270/07 to express their views and concerns in person and to present evidence during the trial, 26 June 2009, ICC-01/04-01/06-2002-Conf, para. 45. A public redacted version was issued on 9 July 2009 (ICC-01/04-01/06-2032-Anx). 1493 ICC-01/04-01/06-2773-Red-tENG, para. 679, referring to ICC-01/04-01/06-2657-Conf-tENG, paras 200 – 228 and ICC-01/04-01/06-2686-Conf. No. ICC-01/04-01/06 221/593 14 March 2012

witnesses.

A. Victims a/0270/07 (V02-0001), a/0229/06 (V02-0003) and a/0225/06 (V02-0002)

487 Two individuals who claimed to be victims a/0229/06 (V02-0003)

and a/0225/06 (V02-0002) testified as to their alleged recruitment by the

UPC in the region of Mahagi, Ituri-Oriental province, DRC. Their

evidence covered their alleged training and their active participation

in hostilities.

488 The witness who identified himself as victim a/0229/06 (V02-

0003) 1494 stated that he was abducted on his way home from school 1495

in April 2003. 1496 According to the date of birth he provided during his

evidence, he was over the age of 15 at the time he claimed to have been

abducted (April 2003). 1497 He stated that he underwent training at Bule

camp 1498 and that he participated in the battle in Bunia, 1499 when he

was shot. 1500

489 The witness who identified himself as victim a/0225/06 (V02-

0002) 1501 said that UPC soldiers abducted him 1502 whilst he was playing

in a Mahagi village in 2003, 1503 and that he was taken to a transit

camp. 1504 According to the date of birth he provided during his

evidence, he was under the age of 15 at the time he claimed to have

1494 T-230-Red2-ENG, page 34, line 15. 1495 T-230-Red2-ENG, page 35, line 12 to page 39 line 19. 1496 T-230-Red2-ENG, page 35, line 12. 1497 T-230-Red2-ENG, page 34, lines 17-19. 1498 T-230-Red2-ENG, page 36, line 22 to page 37, line 4. 1499 T-231-Red2-ENG, page 28, lines 10-11. 1500 T-230-Red2-ENG, page 37, lines 24-25 and page 45, lines 18-22; T-231-Red2-ENG, page 35, lines 11-17. 1501 T-227-Red2-ENG, page 50, line 23. 1502 T-227-Red2-ENG, page 51, lines 13 – 17; T-227-Red2-ENG, page 73, lines 16 – 19; T-227-Red2- ENG, page 72, lines 11 – 16. 1503 T-227-Red2-ENG, page 52, lines 10 – 20. 1504 T-227-Red2-ENG, page 59, lines 15 – 16.

No. ICC-01/04-01/06 222/593 14 March 2012

been abducted. 1505 The commanders used him for looting, 1506 finding rich people and obtaining hashish. He subsequently underwent 1507 military training at a UPC camp. 1508 He was involved in fighting 1509 and he was injured in his right calf by a bullet at Bunia. 1510 490. Victim a/0270/07 (V02-0001) testified as to the alleged recruitment of children from a school in Mahagi, Ituri-Orientale Province, DRC and his efforts to prevent this from happening, and his relationship with 1511 certain child soldiers when they returned home. He said he witnessed UPC soldiers enlisting students on 5 February 2003, 1512 (four pupils were abducted). 1513 He claimed he is the guardian of victims a/0229/06 (V02-0003) and a/0225/06 (V02-0002) and he explained his relationship with each child and how he came to take on the role of guardian. 1514 B. Defence witnesses D-0032 and D-0033 491. The defence relied on evidence that seriously undermined the suggested truthfulness and reliability of a/0225/06 (V02-0002), a/0229/06 (V02-0003) and a/0270/07 (V02-0001). The defence submitted that a/0225/06 and a/0229/06 gave false testimony at the instigation of a/0270/07, and that a/0270/07 was actively involved in encouraging pupils at the Institute where he worked to claim falsely that they had been child soldiers in order to participate in proceedings before the

1505 T-227-Red2-ENG, page 50, line 25 to page 51, line 2. 1506 T-228-Red2-ENG, page 5, lines 20 – 23. 1507 T-228-Red-ENG, page 7, lines 1 – 3. 1508 T-227-Red2-ENG, page 57, lines 12 – 14. 1509 T-228-Red2-ENG, page 53, line 24 to page 54, line 17 and page 54, line 25 to page 55, line 6; T- 227-Red2-ENG, page 62, line 25 to page 63, line 2. 1510 T-229-Red2-ENG, page 15, lines 7 – 8. 1511 T-225-Red2-ENG, page 23, lines 2 – 25. 1512 T-225-Red2-ENG, page 22, lines 23 – 25. 1513 T-225-Red2-ENG, page 24, lines 6 – 8. 1514 T-226-Red2-ENG, page 48, line 11 to page 50, line 20. No. ICC-01/04-01/06 223/593 14 March 2012

Court. 1515

492 D-0032 testified that he (not a/0225/06) was Thonifwa Uroci Dieudonné. 1516 D-0032 said that together with the others in his class who had been in military service, he was told by a/0270/07 to pay a fee in order to “register” in Ndrele because those who were child soldiers would receive certain benefits and their studies would be paid for. 1517 According to D-0032, a/0270/07 told them to claim that their parents had died in order to receive the benefits quickly. 1518 D-0032 did not know the “white people” who conducted the registration process, although during his testimony he recognised an ICC victim participation form bearing his name along with (as he believed) his fingerprint. He had not filled it in and the signature was not his. 1519 He said one of those accompanying him during the registration process was Jean-Paul Bedijo Tchonga. D-0032 testified that following 1520 registration they did not receive any of the benefits promised to them and while they were in Ndrele, a/0270/07 told him and Jean-Paul Bedijo that the white people had not come and they could go home. 1521 The witness later learned that a/0270/07 was going to “replace” them (he was told this by one of those who had been brought by a/0270/07 to take their place). 1522

493 D-0032 said he was born in 1988 1523 and his parents are Ukunya

1515 Defence Application Seeking a Permanent Stay of the Proceedings ICC-01/04-01/06-2657-ConftENG, 4 February 2001, paras 200-228. A public redacted version was issued on 30 March 2011. 1516 T-275-Red2-ENG, page 5, line 10. 1517 T-275-Red2-ENG, page 12, line 21 to page 13, line 18. 1518 T-275- Red2 -ENG, page 13, lines 9 – 11. 1519 T-275- Red2 -ENG, page 15, line 11 to page 17, line 13. 1520 T-275- Red2 -ENG, page 17, line 20 to page 18, line 1. 1521 T-275- Red2 -ENG, page 13, line 19 to page 14, line 4. 1522 T-275- Red2 -ENG, page 14, lines 4 – 11. 1523 T-275-Red2-ENG, page 5, lines 11 – 16.

No. ICC-01/04-01/06 224/593 14 March 2012

Nyona Bertin 1524 and Generose Francoise. 1525 a/0225/06 was unable to

identify the individuals in photographs EVD-D01-00101 and EVD- 1526

D01-00102, 1527 whilst D-0032 identified them as his father 1528 and

mother 1529 respectively. It is unnecessary to go into the details of the

evidence, but the accounts of D-0032 and a/0225/06 differ significantly

regarding their family histories and their schooling. 1530 1531

494 Critically, the testimony of D-0032 is supported by that of D-0034,

who testified that he is the father of Thonifwa Uroci. 1532 D-0034, who is

also the father of D-0033, corroborated the evidence from D-0032 about

his family, 1533 and he confirmed D-0032’s account as to his primary and

secondary education. Moreover, D-0034 asserted that whilst 1534

Thonifwa Uroci was forcibly 1535 involved with the UPC as an errand

boy, he never bore arms, 1536 or underwent military training. 1537 D-0034

was unable to identify the person shown in photograph EVD-D01-

00130 (a/0225/06). 1538 1539

495 The Chamber ordered a forensic test following D-0032’s evidence

1524 T-275-Red2-ENG, page 5, lines 17 – 23. 1525 T-275-Red2-ENG, page 5, line 24 to page 6, line 2. 1526 T-235- Red2 -ENG, page 46, lines 21 – 24. 1527 T-235- Red2 -ENG, page 46, lines 17 – 20. 1528 T-275-Red2-ENG, page 8, lines 1 – 11. 1529 T-275-Red2-ENG, page 8, line 13 to page 9, line 5. 1530 a/0225/06: T-227-CONF-ENG, page 41, lines 5 – 10, page 42, lines 4 – 12, and page 51, lines 3 – 12; T-230-CONF-ENG, page 10, lines 3 – 4; and T-235- CONF -ENG, page 41, lines 1 - 20, page 42, lines 16 – 25, and page 43, lines 1 – 7; D-0032: T-275- Red2-ENG, page 6, lines 3 – 7, page 9, lines 6 – 20, page 9, line 23, to page 10, line 1, page 53, lines 2 – 20, and page 56, lines 3 – 12. 1531 a/0225/06: T-228-CONF-ENG, page 29, line 19, and page 32, lines 1 – 9; and T-228-Red2-ENG, page 33, lines 5 – 6; D-0032: T-275- Red2-ENG, page 6, lines 17 – 19, page 7, lines 6 – 15, and page 48, lines 3 – 5. 1532 T-280-Red2-ENG, page 15, line 25 and page 18, lines 20 – 23. 1533 T-280-Red2-ENG, page 21, lines 4 – 22; page 18, lines 4 – 5 and page 22, lines 12 – 16. 1534 T-280-Red2-ENG, page 22, lines 20 to page 23, line 4. 1535 T-280-Red2-ENG, page 52, lines 14 to page 53, line 4. 1536 T-280-Red2-ENG, page 28, lines 7 – 13. 1537 T-280-Red2-ENG, page 28, lines 4 – 6. 1538 T-280-Red2-ENG, page 43, lines 3 – 6. 1539 T-280-Red2-ENG, page 43, lines 7 – 9.

No. ICC-01/04-01/06 225/593 14 March 2012

that his fingerprint was on the victim application form. 1540 The results are that one of the fingerprints does not match the witness, while the other fingerprints were inconclusive. 1541 This evidence is therefore essentially equivocal.

496 D-0033 testified that he (not a/0229/06) was Jean-Paul Bedijo Tchonga. He stated a/0270/07 worked for an Institute in Mahagi. 1542 The latter “registered” the children who were child soldiers “because the white people were coming”. 1543 D-0033 also testified that a/0270/07 promised them that their studies would be paid for. 1544 He did not recognise an application to participate carrying his name (along with related material) and he said the signatures were not his. Similarly, 1545 he did not recognize a witness statement bearing his name dated 7 August 2009 or the signature on the last page. 1546 He suggested the person who had signed the documents might have been an individual in photographs that were put to him during his examination. D- 1547 0033 stated that he could not precisely say who this person was, but he had been told that they had been “replaced by other people” at the instigation of a/0270/07. 1548 D-0032 went on to identify the two people he had seen in the photographs and he said a/0270/07 had taken these two individuals in order to register them in their place. 1549 He supported D-0032’s evidence that a/0270/07 took money in exchange for registration; that he told them they would receive material

1540 T-280-Red2-ENG, page 5, lines 8 – 25. 1541 Submission of the Registrar of the results of the forensic analysis in relation to the fingerprints of Defence witness 32, 11 June 2010, ICC-01/04-01/06-2477-Conf, para. 9. 1542 T-276-Red2-ENG, page 25, line 24. 1543 T-276-CONF-ENG, page 29, line 19 to page 30, line 10. 1544 T-276-CONF-ENG, page 48, lines 17 – 23. 1545 T-276-Red2-ENG, page 39, line 6 to page 40, line 14 and page 41, line 24 to page 43, line 17. 1546 T-276-Red2-ENG, page 41, lines 1 – 23. 1547 T-276-Red2-ENG, page 45, lines 14 – 21. 1548 T-276-Red2-ENG, page 46, lines 15 – 22. 1549 T-276-CONF-ENG, page 47, lines 8 – 23.

No. ICC-01/04-01/06 226/593 14 March 2012

assistance and school fees; and he instructed them to say their parents

had died. D-0033 had gone with others to a/270/07’s house within 1550

the preceding year and he had discussed with him the assistance they

would receive and their service in the armed group. 1551 The evidence of

D-0034 supports this assertion, in that he stated that his son, D-0032,

told him a/0270/07 invited D-0032 to his home. Furthermore, D- 1552

0034 denies there is any family relationship between a/0270/07 and his

son 1553 and he asserted a/0270/07 was aware that D-0034 was the father

of the real Thonifwa Uroci, namely D-0032. 1554

497 D-0033 testified he was born 17 May 1987 1555 and his parents are

Thomas Ugeno and Georgette Urymen. A/0229/06 was unable to 1556 1557

identify the individuals in photographs 1558 who D-0033 said were

Thonifwa Uroci 1559 and Thomas Ugeno (Jean-Paul Bedijo’s father). 1560

D-0032 gave a significantly different account to that of a/0229/06 with

respect to the family history. Additionally, a/0229/06 stated he 1561

undertook military training at an UPC camp, 1562 whilst, D-0033

indicated that although he received military training, it was a/0270/07

who suggested the name of Bule camp. 1563

498 a/0270/07 was unable to identify the individual in photograph EVD-

1550 T-276-CONF-ENG, page 48, line 12 to page 49, line 8 and page 49, lines 15 – 19. 1551 T-276-CONF-ENG, page 49, line 20 to page 50, line 11. 1552 T-280-CONF-ENG, page 23, line 24 to page 24, line 2. 1553 T-280-CONF-ENG, page 32, lines 7 – 8. 1554 T-280-CONF-ENG, page 27, lines 19 – 21. 1555 T-276-Red2-ENG, page 26, line 1. 1556 T-277-Red2-ENG, page 40, lines 3 – 7; T276-Red2-ENG, page 26, lines 4 - 5. 1557 T-276-Red2-ENG, page 26, lines 6 – 7. 1558 T-234-CONF-ENG, page 2, lines 1-6, see EVD-D01-00096; T-234-CONF-ENG, page 7, lines 21 – 25, see EVD-D01-00097. 1559 T-276-Red2-ENG, page 29, lines 2 – 9. 1560 T-276-Red2-ENG, page 28, lines 19 – 24 to page 29, line 9. 1561 a/0229/06: T-231-CONF-ENG, page 12, line 22 and page, 13, lines 8-15; T-230-Red2-ENG, page 39, lines 14-19; D-0033: T-277-CONF-ENG, page 41, lines 5 – 6; T-276-Red2-ENG, page 26, lines 8 – 12. 1562 T-230-Red2-ENG, page 36, line 22 to page 37, line 4. 1563 T-276-Red2-ENG, page 75, lines 20 – 25.

No. ICC-01/04-01/06 227/593 14 March 2012

D01-00096 1564 which D-0033 subsequently identified as Thonifwa

Uroci. a/0270/07 was also unable to identify the individuals in 1565

photographs EVD-D01-00101 1566 and EVD-D01-00102, 1567 who D-0032

later identified as his mother 1568 and father 1569 respectively.

C. Conclusions on the three victims who gave evidence

499 The evidence of a/0225/06, a/0229/06, and a/0270/07 contains

internal inconsistencies which undermine their credibility. a/0225/06’s

recollection of his abduction and military service lacked clarity, and he

demonstrated uncertainty when questioned about the details of those

events. The witness said he was abducted in both February 2002 and

March 2003, 1570 although he said he was confused and had problems

with dates. 1571 a/0225/06 gave significantly unhelpful answers on

occasion when questioned about the gaps and inconsistencies in his

testimony; 1572 for example, he claimed to have received a bullet wound

at Bogoro, and when asked why this was not mentioned in his August

2009 statement, he simply replied ‘with the intelligence I have, I can’t, I

forget’. 1573

500 a/0229/06 was inconsistent in his account of his abduction and

military service. For instance, it was unclear whether his abduction

occurred when he was in the first or second year of his secondary

education. He was often vague in his answers and he tended to 1574

1564 T-235-CONF-ENG, page 20, line 25 to page 21, line 6. 1565 T-276-Red2-ENG, page 29, lines 2 – 9. 1566 T-235-CONF-ENG, page 13, lines 3 – 4 and 19 – 20. 1567 T-235-CONF-ENG, page 15, lines 13 – 21. 1568 T-275-Red2-ENG, page 8, line 13 to page 9, line 5. 1569 T-275-Red2-ENG, page 8, lines 1 – 11. 1570 T-227- Red2 -ENG, page 53, lines 18-22 and page 74, lines 19 – 23; T-228-Red2-ENG, page 2, lines 7 – 20. 1571 T-227-Red2-page 74, lines 19 – 23. 1572 T-229-CONF-ENG, page 32, line 23 to page 33, line 22. 1573 T-229-CONF-ENG, page 33, line 11. 1574 T-231-CONF-ENG, page 17, line 19 to page 18, line 10.

No. ICC-01/04-01/06 228/593 14 March 2012

respond by stating that he was unable to answer the questions. 1575 501. a/0270/07 was an evasive witness who, on occasion, was reluctant to respond when questioned or he provided inadequate answers. For example, he testified that the Institute had been subjected to a number of attacks, but when asked why the school archives did not contain a report of this event, the witness simply responded that this information might be biased. 1576 502. In all the circumstances, the Chamber has concluded that D-0033 and D-0034 were consistent, credible and reliable witnesses and it accepts that there is a real possibility that victims a/0229/06 and a/0225/06 (at the instigation or with the encouragement of a/0270/07) stole the identities of Thonifwa Uroci Dieudonné (D-0032) and Jean- Paul Bedijo Tchonga (D-0033) in order to obtain the benefits they expected to receive as victims participating in these proceedings. The Chamber is persuaded there are significant weaknesses as regards the evidence of a/0225/06, a/0229/06, and a/0270/07, to the extent that their accounts are unreliable. Given the material doubts that exist as to the identities of a/0229/06 and a/0225/06, which inevitably affect the evidence of a/0270/07, the permission originally granted to a/0229/06, a/0225/06, and a/0270/07 to participate as victims is withdrawn. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no

1575 T-231-CONF-ENG, page 47, lines 13-24; T-231-CONF-ENG, page 48, lines 9-12; T-231-CONF- ENG, page 45, lines 2-4; T-231-CONF-ENG, page 41, lines 16-18. 1576 T-226-Red-ENG, page 17, lines 5 – 14 and line 20 to page 18, line 14. No. ICC-01/04-01/06 229/593 14 March 2012

IX. THE ARMED CONFLICT AND ITS NATURE

A. INTRODUCTION 503. It is necessary to determine whether there was a relevant armed conflict, and if so, whether it was international or non-international in character. 504. The existence of an armed conflict, be it international or noninternational, is a fundamental requirement of the charges under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, which provide, inter alia : 2. For the purpose of this Statute, "war crimes" means: […] b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law […] c) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, […] It follows that if the prosecution has failed to prove the existence of a relevant armed conflict in Ituri from early September 2002 until 13 August 2003, it will have failed to prove the charges against the accused. B. SUBMISSIONS 1. Prosecution submissions 505. The prosecution submits it is undisputed that a significant and protracted armed conflict occurred in Ituri during the relevant

No. ICC-01/04-01/06 231/593 14 March 2012

period. 1577 506. Relying on jurisprudence from the Pre-Trial Chambers and the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the prosecution suggests an international armed conflict exists “whenever there is resort to armed force between States.” 1578 It is argued a non-international armed conflict is established when States have not resorted to armed force and i) the violence is sustained and has reached a certain degree of intensity, and ii) armed groups with some degree of organisation, including the capability of imposing discipline and the ability to plan and carry out sustained military operations, are involved. Additionally, Article 8(2)(f) of the Statute stipulates that the conflict must be “protracted” for these purposes. 1579 507. It is argued non-international conflicts only cease with a “peaceful settlement” and that a mere reduction in the extent of the hostilities is insufficient. The prosecution submits the evidence demonstrates 1580 that a settlement of this kind did not exist prior to 13 August 2003 1581 because many organised armed groups continued to operate in Ituri during this period, including the FNI, which allegedly perpetrated massacres in June and July 2003; PUSIC, in its opposition to the UPC/FPLC in Tchomia in November 2003; and the Forces Armées du Peuple Congolais (“FAPC”), as regards its fight with the FNI and Forces Populaires pour la Démocratie au Congo (“FPDC”) in order to take control

1577 ICC-01/04-01/06-2748-Red, paras 21 – 24, relying on the jurisprudence of the Pre-Trial Chambers and the ICTY (see below). 1578 ICC-01/04-01/06-2748-Red, para. 21. 1579 ICC-01/04-01/06-2748-Red, para. 21. The ICTY jurisprudence relied upon is: Prosecutor v. Tadi ć , Case No. IT-94-1-T (trial judgment), Prosecutor v. ð or ñ evi ć , Case No. IT-05-87/1-T (trial judgment), Prosecutor v. Limaj et al., Case No. IT-03-66-T (trial judgment), Prosecutor v. Haradinaj et al., Case No. IT-04-84-T (trial judgment), and Prosecutor v. Mrkši ć et al., Case No. IT-95-13/1-T (trial judgment). 1580 ICC-01/04-01/06-2778-Red, para. 125. 1581 T-356-ENG, page 49, line 10 to page 50, line 9 (prosecution oral closing submissions). No. ICC-01/04-01/06 232/593 14 March 2012

of Mahagi in June 2003. 1582 It is the prosecution’s contention that members of the UPC/FPLC attacked MONUC several times. 1583 508. The prosecution alleges the UPC/FPLC fought the RCD-ML, the FNI and the FRPI, and that each of these groups was armed and had a sufficient degree of organisation (demonstrated by their leadership structure and participation in the political process). Furthermore, it is suggested these armed groups had the ability to undertake sustained operations, as revealed by their ability to train troops and participate in numerous battles. 1584 509. The prosecution submits the conflict was non-international in character, notwithstanding the conclusion of the Pre-Trial Chamber that it was international until Uganda withdrew from Ituri on 2 June 2003. 1585 510. It is the prosecution submission that there can be simultaneous conflicts within a particular territory that involve different forces, and that Uganda’s involvement (even if it is found to have constituted occupation), would not automatically mean the armed conflict relevant to the charges was international in character. 1586 The prosecution submits the key issue is the nature of the conflict to which the particular army or militia is a party ( viz. the conflict “to which Lubanga’s militia was a party during the relevant times”). 1587 511. The prosecution suggests that even if Uganda can be said to have

1582 ICC-01/04-01/06-2778-Red, para. 126. 1583 ICC-01/04-01/06-2778-Red, para. 126. 1584 ICC-01/04-01/06-2748-Red, paras 22 – 24. 1585 ICC-01/04-01/06-2748-Red, para. 30 and T-356-ENG, page 43, line 20 to page 45, line 1 (prosecution oral closing submissions). 1586 ICC-01/04-01/06-2748-Red, paras 48-54 and T-356-ENG, page 45, line 12 to page 46, line 19 (prosecution oral closing submissions). 1587 ICC-01/04-01/06-2748-Red, para. 31. No. ICC-01/04-01/06 233/593 14 March 2012

been occupying certain areas of Ituri, such as Bunia airport, there is insufficient evidence that it occupied Bunia as a whole during the relevant timeframe. 1588 In addition, the prosecution submits that although there is some evidence of assistance provided by Rwanda and Uganda, applying the overall control test, as adopted by the ICC and ICTY (see below), it falls short of the threshold for indirect intervention. 1589 Equally, it is submitted that neither the presence of multi-national forces nor the direct intervention by Ugandan military forces were sufficient to constitute an international conflict, as the part played by these forces did not result in two states opposing each other. 1590 Finally, the prosecution argues that even if Ugandan involvement did create an international armed conflict, the UPC/FPLC was involved in a distinct, simultaneous non-international armed conflict. 1591 2. Defence submissions

512 The defence, as part of its analysis of armed conflicts that are noninternational in character, relies on the approach adopted by Pre-Trial Chamber I. 1592 Referring to the provisions of Article 8(2)(f) of the Statute, it submits the violence must reach a particular level of intensity. Armed conflicts not of an international character are conflicts that take place in the territory of a State when there is a protracted conflict between the government and organised armed groups, or

1588 ICC-01/04-01/06-2748-Red, paras 44 – 47 and T-356-ENG, page 46, line 20 to page 49, line 9 (prosecution oral closing submissions). 1589 ICC-01/04-01/06-2748-Red, paras 38 – 43. 1590 ICC-01/04-01/06-2748-Red, paras 36 – 37. 1591 ICC-01/04-01/06-2748-Red, paras 56 – 58. 1592 ICC-01/04-01/06-2773-Red-tENG, para. 27, referring to ICC-01/04-01/06-803-tEN, paras 227 – 234. No. ICC-01/04-01/06 234/593 14 March 2012

between armed groups. 1593 513. It is suggested by the defence that Additional Protocol II to the Geneva Conventions of 8 June 1977 operates to restrict this definition by stipulating that armed conflicts in this category “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.” 1594 514. The defence argues the prosecution has failed to demonstrate that the FNI, the FRPI, PUSIC, and the FAPC were “organized armed groups” under international humanitarian law. 1595 It is submitted it has not been proven that these organisations were under responsible command or exercised sufficient control over a part of the relevant territory, thereby enabling them to carry out sustained and concerted military operations and to implement the provisions of international humanitarian law. 1596 515. The approach of the Pre-Trial Chamber is referred to by the defence in this regard: Thus, in addition to the requirement that the violence must be sustained and have reached a certain degree of intensity, Article I.I of Protocol Additional II provides that armed groups must: i) be under responsible command implying some degree of organisation of the armed groups, capable of planning and carrying out sustained and concerted military operations and imposing discipline in the name of a de facto authority, including the

1593 ICC-01/04-01/06-2773-Red-tENG, paras 28 – 29. 1594 ICC-01/04-01/06-2773-Red-tENG, para. 30; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 1(1) (“Additional Protocol II”). 1595 ICC-01/04-01/06-2786-Red-tENG, para. 105. 1596 ICC-01/04-01/06-2786-Red-tENG, para. 105. No. ICC-01/04-01/06 235/593 14 March 2012

implementation of the Protocol; and ii) exercise such control over territory as 1597 to enable them to carry out sustained and concerted military operations. 516. The defence supports the conclusion of the Pre-Trial Chamber that the conflict in Ituri in the period between September 2002 and June 2003 was an armed conflict of an international character (it is suggested that the conflict only extended until late May 2003). The 1598 defence argues that whilst sporadic acts of violence occurred in Ituri after May 2003, these did not involve organised armed groups exercising territorial control and they should be treated as instances of internal disturbance and tension. It is suggested there was no conflict of any kind in Ituri between the end of May 2003 and August 2003. 1599 517. The defence emphasises the evidence of P-0041, who testified as to arms being provided to the FPLC by Rwanda, the involvement of Mr Mbusa Nyamwisi in the conflict in Ituri and the decision of the United Nations to maintain Ugandan troops in the DRC. The defence also 1600 highlights the testimony of a number of other witnesses: P-0017, concerning alleged training given by Rwanda to the FPLC and his reference to the Ugandan army as an occupying force; P-0055, as to 1601 the presence of the Ugandan army as an occupying force in Bunia and the provision of weapons and uniforms by Rwanda; 1602 P-0012, relating to Ugandan arms deliveries to PUSIC; 1603 and the expert Gérard Prunier (P-0360), on Uganda’s role as an occupying force in Ituri, the involvement of the Kinshasa government in the conflict either directly or through the RCD-ML, and what he described as a “war by proxy

1597 ICC-01/04-01/06-2773-Red-tENG, para. 31, referring to ICC-01/04-01/06-803-tEN, para. 232. 1598 ICC-01/04-01/06-2773-Red-tENG, paras 689 - 693; ICC-01/04-01/06-2786-Red-tENG, para. 108. 1599 ICC-01/04-01/06-2773-Red-tENG, paras 694 – 699. 1600 ICC-01/04-01/06-2773-Red-tENG, paras 396 – 398. 1601 ICC-01/04-01/06-2773-Red-tENG, para. 440. 1602 ICC-01/04-01/06-2773-Red-tENG, paras 482 – 483. 1603 ICC-01/04-01/06-2773-Red-tENG, para. 559. No. ICC-01/04-01/06 236/593 14 March 2012

between the states of the DRC, Uganda, and Rwanda”. 1604 However, the defence observes that Mr Prunier (P-0360) stressed that the available information on the events in Ituri in 2002-2003 is not particularly reliable. In addition, the defence submits that some of the views expressed in this witness’s report are partial, although it accepts he is reliable on certain identified subjects. 1605 3. Victims submissions

518 The V01 group of legal representatives of victims contends it is undisputed that one or more armed conflicts occurred in Ituri between 1 September 2002 and 13 August 2003. 1606 The V01 group submits that the conflict cannot properly be considered as a situation of internal disturbance or tension, given the duration and intensity of the hostilities, the number of victims and the manner in which the forces were organised and armed. 1607 519. The V01 team argues that during the period between September 2002 and June 2003, an international armed conflict and a noninternational armed conflict existed simultaneously in the territory of Ituri. 1608 520. The V02 group of legal representatives of victims contends that an armed conflict, with a degree of intensity and involving the UPC, PUSIC and the FNI (among others), occurred in Ituri from September 2002 to August 2003. 1609 It argues the fight between the UPC and the

1604 ICC-01/04-01/06-2773-Red-tENG, paras 668 – 673. 1605 ICC-01/04-01/06-2773-Red-tENG, paras 664 – 667. 1606 ICC-01/04-01/06-2746-Red-tENG, para. 4. 1607 ICC-01/04-01/06-2746-Red-tENG, para. 4. 1608 ICC-01/04-01/06-2746-Red-tENG, para. 14, referring to ICC-01/04-01/06-803-tEN, para. 209. 1609 ICC-01/04-01/06-2747-Red-tENG, para. 75. No. ICC-01/04-01/06 237/593 14 March 2012

FNI over control of the gold-mining town of Mongbwalu, 1610 the UPC/FPLC military operations against the towns of Tchomia and Nizi and the village of Iga Barrière, as well as numerous other armed attacks, demonstrate the existence of an armed conflict. It advances by way of further evidence in this regard the Security Council’s Resolution 1493 (pursuant to Chapter VII of the United Nations 1611 Charter), and the latter’s decision to remain actively seized of the Ituri situation throughout the period of the charges. 521. The V02 team maintains that the armed conflict can be classified as international due to its intensity, duration and character. 1612 It is suggested the UPC/FPLC was an organised armed group within the meaning of Article 8(2)(f) of the Statute, as it was capable of carrying out large-scale military operations for a protracted period of time. 1613 It also relies on the testimony of several witnesses as to the highly structured nature of the UPC and its chain of command. 1614 522. The OPCV has not advanced submissions as to whether there was an armed conflict, arguing that the prosecution is better placed to address this issue. 1615 Similarly, it has not presented arguments as to the appropriate characterisation of the conflict. Instead, the OPCV stresses that Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute criminalise the same conduct regardless of the characterisation of the armed conflict. 1616 The V02 team advanced a similar submission. 1617

1610 ICC-01/04-01/06-2747-Red-tENG, para. 75. 1611 United Nations Security Council Resolution 1493, UN Doc. S/RES/1493, 28 July 2003, paras 26 – 27. 1612 ICC-01/04-01/06-2747-Red-tENG, para. 74. 1613 ICC-01/04-01/06-2747-Red-tENG, para. 78. 1614 ICC-01/04-01/06-2747-Red-tENG, paras 79 – 82. 1615 ICC-01/04-01/06-2744-Red-tENG, para. 15. 1616 ICC-01/04-01/06-2744-Red-tENG, para. 15. 1617 ICC-01/04-01/06-2747-Red-tENG, para. 72. No. ICC-01/04-01/06 238/593 14 March 2012

C. THE CHAMBERS’S CONCLUSIONS

1 The law

Characterisation of the armed conflict (international armed conflict vs. non-

international armed conflict)

523 In the Decision on the confirmation of charges, the Pre-Trial

Chamber, having considered the evidence as to Rwanda’s involvement

in the armed conflict, concluded there was insufficient evidence to

establish substantial grounds to believe that Rwanda played a role that

could be described as direct or indirect intervention in the armed

conflict in Ituri.

1618

524 In its final analysis, the Pre-Trial Chamber held:

On the evidence admitted for the purpose of the confirmation hearing, the Chamber considers that there is sufficient evidence to establish substantial grounds to believe that, as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri can be characterised as an armed conflict of an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan 1619 army.

[…] there are substantial grounds to believe that between 2 June and late December 2003, the armed conflict in Ituri involved, inter alia, the UPC/FPLC, PUSIC and the FNI; that the UPC and FNI fought over control of the gold-mining town of Mongbwalu; that various attacks were carried out by the FNI in Ituri during this period; that a political statement was signed in mid-August 2003 in Kinshasa by the main armed groups operating in Ituri calling on the transitional government to organise “[TRANSLATION] a meeting with us, current political and military actors on the ground, so as to nominate by consensus, new administrative officials for appointment;” that at the very beginning of November 2003, the UPC carried out a military operation against the town of Tchomia, which was then under PUSIC control; and, finally, that the UPC/FPLC armed forces controlled the towns of Iga 1620 Barrière and Nizi at the very least in December 2003.

1618 ICC-01/04-01/06-803-tEN, paras 221 – 226. 1619 ICC-01/04-01/06-803-tEN, para. 220. 1620 ICC-01/04-01/06-803-tEN, para. 236 (footnotes omitted).

No. ICC-01/04-01/06 239/593 14 March 2012

525 In determining that the relevant conflict was international between September 2002 and 2 June 2003 and non-international between 2 June 2003 and 13 August 2003, the Pre-Trial Chamber confirmed the charges against the accused on the basis of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, although the prosecution had only charged the accused with the conscription and enlistment of children under the age of fifteen years, and their use to participate actively in hostilities, within the context of a non-international armed conflict under Article 8(2)(e)(vii) of the Statute. 526. The prosecution 1621 and the defence 1622 applications for leave to appeal were refused by the Pre-Trial Chamber, which observed: [P]ursuant to Regulation 55 of the Regulations of the Court, the Trial Chamber may "change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused." Indeed, there is nothing to prevent the Prosecution or the Defence from requesting that the Trial Chamber reconsider the legal characterisation of the facts described in the charges against Thomas 1623 Lubanga Dyilo and as confirmed by the Chamber. 527. Following submissions from the parties after the transfer of the case to the Trial Chamber, the latter gave notice, in accordance with Regulation 55 of the Regulations of the Court, that the legal characterisation of the facts may be subject to change. The Chamber instructed the parties and participants to: […] prepare their cases on the basis that the Bench may decide that the first group of three charges encompass both international and internal armed 1624 conflicts. 528. Accordingly, the prosecution submitted as follows: 1621 ICC-01/04-01/06-806. 1622 ICC-01/04-01/06-807-Conf. 1623 ICC-01/04-01/06-915, para. 44. 1624 Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, 13 December 2007, ICC-01/04-01/06-1084, para. 49. No. ICC-01/04-01/06 240/593 14 March 2012

Consistent with the Trial Chamber’s decision of 13 December 2007 and the amended document containing the charges, the Prosecution will present the totality of its evidence relating to both international and non-international aspects of the conflict. The evidence will enable the Chamber to determine whether the Ugandan occupation of Ituri between the 1 st of September 2002 and early June 2003 transformed the character of the conflict into an 1625 international armed conflict. 529. In its ‘Order on the timetable for closing submissions’, the Chamber invited submissions on the nature of the armed conflict and the factors that should be borne in mind if the Chamber were to modify the legal characterisation of the charges for the period from early September 2002 to 2 June 2003. 1626 530. The parties and the participants have not challenged the procedure followed by the Chamber as regards a possible legal recharacterisation of the facts under Regulation 55 of the Regulations of the Court, although they addressed in their submissions whether it would be appropriate for any modification to occur. Definition of armed conflict

531 The relevant Elements of Crimes require that the alleged criminal conduct “took place in the context of and was associated with an […] armed conflict”. 1627 There is no definition of armed conflict in the Statute or in the Elements of Crimes. The introduction to the Elements of Crimes sets out that: The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict […] 532. As with the Rome Statute, neither the Geneva Conventions nor their

1625 T-107-ENG, page 22, lines 1-7; T-107-FRA, page 20, lines 16 – 19. 1626 ICC-01/04-01/06-2722, para. 4 (iii) and (iv). 1627 See Elements of Crimes, Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii), para. 4. No. ICC-01/04-01/06 241/593 14 March 2012

Additional Protocols explicitly define ‘armed conflict.’

1628

533 The definition of this concept has been considered by other

international tribunals and the Chamber has derived assistance from

the jurisprudence of the ICTY:

70 […] an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether 1629 or not actual combat takes place there.

Armed conflict not of an international character

534 As to the definition of an armed conflict not of an international

character, Article 8(2)(f) of the Statute provides:

Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities 1630 and organized armed groups or between such groups.

1628 Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 291; Héctor Olásolo, Ensayos sobre la Corte Penal Internacional (2009), pages 357 et seq. 1629 ICTY, Prosecutor v. Tadi ć , Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadi ć Interlocutory Appeal Decision”). 1630 Common Article 3 to the Geneva Conventions of 12 August 1949 provides: “In the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting parties, […]”; Article 1(1) of Additional Protocol II reads: “This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” Article 1(2) of Additional Protocol II provides as follows: “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of

No. ICC-01/04-01/06 242/593 14 March 2012

535 Relying on Additional Protocol II to the Geneva Conventions and the ICTY Tadić Interlocutory Appeal Decision cited above, Pre-Trial Chamber I determined that “the involvement of armed groups with some degree of organisation and the ability to plan and carry out sustained military operations would allow for the conflict to be characterised as an armed conflict not of an international character.” 1631 536. The Trial Chamber agrees with this approach, and notes that Article 8(2)(f) of the Statute only requires the existence of a “protracted” conflict between “organised armed groups”. It does not include the requirement in Additional Protocol II that the armed groups need to “exercise such control over a part of [the] territory as to enable them to carry out sustained and concerted military operations”. 1632 It is therefore unnecessary for the prosecution to establish that the relevant armed groups exercised control over part of the territory of the State. Furthermore, Article 8(2)(f) does not incorporate the 1633 requirement that the organised armed groups were “under responsible command”, as set out in Article 1(1) of Additional Protocol II. 1634 Instead, the “organized armed groups” must have a sufficient degree of organisation, in order to enable them to carry out protracted armed

a similar nature, as not being armed conflicts.” Whereas Common Article 2 is limited to international armed conflicts between signatories, Common Article 3 affords minimal protection to organised armed groups involved in any conflict not of an international character. See Gerhard Werle, Principles of International Criminal Law (2009), page 366 at marginal note 981; Andrew J. Carswell, “Classifying the conflict: a soldier’s dilemma”, 91 International Review of the Red Cross (2009), page 150; Gary D. Solis, The Law of Armed Conflict, (2010), page 157. 1631 ICC-01/04-01/06-803-tEN, para. 233. It is to be noted that the extract of the Pre-Trial Chamber’s reasoning relied upon by the defence in its submissions (see para. 515) does not appear to reflect the ultimate conclusion of the Pre-Trial Chamber, set out in para. 233 of the Decision on the confirmation of charges. 1632 Additional Protocol II, Article 1(1). 1633 Pre-Trial Chamber II came to the same conclusion in ICC-01/05-01/08-424, para. 236. 1634 This appears to be the approach adopted by Pre-Trial Chamber I, ICC-01/04-01/06-803-tEN, paras 232 - 233; Pre-Trial Chamber II adopted a different interpretation, ICC-01/05-01/08-424, para. 234. No. ICC-01/04-01/06 243/593 14 March 2012

violence. 1635 537. When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. 1636 None of these factors are individually determinative. The test, along with these criteria, should be applied flexibly when the Chamber is deciding whether a body was an organised armed group, given the limited requirement in Article 8(2)(f) of the Statute that the armed group was “organized”. 538. The intensity of the conflict is relevant for the purpose of determining whether an armed conflict that is not of an international character existed, 1637 because under Article 8(2)(f) the violence must be more than sporadic or isolated. The ICTY has held that the intensity of the conflict should be “used solely as a way to distinguish an armed

1635 ICC-01/04-01/06-803-tEN, para. 234. The inclusion of the additional requirements set out in Additional Protocol II that the armed groups are under responsible command and exercise control over a part of the territory appears to have been deliberately rejected by the drafters of the Rome Statute. See Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 502 at marginal note 351; William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute (2010), pages 204-205; Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), pages 120 – 121; International Committee of the Red Cross (“ICRC”), Concerns on Threshold for War Crimes Committed in Non-international Armed Conflicts as Contained in the Bureau Proposal in Document A/CONF.183/C.1/L.59 and Corr. 1, UN Doc. A/CONF.183/INF/11. 1636 ICTY, Prosecutor v. Limaj et al., Case No. IT-03-66-T, Trial Chamber, Judgment, 30 November 2005, para 90; ICTY, Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, Trial Chamber, Judgment, 3 April 2008, para. 60 ; ICTY, Prosecutor v. Boškoski, Case No. IT-04-82-T, Trial Chamber, Judgment, 10 July 2008, paras 199 – 203. 1637 The requirement set out in Article 8(2)(f) is also a jurisdictional requirement because if the necessary level of intensity is not reached, the alleged crimes do not fall within the jurisdiction of the Court; see ICC-01/05-01/08-424, para. 225. No. ICC-01/04-01/06 244/593 14 March 2012

conflict from banditry, unorganized and short-lived insurrections, or

terrorist activities, which are not subject to international humanitarian

law.”

1638

In order to assess the intensity of a potential conflict, the ICTY

has indicated a Chamber should take into account, inter alia , “the

seriousness of attacks and potential increase in armed clashes, their

spread over territory and over a period of time, the increase in the

number of government forces, the mobilisation and the distribution of

weapons among both parties to the conflict, as well as whether the

conflict has attracted the attention of the United Nations Security

Council, and, if so, whether any resolutions on the matter have been

passed.”

1639

The Chamber is of the view that this is an appropriate

approach.

The distinction between international and non-international armed conflicts

539 It is to be observed at the outset that some academics,

1640

practitioners,

1641

and a line of jurisprudence from the ad hoc tribunals

1642

1638 ICTY, Prosecutor v. ð or ñ evi ć , Case No. IT-05-87/1-T, Trial Chamber, Public Judgment with Confidential Annex – Volume I of II, 23 February 2011, para. 1522. 1639 ć ICTY, Prosecutor v. Mrkši et al., Case No. IT-95-13/1-T, Trial Chamber, Judgment, 27 September 2007, para. 407. 1640 James Stewart, “Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict”, 85 International Review of the Red Cross (2003); Dietrich Schindler, “The Different Types of Armed conflicts according to the Geneva Conventions and Protocols”, 163 Collected Courses of the Hague Academy of International Law (1979-II); W. Michael Reisman and James Silk, “Which Law Applies to the Afghan Conflict?”, 82(3) American Journal of International Law (1988); Hans Pieter Gasser, “Internationalized Noninternational armed conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon”, 33 Auckland University Law Review (1983), page 479; W. Michael Reisman, “Application of Humanitarian Law in non-international armed conflicts: Remarks by W. Michael Reisman”, 85 Proceedings of the Annual Meeting (American Society of International Law) (1991); Robert Cryer, An Introduction to International Criminal Law and Procedure (2010), page 586. 1641 In 1947, the ICRC proposed that a paragraph be added to Article 2 of the draft Geneva Conventions. This paragraph stated that “[i]n all cases of armed conflict which are not of an international character, especially cases of civil war, colonial conflicts, or wars of religion, which may occur in the territory of one or more of the High Contracting Parties, the implementing of the principles of the present Convention shall be obligatory on each of the adversaries.” Although this provision was not adopted, it demonstrates that concerns about the distinction between international and non-international armed conflicts existed early on: see Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary - Volume III: Geneva Convention relative to the Treatment of Prisoners of War (2002), page 31. More recently, a study undertaken under the auspices of the ICRC makes reference to a large body of customary rules, the majority of which are equally applicable

No. ICC-01/04-01/06 245/593 14 March 2012

have questioned the usefulness of the distinction between

international and non-international armed conflicts, particularly in

light of their changing nature. In the view of the Chamber, for the

purposes of the present trial the international/non-international

distinction is not only an established part of the international law of

armed conflict, but more importantly it is enshrined in the relevant

statutory provisions of the Rome Statute framework, which under

Article 21 must be applied. The Chamber does not have the power to

reformulate the Court’s statutory framework.

540 The Appeals Chamber of the ICTY has recognised that, depending

on the particular actors involved, conflicts taking place on a single

territory at the same time may be of a different nature.

1643

The

Chamber endorses this view and accepts that international and non-

international conflicts may coexist.

1644

International armed conflict

541 The Rome Statute framework does not define an “international

regardless of the classification of the relevant armed conflict: see Jean ‐ Marie Henckaerts, “Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict”, 87 International Review of the Red Cross (2005), pages 198 – 212. 1642 Tadi ć Interlocutory Appeal Decision, paras 96 – 98 and para. 119. The Chamber addressed the emerging issue of a blurred legal differentiation between international and non-international armed conflicts. The Chamber indicated that “it is only natural that the aforementioned dichotomy should gradually lose its weight.” 1643 Tadi ć Interlocutory Appeal Decision, paras 72-77; Otto Kimminich, Schutz der Menschen in bewaffneten Konflikten, Zur Fortentwicklung des humanitären Völkerrechts (1979), page 126 et seq; Gerhard Werle, Principles of International Criminal Law (2009), page 372 at marginal note 997. 1644 ICTY, Prosecutor v. Tadi ć , Case No. IT-94-1-A, Appeals Chamber, Appeals Judgment, 15 July 1999 (“Tadi ć Appeal Judgment”), para. 84. The International Court of Justice (“ICJ”) also acknowledged the principle of coexistence in the Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, para. 219: “The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts. Because the minimum rules applicable to international and to noninternational conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for the one or for the other category of conflict”.

No. ICC-01/04-01/06 246/593 14 March 2012

armed conflict”. Relying on Common Article 2 of the Geneva

Conventions, the International Committee of the Red Cross (“ICRC”)

Commentary thereto, and the ICTY Tadić Appeals Judgment, Pre-Trial

Chamber I determined that an armed conflict is international:

if it takes place between two or more States; this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance. In addition an internal armed conflict that breaks out on the territory of a State may become international – or depending upon the circumstances, be international in character alongside an internal armed conflict – if (i) another State intervenes in that conflict through its troops (direct intervention), or if (ii) some of the participants in the internal armed conflict act on behalf of that other State (indirect 1645 intervention).

It is widely accepted that when a State enters into conflict with a non-

governmental armed group located in the territory of a neighbouring

State and the armed group is acting under the control of its own State,

“the fighting falls within the definition of an international armed

conflict between the two States”.

1646

However, if the armed group is

not acting on behalf of a government, in the absence of two States

opposing each other, there is no international armed conflict.

1647

Pre-

Trial Chamber II, when considering this issue, concluded that “an

international armed conflict exists in case of armed hostilities between

States through their respective armed forces or other actors acting on

1645 ICC-01/04-01/06-803-tEN, para. 209. See also ICC-01/05-01/08-424, paras 220-223. See Tadi ć Interlocutory Appeal Decision, para. 70 (cited above). See also ICTY, Prosecutor v. Delali ć et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, para. 183 and ICTY, Prosecutor v. Br ñ anin, Case No. IT-99-36-T, Trial Chamber, Judgment, 1 September 2004, para. 122. 1646 Sylvain Vité, “Typology of armed conflicts in international humanitarian law : legal concepts and actual situations”, 91 International Review of the Red Cross (2009), pages 70 – 71 and 90; see also Tadi ć Appeal Judgment, paras 84, 90, 131, and 137 – 145; Gary D. Solis, The Law of Armed Conflict (2010), pages 154 – 155; Jelena Peji ć , “Status of Armed Conflicts” in Elizabeth Wilmshurst (ed.) Perspectives on the ICRC Study on Customary International Humanitarian Law (2007), pages 92 – 93. 1647 Jean Pictet (ed.), The Geneva Conventions of 12 August 1949: Commentary – Volume I Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2002), page 32 (“Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2 […]”); Sylvain Vité, “Typology of armed conflicts in international humanitarian law: legal concepts and actual situations”, 91 International Review of the Red Cross (2009), pages 70 – 71; Jelena Peji ć , “Status of Armed Conflicts”, in Elizabeth Wilmshurst (ed.), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007), pages 92 – 93.

No. ICC-01/04-01/06 247/593 14 March 2012

behalf of the State.” 1648 As regards the necessary degree of control of

another State over an armed group acting on its behalf, the Trial

Chamber has concluded that the “overall control” test is the correct

approach. This will determine whether an armed conflict not of an

international character may have become internationalised due to the

involvement of armed forces acting on behalf of another State. A State

may exercise the required degree of control when it “ has a role in

organising, coordinating or planning the military actions of the military

group, in addition to financing, training and equipping or providing

operational support to that group.” 1649 Pre-Trial Chamber I adopted

this approach. 1650

542 Moreover, footnote 34 of the Elements of Crimes stipulates that the

term “international armed conflict” includes a “military occupation”,

for all of the crimes coming within Article 8(2)(a) of the Statute. Pre-

Trial Chamber I held that a “territory is considered to be occupied

when it is actually placed under the authority of the hostile army, and

the occupation extends only to the territory where such authority has

been established and can be exercised.” 1651 The Chamber agrees with

1648 ICC-01/05-01/08-424, para. 223. 1649 Tadi ć Appeal Judgment, para. 137 (emphasis in the original); see also: “[C]ontrol by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training).” (ibid., para. 137, emphasis in the original). See also, ICTY, Prosecutor v. Aleksovski, Case No. IT-95- 14/1-A, Appeals Chamber, Appeals Judgment, 24 March 2000, paras 131 - 134; ICTY, Prosecutor v. Delali ć et al., Case No. IT-96-21-A, Appeals Chamber, Appeals Judgment, 20 February 2001, para. 26; ICTY, Prosecutor v. Kordi ć and Č erkez, Case No. IT-95-14/2-A, Appeals Chamber, Appeals Judgment, 17 December 2004, paras 306 – 307. 1650 ICC-01/04-01/06-803-tEN, para. 211. 1651 ICC-01/04-01/06-803-tEN, para. 212, relying on ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, 19 December 2005, I.C.J. Reports 2005 and Articles 42 and 43 of Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on land, 18 October 1907. Article 42 reads: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Article 43 reads: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” See also ICC-01/04-01/06-803-tEN, para. 205.

No. ICC-01/04-01/06 248/593 14 March 2012

this definition. The Chamber notes the reference in Article 8(2)(b) to “the established framework of international law”, which applies equally to the crimes set out in Article 8(2)(b). The crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as set out in Article 8(2)(b)(xxvi) of the Statute falls within “the established framework of international law” as one of the "other serious violations of the laws and customs applicable in international armed conflict". The prohibition is based on Article 77(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949. 1652 This Protocol applies to armed conflicts between States, as indicated by Common Article 2 of the Geneva Conventions. 1653 It follows that for the purposes of Article 8(2)(b)(xxvi) of the Statute, “international armed conflict” includes a military occupation. 2. The facts

543 The evidence in the case demonstrates beyond reasonable doubt that during the entirety of the period covered by the charges there were a number of simultaneous armed conflicts in Ituri and in surrounding areas within the DRC, involving various different groups. Some of these armed conflicts, which included the UPC, involved protracted violence. The military wing of the UPC, known as the

1652 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (“Additional Protocol I”); see also Articles 38(2) and (3) of the UN Convention on the Rights of the Child; Knut Dörmann, Elements of War crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), pages 376-377; Roy S. Lee (eds), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), page 205; William A. Schabas, The International Criminal Court – A Commentary on the Rome Statute (2010), page 252; Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), pages 467-468. See paras 600-628 of this Judgment. 1653 Article 1(3) of Additional Protocol I reads: “This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.” No. ICC-01/04-01/06 249/593 14 March 2012

FPLC, was established by September 2002. 1654 As already highlighted

in the Chapter on the Background to the Conflict in Ituri (see above),

from the beginning of September 2002 at the latest, the UPC/FPLC as a

political and military organisation was in control of Bunia. 1655 The

takeover of Bunia by the UPC/FPLC marked the turning point in the

Ituri conflict. From then onwards, the “rapidity of the alliance 1656

switches”, the “multi-directionality” of the fighting and the nature of

the violence against the civilian population reached unprecedented

extremes. 1657 The UPC/FPLC was organised with a leadership

structure 1658 that was capable of training troops 1659 as well as imposing

discipline, 1660 and it carried out sustained military operations in Ituri

during the relevant timeframe. 1661

544 In addition to the FPLC, there were a number of significant political

and military groups in operation in Ituri in 2002. The RCD-ML, whose

army was the APC, was defeated in August 2002 in Bunia and

thereafter it supported the Lendu militias and engaged in fighting

against the UPC/FPLC. 1662 As set out above, the Lendu formed a group

called the FNI and the Ngiti created the FRPI. Other significant militias

1654 See T-188-CONF-ENG, page 91, lines 20 – 21, page 94, lines 3 – 11 and T-189-CONF-ENG, page 4, line 10 to page 5, line 16 (P-0016). See discussion of the credibility of P-0016 in Section X(B)(2). 1655 T-179-Red-ENG, page 76, lines 5 – 17 (P-0014); T-342-ENG, page 5, line 22 to page 6, line 1 and page 9, lines 3 – 5 and T-343-Red-ENG, page 3, lines 16 – 24 (D-0019); T-348-ENG, page 44, lines 10 – 13 (D-0007); T-346-ENG, page 74, lines 6 – 12 (D-0011). See discussion of the credibility of D- 0011 and D-0019 in Section X(B)(2). 1656 The Ituri Conflict: A background study, prepared for the ICC by P-0360, EVD-OTP-00403 at DRC-OTP-0203-0106. Overall, the Chamber has relied on parts of the evidence of Mr Prunier which are not challenged by the defence (see para. 517). Where the Chamber relied on other parts of his evidence, it is satisfied that they are reliable or consistent with other evidence in the case. See also discussion of Mr Prunier’s credibility in the “Factual overview” section above, paras 68-69. 1657 EVD-OTP-00403 at DRC-OTP-0203-0106 – DRC-OTP-0203-0108. 1658 T-154-Red-ENG, page 21, lines 7 – 20 and page 23, line 24 to page 24, line 19 (P-0017). See discussion of the credibility of P-0017 in Section X(B)(2). 1659 See Section X(B) containing factual findings on conscription, enlistment and use. 1660 See Section X(B) containing factual findings on conscription, enlistment and use. 1661 See paras 547 and 550. 1662 Special Report on the events in Ituri, January 2002 – December 2003, S/2004/573, EVD-OTP- 00623 at DRC-0074-0470.

No. ICC-01/04-01/06 250/593 14 March 2012

at the time included, inter alia , PUSIC, headed by Chief Kahwa Panga

Mandro after his departure from the UPC/FPLC near the end of 2002,

and Jérôme Kakwavu’s FAPC. 1663

545 On the basis of the evidence presented in this case, it has been

established that the APC, the armed wing of the RCD-ML, 1664 was an

organised armed group capable of carrying out prolonged hostilities

within the period of the charges. During this time, the RCD- 1665

ML/APC also supported various Lendu armed militias, including the

FRPI, in combat against the UPC/FPLC. 1666

546 From March 2003, at the latest, the FRPI was an organised armed

group as it had a sufficient leadership and command structure,

participated in the Ituri Pacification Commission, carried out basic

training of soldiers and engaged in prolonged hostilities, including the

battles in Bogoro and Bunia (between March and May 2003). 1667

547 Extensive evidence has been given during the trial concerning the

UPC/FPLC’s involvement in the fighting involving rebel militias

(namely the RCD-ML and Lendu militias, including the FRPI) that

took place in Ituri between September 2002 and August 2003. 1668 The

1663 EVD-OTP-00623 at DRC-OTP-0074-0468 – 0469 (D-0019); T-340-ENG, page 48, line 21 to page 51, line 15 (D-0037); T-347-Red-ENG, page 16, lines 16 – 20 (D-0011) and T-162-Red-ENG, page 61, lines 9 – 11 (P-0002). See discussion of the credibility of P-0002 and D-0037 in Section X(B)(2). 1664 EVD-OTP-00405, page 16 and T-168-Red-ENG, page 34, line 2 to page 35, line 2 (P-0012). “RCD-ML/APC” is used herein when referring to both the APC and the RCD-ML. See discussion of the credibility of P-0012 in Section X(B)(2). 1665 The RCD-ML and the APC had an organised leadership and command structure and participated in the Inter-Congolese negotiations, see EVD-OTP-00623 at DRC-OTP-0074-0429 to DRC-OTP-0074- 0430, DRC-OTP-0074-0451 and DRC-OTP-0074-0470; T-188-Red2-ENG, page 91, line 22 to page 92, line 11 (P-0016). 1666 EVD-OTP-00623 at DRC-OTP-0074-070 and DRC-OTP-0074-0480 - 0482; T-348-ENG, page 42, lines 4 – 13 (D-0007); T-125-Red-ENG, page 81, lines 12 – 14 and T-126-Red-ENG, page 16, lines 14 – 23 (P-0041). See discussion of the credibility of P-0041 in Section X(B)(2). 1667 EVD-OTP-00623 at DRC-OTP-0074-0434 and DRC-OTP-0074-0470; T-162-Red-ENG, page 78, lines 7 – 22 and T-164-Red-ENG , page 13, lines 6 – 16 (P-0002); EVD-OTP-0737 at DRC-OTP-0152- 0263; T-156-ENG, page 74, lines 16 – 22 (P-0360). 1668 EVD-OTP-00623 at DRC-OTP-0074-0436 to DRC-OTP-0074-0437; T-182-CONF-ENG, page 8, line 15 to page 9, line 11 (P-0014). See discussion of the credibility of P-0014 in Section X(B)(2).

No. ICC-01/04-01/06 251/593 14 March 2012

Chamber heard evidence that the UPC/FPLC, assisted by the UPDF,

fought the RCD-ML in Bunia in August 2002. In November 2002,

1669

the UPC/FPLC fought Lendu combatants and the APC in

Mongbwalu.

1670

The UPC/FPLC fought the APC and Lendu militias in

Bogoro (March 2003),

1671

and it was in conflict with Lendu militias in

Lipri, Bambu and Kobu (in February and March 2003), Mandro

1672

(March 2003),

1673

and Mahagi,

1674

among other areas. In early March

2003, fighting between the UPC/FPLC and the UPDF and several

Lendu militias, including the FRPI, ended in the withdrawal of the

UPC/FPLC from Bunia.

1675

However, in May 2003 the UPC/FPLC

army returned to Bunia where it clashed with Lendu militias, again

including the FRPI, resulting in a number of casualties.

1676

548 Although Ugandan forces withdrew from Bunia in May 2003, the

evidence indicates that there was no “peaceful settlement” prior to 13

August 2003. Documentary evidence establishes that in June 2003, the

Hema village of Katoto was attacked twice by Lendu militia members,

1669 See paras 90 and 1084-1114. However, several defence witnesses denied that UPC/FPLC soldiers were responsible for “chasing” the RCD-ML out of Bunia . 1670 EVD-OTP-00623 at DRC-OTP-0074-0451 to DRC-OTP-0074-0452; T-154-Red2-ENG, page 22, line 15 to page 23, line 14, page 25, lines 15 – 16 and page 79, lines 19 – 25; T-157-Red-ENG, page 71, lines 14 to page 73, line 20 (P-0017); T-174-Red2-ENG, page 50, line 9 to page 51, line 24 (P-0055); EVD-OTP-00623 at DRC-OTP-0074-0451 to DRC-OTP-0074-0452 . See discussion of the credibility of P-0055 in Section X(B)(2). 1671 EVD-OTP-00623 at DRC-OTP-0074-0443 to DRC-OTP-0074-0444. 1672 EVD-OTP-00623 at DRC-OTP-0074-0444 and DRC-OTP-0074-00445; T-157-Red-ENG, page 90, lines 5 – 11 and page 96, lines 3 to page 97, line 22 (P-0017); EVD-OTP-00491, page 25, line 12 to page 27, lines 10 – 25 (transcript of testimony of P-0046 during the hearing on the Confirmation of the Charges). See discussion of the credibility of P-0046 in Section X(B)(2). 1673 EVD-OTP-00623 at DRC-OTP-0074-0445; T-190-Red-ENG, page 58, line 25 to page 59, line 6 (P-0016). 1674 T-348-ENG, page 42, lines 2 – 13 (D-0007) and EVD-OTP-00623 at DRC-OTP-0074-0433, DRC- OTP-0074-0437, and DRC-OTP-0074-0479 – 0480. See discussion of the credibility of D-0007 in Section X(B)(2). 1675 EVD-OTP-00623 at DRC-0074-0445 to DRC-0074-0446; T-348-ENG, page 41, lines 14 - 18 and EVD-OTP-00403 at DRC-OTP-0203-0109 to DRC-OTP-0203-0110; T-178-Red2-ENG, page 18, line 13 to page 19, line 1 (P-0055) and T-160-Red2-ENG, page 70, lines 17 - 21 (testimony of P-0002). 1676 EVD-OTP-00623 at DRC-OTP-0074-0446 to DRC-OTP-0074-0447; T-164-Red2-ENG, page 12 lines 3 – 20 and T-164-Red2-FRA, page 12, lines 12 – 15 (testimony of P-0002); T-168-CONF-ENG, page 74, line 25 to page 75, line 8 and page 76, lines 23 – 25 (P-0012).

No. ICC-01/04-01/06 252/593 14 March 2012

resulting in many casualties. 1677 In addition, Lendu militia and APC soldiers attacked Tchomia in July 2003, killing up to eleven civilians. 1678 Scores more civilians were killed in July 2003, when Lendu combatants carried out attacks on Fataki. 1679 During the summer of 2003, the UN Security Council authorised the deployment to Ituri of a European Union led Interim Emergency Multinational Force (Operation Artemis) in order to restore security in the area, and on 28 July 2003 MONUC was given a Chapter VII mandate authorising it to take the necessary measures to protect civilians. 1680 Despite these and other efforts, the evidence clearly indicates that during the period between the end of May 2003 and 13 August 2003, a peaceful settlement had not been reached in Ituri. 549. Although the defence submits that between September 2002 and late May 2003 there was an international armed conflict taking place in Ituri, it is argued that there is insufficient evidence to establish the existence of any armed conflict between late May 2003 and 13 August 2003. 1681 550. However, the Chamber finds that the evidence on this issue leaves no reasonable doubt that the UPC/FPLC, as an armed force or group, participated in protracted hostilities and was associated with an armed conflict throughout the relevant timeframe of the charges. 551. In situations where conflicts of a different nature take place on a

1677 EVD-OTP-00623 at DRC-OTP-0074-0449. 1678 EVD-OTP-00623 at DRC-OTP-0074-0448 – 0449 and DRC-OTP-00482. 1679 The FAPC were also reportedly involved in one of the attacks. EVD-OTP-00623 at DRC-OTP- 0074-0449 - DRC-OTP-0074-0450 and Fourteenth report of the Secretary General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00625 at DRC- OTP-0074-0215 to DRC-OTP-0074-0216. 1680 EVD-OTP-00623 at DRC-OTP-0074-0482 and EVD-OTP-00625 at DRC-OTP-0074-0215 to DRC-OTP-0074-0217. 1681 ICC-01/04-01/06-2773-Red-tENG, paras 668-674 and 681-699. No. ICC-01/04-01/06 253/593 14 March 2012

single territory, it is necessary to consider whether the criminal acts under consideration were committed as part of an international or a non-international conflict. 1682 In these circumstances, the question arises as to whether the military involvement by one or more of the DRC’s neighbours on its territory internationalised the relevant conflict or conflicts. 552. In accordance with the test set out above, to determine whether the UPC/FPLC was a party to an international armed conflict in Ituri, the relevant inquiry is whether between September 2002 and 13 August 2003, the UPC/FPLC, the APC and the FRPI were used as agents or “proxies” for fighting between two or more states (namely Uganda, Rwanda, or the DRC). 553. As to the role of the DRC, there is some evidence that Kinshasa sent trainers and weapons to the APC. 1683 The UN Special Report on the events in Ituri contains allegations that in the last three months of 2002, “some military supplies may have also been sent directly to the Lendu militia” in Rethy, within the Djugu territory. 1684 However, the limited support provided by the Congolese government to the RCD- ML and potentially to Lendu militias during this time is insufficient to establish the DRC government’s overall control over these armed groups. Critically, there is no sustainable suggestion that the DRC had a role in organising, coordinating or planning the military actions of the UPC/FPLC during the period relevant to the charges. 554. Regarding the role of Rwanda, there is ample evidence it provided

1682 See Gerhard Werle, Principles of International Criminal Law (2009), page 372 at marginal note 998. 1683 T-156-ENG, page 67, line 6 to page 68, line 14 and T-156-FRA page 64, lines 21 – 25 (P-0360) and EVD-OTP-00623 at DRC-OTP-0074-00435. 1684 EVD-OTP-00623 at DRC-OTP-0074-00435. No. ICC-01/04-01/06 254/593 14 March 2012

support to the UPC/FPLC. There is evidence that Rwanda supplied

uniforms and weapons to the UPC/FPLC, including dropping 1685 1686

weapons by air to Mandro, 1687 and it provided training to UPC/FPLC

soldiers, in the DRC and in Rwanda. 1688 P-0017, a former UPC/FPLC

member, 1689 testified that he went to Rwanda with a group of soldiers

to receive heavy-weapons training in late 2002. Around January 1690

2003, the UPC/FPLC reportedly signed an agreement with the RCD-G,

which was supported by Kigali. 1691 Documentary evidence establishes

that after the UPDF expelled the UPC/FPLC from Bunia in March 2003,

Thomas Lubanga and others were evacuated to Rwanda. 1692

555 P-0055 testified that he had been told, with regard to the

UPC/FPLC’s objective of taking military control of the town of

Mongbwalu, “they had received orders from Rwanda” and Rwanda

had indicated “if they took the town of Mongbwalu it would be a good

thing and they were going to receive everything they needed. And so

the objective of taking Mongbwalu was to obey an order issued by

Rwanda, and in order to receive assistance from Rwanda as a

1685 T-181-Red2-ENG, page 88, line 21 to page 89, line 2 (P-0014). P-0055 testified that Rwanda supplied uniforms to the UPC/FPLC whilst Uganda supplied boots: T-175-Red2-ENG, page 64, line 25 to page to page 65, line 15 (testimony of P-0055). 1686 T-175-Red2-ENG, page 66, lines 6 – 19 (P-0055) and T-181-Red2-ENG, page 88, line 21 to page 89, line 4 (P-0014). 1687 EVD-OTP-00623 at DRC-OTP-0074-0435; T-181-Red2-ENG, page 90, lines 3 – 19 (P-0014). P- 0012 testified that Rwanda supplied Mr Lubanga with weapons and Mr Lubanga then passed some weapons to the Lendu: T-168-Red2-ENG, page 60, line 10 to page 61, line 11 and page 64, line 7 to page 65, line 15. 1688 Thirteenth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00624 at DRC-OTP-0131-0047; EVD-OTP-00623 at DRC-OTP-0074-0434; T-181-Red2-ENG, page 90, lines 16– 23; T-182-CONF-ENG, page 13, lines 11 – 16; T-184-Red-ENG, page 26, lines 1 – 5 (P-0014) and T-209-ENG, page 77, line 4 to page 78, line 17 (P-0116). See discussion of the credibility of P-0116 in paras 1031 and 1036. 1689 T-154- Red-ENG , page 17, line 11 to page 18, line 9. 1690 T-154-Red-ENG, page 40, lines 4 – 12 and page 60, line 7 to page 67, line 2. 1691 T-168-Red-ENG, page 64, lines 13 – 18 (P-0002). See also interview with Chief Kahwa Panga Mandro, video EVD-OTP-00412 at 00:12:45 (“Everyone is aware of this. This is why Mr. Lubanga, when he realised that he was losing, created alliances with RCD-Goma. And you know that RCD- Goma is Rwanda”) introduced during testimony of P-0002, T-162-Red-ENG, page 55, lines 14 – 16. 1692 EVD-OTP-00623 at DRC-OTP-0074-0434 – DRC-OTP-0074-0435.

No. ICC-01/04-01/06 255/593 14 March 2012

result.” 1693 As discussed below, there is no corroboration of this statement.

556 Furthermore, there is no evidence that Rwanda supported either the APC or the FRPI. Therefore, it is unnecessary for the Chamber to consider this issue further. 557. There is considerable material regarding the presence of Ugandan troops in Ituri between September 2002 and 13 August 2003, although the overall number involved was decreasing during the period covered by the charges. For instance, Gérard Prunier (P-0360) indicated that although the UPDF once deployed 13,000 troops in the DRC, at the time the all-inclusive peace agreement was signed on 17 December 2002, 10,000 had been withdrawn. 1694 Similarly, reports from the UN set out that between 10 September 2002 and 18 October 2002, 2,287 UPDF troops withdrew from Ituri, leaving a reinforced battalion in Bunia and troops patrolling the Ruwenzori Mountains. 1695 Notwithstanding that reduction, there was, on occasion, substantial activity on the part of Ugandan forces: for instance, the UPDF was in occupation of areas in Bunia, such as the airport, for considerable periods of time (in the latter case, from 1 September 2002 until 6 May 2003). 1696 558. Additionally, there is evidence of Ugandan support for UPC/FPLC

1693 T-178-CONF-ENG, page 10, lines 8 – 18. See discussion of the credibility of P-0055 in Section X(B)(2). 1694 The influence of Rwanda and Uganda inside the DRC in general and the Ituri in particular during the “semi post war period”, EVD-OTP-00405 at DRC-OTP-0203-0017- 0018. 1695 Twelfth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo, EVD-OTP-00620 at DRC-OTP-0131-0390. 1696 T-162-Red-ENG, page 53, lines 11 – 15; T-164-Red2, page 12, lines 3 – 20 (P-0002); T-154-Red- ENG, page 67, line 23 to page 68, line 13 (P-0017); T-174-Red2, page 25, lines 17 – 19 (P-0055). No. ICC-01/04-01/06 256/593 14 March 2012

troops in the form of training and providing weapons. 1697

559 Documentary evidence demonstrates the FRPI was supported by individual UPDF commanders, and the FRPI (and other militias) assisted in removing the UPC/FPLC from Bunia in March 2003. 1698

560 Gérard Prunier (P-360) testified that the DRC, Uganda, and Rwanda fought through “proxies,” and at one point in his evidence, he 1699 asserted that a proxy war between Kinshasa and Uganda continued until the final departure of Ugandan troops (which he suggested was in 2004). 1700 However, as discussed above, the evidence in this case concerning the DRC’s role in the relevant conflict has essentially been limited to the way it provided support to the APC. As to Uganda’s 1701 involvement, according to Gérard Prunier (P-0360), the UPDF initially had supported “the Hemas against the Lendu” before switching sides and lending assistance to the Lendu. 1702 As to Uganda’s control over the FRPI and other militias, Mr Prunier (P-0360) testified that the Ugandans were “unable to control their agents on the ground”. 1703 In his report to the Chamber, Mr Prunier (P-0360) asserted “[a]fter August 2002 the UPDF obviously lost control of its proxies”. 1704 He also suggested that at some point Kampala may not even have had control of its own forces in the DRC. 1705

561 During the period relevant to the charges (September 2002 to 13 1697 EVD-OTP-00623 at DRC-OTP-0074-0433 – DRC-OTP-0074-0434 (stating that Uganda was involved in the creation of the UPC/FPLC and helped to train and arm UPC/FPLC rebels but later turned against the UPC/FPLC and instead provided support to the FNI/FRPI). 1698 EVD-OTP-00623 at DRC-0074-0434 and EVD-OTP-00403 at DRC-OTP-0203-0109 to DRC- OTP-0203-0110. 1699 T-156-ENG, page 52, lines 11 – 16. 1700 T-156-ENG, page 67, line 6 to page 68, line 21. 1701 T-156-ENG, page 67, line 6 to page 68, line 14. 1702 T-156-ENG, page 74, lines 2 – 9. 1703 T-156-ENG, page 75, line 17. 1704 EVD-OTP-00403 at DRC-OTP-0203-0115. 1705 T-157-Red-ENG, page 42, line 11 to page 43, line 7.

No. ICC-01/04-01/06 257/593 14 March 2012

August 2003), the UPC/FPLC was primarily engaged in conflict with the RCD-ML/APC (which received support from the DRC) and Lendu militias, including the FRPI (which were sometimes assisted by individual UPDF commanders), 1706 though the UPC/FPLC also fought against Ugandan forces, in particular in Bunia in March 2003. The Chamber has not heard any evidence that Uganda had a role in organising, coordinating or planning UPC/FPLC military operations. With regard to Rwanda, although P-0055 gave evidence that the UPC/FPLC wanted to take the town of Mongbwalu because it had been directed to do so by Rwanda, 1707 this statement has not been corroborated by other evidence and it is insufficient, taken alone or together with the other evidence above, to prove that Rwanda had overall control of the UPC/FPLC and the latter acted as its agent or proxy. Thus, there is insufficient evidence to establish (even on a prima facie basis) that either Rwanda or Uganda exercised overall control over the UPC/FPLC. 562. There is no evidence of direct intervention by Rwanda in Ituri during this time. Therefore, it is unnecessary for the Chamber to consider this issue further.

563 Similarly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned ( viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC was a party was not “a difference arising between two states” but rather protracted 1708 violence carried out by multiple non-state armed groups, it remained a

1706 EVD-OTP-00623 at DRC-OTP-0074-0434. 1707 T-178-Red2-ENG, page 10, lines 8 – 18. 1708 See para.541. No. ICC-01/04-01/06 258/593 14 March 2012

non-international conflict notwithstanding any concurrent international armed conflict between Uganda and the DRC.

564 As discussed above, there is evidence that during the relevant timeframe the UPDF occupied certain areas of Bunia, such as the airport. However, it is unnecessary to analyse whether territory came under the authority of the Ugandan forces, thereby amounting to a military occupation, because the relevant conflict or conflicts concern the UPC and other armed groups. 1709 565. Focussing solely on the parties and the conflict relevant to the charges in this case, the Ugandan military occupation of Bunia airport does not change the legal nature of the conflict between the UPC/FPLC, RCD-ML/APC and FRPI rebel groups since this conflict, as analysed above, did not result in two states opposing each other, whether directly or indirectly, during the time period relevant to the charges. In any event, the existence of a possible conflict that was “international in character” between the DRC and Uganda does not affect the legal characterisation of the UPC/FPLC’s concurrent noninternational armed conflict with the APC and FRPI militias, which formed part of the internal armed conflict between the rebel groups. 566. For these reasons and applying Regulation 55 of the Regulations of the Court, the Chamber changes the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was noninternational in character. 567. The Trial Chamber therefore finds that the armed conflict between the UPC/FPLC and other armed groups between September 2002 and

1709 See paras 543-544. No. ICC-01/04-01/06 259/593 14 March 2012

X. CONSCRIPTION AND ENLISTMENT OF CHILDREN UNDER THE AGE OF 15 OR USING THEM TO PARTICIPATE ACTIVELY IN HOSTILITIES (ARTICLE 8(2)(e)(vii) OF THE STATUTE)

A. THE LAW

568 Given the Chamber’s conclusion that the UPC was engaged in a non-international armed conflict throughout the period of the charges, it is unnecessary to interpret or discuss Article 1710 8(2)(b)(xxvi). Subject to one significant difference in wording (conscription or enlistment of children into “national armed forces” (Article 8(2)(b)(xxvi) of the Statute) as opposed to “armed forces or groups” (Article 8(2)(e)(vii) of the Statute), the elements of these two crimes are similar. 1711 Therefore, the extent to which the crimes of conscription, enlistment and use of children below the age of 15 under Article 8(2)(b)(xxvi) have previously been the subject of interpretation and consideration will be relevant to the Chamber’s analysis of Article 8(2)(e)(vii). 569. Article 8(2)(e)(vii) of the Statute, the first treaty to include these offences as war crimes, 1712 provides:

2 […]

1710 See paras 543-567. 1711 See wording of the respective elements of crime for Article 8(2)(b)(xxvi) and 8(2)(e)(vii). See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 471; Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 206; William Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 252. 1712 See also Statute of the Special Court for Sierra Leone, Agreement between the United Nations and the Government of Sierra Leone pursuant to Security Council resolution 1315 (2000) of 14 August 2000, article 4(c), which reads identically. No. ICC-01/04-01/06 261/593 14 March 2012

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […] (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

[…]

The corresponding Elements of Crimes read as follows:

The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. Such person or persons were under the age of 15 years. The perpetrator knew or should have known that such person or persons were under the age of 15 years. The conduct took place in the context of and was associated with an armed conflict not of an international character. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

570 The Chamber’s conclusions on Elements 3 and 5 are addressed

separately in the context of Section XI(A)(5).

1713

The Chamber has also

discussed the definition of an “[organised] armed group” elsewhere in

this judgment.

1714

571 The Elements of Crimes require that the relevant “conduct took

place in the context of and was associated with an armed conflict not

of an international character”.

1715

Given the plain and ordinary

meaning of this provision, it is unnecessary to discuss its

interpretation in detail: it is sufficient to show that there was a

1713 See paras 1014-1016. 1714 See paras 536-537. 1715 Elements of Crimes, Article 8(2)(b)(xxvi), para. 4.

No. ICC-01/04-01/06 262/593 14 March 2012

connection between the conscription, enlistment or use of children under 15 and an armed conflict that was not international in character. The remaining Elements and the relevant applicable law are analysed below.

1 Submissions

a) Prosecution submissions Enlistment and conscription

572 The prosecution adopts the approach of the Pre-Trial Chamber, in defining conscription as forcible recruitment and enlistment as voluntary recruitment. It is argued that the prohibition against both 1716 forms of recruitment of children is “well established in customary international law”, and that a child’s consent does not constitute a valid defence. The prosecution refers to the Pre-Trial Chamber’s 1717 conclusion that these crimes are of a continuing nature, and only end when the children leave the relevant group or reach 15 years of age. 1718 573. The prosecution notes the interpretation of the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) that enlistment (meaning in this context recruitment of a voluntary or compulsory nature) “[…] include[s] any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military operations”. 1719

1716 ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN. 1717 ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN, paras 242 – 248. 1718 ICC-01/04-01/06-2748-Red, para. 138, referring to ICC-01/04-01/06-803-tEN, para. 248. 1719 ICC-01/04-01/06-2748-Red, footnote 267; SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL - 04 - 14-A, Appeals Chamber, Judgement, 28 May 2008 (“CDF Appeal Judgment”), para. 144.

No. ICC-01/04-01/06 263/593 14 March 2012

Use of children to participate actively in hostilities

574 It is submitted by the prosecution that the term “child soldiers” includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group, for instance by working as a cook, porter, messenger or when individuals are used for sexual purposes, including by way of forced marriage. 1720 575. The prosecution supports the Pre-Trial Chamber’s approach that “active participation in hostilities” includes direct participation in combat, as well as combat-related activities such as scouting, spying, sabotage and the use of children at military checkpoints or as decoys and couriers. In addition, it is argued the term includes the use of children to guard military objectives or to act as the bodyguards of military commanders. The prosecution accepts the Pre-Trial 1721 Chamber’s ruling that activities that are clearly unrelated to hostilities, such as delivering food to an airbase and working as domestic staff in the officers’ quarters, are excluded. 1722 576. The prosecution, as part of its submissions, focussed on the approach of the SCSL when it decided that using children as bodyguards, allowing children (armed with cutlasses, knives and guns) to be present in active combat zones, using children to monitor checkpoints and leading “Kamajors”, or dancing in front of them as

1720 ICC-01/04-01/06-2748-Red, para. 139; referring to inter alia, UNICEF, Cape Town Principles and Best Practices, 27 - 30 April 1997 (“Cape Town Principles”) pages 2 – 3; UN, Integrated Disarmament, Demobilization and Reintegration Standards, 1 August 2006, pages 3 and 19. 1721 ICC-01/04-01/06-2748-Red, para. 140; ICC-01/04-01/06-803-tEN, paras 261 and 263. 1722 ICC-01/04-01/06-2748-Red, para. 140; ICC-01/04-01/06-803-tEN, para. 262. No. ICC-01/04-01/06 264/593 14 March 2012

they go into battle, constitute the use of children to participate actively in hostilities. The prosecution notes that the SCSL has decided that 1723 the “use” of children to participate actively in hostilities occurs when their lives are put at risk in combat and if they are present when crimes are committed, irrespective of their particular duties. 1724 The SCSL concluded that participation in hostilities includes any work or support that gives effect to, or helps maintain, the conflict, and the interpretation note added to the draft ICC Statute by the ICC Preparatory Commission in 2002 contributed, at least to an extent, to that interpretation. 1725 577. The prosecution also rehearses the broad approach taken by the UN Special Representative of the Secretary General on Children and Armed Conflict, Ms Radhika Coomaraswamy (CHM-0003, “Ms Coomaraswamy” or “Special Representative”) on this issue, who suggested that children who were given roles as cooks, porters, nurses and translators, together with those who were sexually exploited, should be viewed as providing essential support and that the Court should ensure that girls are not excluded in this context. 1726 578. In summary, the prosecution submits that the Chamber ought to adopt a broad interpretation of the expression “direct support function”, “in order to afford wider protection to child soldiers and to prevent any use of children in activities closely related to

1723 ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, Trial Chamber, Judgment, 2 August 2007 (“CDF Trial Judgment”), para. 688. 1724 ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, Trial Chamber, Judgment, 20 June 2007 (“AFRC Trial Judgment”), para. 1267. 1725 ICC-01/04-01/06-2748-Red, para. 141; referring to SCSL, CDF Trial Judgment, para. 193; SCSL, AFRC Trial Judgment, para. 736. 1726 ICC-01/04-01/06-2748-Red, para. 142; referring to Written submissions of Ms Coomaraswamy, ICC-01/04-01/06-1229-AnxA (EVD-CHM-00007), paras 17 – 26. No. ICC-01/04-01/06 265/593 14 March 2012

hostilities”. 1727 b) Defence submissions

Enlistment and conscription

579 The defence observes that the Pre-Trial Chamber and the Rome Statute framework have left the concept of enlistment undefined. 1728 It is suggested that the broad approach taken in various international instruments, which were designed to afford children the widest possible protection, should not be imported into criminal proceedings before the ICC because tightly-defined criteria are to be applied. 1729 In this regard, the defence relies on Articles 22(1) and (2) of the Statute. 1730 580. It is, therefore, argued that the various international instruments governing the protection of children in this area, particularly when terms such as “children associated with armed forces and groups” are used, include children who, on account of their role, should not be treated as soldiers for the purposes of the criminal law. 1731 The defence refers in this context to the Paris Principles. 1732 581. Additionally, the defence relies on jurisprudence from the European Court of Human Rights to the effect that a criminal offence must be clearly defined in the relevant laws, and the criminal law should not be broadly interpreted to an accused’s detriment. Against this 1733 1727 ICC-01/04-01/06-2748-Red, para. 143. 1728 ICC-01/04-01/06-2773-Red-tENG, para. 32. 1729 ICC-01/04-01/06-2773-Red-tENG, para. 33. 1730 ICC-01/04-01/06-2773-Red-tENG, footnote 29. 1731 ICC-01/04-01/06-2773-Red-tENG, para. 33. 1732 The Paris Principles, The Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, February 2007 (“Paris Principles”) Principle 2.1; ICC-01/04-01/06-2773-Red-tENG, footnote 28. 1733 ICC-01/04-01/06-2773-Red-tENG, footnote 29; European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 7(1); European Court of Human Rights (“ECHR”), Veeber v. Estonia (No. 2), Application No. 45771/99, Judgment (Merits and Just Satisfaction) 21 No. ICC-01/04-01/06 266/593 14 March 2012

background and in light of a possible lengthy sentence under Article 77 of the Statute, it is suggested that a stricter definition of the concept of military enlistment is necessary. The defence supports the following approach, namely the “[…] integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in the hostilities on behalf of the group”, and it relies on 1734 commentary from the ICRC for this suggested approach. 1735 582. The critical distinction suggested by the defence is between those children who are integrated into an armed group as soldiers and who undertake military functions, and those who do not perform a military role and are not assigned any functions connected with the hostilities (although they are within the armed group). 1736 The latter, it is submitted, should not be treated as having been enlisted. The defence relies on the Dissenting Opinion of Justice Robertson at the SCSL:

[…] forcible recruitment is always wrong, but enlistment of child volunteers might be excused if they are accepted into the force only for non-combatant 1737 tasks, behind the front lines. Use of children to participate actively in hostilities

583 The defence criticises the Pre-Trial Chamber’s interpretation of the concept of “actively participating in hostilities” because it only excludes those activities that are “clearly unrelated to hostilities”,

January 2003, para. 31; ECHR, Pessino v. France, Application No. 40403/02, Judgment (Merits and Just Satisfaction), 10 October 2006, para. 35. 1734 ICC-01/04-01/06-2773-Red-tENG, para. 34. 1735 ICC-01/04-01/06-2773-Red-tENG, footnote 30; ICRC, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, 90 International Review of the Red Cross (2008), page 1007. 1736 ICC-01/04-01/06-2773-Red-tENG, paras 35 and 36; ICRC, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ 90 International Review of the Red Cross (2008), pages 1007-1008. 1737 ICC-01/04-01/06-2773-Red-tENG, para. 36 and footnote 32; SCSL, The Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Appeals Chamber, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Dissenting Opinion of Justice Robertson, 31 May 2004 (“Dissenting Opinion of Justice Robertson”), para. 9. No. ICC-01/04-01/06 267/593 14 March 2012

whilst including couriers, guards at military sites and the bodyguards

of military commanders. It is argued that this interpretation is 1738

excessively broad and violates Article 22(2) of the Statute. 1739

584 The defence suggests, particularly by reference to the jurisprudence

of the ICTY and the International Criminal Tribunal for Rwanda

(“ICTR”), that the concept of “actively participating in hostilities”

should be interpreted as being synonymous with “direct

participation” which, it is argued, equates to “acts of war which by

their nature or purpose are likely to cause actual harm to the personnel

and equipment of the enemy armed forces.” 1740

585 The defence relies on the three cumulative criteria for defining 1741

direct participation in hostilities as identified by the ICRC, and it

argues that those who act as bodyguards or guard military

installations (or similar), do not fulfil these criteria and should not be

treated as having participated actively in the hostilities. 1742

586 The defence submits that the broad interpretation applied by the

Pre-Trial Chamber diminishes the meaning of the adjective “active”

and its utility for distinguishing between direct and indirect forms of

participation in hostilities (the latter, it is suggested, is not proscribed

1738 ICC-01/04-01/06-2773-Red-tENG, para. 38; see ICC-01/04-01/06-803-tEN, paras 261 – 263. 1739 ICC-01/04-01/06-2773-Red-tENG, para. 39. 1740 ICC-01/04-01/06-2773-Red-tENG, para 40; citing ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, para. 99; reference is also made to ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgment, 2 September 1998, para. 629, 1741 ICRC, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, 90 International Review of the Red Cross (2008), pages 995 – 996: “1. the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); 2. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); 3. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)”; cited in ICC-01/04-01/06-2773-Red-tENG, para. 41. 1742 ICC-01/04-01/06-2773-Red-tENG, paras 41 and 42.

No. ICC-01/04-01/06 268/593 14 March 2012

by the Statute). 1743 In addition, it is argued that the Pre-Trial Chamber’s interpretation does not allow for a distinction between child soldiers based on whether they participated in the hostilities. 1744 It is contended this is objectionable because the intention was to focus on children below the age of 15 who “actively participate in hostilities”, so as to punish those who endanger them. 1745 587. The defence suggests that a footnote to the draft Statute of the Court provides a wholly insufficient basis for extending the concept of “actively participating” to cover all activities other than fighting with an indirect link to the hostilities. 1746 By reference to the principle of legality, the defence argues that the decisions of the SCSL, delivered after the relevant events, should not be used in support of a broad interpretation and it suggests that at the time of the events which are the subject of the present charges, international criminal law only addressed the use of children to participate in military operations within fighting units. 1747 c) Victims Submissions 588. The legal representatives of the V01 group of victims support the approach of Pre-Trial Chamber I in the Confirmation Decision, namely that enlistment refers to voluntary recruitment and conscription relates to forcible recruitment. However, it is argued this distinction has no bearing as regards “minors”, although it may be a factor in sentencing. 1748

1743 ICC-01/04-01/06-2773-Red-tENG, para. 43. 1744 ICC-01/04-01/06-2773-Red-tENG, para. 44. 1745 ICC-01/04-01/06-2773-Red-tENG, para. 44. 1746 ICC-01/04-01/06-2773-Red-tENG, para 45, referring to ICC-01/04-01/06-803-tEN, para. 261, footnote 339. 1747 ICC-01/04-01/06-2773-Red-tENG, paras 46 and 47. 1748 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 24. No. ICC-01/04-01/06 269/593 14 March 2012

589 It is submitted the term “child soldiers” is increasingly being replaced by the expression “children associated with armed forces or groups” 1749 and the prohibition against the recruitment of children under the age of fifteen years includes any participation by a child in a military organisation. Accordingly, the argument is advanced that the protection afforded by the Statute extends to young girls who are recruited by armed forces and are then used primarily as servants or sexual slaves. The legal representatives note, however, that these girls also often participate directly in military activities. 1750 590. The V01 group highlights the difference between the concepts of “taking a direct part,” as used in Additional Protocol I to the Geneva Conventions, and “participating actively in hostilities”. The legal representatives argue that those who drafted the Statute deliberately chose the latter formulation so as to encompass a wider range of activities. 1751 591. The legal representatives refer to the approach adopted by Pre-Trial Chamber I in the Decision on the confirmation of charges on the definition of “active participation”. 1752 592. The victim group V02 endorses the approach of Pre-Trial Chamber I and the expert witness Ms Coomaraswamy (CHM-0003), to the effect that conscription is to be defined as forcible recruitment, whereas enlistment covers voluntary recruitment (although the child’s consent is not a valid defence). 1753 Furthermore, the legal representatives

1749 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 26; referring to EVD-CHM-00007, footnote 8. 1750 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 26. 1751 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 27; see Roy S. Lee (eds.), The International Criminal Court: Elements of Crimes and Rules Of Procedure and Evidence (2001), pages 205 - 207. 1752 ICC-01/04-01/06-2746-Conf-Corr-tENG, para. 28, referring to ICC-01/04-01/06-803-tEN, paras 261 – 263. 1753 ICC-01/04-01/06-2747-Red -tENG , paras 34 – 36. No. ICC-01/04-01/06 270/593 14 March 2012

support the approach of the expert witness that the Court must approach this distinction on a case-by-case basis, focussing on what was required of the children, together with the circumstances of their enrolment and the manner in which they were separated from their families and communities. 1754 593. The legal representatives of the V02 group of victims submit that in order to establish active participation in hostilities, it is unnecessary to prove that the children were directly involved in combat, and that active participation in related activities (such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints, or to transport ammunition) is included. 1755 594. The legal representatives rely on the SCSL’s judgment in the case of the case of The Prosecutor v. Brima, Kamara and Kanu (“AFRC” case), in which the Court highlighted:

Using children to ‘participate actively in the hostilities’ encompasses putting their lives directly at risk in combat […] [A]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active 1756 participation. 595. The legal representatives note the approach of Pre-Trial Chamber I that using children to guard military sites, such as the quarters of the commanders, comes within these offences. 1757 However, it is also observed that Pre-Trial Chamber I excluded activities which are “manifestly without connection to the hostilities”, for instance by making deliveries or providing domestic help at the married officers’

1754 ICC-01/04-01/06-2747-Red -tENG , paras 38 – 39. 1755 ICC-01/04-01/06-2747-Red -tENG , para. 53. 1756 ICC-01/04-01/06-2747-Red -tENG , para. 57; SCSL, AFRC Trial Judgment, paras 736 and 737. 1757 ICC-01/04-01/06-2747-Red, para. 54. No. ICC-01/04-01/06 271/593 14 March 2012

quarters. 1758 596. The OPCV adopts the position of Pre-Trial Chamber I that “conscripting” and “enlisting” are both forms of “recruitment”, and that the former is forcible whilst the latter is voluntary (albeit the child’s consent is not a valid defence). The legal representative suggests that the principle that children should not be recruited into the armed forces includes an absolute prohibition against the voluntary enlistment of minors. 1759 597. It is contended by the OPCV that the offences of conscripting and enlisting are of a continuing nature, in that they are committed for as long as the children are under fifteen years of age and remain in the armed force or group. 1760 598. It is submitted that active participation in hostilities covers both direct and indirect participation and there should be no distinction “between the participation of child combatants and that of child non combatants in hostilities.” 1761 The OPCV relies on the submissions of Ms Coomaraswamy (CHM-0003), the Cape Town Principles, the Paris Principles and the African Union’s Solemn Declaration on Gender Equality in Africa as support for the proposition that the expression to “participate actively” should be interpreted so as to protect girls recruited into the armed forces for sexual purposes. It is submitted this is usually the primary reason for their recruitment. 1762 Moreover, the

1758 ICC-01/04-01/06-2747-Red, para. 56, referring to EVD-CHM-00007, para. 19. 1759 ICC-01/04-01/06-2744-Red-tENG, para. 6, referring inter alia to ICC-01/04-01/06-803-tENG, paras 246-247, ICRC Commentary to the Additional Protocols to the Geneva Conventions, and EVD- CHM-00007, para. 10. 1760 ICC-01/04-01/06-2744-Red-tENG, para. 7, referring inter alia to ICC-01/04-01/06-803-tENG, para. 248. 1761 ICC-01/04-01/06-2744-Red-tENG, para. 9. 1762 ICC-01/04-01/06-2744-Red-tENG,paras 10-11; EVD-CHM-00007 , paras 19, 21 and 26. No. ICC-01/04-01/06 272/593 14 March 2012

legal representative suggests this interpretation is fully supported by

Ms Coomaraswamy (CHM-0003) in her criticism of Pre-Trial Chamber

I’s ruling excluding activities that were manifestly unrelated to

hostilities:

[t]he Court should deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” [children in hostilities] crime [and] that during war, the use of girl children in particular 1763 includes sexual violence.

599 It is said to be unnecessary for the Court to determine whether girls

subjected to sexual abuse within the armed forces were used to

participate actively in hostilities. The fact they were recruited when

under the age of fifteen years is sufficient proof of enlistment,

conscription or use under the Statute. The legal representative cites

with approval a Decision of the Trial Chamber:

[i]t is not necessary […] for the Chamber to engage in the critical question that otherwise arises in this application as to whether the ‘use’ of children for sexual purposes alone, and including forced marriage, can be regarded as conscription or enlistment into an armed force, or the use of that person to participate actively in the hostilities, in accordance with Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute. As just set out, the applicant has presented enough evidence to conclude, prima facie, that she was abducted in the broad context of the systematic conscription of children under the age 1764 of 15 into the military forces of the UPC.

2 The Chamber’s Analysis and Conclusions

600 Addressing the three relevant acts, namely conscripting, enlisting

children under the age of 15 or using them to participate actively in

hostilities, in each instance the conduct is not defined in the Statute,

the Rules or the Elements of Crimes. Accordingly, the scope of the

1763 ICC-01/04-01/06-2744-Red-tENG, para. 10, citing EVD-CHM-00007 , para. 21. 1764 ICC-01/04-01/06-2744-Red-tENG, para. 12, citing Annex 1 to Decision on the applications by victims to participate in the proceedings, 15 December 2008, ICC - 01/04 - 0l/06 - 1556-Corr - Anx1, para. 103.

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activities covered by Article 8(2)(e)(vii) of the Statute must be

determined in accordance with Articles 21 and 22(2) of the Statute,

which provide (as relevant):

Article 21 Applicable law 1. The Court shall apply: a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; b. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; c. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Article 22 Nullum crimen sine lege […] 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

601 The Appeals Chamber has established that the interpretation of the

Statute is governed by the Vienna Convention on the Law of

Treaties, as follows:

1765

1765 Vienna Convention on the Law of Treaties, adopted on 23 May 1969 and entered into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, Article 31(1).

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The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be 1766 gathered from its preamble and general tenor of the treaty.

602 The Appeals Chamber has also decided that Article 21(3) of the

Statute “makes the interpretation as well as the application of the law

applicable under the Statute subject to internationally recognised

human rights. It requires the exercise of the jurisdiction of the Court in

accordance with internationally recognized human rights norms”.

1767

603 The jurisprudence of the SCSL has been considered by the Trial

Chamber. Although the decisions of other international courts and

tribunals are not part of the directly applicable law under Article 21 of

the Statute, the wording of the provision criminalising the

conscription, enlistment and use of children under the age of 15 within

the Statute of the SCSL

1768

is identical to Article 8(e)(vii) of the Rome

Statute, and they were self-evidently directed at the same objective.

The SCSL’s case law therefore potentially assists in the interpretation

of the relevant provisions of the Rome Statute.

1766 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal", 13 July 2006, ICC-01/04-168, para. 33 (footnotes omitted). See also The Prosecutor v. Katanga and Ngudjolo, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07- 522, paras 38 and 39; Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", 21 October 2008, ICC-01/04-01/06- 1486, para. 40; The Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, para. 49. 1767 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, para. 36. 1768 Article 4(c) of the SCSL Statute: “Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.”

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604 Article 4(3)(c) of Additional Protocol II to the 1949 Geneva

Conventions includes an absolute prohibition against the recruitment

and use of children under the age of 15 in hostilities (in the context of

an armed conflict not of an international character):

1769

children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

In addition, the Convention on the Rights of the Child, a widely

ratified human rights treaty, requires the State Parties to “take all

feasible measures to ensure that persons who have not attained the age

of fifteen years do not take a direct part in hostilities”, and to “refrain

from recruiting any person who has not attained the age of fifteen

years into their armed forces” in all types of armed conflicts (“armed

conflicts which are relevant to the child”).

1770

605 These provisions recognise the fact that “children are particularly

vulnerable [and] require privileged treatment in comparison with the

rest of the civilian population”.

1771

The principal objective underlying

these prohibitions historically is to protect children under the age of 15

1769 The drafters of Additional Protocol II made “provision for the consequences of any possible violation” by including a provision (Article 4(3)(d)) requiring special protection for children under 15 if they take a direct part in hostilities and are captured: ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), page 1380. Article 77(2) of Additional Protocol I provides: “The parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.”; ICC-01/04-01/06-803-tEN, paras 242 – 243; see also Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 467 at marginal note 227; Knut Dörmann, Elements of War crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), pages 376 and 470. 1770 Convention on the Rights of the Child, adopted an opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989; entered into force on 2 September 1990: Article 38, paras 2 and 3. See also Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, U.N.DOC.A/54/RES/263 (2000), Articles 1 to 3, and African Charter On the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), adopted on 11 July 1990 and entered into force on 29 November 1999, Article 22(2): [Armed Conflicts] “State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.” 1771 ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), page 1377 at marginal note 4544; see also page 1379 at marginal note 4555.

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from the risks that are associated with armed conflict, and first and foremost they are directed at securing their physical and psychological well-being. This includes not only protection from violence and fatal or non-fatal injuries during fighting, but also the potentially serious trauma that can accompany recruitment (including separating children from their families, interrupting or disrupting their schooling and exposing them to an environment of violence and fear). 1772 606. It is to be noted that the potentially broad concept of “children associated with armed conflict” was referred to throughout the trial. 1773 This expression does not form part of the wording of any of the charges the accused faces, but instead – as submitted by the defence – it is clearly designed to afford children with the greatest possible protection. Although it is to be stressed that the Chamber has applied the provisions of the Statute as opposed to this more general concept, Ms Coomaraswamy gave relevant background evidence that children in this context frequently undertake a wide range of tasks that do not necessarily come within the traditional definition of warfare. 1774 As a result, they are exposed to various risks that include rape, sexual enslavement and other forms of sexual violence, cruel and inhumane treatment, as well as further kinds of hardship that are incompatible with their fundamental rights.

1772 Report of Ms Schauer (CHM-0001), The Psychological Impact of Child Soldiering, ICC-01/04- 01/06-1729-Anx1 (EVD-CHM-00001); Gregoria Palomino Suárez, Kindersoldaten im Völkerstrafrecht (2009), page 124; see also Graca Machel, Impact of Armed Conflict on Children, 26 August 1996, UN Doc A/51/306, para.30; Francois Bugnion, “Les Enfants Soldats, le Droit International Humanitaire et la Charte Africaine des Droits et du Bien-Être de L’Enfant”, 12 African Journal of International & Comparative Law (2000), page 263. 1773 ICC-01/04-01/06-2748-Red, paras 142 – 143; ICC-01/04-01/06-2773-Red-tENG, para. 33; T-223- ENG, page 14, line 24 to page 16, line 10; T-208-ENG, page 12, lines 16 et seq. 1774 T-223-ENG, page 14, lines 4 – 23. No. ICC-01/04-01/06 277/593 14 March 2012

a) Enlistment and conscription

607 The Chamber accepts the approach adopted by the Pre-Trial

Chamber that “conscription” and “enlistment” are both forms of

recruitment, in that they refer to the incorporation of a boy or a girl 1775

under the age of 15 into an armed group, whether coercively

(conscription) or voluntarily (enlistment). 1776 The word “recruiting”,

which is used in the Additional Protocols and in the Convention on

the Rights of the Child, was replaced by “conscripting” and “enlisting”

in the Statute. Whether a prohibition against voluntary enrolment is

included in the concept of “recruitment” is irrelevant to this case, 1777

because it is proscribed by Article 8.

608 This interpretation gives the relevant provisions of the Statute their

plain and ordinary meaning. It is to be noted that “enlisting” is

defined as “to enrol on the list of a military body” 1778 and

“conscripting” is defined as “to enlist compulsorily”. 1779 Therefore, the

distinguishing element is that for conscription there is the added

element of compulsion. Whether this distinction is of relevance in 1780

1775 Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, para. 4. 1776 ICC-01/04-01/06-803-tEN, para. 246, referring to SCSL, Dissenting Opinion of Justice Robertson; See also Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 205. 1777 See ICC-01/04-01/06-803-tEN, para. 244 and footnote 314 & 315; see also Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (1999), page 118; and Roy S. Lee (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), page 205; and SCSL, Dissenting Opinion of Justice Robertson, para. 5. 1778 th Oxford Dictionary (2002, 5 ed.), page 831. See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 472 at marginal note 231. 1779 th Oxford Dictionary (2002, 5 ed), page 491; See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 377, and Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court : Observer’s Notes (2008), page 472 at marginal note 231. 1780 Gregoria Palomino Suárez, Kindersoldaten im Völkerstrafrecht (2009), page 139.

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this case is considered below. 609. Bearing in mind the use of the word “or” in Article 8(2)(e)(vii), in the Chamber’s view the three alternatives ( viz. conscription, enlistment and use) are separate offences. 1781 It follows that the status of a child under 15 who has been enlisted or conscripted is independent of any later period when he or she may have been “used” to participate actively in hostilities, particularly given the variety of tasks that he or she may subsequently be required to undertake. Although it may often be the case that the purpose behind conscription and enlistment is to use children in hostilities, this is not a requirement of the Rome Statute. If Article 8(2)(e)(vii) is taken on its own, the position is potentially ambiguous, given it reads “[ c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities ” (emphasis added). However, the Elements of Crimes clarify the issue by requiring “1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities ” (emphasis added). The Chamber therefore rejects the defence contention that “ the act of enlistment consists in the integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in hostilities on behalf of the group.” 1782 610. The expert witness, Elisabeth Schauer (CHM-0001), suggested in her report and during her evidence before the Chamber that from a psychological point of view children cannot give “informed” consent

1781 See SCSL, AFRC Trial Judgment, para 733; CDF Appeal Judgment, para. 139, and Dissenting Opinion of Justice Robertson, para. 5. 1782 ICC-01/04-01/06-2773-Red-tENG, para. 34. No. ICC-01/04-01/06 279/593 14 March 2012

when joining an armed group, because they have limited understanding of the consequences of their choices; they do not control or fully comprehend the structures and forces they are dealing with; and they have inadequate knowledge and understanding of the short- and long-term consequences of their actions. Ms Schauer (CHM- 0001) concluded that children lack the capacity to determine their best interests in this particular context. 1783 611. In her written submissions, Ms Coomaraswamy (CHM-0003) notes that it can be difficult to differentiate between a conscripted and an enlisted child:

The recruitment and enlisting of children in [the] DRC is not always based on abduction and the brute use of force. It also takes place in the context of poverty, ethnic rivalry and ideological motivation. Many children, especially orphans, join armed groups for survival to put food in their stomachs. Others do so to defend their ethnic group or tribe and still others because armed militia leaders are the only seemingly glamorous role models they know. They are sometimes encouraged by parents and elders and are seen as defenders of their family and community. […] Children who “voluntarily” join armed groups mostly come from families who were victims of killing and have lost some or all of their family or 1784 community protection during the armed conflict. 612. The Special Representative (CHM-0003) further suggests that “the line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict”. 1785 613. The Chamber endorses the conclusions of the expert witnesses, in the sense that it will frequently be the case that girls and boys under

1783 Report of Ms Schauer (CHM-0001), The Psychological Impact of Child Soldiering, EVD-CHM- 00001, pages 7 – 8; T-166-ENG, page 13, lines 10 – 19; page 90, lines 1 – 4. 1784 EVD-CHM-00007, paras 13 and 14. 1785 EVD-CHM-00007, para. 14. No. ICC-01/04-01/06 280/593 14 March 2012

the age of 15 will be unable to give genuine and informed consent when enlisting in an armed group or force.

614 Against that background, the Chamber addresses the issue of whether the valid and informed consent of a child under 15 years of age provides the accused with a defence in these circumstances. 615. In Ms Coomaraswamy’s expert testimony before the Chamber she suggested that since children under the age of 15 cannot reasonably give consent, the accused should not be able to rely on the voluntary nature of their enlistment into an armed force or group as a defence. 1786 616. The Pre-Trial Chamber in the present case adopted this approach, when it determined that a child’s consent does not provide a valid defence to enlistment. 1787 It is of note that the Appeals Chamber of the SCSL opined that “where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.” 1788 In addition, the SCSL’s Trial Chamber in the case of the Prosecutor v. Fofana and Kondewa (“CDF” case) concluded:

[T]he distinction between [voluntary enlistment and forced enlistment] is somewhat contrived. Attributing voluntary enlistment in the armed forces to a child under the age of 15 years, particularly in a conflict setting where 1789 human rights abuses are rife, is [...] of questionable merit. 617. In all the circumstances, the Chamber is persuaded that the Statute in this regard is aimed at protecting vulnerable children, including when they lack information or alternatives. The manner in which a child was recruited, and whether it involved compulsion or was “voluntary”, are circumstances which may be taken into consideration

1786 T-223-ENG, page 11, lines 8 – 18. 1787 ICC-01/04-01/06-803-tEN, para. 248. 1788 SCSL, CDF Appeal Judgment, para. 139. 1789 SCSL, CDF Trial Judgment, para. 192. No. ICC-01/04-01/06 281/593 14 March 2012

by the Chamber at the sentencing or reparations phase, as appropriate. However, the consent of a child to his or her recruitment does not provide an accused with a valid defence. 618. Therefore, the Chamber agrees with the Pre-Trial Chamber that under the provisions set out above, the offences of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. In the circumstances of this case, conscription and enlistment are dealt with together, notwithstanding the Chamber’s earlier conclusion that they constitute separate offences. These offences are continuous in nature. They end only when the child reaches 15 years of age or leaves the force or group. 1790 b) Using children under the age of 15 to participate actively in hostilities 619. As with “conscripting” and “enlisting“ children under the age of 15 into armed forces or groups, the prohibition against “using them to participate actively in hostilities” is generally intended to protect children from the risks that are associated with armed conflict, for the reasons described above. 620. The prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group. As set out in paragraph 609 above, if Article 8(2)(e)(vii) of the Statute is taken on its own, the position is potentially ambiguous, given it reads “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to 1790 ICC-01/04-01/06-803-tEN, para. 248; see also ICTR, Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Appeals Chamber, Judgement, 28 November 2007, para. 721. No. ICC-01/04-01/06 282/593 14 March 2012

participate actively in hostilities” (emphasis added). However, the Elements of Crimes clarifies the issue by requiring “1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years ” (emphasis added). Therefore, consistently with Article 22(2) of the Statute, a child can be “used” for the purposes of the Statute without evidence being provided as regards his or her earlier “conscription” or “enlistment” into the relevant armed force or group. 621. The Elements of the Crimes require that “the conduct took place in the context of and was associated with an armed conflict”. The travaux préparatoires of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required. 1791 The Preparatory Committee’s draft Statute had postulated a broader interpretation in one of the footnotes:

The words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be 1792 included within the terminology. (emphasis added) 622. The Pre-Trial Chamber, by reference to the approach of the Preparatory Committee, decided that a child does not actively participate in hostilities if the activity in question was “clearly 1791 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, page 21 and footnote 12. 1792 Ibid. See also Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 471 at marginal note 229; Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), page 206. No. ICC-01/04-01/06 283/593 14 March 2012

unrelated to hostilities.” 1793 The Pre-Trial Chamber distinguished between two categories of participation, first:

“Active participation” in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of 1794 children as decoys, couriers or at military check-points. In the Pre-Trial Chamber’s formulation, guarding military objectives or acting as a bodyguard were also activities related to hostilities, inter alia , when “they have a direct impact on the level of logistic resources and on the organisation of operations required by the other party to the conflict”. 1795

623 Second, the Pre-Trial Chamber considered that children who were engaged in activities “clearly unrelated to hostilities” 1796 and carry out tasks such as “food deliveries to an airbase or the use of domestic staff in married officer’s quarters” do not actively participate in hostilities. 1797 624. As indicated above, the SCSL has examined the scope of active participation in hostilities in a number of decisions when applying Article 4(c) of its Statute, which is identical to Article 8(e)(vii) of the Rome Statute. In the AFRC case, ostensibly relying on the approach of the Preparatory Committee, the SCSL determined that the use of children to participate actively in hostilities is not restricted to children directly involved in combat, noting:

An armed force requires logistical support to maintain its operations. Any labour or support that gives effect to, or helps maintain, operations in a

1793 ICC-01/04-01/06-803-tEN, para. 262. 1794 ICC-01/04-01/06-803-tEN, para. 261. 1795 ICC-01/04-01/06-803-tEN, para. 263. 1796 ICC-01/04-01/06-803-tEN, para. 262. 1797 ICC-01/04-01/06-803-tEN, para. 262. No. ICC-01/04-01/06 284/593 14 March 2012

conflict constitutes active participation. Hence carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active 1798 participation as much as actual fighting and combat . 625. The SCSL therefore held that the concept of “using” children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations.

626 The Special Representative (CHM-0003) suggested that the Trial Chamber should focus “in each case […] [on] whether the child’s participation served an essential support function to the armed force” and she referred to the SCSL jurisprudence in the AFRC Trial Judgment set out above. 1799 The Trial Chamber in that case held that:

‘Using’ children to “participate actively in the hostilities” encompasses 1800 putting their lives directly at risk in combat. 627. The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word “direct”. 1801 628. The extent of the potential danger faced by a child soldier will often 1798 SCSL, AFRC Trial Judgment, para. 737. The first sentence of the relevant footnote of the Preparatory Committee’s draft is quoted in para 736 of the Trial Judgment. 1799 Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, para. 21. 1800 SCSL, AFRC Trial Judgment, para. 736. 1801 Article 77(2) of Additional Protocol I provides that children under 15 shall not be allowed to “take a direct part in hostilities” (Article 38(2) of the Convention on the Rights of the Child contains identical wording); Article 4(3)(c) of Additional Protocol II provides that children under 15 shall not be allowed to “take part in hostilities”, which is broader; see Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes (2008), page 470 at marginal note 229. No. ICC-01/04-01/06 285/593 14 March 2012

be unrelated to the precise nature of the role he or she is given. 1802 Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target. 1803 The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target. 1804 In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. 629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its

1802 Report of Ms Schauer (CHM-0001), EVD-CHM-00001, page 9. 1803 Michael Wessells, Child Soldiers: From Violence to Protection (2006), page 57; see also Ilene Cohn and Guy Goodwin-Gill, Child Soldiers: the Role of Children in Armed Conflict (2003), pages 31- 32; Graça Machel, Impact of Armed Conflict on Children, 26 August 1996, UN Doc A/51/306, paras 44 – 48; Peter Warren Singer, Children at War (2005), pages 57-58. 1804 Gregoria Palomino Suárez, Kindersoldaten im Völkerstrafrecht, Berlin 2009, pages 166 to 168. No. ICC-01/04-01/06 286/593 14 March 2012

opening and closing submissions,

1805

it has not requested any relevant

amendment to the charges. During the trial the legal representatives of

victims requested the Chamber to include this conduct in its

consideration of the charges, and their joint request

1806

led to Decisions

on the issue by the Trial Chamber and the Appeals Chamber ( viz.

whether it was permissible the change the legal characterisation of the

facts to include crimes associated with sexual violence).

1807

Not only

did the prosecution fail to apply to include rape and sexual

enslavement at the relevant procedural stages, in essence it opposed

this step. It submitted that it would cause unfairness to the accused if

he was tried and convicted on this basis.

1808

630 In accordance with the jurisprudence of the Appeals Chamber, the

Trial Chamber’s Article 74 Decision shall not exceed the facts and

circumstances ( i.e. the factual allegations) described in the charges and

any amendments to them. The Trial Chamber has earlier pointed

1809

out that “[f]actual allegations potentially supporting sexual slavery are

simply not referred to at any stage in the Decision on the Confirmation

1805 T-107-ENG, page 11, line 17 to page 12, line 22; T-356-ENG, page 9, lines 9 – 13 and, lines 22 – 25; page 52, line 16. 1806 Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, 22 May 2009, ICC-01/04-01/06-1891tENG. 1807 Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 14 July 2009, ICC-01/04-01/06-2049; Decision issuing a second corrigendum to the “Minority opinion on the ‘Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’”, 31 July 2009, ICC-01/04-01/06-2069; Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, ICC-01/04-01/06-2205. 1808 Prosecution’s Application for Leave to Appeal the “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 12 August 2009, ICC-01/04-01/06-2074, paras 22 and 23. See also, Prosecution’s Further Observations Regarding the Legal Representatives’ Joint Request Made Pursuant to Regulation 55, 12 June 2009, ICC-01/04-01/06-1966. 1809 See Appeals Chamber, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, ICC-01/04-01/06-2205.

No. ICC-01/04-01/06 287/593 14 March 2012

of Charges”. 1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law, 1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue. 631. In due course, the Chamber will consider whether these matters ought to be taken into account for the purposes of sentencing and reparations.

B. THE FACTS

1 Relevant Evidential Considerations

632 A number of witnesses called by the prosecution and the defence testified as to whether children were recruited and used by the UPC/FPLC, and evidence was given as to their age. The Chamber has considered the credibility and reliability of these witnesses, taking into account, inter alia, the challenges advanced during questioning and in the final briefs. It has assessed whether their individual accounts were consistent with the other relevant and reliable evidence in the case. The general approach adopted is that whenever a witness is first considered in this section, the Chamber has, at that stage, dealt with

1810 Decision on the Legal Representatives’ Joint Submissions concerning the Appeals Chamber’s Decision on 8 December 2009 on Regulation 55 of the Regulations of the Court, 8 January 2010, ICC- 01/04-01/06-2223, para. 35. 1811 Ms Coomaraswamy suggested that the use for sexual exploitation of boys and girls by armed forces or groups constitutes an “essential support function”, Written submissions of Ms Coomaraswamy (CHM-0003), EVD-CHM-00007, paras 23 and 24-26. No. ICC-01/04-01/06 288/593 14 March 2012

the witness’s overall credibility and reliability, against the background of the main contested aspects of their testimony. Any discrete issues relating to the witness and the evidence they provided to the Chamber are addressed within the relevant section. 1812 633. In its closing brief, the prosecution rehearsed the histories of various alleged former child soldiers who gave evidence (P-0007, P-0008, P- 0010, P-0011, P-0157, P-0213, P-0294, P-0297 and P-0298). The 1813 Chamber, as analysed elsewhere, has concluded that it is unable to rely on the evidence of any of these witnesses. 1814 634. Again, as discussed above, the Chamber has concluded that the three victims who were called to testify before the Court will not be relied on for the purposes of the Article 74 Decision. 635. Although the terms “child” and “children” encompass boys and girls under the age of 18 years, 1815 the charges specifically relate to children under the age of 15, in accordance with Article 8(2)(e)(vii) of the Statute. 636. Some witnesses used the term “kadogo” to describe small children. For instance, P-0055 suggested that in the UPC and Ugandan armies, indeed in Africa generally, small children from about the age of 13 up to the age of 16 are called kadogos. 1816 637. P-0038 testified that the expression kadogo means a child soldier – in the UPC it was used “above all” to refer to children under the age of 15. The witness indicated that in certain armies it describes the

1812 P-0031 is discussed in Section VII(E)(4). 1813 ICC-01/04-01/06-2748-Red, paras 356 – 522. 1814 See paras 478-484. 1815

See Convention on the Rights of the Child.

1816 T-174-Red2-ENG, page 40, line 5 to page 41, line 15. No. ICC-01/04-01/06 289/593 14 March 2012

youngest individual in the group (as demonstrated when the witness went for training in Rwanda and was referred to as a kadogo even though he was 18). 1817 638. For P-0024 the term kadogos generally means children below 18 years of age, “right down to the lower end of the scale.” 1818 639. Various witnesses also referred to the term “PMF”. Witness P-0016 linked the term to female military staff or “ personnel militaire féminin ”. 1819 Witnesses P-0055 and P-0089 said the term referred to a “girl soldier” 1820 and P-0046 had also heard of this expression. 1821 640. It follows that the term kadogo is sometimes used to refer to children over the age of 15 whilst “PMF” relates to females in the army, and it does not necessarily only relate to girls under 15. 2. Age assessments and determinations of witness credibility

641 The Chamber heard evidence from numerous non-expert witnesses as to the age of the alleged former child soldiers. For the most part, their assessments were based on the individual’s physical appearance, including by way of comparison with other children; the 1822 individual’s general physical development 1823 ( e.g. whether a girl had developed breasts, 1824 and factors such as height and voice); 1825 and his

1817 T-114- Red2-ENG , page 39, line 18 to page 40, line 3. 1818 T-170-Red2-ENG, page 76, lines 6 – 7. 1819 T-191-Red2-ENG, page 10, lines 21-23; T-189-Red2-ENG, page 34, lines 1-4. 1820 T-174-ENG, page 38, lines 14 – 21; T-196-Red-ENG, page 10, lines 8-10. 1821 T-209-ENG, page 12 lines 3 – 8. 1822 T-157-Red2-ENG, page 63, lines 20 – 21 (P-0017). 1823 T-154-Red2-ENG, page 41, lines 23 – 25 (P-0017); T-157-Red2-ENG, page 63, lines 17 – 18 (P- 0017);T-179-Red2-ENG, page 87, lines 15 – 18 (P-0014). 1824 T-154-Red2-ENG, page 41, lines 17 – 19 (P-0017); T-157-Red2-ENG, page 63, lines 18 – 20 (P- 0017). 1825 T-203-Red2-ENG, page 36, line 15 to page 37, line 23 (P-0116); T-154-Red2-ENG, page 41, lines 24 – 25 (P-0017); T-179-Red2-ENG, page 87, lines 17 – 18 (P-0014). No. ICC-01/04-01/06 290/593 14 March 2012

or her overall behaviour. 1826 642. The defence challenges the evidence given, inter alia, by P-0012, P- 0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046, P-0055, and P-0116 on the age of children in the UPC/FPLC. 1827 The defence argues that their unverified, personal assessments are unreliable and it is suggested they do not establish beyond reasonable doubt the presence of children under the age of 15 in the UPC/FPLC. In this section the Chamber has addressed the various challenges advanced by the defence; it has reviewed the age assessments that were provided by a number of witnesses; and the Chamber has set out its general conclusions as to the credibility of the relevant prosecution witnesses, along with defence witnesses D-0007, D-0011, D-0019 and D-0037 (who also gave evidence on this issue). The relevant witnesses are addressed by category: first, the witnesses linked to the work of international organisations or NGOs; second the prosecution witnesses who testified primarily about military matters; third, the prosecution witnesses who principally gave evidence about selected video footage; and finally the relevant defence witnesses, in the order in which they testified.

643 Given the undoubted differences in personal perception as regards estimates of age and, most particularly in the context of this case, the difficulties in distinguishing between young people who are relatively close to the age of 15 (whether above or below), the Chamber has exercised caution when considering this evidence. Even allowing for a wide margin of error in assessing an individual’s age, the Chamber

1826 T-154-Red2-ENG, page 41, lines 20 – 23; T-157-Red2-ENG, page 63, lines 18 – 20 (P-0017). 1827 ICC-01/04-01/06-2773-Red-tENG, paras 587 – 589, 596, 737 – 756; ICC-01/04-01/06-2786-RedtENG, para. 67. No. ICC-01/04-01/06 291/593 14 March 2012

has concluded that it is feasible for non-expert witnesses to differentiate between a child who is undoubtedly less than 15 years old and a child who is undoubtedly over 15. Furthermore, the sheer volume of credible evidence (analysed hereafter) relating to the presence of children below the age of 15 within the ranks of the UPC/FPLC has demonstrated conclusively that a significant number were part of the UPC/FPLC army. An appreciable proportion of the prosecution witnesses, as well as D-0004, testified reliably that children under 15 were within the ranks of the UPC/FPLC. 1828 644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were “visibly” under the age of 15. 1829 The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone. The Chamber accepts that for 1830 many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15. a) P-0046 645. The testimony of P-0046 focussed on her professional knowledge of children recruited and used by the UPC/FPLC and her experience of the demobilisation process. This witness worked in MONUC’s child protection programme during the period covered by the charges, and she went on her first mission to Bunia in this role during September

1828 T-243-Red2-ENG, page 20, line 21 to page 22, line 6 (D-0004). 1829 ICC-01/04-01/06-2748-Red, paras 164 – 165. 1830 ICC-01/04-01/06-2773-Red-tENG, paras 703 – 707. No. ICC-01/04-01/06 292/593 14 March 2012

2002 By the time she was officially based in Bunia in May 2003 she had undertaken a number of missions to the region. Previously, she had been involved in identifying child soldiers in Kenya and in northern Congo. 1831 P-0046 filed weekly reports addressing the security and humanitarian situation of children associated with the armed groups, which were based on the interviews conducted by 1832 MONUC’s child protection section, as well as other sources. 1833 The majority of the witness’s interviews with children took place between March 2003 and the end of her time in Ituri in 2004. 1834 P-0046 considered the situation of children associated with the armed conflict in Ituri, along with the work of MONUC and other NGOs who dealt with demobilised children, during the period covered by the charges. Her testimony was detailed, credible and reliable, particularly when it was based on her personal experience of working with demobilised children in the region. 646. The defence contends that P-0046 has insufficient personal knowledge of the events about which she testified, given she did not regularly visit Ituri until late May 2003. 1835 Since the witness was closely monitoring the situation in the area during the relevant period and she made a series of site visits to Ituri between January 2002 and March 2003, the Chamber is satisfied that she was able to testify about events that took place in the region during the period covered by the charges. 647. The defence further submits that the information provided to P- 1831 EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-EN, page 36, line 22 to page 37, line 12); T-205-Red2-ENG , page 23, line 14 to page 25, line 4 . 1832 ICC-01/04-01/06-T-205-Red2-ENG , page 25, line 23 to page 26, line 20. 1833 ICC-01/04-01/06-T-208-ENG, page 24, lines 8 – 22. 1834 ICC-01/04-01/06-T-208-ENG, page 22, lines 14 – 22 ; EVD-OTP-00479, transcript of testimony of P-0046 before Pre-Trial Chamber I, T-37-EN, page 10, line 15 to page 12, line 12. 1835 ICC-01/04-01/06-2773-Red-tENG, paras 638 – 639; para. 646. No. ICC-01/04-01/06 293/593 14 March 2012

0046 by MONUC was unreliable given the testimony of the prosecution expert witness, Gerard Prunier (P-0360). Although Mr 1836 Prunier questioned the accuracy of certain aspects of the UN reports, he also referred to the general lack of reliable sources, particularly as regards events during the relevant period in the countryside surrounding Bunia, and he emphasised that of the available material the most reliable information came from the UN. 1837 648. The defence submits that during the course of her testimony, P-0046 “showed obvious bias in favour of the prosecution”. 1838 By way of example, the defence cites the witness’s reference to reports of very young children who were smaller than the Kalashnikovs they were carrying, 1839 along with her assertion that she was “sure [this] was an image which was exaggerated, but to reflect a reality which our informers wanted to get across, the fact that young children were associated with these groups”. Having reviewed the evidence of P- 1840 0046 (aside from this statement, which the witness in any event conceded may not have been entirely accurate) the Chamber is sure the witness has not exaggerated any material facts or otherwise provided biased or unreliable evidence. In addition, as set out below, it is of note that P-0038 testified that some children were lighter than the weapons they carried. Thus, P-0046’s evidence is entirely plausible. 649. It is suggested the account of P-0046 demonstrates that she and her

1836 ICC-01/04-01/06-2773-Red-tENG, paras 640 – 641, referring to T-157-CONF-FRA, page 12, line 4 to page 14, line 20. 1837 ICC-01/04-01/06-T-157-Red-ENG, page 13, line 20 to page 14, line 17. 1838 ICC-01/04-01/06-2773-Red-tENG, para. 645. 1839 ICC-01/04-01/06-2773-Red-tENG, para. 645, referring to EVD-OTP-00479, transcript of testimony of P-0046 before Pre-Trial Chamber I , T-37-FR, page 23, lines 8-12. 1840 EVD-OTP-00490, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-ENG, page 83, lines 18 – 25). No. ICC-01/04-01/06 294/593 14 March 2012

colleagues at MONUC merely collected the statements of the children they interviewed and they failed to carry out further investigations. 1841 The Chamber notes that P-0046 gave evidence that:

[I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. In fact, I never saw a child with an identity card in Ituri, so carrying out such a verification on the basis of administrative documents was not possible. So when you say independent verification, well, other than the information that the children gave regarding their schooling, that was one way we had to have an idea and 1842 to perhaps reinforce the information stated by the children. 650. It is significant, however, that P-0046 also testified that she used several methods to verify the information given to her by the children in interview, including comparing the dates they provided with a chronology created by military and political observers from MONUC. 1843 When there were doubts about the age or affiliation of a particular child, she sought verification from the relevant NGOs. 1844 Sometimes the NGOs supplied age assessments for the children that differed from the information the latter had supplied. This particularly applied to those who said they were older than they appeared to the witness (and the Chamber notes her evidence concerning the confirmation of her doubts by the NGOs). 1845 651. P-0046 did not rely solely on the various processes of external verification in order to determine the age of the children she interviewed. Although she acknowledged the lack of any scientific procedure for assessing their ages whilst she was working as a child

1841 ICC-01/04-01/06-2773-Red-tENG, para. 642, referring to EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I ( T-38-FR, page 84, line 24 to page 85, line 8); T-206- CONF-FRA, page 10, lines 3 – 7. 1842 T-206- ENG, page 9, lines 15 – 22. 1843 T-205-Red2-ENG , page 39, lines 3 – 10; page 40, lines 5 – 23; T-208-ENG, page 29, lines 8 – 17. 1844 T-205-Red2-ENG , page 39, line 14 to page 40, line 2. 1845 T-206-ENG , page 5, line 18 to page 6, line 6. No. ICC-01/04-01/06 295/593 14 March 2012

protection officer in Bunia in 2003, 1846 various different factors were taken into account, including information provided by the child (particularly given some had received an education and were able to provide their age or date of birth). 1847 Trained social workers were used to conduct detailed interviews with the children, and the latter were asked questions about their families (including the order in which the children in the family had been born), and their academic records. 1848 P-0046 focussed on the children’s individual stories in order to establish certain key dates, and the latter were cross-checked against the information they had provided. 1849 652. P-0046 stated that physical appearance was also taken into account, but it was not used as the main criteria to determine a child’s age. 1850 The age-assessment procedure for child soldiers was broadly similar to that used for unaccompanied children but it included the additional factor of their military experience. The interviewers reviewed the 1851 children’s stories, their recruitment history and the battles in which they participated, in order to check their accounts. 1852 653. Additionally, P-0046 testified that she evaluated children on the basis of what they said and how they acted. Small children cried in 1853 her office 1854 and the younger children had difficulty discussing their experiences, especially if one or both of their parents had died. 1855 Generally, the witness noticed that it was harder for younger children

1846 T-205-Red2-ENG , page 37, line 23 to page 38, line 1. 1847 T-205 Red2-ENG , page 38, lines 1 – 4. 1848 T-205-Red2-ENG, page 38, lines 5 – 10. 1849 T-205-Red2-ENG, page 38, lines 10 – 13. 1850 T-205-Red2-ENG , page 38, lines 14 – 16. 1851 T-205-Red2-ENG , page 38, lines 14 – 24. 1852 T-205-Red2-ENG , page 38, line 25 to page 39, line 2 and page 40, lines 10 – 23. 1853 T-206-ENG , page 9, line 24 to page 10, line 3. 1854 T-206-ENG , page 10, lines 3 – 6. 1855 T-206-ENG , page 11, lines 10 – 17. No. ICC-01/04-01/06 296/593 14 March 2012

to talk about the death of their parents as compared with older children. P-0046 recalled meeting two particular little boys (she 1856 thought in the summer of 2003), who had previously been with the UPC when they were arrested. 1857 They were eleven and thirteen years old respectively, and had been frightened by the military. 1858 P-0046 thought they were very afraid because they did not know where they were being taken or what was to become of them, and when she began asking them questions one of them broke down in tears. 1859 P-0046 terminated the interview immediately and sent them to the CTO (a transit centre). 1860 Given they were so upset, P-0046 merely took down the names of their parents and their ages before referring them. 1861 P- 0046 recalled holding the hand of the younger child when crossing the street. Her evidence was that “[h]e was so small.” 1862 654. P-0046 asked numerous questions in order to verify the identity of the children: for instance, whether they had a family or relatives in the area, the schools they attended and the armed groups to which they belonged. 1863 She said it was important to identify the date on which the children had been conscripted or enlisted, in order to determine who was responsible for their recruitment and training; the centres they attended; the battles in which they fought; and the last commander under whom they served. 1864 Thereafter, P-0046 would refer the child to one of the transit centres. 1865

1856 T-206-ENG , page 11, lines 17 – 20. 1857 T-206-Red2-ENG , page 10, line 12 to page 11, line 9. 1858 T-206-Red2-ENG , page 10, lines 11 – 24. 1859 T-206-Red2-ENG , page 10, lines 9 – 17. 1860 T-206-Red2-ENG , page 10, lines 17 – 18. 1861 T-206-Red2-ENG , page 11, lines 3 – 9. 1862 T-206-Red2-ENG , page 10, lines 18 – 21. 1863 T-205-Red2-ENG , page 71, lines 8 – 14. 1864 T-205-Red2-ENG , page 71, lines 14 – 19. 1865 T-205-Red2-ENG , page 70, lines 20 – 21. No. ICC-01/04-01/06 297/593 14 March 2012

655 The Chamber is persuaded P-0046’s professional history and personal experience with the children she interviewed enabled her to provide realistic age estimates. Given P-0046’s experience and work methods, the Trial Chamber is satisfied that she is overall a reliable and credible witness. b) P-0024 656. P-0024 was employed from 2001 until November 2002 1866 as a social worker with SOS Grands Lacs, an NGO funded by the UN International Children’s Fund (“UNICEF”), and he testified about his work with the organisation during this time. 1867 The organisation’s mission in Bunia was the demobilisation and reintegration of child soldiers. 1868 The witness gave evidence about what he called the sham demobilisation efforts by the UPC, and he provided information on the presence of child soldiers as well as the demobilised children he encountered during his work in Bunia, up to the end of 2002. 657. The defence challenges P-0024’s evidence on the basis that to a significant extent he dealt with events outside the period of the charges, and his evidence related, on occasion, to the RCD/ML as 1869 opposed to the UPC. 1870 It is to be stressed that the Chamber has focussed only on those parts of P-0024’s testimony that are relevant to the charges brought against the accused. The witness’s evidence concerning the lack of demobilisation by the UPC is considered in Section XI(B)(3). 658. P-0024 testified that he saw children between 9 and 18 years of age 1866 T-170-Red2-ENG , page 37, lines 6 – 12 and page 55, lines 15 – 21. 1867 T-170-Red2-ENG, page 40, lines 3 – 10 and page 96, line 22 to page 97, line 12. 1868 T-170-Red2-ENG, page 37, lines 15 – 21. 1869 ICC-01/04-01/06-2773-Red-tENG, paras 581and 584 – 585. 1870 ICC-01/04-01/06-2773-Red-tENG, para. 585. No. ICC-01/04-01/06 298/593 14 March 2012

wearing military clothing, and carrying Kalashnikov machine guns and other weapons in various towns and cities in 2002, after the UPC took control of Bunia and following the broadcast of the first demobilisation programmes on television and Radio Candip. 1871 He also gave evidence that by November 2002 the UPC was recruiting demobilised children. He estimated they were aged between 8 ½ 1872 and 18 years of age when they entered the demobilisation programme of his NGO in 2001, before they were later re-recruited. 1873 659. The defence submits that P-0024 failed to provide sufficient details of the dates when, and circumstances under which, the children he worked with were allegedly re-recruited by the UPC. It is suggested his evidence was similarly lacking as regards their identities and ages (including how, apart from his personal impression, he established the latter). 1874 660. The prosecution argues that the witness’s daily dealings with children enabled him to testify reliably as to their ages. 1875 661. The Chamber considers that P-0024 gave honest, consistent and reliable evidence as regards his work with demobilised children. Although he did not train as a social worker, he spent over a year working with children ( viz. from September 2001 until November 2002), including in Bunia until the end of October 2002. This enabled him to provide first-hand information on how children were rerecruited. 1876

1871 T-170-Red2-ENG, page 52, lines 17 to 53, line 5, page 53, lines 17 – 21 and page 54, lines 3 – 11. 1872 T-170-Red2-ENG, page 50, line 13 to page 51, line 11. 1873 T-170-Red2-ENG, page 46, lines 2 – 14 and page 47, lines 3 – 25. 1874 ICC-01/04-01/06-2773-Red-tENG, paras 587-589. 1875 ICC-01/04-01/06-2778-Red, para. 66. 1876 T-170-Red2-ENG, page 50, line 13 to page 51, line 11. No. ICC-01/04-01/06 299/593 14 March 2012

662 The witness gave credible testimony about the children he closely worked with for a period of several months, and he was able to explain the basis of his suggestion that they were later re-recruited by the UPC. Although he did not give evidence as to how he assessed the children’s ages, his interaction with them during those months provides a solid and credible basis for his assessments. 663. Notwithstanding his lack of regular contact with the other children he saw on the streets, the Chamber accepts that on the basis of his professional background and experience, he was able to reach reliable assessments. Given the difference in appearance between, for instance, a 9-year-old child and a 15-year-old, the Chamber is persuaded that P- 0024 gave credible and reliable evidence that he saw children well below the age of 15, even if the ages of others may have been more difficult to assess. c) P-0012 664. P-0012 did not join the UPC/FPLC, 1877 but given his role as a highranking official within PUSIC at the relevant time, 1878 he had extensive contacts with armed groups in Ituri, including the UPC/FPLC, and he participated in monthly meetings to discuss problems relating to peace in Ituri. 1879 This witness gave evidence about the presence of child soldiers within the UPC/FPLC and other groups during the period of the charges.

665 The defence challenges this witness’s evidence in several respects. 1880 It is submitted that his former role in PUSIC should lead to

1877 T-168-Red2-ENG, page 13, lines 20 – 24; T-169-Red2-ENG, page 6, line 6. 1878 T-168-CONF-ENG, page 11, lines 2 – 3. 1879 T-168-CONF-ENG, page 13, lines 3 – 6 and T-168-Red2-ENG, page 13, lines 7 – 17. 1880 ICC-01/04-01/06-2773-Red-tENG, paras 537 – 543. No. ICC-01/04-01/06 300/593 14 March 2012

a cautious approach, because this group includes dissidents hostile to Thomas Lubanga. In addition, the defence contends that P-0012 did 1881 not personally witness a large part of the events he addressed in his testimony, as he was absent from Bunia between April 2002 and the end of July 2002, and again between mid-August 2002 and 17 March 2003. It is said that in the course of his evidence the witness 1882 repeatedly acknowledged that he had not personally witnessed all of the events he dealt with, but instead he rehearsed what others had told him. Indeed, it is contended that he failed to reveal the dates when these conversations occurred or their circumstances. 1883 666. The defence argues that although P-0012 testified about having seen children under the age of 15 in Ituri, he did not name the armed group or groups to which they belonged. 1884 When he did identify child soldiers as members of the UPC, it is argued there was no basis for his conclusion. The defence also criticises what is said to be his failure 1885 to explain the factors that enabled him to estimate the ages of these children. 1886 667. The Chamber finds that P-0012’s evidence was, in the main, internally consistent and it is of note that the defence has not provided evidence to substantiate its claim that the witness’s testimony is compromised by virtue of his previous position in PUSIC. The witness gave evidence concerning child soldiers within the UPC/FPLC, and he emphasised that during this period virtually every armed

1881 ICC-01/04-01/06-2773-Red-tENG, para. 537. 1882 ICC-01/04-01/06-2773-Red-tENG, paras 538 – 541. 1883 ICC-01/04-01/06-2773-Red-tENG, para. 542. 1884 ICC-01/04-01/06-2773-Conf, paras 552 and 748. 1885 ICC-01/04-01/06-2773-Red-tENG, paras 553 – 554. 1886 ICC-01/04-01/06-2773-Conf, paras 553, 555 and 749. No. ICC-01/04-01/06 301/593 14 March 2012

group in the region used children. 1887 Although the witness was not continuously present in Ituri throughout the timeframe of the charges, he was there between March and August 2003. 668. Turning to the defence criticisms of the witness’s personal assessments of age, the Chamber finds that, wherever possible, P-0012 gave details as to how he reached a conclusion. For example, when describing seeing a “tiny child” with a weapon in Bunia in May 2003 (an event that is discussed in greater detail below), 1888 P-0012 indicated that the child did not come up to his shoulder 1889 or to the top of the computer screen in front of where he was sitting in court. 1890 Although P-0012 was clearly only providing an estimate when he gave evidence that he was unable to say whether the child was even 12 years old, 1891 the detail of his account demonstrates he had a clear basis for concluding that he was below 15. Nonetheless, the Chamber has adopted a cautious approach towards P-0012’s other more general remarks about the age or size of children. 669. The Chamber is satisfied that P-0012 was overall a credible and reliable witness. d) P-0055 670. P-0055 was appointed a high-ranking official within the FPLC in 2002. 1892 He gave evidence about the structure of the UPC/FPLC, which included children under the age of 15.

1887 T-168-Red2-ENG, page 74, lines 4 – 6 and page 76, line 18. 1888 T-168-Red2-ENG, page 77, lines 6 – 10 and 78, lines 10 – 11. 1889 T-168-Red2-ENG, page 77, lines 22 – 24. 1890 T-168-Red2-ENG, page 78, lines 1 – 4. 1891 T-168-Red2-ENG, page 77, lines 9 – 10. 1892 T-174-CONF-ENG, page 32, line 25 to page 33, line 9, page 43, lines 4 – 13, page 47, lines 1 – 15, page 47, line 23 to page 48, line 7, page 49, lines 9 – 17 and page 50, line 25 to page 51, line 1; T-178- CONF-ENG, page 15, lines 16 to page 16, lines 9 – 13. No. ICC-01/04-01/06 302/593 14 March 2012

671 The defence submits that after having served in the army of the UPC/FPLC, until 2004 P-0055 was a member of the FAPC (an armed movement that was hostile to the UPC). 1893 It is suggested his testimony is unreliable on account of his close ties to the Ugandan government. 1894 672. The defence also maintains that P-0055 acknowledged on several occasions that he was unable to assess the ages of young recruits, and he did not suggest that any of the kadogos who were recruits at the Rwampara training camp, or who worked as guards at Bosco Ntaganda’s residence or as bodyguards for Thomas Lubanga (or other UPC commanders), were under the age of 15. 1895 673. The defence argues that notwithstanding P-0055’s evidence that he did not know whether the enlistment register at the Rwampara camp included the children’s ages, he also testified that the ages of the recruits usually had to be given, thereby indicating there was a requirement to make this check: 1896

[…] I don’t know whether the age was mentioned in that register. Actually I wasn’t really interested in verifying their ages, but generally when somebody comes to enlist for training, they’re asked where they were born, when they were born, their age is mentioned, because this is an identifying element for the person, if the person has a problem, it is made easier for the parents to 1897 recognise the person. In all the circumstances this somewhat contradictory evidence provides an insufficient basis for the contention that there was a rule that the ages of the recruits were to be checked.

1893 ICC-01/04-01/06-2773-Red-tENG, paras 478 – 479. 1894 ICC-01/04-01/06-2773-Red-tENG, paras 480 – 481. 1895 ICC-01/04-01/06-2773-Red-tENG, paras 490, 492, 494 and 495. 1896 ICC-01/04-01/06-2773-Red-tENG, para. 493. 1897 T-175-Red2-ENG, page 80, lines 10 – 16. No. ICC-01/04-01/06 303/593 14 March 2012

674 P-0055 indicated that although it was difficult to assess the agerange of those in the army, his conclusions in this regard were based on physical appearance. 1898 675. The Chamber has relied on the details provided by this witness as to the ages of child soldiers he saw within the ranks of the UPC/FPLC, bearing in mind that he defined the age-range of kadogos as between 13 and 16 years of age. 1899 676. P-0055’s evidence was internally consistent, and although his testimony in court differed to an extent from his statements to the prosecution, these relatively minor discrepancies did not undermine the reliability of his evidence as a whole. Furthermore, the Chamber is unpersuaded that P-0055’s connections with Uganda influenced his evidence (particularly to the detriment of the accused). P-0055 was a generally credible witness and the Chamber has relied on his evidence, save in relation to a discrete area identified below. e) P-0017 677. P-0017 joined the UPC the same week the latter took control of Bunia in 2002, 1900 and he remained with the group until he left the city in August 2003. 1901 Previously, the witness had spent about four months with the RCD. 1902 He led one of the UPC sections in 2003, 1903 and he worked with heavy weapons within a field brigade. 1904 P-0017 gave evidence about children under the age of 15 in, and the scale of their recruitment by, the UPC/FPLC, along with the latter’s military

1898 T-175-Red2-ENG, page 59, lines 5 – 13. 1899 T-178-Red2-ENG, page 36, lines 12 – 16. 1900 T-154-Red2-ENG, page 16, lines 18 – 24. 1901 T-154-Red2-ENG, page 17, lines 11 – 15. 1902 T-160-Red2-ENG, page 32, lines 10 – 11. 1903 T-154-Red2-ENG, page 18, line 9. 1904 T-154-Red2-ENG, page 22, lines 15 – 17 and page 23, lines 8 – 11. No. ICC-01/04-01/06 304/593 14 March 2012

structure. 678. The defence emphasises the evidence from P-0015 that he acted as an intermediary between P-0017 and the prosecution. 1905 It is also suggested that the accused has not been provided with the exact identity of the individual who first introduced P-0017 to the prosecution, thereby preventing the defence from conducting effective verification and investigation, (the table of contacts indicates that 1906 contact with this witness was initially made through a prosecution investigator). 1907 The Chamber is invited to take these general circumstances into account, along with what is said to be P-0015’s involvement in “a concerted operation aimed at presenting false testimony before the Chamber”, when evaluating P-0017’s account. 1908 679. Notwithstanding these submissions, no evidence has been introduced to the effect that P-0015 influenced the testimony of P-0017. Generally, there is no foundation for the suggested adverse inference that the defence asks the Chamber to draw as regards the credibility of P-0017, based solely on the nature of the contact between these two witnesses. 680. As discussed in greater detail below, P-0017 testified that he saw recruits as young as 12 years old, although the defence challenges this suggestion on the grounds that it was based solely on his personal assessment, which was founded on their physical appearance. 1909 P- 0017’s conclusions as to the age of girls derive from the assumption that those over the age of 15, as well as a number of those who are 13 1905 ICC-01/04-01/06-2773-Red-tENG, para. 426, referring to T-265-CONF-Red-FRA, page 38, lines 3 – 15. 1906 ICC-01/04-01/06-2773-Red-tENG, paras 426 – 427. 1907 EVD-D01-01039, page 5852, No. 15, line 1. 1908 ICC-01/04-01/06-2773-Red-tENG, para. 428. 1909 ICC-01/04-01/06-2773-Red-tENG, para. 742. No. ICC-01/04-01/06 305/593 14 March 2012

or 14, have developed breasts. 1910 P-0017 gave the names of two girls who were initially in the FPLC’s kadogo unit, and he said one of them was small. 1911 Although he had not asked them their age, he estimated that they were between 13 and 14 years, 1912 and he wholly rejected the defence suggestion that one of them could have been 17. 1913 681. As regards boys, P-0017 indicated “you could see it from their behaviour. Some would cry for their mother when they were hungry. They would whine at night, and during the day they were playing games, children’s games, even if they had their weapon next to them. So you would see that these children weren’t even adolescents yet. Their voice hadn’t yet broken, so they were children […] still.” 1914 682. Notwithstanding the undoubted difficulties that exist as regards personal, non-expert estimates of the age of children, the Chamber is satisfied P-0017’s evidence concerning the ages of recruits, and particularly the youngest (those who were in the 12 year old bracket), is to be relied upon. The Chamber found him to be a credible, consistent and reliable witness. f) P-0016 683. P-0016 was appointed as a high-ranking official within the FPLC in 2002 after Governor Lompondo had been forced out of Bunia. 1915 He testified that children were part of the UPC/FPLC army. He also stated there were PMF recruits of all ages, including very young girls. 1916

1910 T-154-Red2-ENG, page 41, lines 14 – 20. 1911 T-158-Red2-ENG, page 26, line 8 to page 27, line 16. 1912 T-158-Red2-ENG, page 26, lines 20 – 23 and T-160-Red2-ENG, page 58, lines 16 – 21. 1913 T-160-Red2-ENG, page 58, line 12 to page 59, line 5. 1914 T-154-Red2-ENG, page 41, lines 20 – 25. 1915 T-189-Red2-ENG, page 3, lines 6 – 11; page 60, line 23 to page 61, line 4. 1916 T-189-Red2-ENG, page 34, lines 7-10. No. ICC-01/04-01/06 306/593 14 March 2012

684 P-0016 remained with the UPC/FPLC until the end of November or early December 2002. His tasks included “giving instructions to 1917 children”, as well as talking about discipline and about military regulations. 1918 When asked to explain what he meant by “children” in this context, the witness simply replied that he had to provide instruction to those undergoing military training, but when further 1919 questioned about the ages of the soldiers he trained, he denied he had acted in that capacity. 1920 The Chamber is of the view that the witness, in these answers, was attempting to minimise his own role, including by suggesting that he could not properly discharge his duties. 1921 The Chamber has treated this aspect of his testimony with caution, given the clearly evasive nature of his evidence as to his own involvement. In addition, the Chamber had doubts as to the accuracy of another discrete area of his testimony, which is dealt with below in the section on the individual criminal responsibility of the accused. 685. The defence contends that there are reasonable grounds for concluding the witness has particularly close ties to the Congolese government, and as a result his testimony should be approached with particular care. 1922 686. Notwithstanding these criticisms, on analysis, there is no evidence to support the contention that he provided false testimony out of loyalty to the DRC government, and the Chamber found him to be a generally consistent, credible and reliable witness who, in the main,

1917 T-189-Red2-ENG, page 3, line 25 to page 4, line 9. 1918 T-189-Red2-ENG, page 65, lines 22 – 25. 1919 T-189-Red2-ENG, page 66, lines 3 – 6. 1920 T-189-Red2-ENG, page 74, lines 17 to page 75, line 8. 1921 See T-189-Red2-ENG, page 65, lines 18 – 22. He also stated he had no rights with regard to instructions and had no authorisation to go to the training centre in Mandro: T-189-Red2-ENG, page 74, line 23 to page 75, line 8. 1922 ICC-01/04-01/06-2773-Red-tENG, paras 405 – 407. No. ICC-01/04-01/06 307/593 14 March 2012

testified about events he personally witnessed. However, as indicated, there is a qualification to this overall assessment.

687 The defence argues that P-0016’s assessment of age was based solely on his personal impressions. 1923 However, P-0016 was convincing on this issue. When asked how he was able to determine the ages of the young recruits, P-0016 replied that “you could always tell that they 1924 were children, because after training they would create groups and everything they did resembled what children do”, such as playing games. 1925 He said they would make toys for themselves and look for sticks in order to “play at being soldiers”, imitating the way soldiers went to war. Children put down their weapons and played 1926 marbles, 1927 and this, he suggested, demonstrated that they were immature. 1928 He also gave evidence about a 13-year-old child at the camp in August 2002 that he described as a “little one”, who was “really too small”, and the witness often sent him on errands, for example for cigarettes from the village behind Mandro. 1929 Overall, in the Chamber’s view, P-0016 provided a clear and credible explanation as to how he assessed the ages of the children he encountered in the ranks of the UPC/FPLC. g) P-0038 688. As already discussed above, P-0038 gave evidence that he was a member of the UPC army (the FPLC) between 2001 and 2005. 1930 During that time, he acted, inter alia, as a trainer in the Mandro centre,

1923 ICC-01/04-01/06-2773-Red-tENG, paras 413 – 415. 1924 T-189-Red2-ENG , page 16, lines 20 – 22. 1925 T-189-Red2-ENG , page 16, lines 23 – 25. 1926 T-189-Red2-ENG, page 17, lines 3 – 5. 1927 T-189-Red2-ENG, page 17, lines 5 – 8. 1928 T-189-Red2-ENG, page 17, line 8. 1929 T-189-Red2-ENG, page 16, lines 7 – 19. 1930 T-113-Red2-ENG , page 31, lines 11 – 15. No. ICC-01/04-01/06 308/593 14 March 2012

prior to becoming a bodyguard at Chief Kahwa’s residence (during the period April to September 2002). He addressed the structures 1931 within the FPLC, and he described the training for the recruits and various battles. There were some recruits below 15 years at the camp at Mandro when he worked there as a military trainer (before the period of the charges), and he saw other children in the same age 1932 group during his time in the UPC, including many he noticed whilst he was training soldiers in Mongbwalu, who were between 13 and 16 years of age. 1933 P-0038 was able to assess their ages by their physical appearance, including their height, and in his view it was easy to tell who was above and who was below 15 years. 1934 Some of the children weighed less than their weapons, with the result that the smaller children could not carry their AK-47s for a long period of time. 1935 Although his group of 12 soldiers, which used heavy weapons at the battle of Mongbwalu, did not include any children, 1936 he indicated that children below the age of 15 acted as bodyguards, escorts and soldiers during this battle. 1937 689. In addition to the challenges already addressed above, 1938 the defence submits that P-0038 based his assessment of the ages of children on their appearance, and it is suggested he would only have been in a position to make this assessment for the soldiers in his immediate group ( i.e. those with whom he had the most frequent

1931 T-114-Red2-ENG, page 43, line 17 to page 44, line 3; page 46, lines 9 – 15; T-113-Red2-ENG, page 40, line 7 to page 41, line 1. 1932 T-113-Red2-ENG, page 40, line 7 to page 41, line 4; T-114-Red2-ENG, page 43, line 20 to page 44, line 3. 1933 T-113-Red2-ENG, page 35, line 11 to page 36, line 17. 1934 T-114-Red2-ENG, page 37, lines 15 – 21. 1935 T-114-Red2-ENG, page 37, lines 20 – 23. 1936 T-113-Red2-ENG, page 50, line 23 to page 51, line 4. 1937 T-113-Red2-ENG, page 51, line 22 to page 53, line 3. 1938 See paras 340-349. No. ICC-01/04-01/06 309/593 14 March 2012

contact). 1939 The defence also relies on his evidence that at 18 years of age he was the youngest soldier sent for training in Rwanda, where he was referred to as “the kadogo”. 1940 690. As already indicated, 1941 the Chamber finds that P-0038 was a generally reliable and credible witness. His account that he joined the army of the UPC in 2001 – before its armed branch was formally established – does not undermine his testimony, given D-0037 explained the group in Mandro (to which P-0038 belonged) later became the FPLC. 1942 In this connection, the Chamber notes that D- 0006 testified that he joined the UPC at the end of May 2002. 1943 691. The Chamber is persuaded he assessed age reliably, as demonstrated by the details in his testimony which help explain his conclusion that certain children were below the age of 15 ( e.g. the difficulties some had carrying weapons), and he was clearly able to evaluate soldiers outside his immediate group. P-0038 was in constant contact with many other soldiers – for instance, during their training – and therefore he was in a position to reach reliable conclusions as to age. 692. Furthermore, the reference to P-0038 as “the kadogo” during his training in Rwanda is not determinative of the age of those similarly referred to within the UPC/FPLC. As the witness himself indicated, the term kadogo was used in the UPC/FPLC above all to refer to those

1939 ICC-01/04-01/06-2773-Red-tENG, para. 473. 1940 ICC-01/04-01/06-2773-Red-tENG, para. 473; T-114-Red2-ENG, page 8, lines 4 – 9. 1941 See paras 348 and 481. 1942 T-349-ENG, page 7, line 23 to page 8, line 20; page 20, line 22 to page 21, line 7. 1943 T-254-ENG, page 80, lines 5 – 13.

No. ICC-01/04-01/06 310/593 14 March 2012

below 15 years of age. 1944 693. Although the Chamber has taken into account the fact that P-0038 initially acted as a trainer at Mandro prior to the period covered by the charges, this does not affect the weight of his evidence as a whole, and most particularly the reliability of his assessment that child soldiers formed part of the UPC/FPLC whilst he was within that group ( viz . until 2005). h) P-0041 694. P-0041 was a member of a different group 1945 before Thomas Lubanga appointed him to a post within the UPC executive in September 2002 1946 and thereafter to another position in May 2003. 1947 He has known the accused since childhood. 1948 695. P-0041 gave evidence that he saw child soldiers within the UPC/FPLC bearing weapons, who were between 10 and 18 years old. 1949 He said Thomas Lubanga and others in the UPC/FPLC used child soldiers as their bodyguards, 1950 and he gave a detailed account of his own bodyguard, whom he believed was about 14 years old. 1951 P-0041 also addressed the issue of recruitment, training and demobilisation. 696. The defence submits that although the witness claimed there were child soldiers in the UPC/FPLC, and he provided details particularly about the bodyguards of Thomas Lubanga, Floribert Kisembo, Bosco

1944 T-114-Red2-ENG, page 39, line 15 to page 40, line 3. 1945 T-124-CONF-ENG, page 68, lines 6 – 24. 1946 T-124-CONF-ENG, page 69, lines 13 – 21. 1947 T-124-CONF-ENG, page 69, line 22 to page 70, line 6. 1948 T-124-Red2-ENG, page 71, line 12. 1949 T-125-Red2-ENG, page 48, lines 8– 17. 1950 T-125-Red2-ENG, page 54, lines 17 to 25 and page 55, lines 12 to 57, line 7. 1951 T-126-Red2-ENG, page 55, line 7 to page 57, line 12. In this part of his testimony P-0041 also referred to having been assigned more bodyguards for a brief period of one week, whom he estimated to be between 14 and 16 years of age. No. ICC-01/04-01/06 311/593 14 March 2012

Ntaganda and other commanders, 1952 he did not provide sufficient particulars as to how he was able to estimate their ages – indeed, he conceded that this was a difficult exercise – and he did not claim he was able to assess the age of the soldiers assigned to the fighting units. 1953 697. Although P-0041 was unsure of the exact age of his own bodyguards and he frankly accepted it is difficult to assess the ages of children, he testified unequivocally that children from 10 years upwards were part of the armed forces. 1954 698. The evidence of P-0041 was internally consistent and the Chamber considers that this former member of the UPC executive was a reliable source as to the decisions made within the UPC during the relevant period. He provided significant detail in his answers, whilst being frank as to the matters about which he was uncertain. By way of example, notwithstanding P-0041’s assessment that his bodyguards were between 14 and 16 (given their physical appearance), he agreed that it is difficult to gauge the age of a young boy or child. 1955 He suggested this particular evaluation depends on several factors and he accepted it was necessary to consider diet because children may have been underfed. 1956 In all the circumstances, the Chamber is persuaded that P-0041 saw children who were clearly under the age of 15 in the UPC/FPLC and it found him to be a credible and reliable witness.

1952 ICC-01/04-01/06-2773-Red-tENG, para. 390, referring to T-125-CONF-FRA, page 66, lines 12-17; para. 391, referring to T-125-CONF-FRA, page 59, lines 3-5. 1953 ICC-01/04-01/06-2773-Red-tENG, paras 385 – 386, 388 and 390 – 391. 1954 T-125-Red2-ENG, page 48, lines 8– 17. 1955 T-126-Red2-ENG, page 55, lines 19 – 22. 1956 T-126-Red2-ENG, page 56, lines 3 – 8. No. ICC-01/04-01/06 312/593 14 March 2012

i) P-0014 699. P-0014, whose work required him to be up-to-date on political matters, 1957 travelled to Ituri at least once a week prior to 31 January 2002, and although he was not based in the area after August 2002, he returned to Ituri sporadically. He gave detailed evidence – based on 1958 his personal knowledge and experience of the region – about events and the key people in Ituri between 1999 and 2003. In particular, he focussed on the composition and aims of the UPC, along with its recruitment, training and use of child soldiers under the age of 15. The witness went to the UPC headquarters nearly every day for a limited period shortly before the timeframe of the charges, when he saw the recruits and their training. 1959 700. P-0014 witnessed military training at the UPC’s headquarters in Bunia immediately preceding the period of the charges in 2002. 1960 He indicated the recruits were trained to fight the RCD-ML and the Lendu, 1961 and they ranged from 5 years old to adulthood. 1962 P-0014 estimated that 30% of approximately one hundred young recruits he saw were children aged 15 and under. Excluding those who were 1963 15, he estimated about 20% of the recruits were below that age. 1964 701. The prosecution highlights P-0014’s evidence that there was no lower age limit for the recruitment of children and the UPC/FPLC systematically pressured Hema families to provide children for

1957 T-179-CONF-ENG, page 12, line 22 to page 17, line 16. 1958 T-179-Red2-ENG, page 13, lines 6 – 10, page 14, lines 11 – 14; T-179-CONF-ENG, page 17, lines 5 – 16. 1959 T-179-Red2-ENG, page 74, lines 4 – 8; T-185-Red2-ENG, page 6, lines 21 – 25. 1960 T-179-CONF-ENG, page 62, lines 15 – 25, page 66, line 19 to page 67, line 11 and page 74, lines 3 – 7. 1961 T-184-Red2-ENG, page 60, lines 5 – 13 1962 T-179-Red2-ENG, page 83, line 4 to page 84, line 2. 1963 T-179-Red2-ENG , page 86, lines 12 – 20. 1964 T-182-Red2-ENG, page 32, lines 1 – 10. No. ICC-01/04-01/06 313/593 14 March 2012

military service, through “mobilisation campaigns” or “recruitment drives”. P-0014 gave evidence about the harsh punishment and 1965 other treatment inflicted on the child soldiers, 1966 and he saw children under the age of 15 with gunshot wounds. 1967 702. The defence is critical of the reliability and credibility of the witness’s evidence on issues relating to the presence of child soldiers within the UPC/FPLC, inter alia , because he was not in Ituri throughout the period covered by the charges. 1968 However, the Chamber is persuaded that the witness’s frequent trips to the region before and during this time, and his account of the way in which he received information about Ituri when he was absent, means his evidence is reliable. In particular, P-0014 took steps to ensure the information was accurate, and he sought to rely on several sources who were unknown to each other. After the witness left Ituri, he 1969 had direct contact with various individuals who were personally involved in politics, and he spoke with people “in the field”. 1970 P-0014 relied on the latter to obtain information on what was happening and the “actions that were being prepared”. 1971 703. The defence challenges the witness’s evidence as to having seen children aged 5 to 18 in the UPC training camps in 2002. It is argued that his testimony lacked detail (particularly on how he assessed the age of the children). 1972 704. As to a particular incident recounted by P-0014 that falls within the 1965 ICC-01/04-01/06-2748-Red, paras 175, 176 and 179. 1966 T-181-Red2-ENG, page 17, lines 6 – 16 and page 19, lines 10 – 20. 1967 T-182-Red2-ENG, page 39, line 25 to page 40, line 3. 1968 ICC-01/04-01/06-2773-Red-tENG, para. 562. 1969 T-179-Conf-ENG, page 16, lines 20 – 25. 1970 T-181-Red2-ENG, page 53, lines 14 – 20. 1971 T-181-Red2-ENG, page 53, lines 18 – 20. 1972 ICC 01/04-01/06-2773-Red-tENG, paras 572, 575 and 743. No. ICC-01/04-01/06 314/593 14 March 2012

period of the charges ( viz. seeing a boy of 12 years among the troops of Commander Jerôme Kakwavu in Aru in March or April 2003) the defence asserts his account was lacking in detail or any indication as to how he estimated the boy’s age. 1973 Moreover, the defence maintains that Commander Kakwavu defected from the UPC in March 2003 and that the UPC was not in Aru at the relevant time. This is addressed 1974 below. 705. The defence also questions P-0014’s credibility as regards his evidence that he is able to differentiate between ethnic groups based on physical appearance. 1975 This issue is essentially irrelevant to the Chamber’s Decision.

706 Assessing P-0014’s evidence as a whole, the Chamber is of the view his account was credible and reliable. The witness testified in a straightforward and honest manner, distinguishing clearly between the events he had witnessed and those that were reported to him.

707 Regarding his assessments of age, the witness gave detailed evidence about the child soldiers he saw in Ituri between 1999 and 2003. As discussed below, the witness provided a precise account of the circumstances in which he saw particular individuals at various times and how he assessed their ages.

708 P-0014 observed there was “no age limit” as regards the children recruited into the UPC/FPLC, and he saw 8 – 15 year-olds who had been forcibly recruited. 1976 He estimated the age of a particular fiveyear-old child at a training centre on the basis that a six-year-old 1973 ICC-01/04-01/06-2773-Red-tENG, para. 575. 1974 ICC-01/04-01/06-2773-Red-tENG, para. 575, referring to T-178-CONF-FRA, page 19, lines 5 – 23 and page 34, lines 3 – 9. 1975 ICC-01/04-01/06-2773-Red-tENG, para. 576. 1976 T-182-Red2-ENG, page 36, line 5 to page 37, line 25. No. ICC-01/04-01/06 315/593 14 March 2012

should be able to reach over his head and touch his opposite ear, and this child was unable to do this when asked. As to how he 1977 estimated the age of the other children he saw, the witness indicated that he used to be a teacher and he had been in daily contact with individuals within this age group; this helped him to identify the ages of young people he saw within the UPC/FPLC. The witness took 1978 into account the children’s physical characteristics, including such things as the change in a boy’s voice when he reaches puberty. 1979 709. As with other witnesses who also gave personal estimates of ages, the Chamber has reflected the difficulties in this area; however, in the context of P-0014’s evidence as a whole, the Chamber is satisfied that his evidence on this subject was credible and reliable. j) P-0002 710. P-0002 testified about video evidence introduced during the trial. This witness worked for the UPC ”since it was created” until May 2003. 1980 During the period following March 2003, he went to Thomas Lubanga’s residence nearly every day. 1981 The prosecution introduced a number of videos into evidence via this witness showing UPC political speeches, assemblies, rallies and interviews. Although the defence criticises the lack of precision in P-0002’s evidence on the age and identity of young people in the UPC, it does not challenge the 1982 authenticity of the underlying material. The Chamber is satisfied that the evidence of P-0002, in which he identified various people and

1977 T-179-Red2-ENG, page 84, lines 1 – 7 and page 86, line 21 to page 87, line 9. 1978 T-179-Red2-ENG, page 87, lines 10 – 14. 1979 T-179-Red2-ENG, page 87, lines 15 – 21. 1980 T-160-Red2-ENG, page 69, line 19 to page 70, line 21 (stating that it was until March, which he corrected in a following transcript); T-162-Red2-ENG, page 5, lines 14 – 25. 1981 T-162-Red2-ENG, page 7, lines 3 – 11. 1982 ICC-01/04-01/06-2773-Red-tENG, para. 532. No. ICC-01/04-01/06 316/593 14 March 2012

locations in the videos shown to him during his evidence, along with the dates of the relevant events, is credible, consistent and reliable.

711 P-0002 declined to elaborate on his estimate as to the ages of former UPC soldiers in a video excerpt – some of whom he thought could be underage – because he had not asked them their ages. 1983 Given P- 0002’s evident caution as regards the ages of children, the Chamber is confident he only expressed an opinion on this issue when he had a proper basis for reaching a firm conclusion. Overall, P-0002 was a credible and reliable witness. The Chamber has independently assessed the ages of the children identified in the video footage, to the extent that it is possible to draw a safe conclusion based on their appearance. k) P-0030 712. P-0030 principally gave evidence about a number of videos concerning UPC-related political speeches, popular assemblies, press conferences and other meetings he attended. He provided an explanation of the events reflected in the video footage, and he identified various people and locations.

713 P-0030 testified that he noticed children under the age of 15 within the ranks of the UPC/FPLC, 1984 including children as young as 9 years old who were part of Thomas Lubanga’s presidential guard. 1985 He commented on a number of video excerpts that show recruits and bodyguards belonging to the UPC, some of whom were clearly under

1983 T-162-Red2-ENG, page 48, line 16 to page 49, line 5. 1984 See, for instance, T-128-Red2-ENG , page 24, lines 5 – 12, page 48, lines 6 – 14; page 63, lines 2 – 14; page 65, line 12 to page 66, line 4. 1985 T-128-Red2-ENG , page 20, line 14 to page 21, line 7. No. ICC-01/04-01/06 317/593 14 March 2012

the age of 15. 1986 714. The defence submits the evidence of P-0030 is limited in its scope, as he was essentially called to authenticate the video extracts played during his testimony. 1987 However, the witness was questioned extensively about certain political events that were connected to the video footage he viewed in court, and the defence was provided with a fair opportunity to examine him on these issues. In the circumstances, the Chamber has not restricted its consideration of P-0030’s evidence as suggested by the defence but instead it has taken the entirety of his testimony into account. 715. Although the defence maintains that P-0030’s contact with Intermediary 143 1988 should be considered when evaluating his credibility, 1989 there is no evidence to suggest that Intermediary 143 influenced P-0030 in the evidence he gave. Accordingly, there is no basis for drawing an adverse conclusion as to his testimony based solely on any contact between them – indeed, the Chamber found the evidence of P-0030 to be consistent, credible and reliable. 716. The defence addressed his account of having seen young soldiers within the ranks of the UPC, whose age he estimated as between 9 years and adulthood. The defence emphasises this conclusion was based solely on his visual assessment. 1990 Similarly, the defence contends that P-0030 did not verify the ages of the bodyguards he saw at Thomas Lubanga’s residence, whom he also suggested were 1986 EVD-OTP-00571, 02:47:15 – 02:47:19; EVD-OTP-00572, 00:28:42; EVD-OTP-00574, 00:36:21 and 01:49:02; EVD-OTP-00585, 00:40:08 onwards. The video excerpts will be addressed in the relevant sections below. 1987 ICC-01/04-01/06-2773-Red-tENG, para. 533. 1988 See table of contacts between intermediaries and trial witnesses, EVD-D01-01037 at DRC-D01- 0003-5788, line 8. 1989 ICC-01/04-01/06-2773-Red-tENG, para. 534. 1990 ICC-01/04-01/06-2773-Red-tENG, paras 535 and 746. No. ICC-01/04-01/06 318/593 14 March 2012

between 9 years and adulthood. 1991 It is argued it is impossible to distinguish with sufficient certainty between a 12 or 13 year-old and a 15 or 16 year-old child on the basis of a photograph or video extract. 1992 Therefore, the defence asserts the video excerpts provide an uncertain basis for concluding that the adolescents in them were below the age of fifteen. 1993 717. The Chamber notes that P-0030’s estimate that the children guarding Mr Lubanga’s residence were 9 or 10 years of age was not based solely on a limited number of visits. His account, which the Chamber accepts, was that he visited the residence frequently (two or three times per week). When questioned about the ages of certain 14 1994 and 15 year-old child soldiers he had seen, the witness explained his assessment as follows:

A. Well, I can say, I can justify myself, but the images also speak. If you doubt what I say, I think that by looking at the image that the image can help 1995 you see that there were kadogos. He added there might be differences in size depending on the ethnicity of the children. 1996

718 The Chamber concludes that P-0030 based his assessment of age on the appearance of the individuals he saw, some of whom he encountered on a frequent, as opposed to a sporadic, basis. The Chamber is satisfied that there are instances when a reliable distinction can be drawn between a 9 or 10 year-old child and a 14 or 15 year-old child, based solely on appearance. The Chamber has independently

1991 ICC-01/04-01/06-2773-Red-tENG, paras 536 and 747. 1992 ICC-01/04-01/06-2773-Red-tENG, paras 703 – 704. 1993 ICC-01/04-01/06-2773-Red-tENG, paras 705 – 707. 1994 T-128-Red2-ENG , page 19, line 25 to page 20, line 6. 1995 T-131-Red2-ENG, page 8, line 2 to page 9, line 9. 1996 T-131-Red2-ENG, page 8, line 25 to page 9, line 9. No. ICC-01/04-01/06 319/593 14 March 2012

assessed the ages of the children identified in the video footage and about whom this witness expressed a view, to the extent that it is possible to draw a safe conclusion based on their appearance. Overall, P-0030 was a credible and reliable witness. l) D-0011 719. D-0011 joined the UPC in about July of 2002 when he was living in Bunia. 1997 He served as Thomas Lubanga’s “expert consultant” and later as his “private secretary” until around September 2004. 1998 In the latter role, D-0011 managed Mr Lubanga’s meetings, acted as his driver and prepared documents, and he was concerned with other aspects of the President’s daily activities. 1999 He assumed responsibility for procuring rations for the troops, which were purchased by the President. His office was located within Thomas Lubanga’s 2000 premises and sometimes he attended meetings organised by the President. 2001 A significant part of the testimony of this witness concerned the demobilisation process allegedly implemented by the UPC, as addressed in Section IX(B)(3)(a)(1). This includes evidence concerning the Disarmament, Demobilisation, Repatriation, Resettlement and Reintegration (“DDRRR”) programme and the letter of 12 February 2003. 2002 720. D-0011 testified that between September 2002 and the end of May 2003 he did not see any child soldiers in the UPC and, if there were, “perhaps they were in the interior.” 2003 He explained that possibly

1997 T-346-ENG, page 71, lines 12 – 19. 1998 T-346-ENG, page 69, line 21 to page 71, line 11 and page 74, line 13 to page 75, line 6. 1999 T-346-ENG, page 75, lines 9 – 21. 2000 T-346-ENG, page 75, lines 14 – 16. 2001 T-346-ENG, page 75, line 22 to page 76, line 15. 2002 T-347-ENG, page 45, line 17 to page 62, line 3. 2003 T-347-ENG, page 35, lines 19 – 22. No. ICC-01/04-01/06 320/593 14 March 2012

there were children under the age of 15 within the umbrella of the FPLC “in the interior” (not in Bunia), who sought food or protection, and although on occasion they were asked to carry out “minor task[s]” such as transporting military equipment, they did not receive military training. 2004 721. He did not know whether children under the age of 15 were used by the FPLC to fight in the front line at Lipri, Bambu and Kobu in February 2003. 2005 D-0011 also did not know whether children under the age of 15 were at the Rwampara military camp, and, given his absence, he was unable to give evidence about Thomas Lubanga’s visit to that camp in February 2003. He was unaware of any procedures 2006 for verifying the ages of the recruits, although he stated that when the armed branch of the FPLC was set up, an order was issued prohibiting the enrolment of children – who D-0011 defined as individuals below the age of 18 – into the army. D-0011 suggested it was possible to 2007 determine whether an individual was below the age of 18 by their physical appearance. 2008 722. D-0011 testified that at the end of May 2003, Thomas Lubanga held a rally in Bunia, where they both saw a number of children carrying weapons, who appeared to be under the age of 18, amongst the group of FPLC soldiers. 2009 After he brought this to the attention of Mr Lubanga, the latter asked him to prepare an emergency decree “to ensure the demobilisation of soldiers within the FPLC who were

2004 T-347-ENG, page 36, line 9 to page 37, line 6. 2005 T-347-ENG, page 62, line 5 to page 63, line 23. 2006 T-347-ENG, page 57, line 22 to page 60, line 6 and page 20 – 23. 2007 T-347-ENG, page 40, line 7 to page 41, line 22. 2008 T-347-ENG, page 39, line 23 to page 40, line 1. 2009 T-347-ENG, page 12, lines 19 – 21 and page 15, line 7 to page 16, line 1. No. ICC-01/04-01/06 321/593 14 March 2012

visibly child soldiers.” 2010 D-0011’s explanation for this new phenomenon ( viz . the presence of children) was that before the UPDF retreated from Bunia on or about 5 May 2003, it distributed weapons to those who wished to protect themselves. 2011 Children within the ranks of PUSIC, and those who had been abandoned, were armed as a result, and he indicated this explained the “abundant presence of 2012 child soldiers in the ranks of the FPLC”. 2013 D-0011 suggested that child soldiers were to be found in the FPLC after the end of May 2003 as a result of a period in which they “weren’t in a position to manage affairs in the territory”, but that by end of July 2003 they had been demobilised by various organisations, due to the efforts of the commanders of the FPLC. 2014 723. The defence suggests that on account of the large number of armed groups present in Bunia in May 2003, which included armed forces that had split from the UPC, it was impossible to identify the various armed groups to which the children bearing arms belonged simply by looking at them. 2015 D-0011 indicated that when he saw a large number of armed individuals amongst the soldiers providing security at a UPC rally in Bunia, who gave the impression of being under 18, he could not say with certainty whether they were all soldiers because some of them were dressed partially in civilian clothing. 2016 Notwithstanding this possible difficulty, it is clear that the individuals wearing uniforms who were obviously providing security were easier to categorise. This witness only referred to children in the sense that there were soldiers

2010 T-347-ENG, page 15, line 19 to page 16, line 8. 2011 T-347-ENG, page 16, line 13 to page 17, line 1. 2012 T-347-ENG, page 17, lines 1 – 8. 2013 T-347-ENG, page 17, lines 8 – 10. 2014 T-347-ENG, page 35, line 25 to page 36, line 8. 2015 ICC-01/04-01/06-2773-Red-tENG, para. 937. 2016 T-347-ENG, page 15, lines 12 – 16. No. ICC-01/04-01/06 322/593 14 March 2012

who were below the age of 18. His testimony therefore does not assist as to whether there were children below the age of 15 in the FPLC.

724 The Chamber has taken into account the close professional relationship between this witness and the accused, and it has weighed his evidence in light of the other persuasive material that indicates there were children below 15 years of age in the FPLC. The Chamber considers that this witness was frequently evasive in his testimony, which the Chamber has approached with considerable caution. In the result, the Chamber has only relied on his account when supported by other credible evidence. m) D-0037 725. D-0037 is a former soldier who was with the APC army in 2001 and 2002. Later, he joined an armed group in Mandro which was 2017 organised to defend the Hema community under the leadership of Chief Kahwa and Commander Bosco Ntaganda. 2018 The witness’s evidence was that he recalled joining this group around the middle or end of June 2002 2019 and that it later became part of the FPLC, following the takeover of Bunia in 2002. Within the FPLC, D-0037 2020 became secretary to Commander Bosco Ntaganda. 2021 Thereafter, he was also appointed as the Chief of Administration in the UPC/FPLC (G1), around July or August 2003, following the defection of Floribert

2017 T-349-ENG, page 4, lines 1 – 19. The witness later stated he joined the APC in 2000. However, the question and answer in this regard do not seem to correspond, which may be the result of interpretation or transcription difficulties, T-349-ENG, page 20, lines 11 – 21. 2018 T-349-ENG, page 5, lines 9 – 18. 2019 T-349-ENG, page 20, line 22 to page 21, line 12. The witness eventually said he joined the FPLC in June 2002, but from his evidence in this series of questions, it seems that he meant the group that later turned into the FPLC rather than the FPLC itself. 2020 T-349-ENG, page 7, line 22 to page 8, line 20 and page 20, line 25 to page 21, line 7. 2021 T-349-ENG , page 8, lines 21 – 23; page 9, lines 5 – 13; page 21, lines 8 – 15. No. ICC-01/04-01/06 323/593 14 March 2012

Kisembo. 2022 726. He gave evidence about the rebellion against the RCD/ML and he supplied information concerning the self-defence forces, the structure of the FPLC and the alleged demobilisation of children. D-0037 said that although there were children below 18 years of age within the FPLC, there were none below 15. The witness described how some 2023 individuals who arrived at FPLC training centres were refused training although others below the age of 18 were admitted if they were well built. 2024 727. The Chamber has concluded that D-0037’s evidence was, in most respects, credible, consistent and reliable although on certain discrete issues, that have been addressed to the extent necessary, his evidence was of less assistance. n) D-0019 728. D-0019 was an early member of the UPC (he helped draft the UPC’s programme, dated 15 September 2000) 2025 and he served as the UPC’s national secretary for internal and customary affairs (following his original appointment as deputy national secretary). 2026 He also acted as spokesman and, in August 2003, as the interim president of the UPC. 2027 He remains a member of the UPC. D-0019 gave evidence on the origins and nature of the UPC and the FPLC; the events in Ituri during the period leading up to and including the charges; the relationship between the UPC/FPLC and the self-defence committees;

2022 T-349-ENG , page 15, lines 7 – 20 and page 23, lines 2 – 21. 2023 T-349-ENG, page 61, lines 4 – 14. 2024 T-349-ENG , page 61, line 24 to page 62, line 4. 2025 T-342-ENG, page 16, line 16 to page 17, line 1, r eferring to EVD-OTP-00662. 2026 T-340-ENG, page 70, lines 14 – 24. 2027 T-342-ENG, page 51, line 24 to page 52, line 22; T-340-ENG, page 70, line 24. No. ICC-01/04-01/06 324/593 14 March 2012

the UPC/FPLC’s attempts at demobilisation; and the situation of children, as regards the UPC army.

729 Although the prosecution and the defence rely on the testimony of D-0019, the prosecution challenges significant portions of his evidence, particularly regarding the position of Thomas Lubanga within the UPC (and the nature of the organisation) prior to the period of the charges, as well as his testimony as to the lack of young children 2028 within the FPLC. 2029 730. The Chamber found D-0019 to be an evasive and contradictory witness on the issues that particularly concerned Thomas Lubanga, and in some instances during his testimony he demonstrated partiality towards the accused. Bearing these factors in mind, as well as his position within the UPC, the Chamber has exercised caution as regards certain aspects of his testimony. However, on issues that were not directly related to the accused, such as the structure of the UPC, his account tended to be more consistent, credible and reliable. In all the circumstances, the Chamber has accepted his testimony in these latter areas, particularly when corroborated by other credible evidence or if they were uncontroversial. o) D-0007 731. D-0007, who was the co-ordinator of the Hema self-defence committees in Ituri during the relevant period, 2030 gave detailed and compelling evidence on the use of children under the age of 15 by the self-defence forces, 2031 although he suggested the latter were separate

2028 See paras 1093 et seq. 2029 ICC-01/04-01/06-2748-Red, paras 292, 332, 347 and footnote 830. 2030 T-348-ENG, page 23, line 4 to page 25, line 14. 2031 T-348-ENG, page 33, line 13 to page 34, line 6. No. ICC-01/04-01/06 325/593 14 March 2012

from the UPC/FPLC. 2032 The Chamber found his evidence, in the main, to be credible and reliable, notwithstanding certain notable exceptions. For instance, as discussed below, his evidence on the ages of the children who were sent to the UPC/FPLC for training (and who the villagers expected to return) 2033 was implausible. His account, along with the prosecution’s criticism of parts of it, is considered hereafter 2034 in the section on the self-defence groups. 3. Documentary evidence on the presence of child soldiers within the UPC/FPLC

732 In this section, the Chamber considers particular items of documentary evidence that are challenged by the defence. a) Logbooks from a demobilisation centre (EVD-OTP- 00474, EVD-OTP-00476 and EVD-OTP-00739) 733. During the testimony of P-0031, the prosecution introduced several logbooks recording the entry and departure of child soldiers from a particular demobilisation centre in Bunia. 2035 EVD-OTP-00474 is a list drawn up by social workers containing the names, ages and other details relating to children who were to be placed with host families. 2036 The prosecution referred to this logbook repeatedly in relation to the alleged former child soldiers who were called to give evidence. 2037 734. The prosecution submits that logbook EVD-OTP-00476 concerns 12 2032 T-348-ENG, page 42, line 14 to page 43 to page 46, lines 9 – 16. 2033 T-348-ENG, page 36, line 6 to page 38, line 9. 2034 ICC-01/04-01/06-2748-Red, paras 353 – 354. 2035 EVD-OTP-00474, T-200-Red2-ENG, page 89, lines 1 – 23; EVD-OTP-00739, T-201-Red2-ENG, page 38, lines 22 – 23 and page 39, lines 9 – 15; EVD-OTP-00476, T-201-Red2-ENG, page 25, lines 12 – 24 and T-245-Red2-ENG, page 8, line 5 to page 10, line 25. 2036 T-200-Red2-ENG, page 89, lines 5 – 20 (P-0031). 2037 ICC-01/04-01/06-2748-Red, paras 370 (in relation to P-0294), 391 (in relation to P-0011) and 429 (in relation to P-0007 and P-0008). No. ICC-01/04-01/06 326/593 14 March 2012

former UPC/FPLC child soldiers under the age of 15 who were at the centre prior to 13 August 2003, along with an additional 15 UPC/FPLC child soldiers below the age of 15 who arrived between 13 August 2003 and 13 September 2003 (the latter group, it is submitted, were likely to have been conscripted, enlisted or used prior to 13 August 2003). 2038 P- 0031 gave evidence on the identity of the individual who compiled this logbook. 2039 735. EVD-OTP-00739 was a record that was made to assist in monitoring children who were reunited with their families. 2040 The prosecution submits that EVD-OTP-00476 and EVD-OTP-00739 demonstrate the systematic nature of the plan that children were to be conscripted and enlisted into, and used by, the UPC/FPLC. 2041 736. The defence challenges the reliability of these logbooks. 2042 First, it is submitted that since P-0031 is alleged to have manipulated other evidence, the “information provided by the organisations linked to this witness […] cannot be considered to be sufficiently reliable.” 2043 Second, it is argued that given many individuals lied at the demobilisation centres about their age and status as former child soldiers for material gain, notwithstanding the reliability of the people who collected the material, the content of the logbooks is not to be trusted. 2044 Further, it is submitted that the information was not adequately verified, and in this respect the defence observes that although P-0031 testified that a particular organisation was supposed to confirm that the individuals mentioned in EVD-OTP-00476 had 2038 ICC-01/04-01/06-2748-Red, paras 162 – 163. 2039 T-201-CONF-ENG, page 25, line 23 to page 28, line 21. 2040 T-201-Red2-ENG, page 91, lines 9 – 15. 2041 ICC-01/04-01/06-2773-Red, para. 162. 2042 ICC-01/04-01/06-2773-Red-tENG, paras 709 – 716. 2043 ICC-01/04-01/06-2773-Red-tENG, para. 711. 2044 ICC-01/04-01/06-2773-Red-tENG, para. 712. No. ICC-01/04-01/06 327/593 14 March 2012

belonged to an armed group, the testimony of D-0023 and P-0089 demonstrates that this did not occur. In an interview with the 2045 prosecution following his testimony, P-0089 stated that the Commission Nationale de Désarmement, Démobilisation et Réinsertion (“CONADER”) accepted a number of children who had falsely claimed to be demobilised soldiers, and they recorded the information provided without any process of verification. 2046 D-0023 similarly stated that many civilians falsely registered as former soldiers with CONADER in order to obtain financial and other benefits from the demobilisation process. 2047 He also testified that many individuals did not use their real names when registering with CONADER in order to avoid later prosecution. 2048 The defence emphasises that the UPC/FPLC is not referred to in logbook EVD- OTP-00739. 2049 737. It is submitted that the list in document EVD-OTP-00474, which was prepared by MONUC along with another organisation, similarly fails to include a reference to the armed group to which the demobilised children belonged. 2050 Furthermore, the defence contends that the testimony of witness P-0031 – that the UPC recruited the children referred to in the list in Mongwalu in August 2002 and they were discharged by Jerôme Kakwavu on 1 April 2004 in Aru – is implausible given the RCD/ML controlled the region up until November 2002. In addition, the defence notes that the UPC lost 2051 control of the region of Aru in March 2003, the time when Mr

2045 ICC-01/04-01/06-2773-Red-tENG, paras 713 – 714. 2046 EVD-D01-00986, page 0307, line 96 to page 0308, line 145. 2047 T-266-Red2-ENG, page 42, lines 4 – 10 and page 43, line 12 to page 47, line 25. 2048 T-266-Red2-ENG, page 59, lines 3 – 9. 2049 ICC-01/04-01/06-2773-Red-tENG, para. 715. 2050 ICC-01/04-01/06-2773-Red-tENG, para. 629. 2051 ICC-01/04-01/06-2773-Red-tENG, para. 629, referring to EVD-OTP-00710. No. ICC-01/04-01/06 328/593 14 March 2012

Kakwavu defected from the UPC. 2052 738. The defence submits that although witness P-0031 stated that in a general sense MONUC, UNICEF and other NGOs undertook the verification of the children’s ages, 2053 P-0046 indicated that MONUC often relied on its partners for this purpose. 2054 739. Assessing this evidence overall, the lack of information concerning the armed group or groups to which the children registered in logbook EVD-OTP-00739 and listed in EVD-OTP-00474 belonged, leads the Chamber to conclude that these two documents cannot be relied on in order to establish the presence of children within the UPC/FPLC. 740. Similarly, the Chamber is unable to rely on the contents of logbook EVD-OTP-00476, notwithstanding the fact that it contains information about the armed groups with which the children were associated, along with their dates of birth, 2055 because of the potential unreliability of the information when it was originally provided and the apparent lack of sufficient (or any) verification. b) Letter of 12 February 2003 from the National Secretary for Education to the G5 Commander of the FPLC (EVD-OTP-00518) 741. The prosecution relies on a letter dated 12 February 2003 from the National Secretary for Education and Youth, addressed to the G5 in

2052 ICC-01/04-01/06-2773-Red-tENG, para. 629, referring to T-178-CONF-FRA, page 34, lines 3 – 4 (P-0055); T-177-CONF-FRA, page 5, lines 7 – 19 and T-178-CONF-FRA, page 18, line 20 to page 19, line 10 (P-0055); T-341-CONF-FRA, page 23, lines 18 – 28 (D-0019). 2053 ICC-01/04-01/06-2773-Red-tENG, para. 632, referring to T-199-CONF-FRA page 21, lines 16 – 20 and T-201-CONF-FRA, page 19, line 20 to page 20, line 1 (P-0031); T-200-CONF-FRA, page 86, lines 4 – 6, T-199-CONF-ENG, page 23, lines 21 – 22 and T-201-CONF-FRA, page 18, lines 5 – 16 and page 19, lines 13 – 14 (P-0031). 2054 ICC-01/04-01/06-2773-Red-tENG, para. 632, referring to EVD-OTP-00493, transcript of testimony of P-0046 before Pre-Trial Chamber I (T-38-FRA, page 84, line 24 to page 85, line 8) and T- 206-CONF-FRA, page 18, lines 5 – 16 and page 19, lines 13 – 14 (P-0046). 2055 EVD-OTP-00476, page 0194. No. ICC-01/04-01/06 329/593 14 March 2012

the UPC/FPLC and copied to Thomas Lubanga, concerning the selection of thirteen officers from the army who were to be trained in a DDRRR programme. 2056 The letter states that the programme is to be applied to those soldiers aged 10 to 15 or 16 who are “willing” to return to civilian life, 2057 which the prosecution submits confirms, first, the presence of children under the age of 15 or 16 years in the FPLC during the relevant period and, second, the accused’s awareness that this was occurring. 2058 742. The prosecution argues that the testimony of D-0011 demonstrates that this letter referred to children within the FPLC. 2059 It is emphasised that it is a report from a UPC national secretary, addressed to the G5 who was in charge, inter alia, of recruitment. 2060 743. The defence argues that the letter does not prove that child soldiers below the age of 15 were part of the FPLC. It emphasises that it refers to a DDRRR programme without specific mention of the FPLC. 2061 Rather, the reference to child soldiers (specifically between 10 and 15 or 16 years) is said to include all children targeted by the DDRRR programme, and was not restricted to those from the UPC/FPLC. 2062 The defence also refers to D-0011’s evidence that the programme was not solely concerned with the UPC/FPLC because he said that it also related to Rwanda and Burundi. 2063 In further support of its argument

2056 ICC-01/04-01/06-2748-Red, paras 303 – 304, referring to EVD-OTP-00518. 2057 EVD- OTP-00518; The French original states: “ […] a initié un programme de Démobilisation, Désarmément, Rééducation, Réinstallation et de Réinsertion (DDRRR) en faveur des Enfants-Soldats, âgés de 10 à 15/16 ans, qui acceptent volontiers leur retour à la vie civile pour une réorientation conforme de leur avenir. […]”. 2058 ICC-01/04-01/06-2748-Red, para. 304. 2059 ICC-01/04-01/06-2748-Red, para. 304, referring to T-347-ENG, page 53, lines 16 – 19. 2060 ICC-01/04-01/06-2748-Red, footnote 830. 2061 ICC-01/04-01/06-2773-Red-tENG, para. 728. 2062 ICC-01/04-01/06-2773-Red-tENG, paras 726 – 730. 2063 ICC-01/04-01/06-2773-Red-tENG, para. 728, referring to T-347-CONF-FRA, page 41, lines 17 – 21. No. ICC-01/04-01/06 330/593 14 March 2012

the defence relies on the testimony of P-0046 that the DDRRR was a MONUC project to repatriate Rwandese soldiers from the DRC, and the testimony of D-0019 that it was a programme aimed at others from the east of the Congo. 2064 744. D-0011 suggested that the 12 February 2003 letter (EVD-OTP-00518) concerned a nationwide DDRRR programme aimed at children in all the armed forces. Although the witness agreed that it was 2065 addressed to the G5 commander of the FPLC and referred to the selection of thirteen FPLC officers who were to participate in demobilisation training, 2066 he strongly resisted the suggestion that it solely related to children within the UPC/FPLC. He maintained that 2067 the UPC/FPLC was addressed because it was “the political arm that was in charge of this region”, and that, along with Save the Children, it was able to implement the DDRRR programme of demobilising children from the village self-defence committees and the other armed groups, such as PUSIC. 2068 D-0011 suggested that soldiers in the region were exclusively assimilated into the FPLC because it was “the only power in place”, 2069 although he also gave evidence that everyone under 18 was involved and “not just those enlisted in the FPC [ sic .] once we came back from the bush.” 2070 However, he did not agree with the assertion that the document addressed the position of child soldiers in the FPLC or those assimilated into pro-FPLC units. 2071 745. The Chamber has placed little reliance on D-0011’s evidence 2064 ICC-01/04-01/06-2773-Red-tENG, para. 729, referring to EVD-OTP-00493, T-38-FRA, page 12, lines 18 – 23 and page 13, lines 8 – 11 (P-0046); T-347-CONF-FRA, page 41, lines 17 – 21. 2065 T-347-ENG, page 46, line 3 to page 47, line 8. 2066 T-347-ENG, page 53, line 23 to page 54, line 2. 2067 T-347-ENG, page 52, line 3 to page 53, line 11. 2068 T-347-ENG, page 46, line 12 to page 47, line 14 and page 49, line 14 to page 51, line 24. 2069 T-347-ENG, page 51, lines 17 – 20 and page 53, lines 12 – 22. 2070 T-347-ENG, page 51, lines 20 – 24. 2071 T-347-ENG, page 52, line 25 to page 53, line 5. No. ICC-01/04-01/06 331/593 14 March 2012

concerning EVD-OTP-00518, a document about which he was frequently evasive and argumentative. As an example, he suggested that the letter does not include any reference to the FPLC, 2072 notwithstanding the fact that the G5 commander of the FPLC was the addressee. 746. Although the issue of child soldiers may well have been a concern for the entire region, the document implies that there were children between the ages of 10 and 15 or 16 within the FPLC (regardless of their nationality). PUSIC and the self-defence forces were not referred to, and D-0011 agreed that Eric Mbabazi was not PUSIC’s commander and he had no control over those troops. Furthermore, D-0019 2073 indicated that “[t]he programme concerned minors who wanted to leave the UPC” (although he added that “there were minors who were also active in the self-defence forces”). 2074 747. As addressed in greater detail above, D-0011 suggested there were no minors among Thomas Lubanga’s bodyguards (or, more generally, in the UPC/FPLC until May 2003, save possibly in the “interior”), a contention that is contradicted by other witnesses and the video evidence. Therefore, the Chamber discounts his evidence about the 12 February 2003 letter to the extent that he suggests it did not concern child soldiers within the ranks of the FPLC. 748. Given this letter of 12 February 2003 was sent by the UPC/FPLC’s national secretary for education to the UPC/FPLC’s G5 (whose key responsibilities were training, morale and recruitment), its reference 2075

2072 T-347-ENG, page 50, lines 2 – 4. 2073 T-347-ENG, page 51, lines 12 – 14. 2074 T-346-ENG, page 45, lines 11 – 18. 2075 T-345-ENG, page 74, lines 1 – 3 (D-0019); T-154-Red-ENG, page 24, lines 4; lines 12 – 13 (P- 0017); T-189-Red2-ENG, page 77, lines 11 – 19; page 82, lines 1 – 2 (the witness testifed that the G5 No. ICC-01/04-01/06 332/593 14 March 2012

to the demobilisation of child soldiers aged 10 to 15 or 16 years old and the testimony of D-0019 that the demobilisation programme concerned child soldiers in the UPC, the Chamber considers that regardless of whether it could also be interpreted as referring to children in the selfdefence forces or other armed groups, it was clearly directed principally at the position of children in the UPC/FPLC. It follows that on this issue the Chamber found the evidence of D-0019 to be reliable – namely that the letter also concerned child soldiers within the FPLC. Therefore, this document significantly corroborates other evidence before the Chamber that child soldiers under the age of 15 were part of the UPC/FPLC during the period of the charges. c) Logbook of radio communications (EVD-OTP-00409) 749. The prosecution relies on a UPC/FPLC logbook with the entry “ chez nous un seul enfant a reçu une balle mais il est encore vivant et il n’est pas gravement blessé ” to demonstrate that children under 15 were within the ranks of the UPC/FPLC. 2076 750. The defence submits the true meaning of the word “children” in the UPC/FPLC military context is demonstrated by video footage of the Governor of Ituri making a speech in support of FPLC soldiers, 2077 which includes the following extract:

[Translation] Our march today demonstrates the support we are providing for our children and, let me quote, the patriotic force for the liberation of the 2078 Congo, FPLC. They should be congratulated today.

was in charge of morale, but he never saw him involved in recruitment) (P-0016); T-175-Red2-ENG, page 75, lines 9 – 12; page 76, lines 1 – 21 (P-0055). 2076 ICC-01/04-01/06-2748-Red, para. 216, referring to EVD-OTP-00409 at DRC-OTP-0017-0093 (Swahili) and EVD-OTP-00622 at DRC-OTP-0171-0987 (French translation). 2077 ICC-01/04-01/06-2773-Red-tENG, para. 723. 2078 EVD-OTP-00410/EVD-OTP-00678, 00:10:29 – 00:11:30; T-346-ENG, page 56, lines 5 – 7. No. ICC-01/04-01/06 333/593 14 March 2012

The defence also refers to the testimony of D-0019 who stated that in this speech the Governor of Ituri was referring to the soldiers of the FPLC as a whole and not only to those who were minors. 2079

751 The defence submits the word “child” as it is used in the logbook is a synonym for “soldier”, and it therefore does not refer to those who were minors. 2080 The accused cites several examples in support of this contention, such as “Fataki – the children hit the target”. It is also 2081 contended that the logbook is merely a log of radio communications between various FPLC officers and it is not a record of the individuals wounded or killed in combat. 2082 752. There is an absence of evidence demonstrating that when the word “children” was used in logbook EVD-OTP-00409 it referred to individuals under the age of 15. P-0055, when questioned about an entry in the logbook referring to an injured child, recalled the incident and indicated “this is what is written, that within our forces there is a child who is injured”. However, he did not remember the relevant 2083 part of the message, which in any event was incomprehensible to him, and he was unable to verify the details. 2084 He did not assist as to whether the message referred to a child below the age of 15. Given the lack of any reliable guide as to the meaning attributed to the word “children” in this particular context, the Chamber declines to rely on this document as support for the contention that there were children

2079 ICC-01/04-01/06-2773-Red-tENG, para. 724; T-346-ENG, page 56, lines 12 – 16. To illustrate its point in a different context, the defence suggests it would be absurd to maintain that the first words of the French national anthem, La Marseillaise (“Allons enfants de la patrie …”), are specifically addressed to children below the age of 18, ICC-01/04-01/06-2773-Red-tENG, footnote 1497. 2080 ICC-01/04-01/06-2773-Red-tENG, para. 722. 2081 ICC-01/04-01/06-2773-Red-tENG, para. 722, referring to, inter alia, EVD-OTP-00409 at DRC- OTP-0017-0071 (Swahili) and EVD-OTP-00622 (French translation) at DRC-OTP-0171-0965. 2082 ICC-01/04-01/06-2773-Red-tENG, para. 721. 2083 T-176-Red2-ENG, page 77, line 14 to page 78, line 16. 2084 T-176-Red2-ENG, page 78, lines 6 – 17. No. ICC-01/04-01/06 334/593 14 March 2012

under the age of 15 within the ranks of the UPC/FPLC armed forces.

d) Monthly report by Eric Mbabazi (EVD-OTP-00457)

753 The prosecution relies on EVD-OTP-00457, a monthly report from

Bureau 5 dated 2 November 2002, along with the testimony of P-0038,

to support the allegation that within the structure of the FPLC the G5,

Eric Mbabazi, oversaw awareness-raising campaigns to persuade

villagers to send their children for training.

2085

An excerpt from the

monthly report was read aloud in court during the testimony of D-

0019:

We note that in general the FPLC troops like each other quite well, and they have a good relationship and collaborate in a frank manner, but in a certain sense there is also tension between troops and officers as a result of the mismanagement of troops […] this mismanagement has the following results: the deserters go back home, demoralised. Their friends and these deserters are discouraged, and therefore we no longer have the means of 2086 obtaining more children for the army.

754 A second excerpt included the following:

Often when one takes charge of recruits from a village, try and find the means of returning a quarter of these children in order to fill in certain gaps, because they provide security for the population in the bush. The latter have allegedly stated that they will no longer send children, because they are 2087 experiencing a feeling of complete insecurity.

755 The prosecution contends that this document “reveals the full

picture of the recruitment drives for children early on in the army’s

existence as the FPLC”.

2088

It also relies on the testimony of D-0037, the

secretary to Bosco Ntaganda, to the effect that the use of the term

2089

“children” in FPLC documents relating to demobilisation was a

2085 ICC-01/04-01/06-2748-Red, para. 181, referring to T-114-Red2-ENG, page 27, line 22 to page 28, line 7 (P-0038’s testimony does not refer to Eric Mbabazi in particular, but he explained the functions of the G5 within the FPLC structure), and para. 290. 2086 EVD-OTP-00457, T-346-ENG, page 16, line 17 to page 17, line 3. 2087 T-346-ENG, page 20, lines 13 – 18, EVD-OTP-00457. 2088 ICC-01/04-01/06-2748-Red, para. 291. 2089 T-349-ENG, page 8, lines 22 – 23 and page 9, lines 5 – 7.

No. ICC-01/04-01/06 335/593 14 March 2012

reference to children under the age of 18. 2090 756. The defence disputes the prosecution’s interpretation of EVD-OTP- 00457, arguing the document does not refer to an FPLC awarenessraising campaign in the villages, and that the term “children” refers to soldiers in general and not to minors. 2091 In support of this submission, the defence refers to the testimony of D-0019 that the word “children” as used in this document simply means FPLC soldiers. It is 2092 suggested the prosecution’s interpretation – that the term is meant to distinguish children from adults – would lead to the conclusion that the FPLC recruited only minors, to the exclusion of any adult recruits. Finally, the defence submits the prosecution has not 2093 demonstrated that the report was ever sent to the accused, arguing the use of the plural in relation to “No. 01” in the original appears to rule out any reference to the accused. 2094 757. The Chamber observes that EVD-OTP-00457 was shown to witness D-0019 to give him an opportunity to reconsider his evidence as regards the role of Eric Mbabazi in recruiting children for the UPC. The prosecution did not suggest the witness had previously seen the document or that he was involved in its compilation. Accordingly, 2095 the Chamber has approached his interpretation of the word “children” in this document with considerable caution. 758. The Chamber is of the view the prosecution’s reliance on the

2090 ICC-01/04-01/06-2748-Red, para. 291, referring to T-349-ENG, page 29, lines 4 – 10. 2091 ICC-01/04-01/06-2773-Red-tENG, paras 717 – 719. 2092 ICC-01/04-01/06-2773-Red-tENG, para. 719, referring to T-346-FRA, page 14, line 20 to page 16, line 12. 2093 ICC-01/04-01/06-2773-Red-tENG, para. 719. 2094 ICC-01/04-01/06-2786-Red-tENG, para. 42; EVD-OTP-00457 at DRC-OTP-0109-0142: “[…] Demandez aux N°01 […]”. It is to be noted that No. 1 is the calling sign of the accused, T-175-Red2- ENG, page 25, lines 18 – 19 (P-0055). 2095 T-345-ENG, page 77, line 8 to page 78, line 25 and T-345-ENG, page 13, lines 10 – 18. No. ICC-01/04-01/06 336/593 14 March 2012

testimony of D-0037 in this connection is unsustainable, because the witness’s testimony only concerned documents that were related to demobilisation, 2096 and these exclude the monthly reports. The evidence on this issue, viewed as a whole, insufficiently demonstrates that the word “children” in this report referred to those under the age of 15. Therefore, irrespective of whether the reference to more than one “No. 01” excludes the accused as an addressee, the Chamber declines to rely on this material as supporting the alleged presence of minors in the UPC/FPLC. The Chamber has, however, taken this document into consideration as regards the extent of the UPC/FPLC’s recruitment work. 4. Conscription and enlistment between September 2002 and 13 August 2003 a) The age range of children recruited and related issues 759. As set out above, the crimes of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. In the circumstances of this case, conscription and enlistment are dealt with together, notwithstanding the fact that they constitute separate offences. 2097 These offences are continuous in nature. They end only when the child reaches 15 years of age or leaves the force or group. 2098 760. A number of witnesses testified that there were kadogos in the UPC/FPLC training camps, and in many cases these children were below 15 years of age. P-0055 gave evidence that sometimes children

2096 T-349-ENG, page 29, lines 4 – 10. 2097 The word “recruitment” herein is thus used to refer to both conscription and enlistment. 2098 See para. 618. No. ICC-01/04-01/06 337/593 14 March 2012

who were too young would try to join the army and some of them were chased away, although it was for the individual commanders to take the final decision. 2099 As a result some commanders took children who were “too young”, and they were kept at the headquarters. 2100 The witness confirmed part of a statement he had made to the investigators, to the effect that some small children joined the army when their parents were killed, and they were either sent away or they stayed at the headquarters where they were cared for and fed without being “sent off to war”. 2101 761. In an earlier statement, which he confirmed in evidence, 2102 P-0055 had indicated that if 14 year olds were able to carry and fire a weapon, they were eligible to serve as soldiers. 2103 He indicated that given his lack of involvement he did not know whether this was a criterion for recruitment. He said there were “several types of kadogos”, but 2104 those used in the army, including those who were young, were able to bear weapons. 2105 762. It was suggested by P-0055 that there were some children who were ineligible to be enlisted in the army because “you could see that they really were children, you couldn’t possibly allow them to join up”. 2106 However, there were other children who were “capable of it”. 2107 763. P-0055 saw small children at the main staff headquarters at Bosco

2099 T-177-Red2-ENG, page 52, lines 5 – 22; T-178-Red2-ENG, page 69, line 12 to page 70, line 5 and page 70, lines 15 – 19. 2100 T-178-Red2-ENG, page 69, line 14 to page 70, line 8. 2101 T-177-Red2-ENG, page 53, line 15 to page 54, line 24. Only the excerpts of this statement that were read during the trial are in evidence. 2102 EVD-OTP-00681, page DRC-OTP-0191-0541, lines 177 – 185. 2103 T-178-Red2-ENG, page 67, lines 1 – 7 and page 68, line 8 to page 69, line 11. 2104 T-178-Red2-ENG, page 69, line 2 – 20. 2105 T-178-Red2-ENG, page 68, lines 22 – 25. 2106 T-177-Red2-ENG, page 52, lines 15 – 22. 2107 T-177-Red2-ENG, page 52, lines 15 – 22. No. ICC-01/04-01/06 338/593 14 March 2012

Ntaganda’s camp and he suggested they were the ones who could not join the army. One mother in particular protested about her child’s 2108 recruitment. 2109 P-0055 asked the child why he had enlisted and the child responded: “Well, I was with my friends and they asked us to come along. They came, they took the whole group.” 2110 P-0055 decided he should be returned to his mother because he was too young for military training. 2111 764. The Chamber concludes from the testimony of P-0055 (as corroborated by D-0037 2112 ) that irrespective of whether children under 15 were actively recruited into the FPLC – the evidence on this is addressed in detail below – the age of the children was not taken into consideration when deciding to recruit them. Instead, criteria such as the size of the children and their ability to hold a weapon and to participate in training were significant factors in determining whether or not they were recruited, regardless of their ages.

765 As set out above, P-0024 gave evidence that a number of children originally taken to be trained in Kyankwanzi in 2000 were between 8 and 18 years old when, in 2001, they entered the demobilisation programme of SOS Grands Lacs, the NGO that employed him. 2113 Later, they were re-recruited by the UPC. 2114 The witness said that the situation in Bunia deteriorated once the UPC drove out the RCD. 2115 Their leaders, generally speaking, were from the Hema community and “pretty well all of those children went back to the (UPC’s) armed 2108 T-177-Red2-ENG, page 54, lines 15 – 24; T-178-Red2-ENG, page 69, lines 17 – 18 and page 69, line 25 to page 70, line 8. 2109 T-177-Red2-ENG, page 54, line 25 to page 55, line 1. 2110 T-177-Red2-ENG, page 55, lines 20 – 22, page 56, line 21 to page 58, line 1. 2111 T-177-Red2-ENG, page 55, line 13 to page 56, line 3. 2112 T-349-ENG , page 61, line 24 to page 62, line 4. 2113 T-170-Red2-ENG, page 47, lines 3 – 25. 2114 T-170-Red2-ENG, page 47, lines 3 – 25; page 50, line 13 to page 51, line 11. 2115 T-170-Red2-ENG, page 51, lines 4 – 8. No. ICC-01/04-01/06 339/593 14 March 2012

forces”. 2116 P-0024 indicated that by November 2002 only a few children remained in the vocational training centres or at school, and in general the mission had been a failure. 2117 Moreover, the children who returned to the armed groups threatened those who remained in the programme, saying: “If you do not join us, we will come and get you from your homes. You wouldn’t be able to hide from us.” P- 2118 0024 suggested that although it began gradually, as time passed, the UPC became more powerful, and it occupied an increasingly large area of territory. 2119 According to the witness, from 2002 to 2003 when Thomas Lubanga was the leader of the UPC, the risk for those who did not rejoin the army was that they or their families would be threatened or attacked. 2120 It was a highly militarised environment, and those who returned were armed and knew how to locate the individuals who had not followed them into the army. The children P-0024 saw in the 2121 towns and cities after “the UPC pretended to demobilise certain children” when it had control over Bunia in 2002, 2122 wore military clothing, and they carried Kalashnikovs and other weapons. 2123 The witness stated that these children were between 9 and 18 years old, and “they were pretty well all carrying weapons”. 2124 As discussed above, the Chamber is persuaded by P-0024’s assessment of the ages of the children he worked with, as well as those he saw in the towns and cities. This evidence, viewed overall, strongly supports the contention

2116 T-170-Red-ENG, page 50, lines 20 – 21; page 51, lines 2 – 11. 2117 T-170-Red2-ENG, page 50, line 22 to page 51, line 1. 2118 T-171-Red2-ENG, page 10, lines 7 – 21. 2119 T-171-Red2-ENG, page 10, lines 21 – 22. 2120 T-170-Red2-ENG, page 51, lines 9 – 19. 2121 T-170-Red2-ENG, page 51, lines 21 – 24. 2122 T-170-Red2-ENG, page 52, line 17 to page 53, line 21. 2123 T-170-Red2-ENG, page 54, lines 3 – 6. 2124 T-170-Red2-ENG, page 54, lines 7 – 11. No. ICC-01/04-01/06 340/593 14 March 2012

that children were re-recruited. 2125

766 P-0046 testified that 167 children, whose cases she had recorded

prior to May 2004 as part of MONUC’s child protection service, had

been associated with the UPC, 2126 and that 71 of them were below the

age of 15 when they were recruited or used between mid-2002 and

mid-2003. P-0046 was provided with information about recruitment 2127

by the UPC/FPLC in the area near Ndrele around 15 February 2003. 2128

This was on a market day and the armed men involved, wearing

uniforms and carrying Kalashnikovs, were speaking in Swahili and

Lingala. 2129 They recruited between 50 and 60 individuals, some of

whom spoke with P-0046. They included three children who were 2130

taken to Mount Awa because the person who recruited them was

aware that they were from Uganda. 2131 Adults and children were

amongst the individuals recruited, and although adult women were

not taken, P-0046 stated that young girls were included. P-0046 also 2132

spoke to a child who had returned from Uganda prior to his second

mobilisation by the UPC/FPLC. 2133 They met on 21 October 2003, when

he was 14 years old. 2134 The child told P-0046 that he had joined the

UPC/FPLC following the fighting in Bogoro in March 2003. 2135

767 D-0004 testified that street children from his neighbourhood in

Bunia, who included children between 12 and 15 years of age,

2125 See paras 656-663, 1322 et seq. 2126 T-205-Red2-ENG , page 71, line 20 to page 72, line 24. 2127 T-206-Red2-ENG, page 2, line 22 to page 3, line 2. 2128 T-206-Red2-ENG, page 45, line 1 to page 46, line 11. 2129 T-207-Red2-ENG, page 44, lines 8 – 13. 2130 T-207-Red2-ENG, page 44, lines 12 – 15. 2131 T-207-Red2-ENG, page 44, lines 16 – 19. 2132 T-207-Red2-ENG, page 44, lines 20 – 22. 2133 T-205-Red2-ENG , page 55, lines 9 – 13. 2134 T-206 -Red2-ENG, page 3, line 22 to page 4, line 3. 2135 T-206 -Red2-ENG, page 4, lines 3 – 5.

No. ICC-01/04-01/06 341/593 14 March 2012

voluntarily enrolled as child soldiers in the UPC/FPLC. 2136 His evidence suggests this must have been in 2002. This witness 2137 emphasised that “it was not [Thomas Lubanga] who came to forcibly recruit.” 2138 He explained he did not see Mr Lubanga during the war and he heard Mr Lubanga had been in Bunia and in Fataki, whereas the training was in Mandro. As set out in detail in Section 2139 VII(E)(3)(b)(1) above, significant and extensive questions have arisen as to the reliability of D-0004, and as a result the Chamber has approached this witness’s testimony with considerable caution. 768. D-0019 strongly denied that there were any cases of forced conscription during the period he occupied a position within the UPC (from December 2002 onwards). 2140 However, when he was asked whether it was his account that during the period from September 2002 to September 2003 there were no children under the age of 15 serving in the UPC/FPLC, he replied: “one can’t exclude that some might have got through the net. When you go fishing, you can have a certain net and some fish can get through […]” and he suggested the possibility could not be excluded that some children “got through the net and ended up in a centre and were subsequently demobilised”. 2141 D-0019 rejected the suggestion that the UPC/FPLC had a policy of recruiting and using children under the age of 15. 2142 769. Given the consistent and cumulative evidence set out above, the Chamber is satisfied that children below the age of 15 were integrated 2136 T-242-Red3-ENG, page 18, lines 2 – 18; T-243-Red2-ENG, page 20, line 12 to page 22, line 6; page 23, lines 5 – 16. 2137 T-243-Red2-ENG, page 20, lines 17 – 23 and page 21, line 25 to page 22, line 3. 2138 T-242-Red3-ENG, page 18, lines 17 – 18; T-243-Red2-ENG, page 23, lines 2 – 16. 2139 T-243-Red2-ENG, page 23, lines 17 – 23. 2140 The witness occupied a position within the UPC executive during this time: T-340-ENG, page 67, line 18 to page 68, line 10; T-341-ENG, page 10, line 23 to page 11, line 22. 2141 T-345-ENG, page 39, lines 5 – 15. 2142 T-345-ENG, page 39, lines 8 – 15. No. ICC-01/04-01/06 342/593 14 March 2012

into the armed wing of the UPC (the FPLC). This issue is addressed further below. b) Rallies, recruitment drives and mobilisation campaigns 770. The Chamber heard evidence concerning the recruitment of young people (including children under the age of 15) into the UPC/FPLC by the party “cadres” and the FPLC army. In the course of this process, pressure was exerted on communities that did not want to surrender their children. 771. P-0055 gave evidence on the mobilisation procedure as described to him by a high-ranking official within the UPC/FPLC. 2143 P-0055 was told that the elder Gegere wise men persuaded the population to make young people available to the UPC, for enlistment in the armed forces in order to contribute to the protection of their ethnic group against the Lendu. P-0055 testified that there was consultation between the 2144 elders of the UPC from various villages, and their role was to support the UPC and to mobilise young people and enlist them in the army. 2145 There were elders or wise men, along with others referred to as the cadres or senior officials of the party, who raised awareness in the villages and explained the purpose of the UPC, so as to ensure the civilian population’s support. 2146 The elders were also involved in collecting funds and other goods in order to help the movement. 2147 These wise men allegedly included a Gegere elder known as “Old

2143 T-174-CONF-ENG, page 25, lines 3 – 25 and page 31, line 21 to page 32, line 11; T-175-CONF- ENG, page 57, line 22 to page 58, line 1. 2144 T-174-Red2-ENG, page 30, lines 20 – 24 and page 32, lines 5 – 11. 2145 T-175-Red2-ENG, page 58, lines 2 – 18. 2146 T-175-Red2-ENG, page 58, lines 15 – 18; T-177-Red2-ENG, page 46, lines 5 – 25. 2147 T-175-CONF-ENG, page 58, line 23 to page 59, line 4. No. ICC-01/04-01/06 343/593 14 March 2012

Mafuta”, 2148 who did not visit the villages himself, but instead delegated others to mobilise the young people. The defence 2149 challenges the evidence of P-0055 as regards Eloy Mafuta, as this witness testified that the latter was “one of the founding members of the UPC” 2150 whereas it is suggested that there was no one by that name within the organisation. 2151 772. The defence also relies on suggested contradictions in the testimony of P-0055, 2152 including his statement that “I never took part in any meeting between [Mr Mafuta] and Lubanga. I cannot confirm what was said during such meetings.” 2153 Moreover, when asked by the prosecution whether Mr Mafuta’s role involved encouraging young men to join the UPC/FPLC, P-0055 replied, “[a]ctually, I don’t know whether that was his role.” 2154 773. P-0055’s statement – that he did not know whether it was the “role” of Eloy Mafuta to encourage young men to join the UPC/FPLC – suggests that he was unsure whether this was an official or unofficial function. On the basis of the entirety of the witness’s testimony, the Chamber is persuaded that P-0055’s evidence on this issue is reliable. 774. The Chamber has also considered a video recording introduced during P-0030’s evidence showing a speech at the UPC/FPLC training camp in Katoto by Eloy Mafuta, 2155 which included the following:

You can see the current situation concerning your children and we would like to thank them for the work they’ve carried out […] And it’s because of 2148 T-174-Red2-ENG, page 33, line 10 to page 34, line 3. 2149 T-174-Red2-ENG, page 34, lines 4 – 12. 2150 T-174-Red2-ENG, page 35, lines 3 – 5. 2151 ICC-01/04-01/06-2773-Red-tENG, para. 502. 2152 ICC-01/04-01/06-2773-Red-tENG, para. 502. 2153 T-174-Red2-ENG, page 35, lines 15 – 18. 2154 T-174-Red2-ENG, page 36, lines 5 – 12. 2155 EVD-OTP-00582; T-130-Red2-ENG, page 11, line 8 to page 12, line 18 and page 15, lines 2 – 9. No. ICC-01/04-01/06 344/593 14 March 2012

these children, it’s thanks to these children that we are living here. We could not live here otherwise […] My name is Eloy Mafuta. I’m the presidential 2156 advisor. I’m also military advisor to the UPC. P-0030 said that the speaker was Eloy Mafuta, the special advisor to the President and the military advisor to the UPC. 2157 The prosecution indicated that the speech was delivered on 31 July 2004, i.e. after the 2158 period of the charges. The Chamber is persuaded that it demonstrates that Mr Mafuta played a significant role within the UPC, notwithstanding the defence suggestion there was no UPC member by that name. In addition, the Chamber notes that Eloy Mafuta was apparently one of the signatories to the document creating the UPC, dated 15 September 2000. 2159 In all the circumstances, P-0055 was a credible and reliable witness, and the Chamber has relied on his evidence relating to the process for mobilisation, as explained to him by an official within the UPC/FPLC.

775 P-0055 testified that the members of the cadres (who are to be distinguished from the wise men or elders) were involved in recruitment, 2160 and the cadres were trained in preparation for mobilisation whenever the UPC/FPLC was deployed in Ituri. 2161 Young people were enlisted and conscripted whenever they were encountered and the elders delivered them to the closest battalion or brigade. 2162 Some commanders sent groups of young people to the training camps, but others – who were responsible for recruitment – provided the training themselves in order to increase the size of their

2156 EVD-OTP-00582, 00:34.25, interpretation in Court: T-130-Red2-ENG, page 14, lines 3 – 18. 2157 ICC-01/04-01/06-T-130-Red2-ENG, page 15, lines 2 – 9. 2158 ICC-01/04-01/06-2748-Conf-Anx2, page 20. 2159 EVD-OTP-00517. 2160 T-175-Red2-ENG, page 62, lines 11 – 15. 2161 T-175-Red2-ENG, page 77, lines 2 – 12. 2162 T-175-Red2-ENG, page 62, lines 16 – 22. No. ICC-01/04-01/06 345/593 14 March 2012

forces. 2163 When additional recruits were needed, the commanders at battalion level sought out young people to train; indeed, they did all they could to secure the greatest number of soldiers. 2164 P-0055 indicated that the soldiers’ training in the camps was organised by Mr Lubanga. 2165 However, as set out above, he also suggested the battalion commanders did not necessarily report these recruitment activities to their superiors 2166 for fear that they ( viz . the responsible battalion commanders) might be arrested or detained. 2167 776. The defence argues P-0055’s testimony above concerning the cadres is unreliable, as he never participated in the awareness-raising activities he describes. Moreover, the defence contends that P-0055 2168 failed to disclose the source of his information in this connection. 2169 P- 0055 accepted he was not present during the awareness-raising campaigns, although he knew about them, and he said he did not witness the training of the cadres, although he received information about this from a commander. 2170 He indicated his work focussed on soldiers as opposed to the cadres, 2171 and he was unaware as to how the latter approached recruitment. He suggested – although he was unsure on the issue – that they may have reported to the elders. The 2172 Chamber found P-0055 to be a credible witness, but it has exercised caution as regards his testimony concerning the involvement of the UPC/FPLC “cadres” in recruitment, given the extent to which he

2163 T-175-Red2-ENG, page 62, line 23 to page 63, line 2. 2164 T-176-Red2-ENG, page 63, lines 12 – 19. 2165 T-175-Red2-ENG, page 77, lines 13 – 19. 2166 T-175-Red2-ENG, page 63, lines 3 – 8. 2167 T-175-Red2-ENG, page 63, lines 8 – 13. 2168 ICC-01/04-01/06-2773-Red-tENG, paras 504 – 506. 2169 ICC-01/04-01/06-2773-Red-tENG, para. 506. 2170 T-177-CONF-ENG CT, page 47, lines 11 – 21 and T-177-Red2-ENG, page 48, line 19 to page 49, line 3. 2171 T-177-Red2-ENG, page 47, line 22 to page 48, line 2. 2172 T-175-Red2-ENG, page 63, line 21 to page 64, line 6. No. ICC-01/04-01/06 346/593 14 March 2012

depended on information from others.

777 P-0055 also gave evidence on the involvement of the army in recruitment. P-0055 testified that “Eric”, the G5 member within the UPC’s main staff, 2173 was in charge of all issues relating to recruits and he was the central person controlling the cadres. 2174 Amongst his various duties, Eric Mbabazi was involved in recruiting young 2175 people for the army, and the cadres supported him in this activity. He mobilised the community with the help of other senior figures. 2176 P- 0055 suggested that this enabled him to meet the Chief of Staff and President Lubanga. 2177

778 D-0037 agreed that Eric Mbabazi, in his role as the UPC/FPLC G5, was “trying to rally young people to go to the training centre” and although he was unable to provide further details on this or to confirm whether the G5 was recruiting children, he said that Mr Mbabazi “was responsible for routing people to go to the training centres”. 2178

779 P-0002 gave evidence about video footage, 2179 which shows a UPC/FPLC rally on 26 February 2003 at the stadium in the centre of Bunia, opposite the Ituri Hotel, 2180 during which Eric Mbabazi addressed the crowd. At counter 00:52:14, a single young man in 2181 camouflage fatigues can be seen in the middle of the frame who is plainly under the age of 15. The Chamber considers that the fact that 2173 T-175-Red2-ENG, page 75, line 21 to page 76, line 1. P-0055 stated that he did not know the full name. 2174 T-175-Red2-ENG, page 75, lines 9 – 11; page 76, lines 10 – 11. 2175 T-189-Red2-ENG, page 77, lines 11 – 12 (P-0016). 2176 T-175-Red2-ENG, page 75, lines 11 – 12 and page 76, lines 15 – 25. 2177 T-175-Red2-ENG, page 76, lines 22 – 24. 2178 T-349-ENG, page 64, lines 7 – 18. 2179 T-162-Red-ENG, page 27, lines 21 – 24 and T-162-CONF-ENG, page 28, line 18 to page 30, line 7; EVD-OTP-00410/EVD-OTP-00676. 2180 T-162-Red-ENG, page 31, lines 11 – 13; page 33, lines 4 – 17. 2181 EVD-OTP-00410/EVD-OTP-00676, 00:38:12; T-162-CONF-ENG, page 37, lines 23 – 25 and page 39, lines 3 – 4.

No. ICC-01/04-01/06 347/593 14 March 2012

he is not carrying a weapon is irrelevant, since it is clear from the overall evidence that many recruits did not have weapons or even uniforms, particularly if they had been recently recruited. 2182 Although P-0002 did not indicate whether he was a member of the UPC/FPLC, given this footage was taken at a UPC/FPLC rally, the Chamber is satisfied that the child in uniform belonged to the UPC/FPLC. 780. P-0014 testified that child solders were recruited after Mr Lubanga’s return to Bunia from Kinshasa in 2002, 2183 and this continued undiminished. 2184 The defence argues that this witness’s evidence is contradicted by the testimony of P-0041 that there was no “visual” regular or systematic recruitment after 2 September 2002; indeed, it 2185 is contended that P-0041’s evidence demonstrates that the majority of the FPLC soldiers were enlisted between the witness’s departure from Bunia in May 2002 and his return in late August 2002. The defence 2186 relies on the lack of any mention by P-0041 that the FPLC was involved in enforced enlistment. 2187 Equally, the defence refers to P- 0041’s acknowledgment that the information he provided on the FPLC enlistment procedures was based on hearsay, for which he failed to identify his source. In these circumstances it is argued that his 2188 testimony is insufficiently reliable. 2189 781. P-0041 also testified that some families acted under an obligation, in the sense that nearly all the groups in Ituri asked parents to give one of

2182 See paras 847 and 1242. 2183 T-182-Red2-ENG, page 11, line 22 to page 12, line 7. 2184 T-179-Red-ENG, page 60, lines 10 – 20. 2185 ICC-01/04-01/06-2773-Red-tENG, paras 375, 384 and 743, referring to testimony of P-0041: see T-125-Red2-ENG, page 65, line 17 to page 66, line 2. 2186 ICC-01/04-01/06-2773-Red-tENG, para. 375, referring to T-125-CONF-FRA, page 70, lines 19-24. 2187 ICC-01/04-01/06-2773-Red-tENG, para. 743. 2188 ICC-01/04-01/06-2773-Red-tENG, para. 382, referring to T-125-CONF-FRA, page 67, lines 15 – 16. 2189 ICC-01/04-01/06-2773-Red-tENG, para. 382. No. ICC-01/04-01/06 348/593 14 March 2012

their sons for “work”, although he was unable to say who made this request. While P-0041 did not witness the suggested systematic 2190 recruitment, he was able to give evidence about the pressure on families. Furthermore, P-0041 does not maintain that there was no recruitment of children by the UPC after August 2002, but merely that it was not obviously “regular” or “systematic”. He added that there was training. 2191 In these circumstances, the Chamber concludes that there is no contradiction between the evidence of P-0014 and P-0041 on this issue. 782. In the first half of August 2002, during the celebration marking the departure of the RCD-ML, a high-ranking UPC official told P-0014 this had been “obtained thanks to these little children”, and another individual associated with the UPC indicated that it was important for him to “contribute and to go and develop awareness of children in [his] village and bring them”. 2192 783. P-0017 testified that after the battle of Mongbwalu, which he said took place at the end of 2002 or the beginning of 2003, he went to Kilo, 2193 where the Chief of Staff, Floribert Kisembo, also stayed for two or three days. Whilst there, Mr Kisembo apparently informed the 2194 “old wise man” that in order to bring peace and to avoid future problems, the community needed to contribute to the UPC forces and to provide individuals for training. 2195 They were asking those who

2190 T-125-Red2-ENG, page 65, lines 5 – 12. 2191 T-125-Red2-ENG, page 65, lines 17 – 20. 2192 T-181-CONF-ENG, page 23, lines 13 – 24. 2193 T-154-Red2-ENG, page 25, lines 13 – 16 and page 23, lines 14 – 15; T-157-Red2-ENG, page 80, lines 17 – 22. P-0038 agreed that the battle of Mongbwalu took place between the end of November 2002 and the beginning of December 2002, T-113-Red2-ENG, page 48, line 25 to page 49, line 5. 2194 T-157-Red2-ENG, page 82, line 22 to page 83, line 3. 2195 T-157-Red2-ENG, page 83, line 11 to page 84, line 3. No. ICC-01/04-01/06 349/593 14 March 2012

were willing and able to join the army to enlist with the UPC/FPLC. 2196 The witness was unaware of any age limit set by the Chief of Staff, but after Mr Kisembo had talked with the old man and others, he saw recruits arriving at the camp from Kilo and the surrounding areas. 2197 Although the average age of the recruits was between 16 and 18, some were younger. 2198 784. D-0019 testified that the UPC did not have a policy of systematically recruiting children into the FPLC. 2199 In addition, P-0016 gave evidence that recruitment was not necessary because “a lot of recruits came to get revenge for their families who had been killed” and so they were “very keen volunteers”. The Chamber notes that from P-0016’s 2200 account it appears he considers that “voluntary” enlistment is not a form of recruitment or a crime. However, in accordance with the Chamber’s approach to this issue, recruitment does not necessarily 2201 involve the conscription of children by force, given the many alternative, non-forceful ways of persuading children to join the military “voluntarily” that were available. Similar pressure could be applied to their families. Notwithstanding the evidence of P-0016 and D-0019, the Chamber heard compelling evidence that “awareness raising” campaigns were conducted by the UPC/FPLC during the relevant timeframe. 785. Although D-0019 testified that the UPC did not have a policy of

2196 T-157-Red2-ENG, page 84, lines 5 – 8. 2197 T-157-Red2-ENG, page 84, lines 11 – 14. 2198 T-157-Red2-ENG, page 84, line 16 to page 85, line 6. 2199 T-345-ENG, page 18, lines 18 – 21. 2200 T-189-Red2-ENG, page 81, line 9 to page 82, line 2. P-0046 also gave evidence that some children, particularly older children, joined the UPC/FPLC to take revenge because their villages had been attacked or members of their families killed: T-207-Red2-ENG, page 26, lines 7 – 13. P-0016 provided additional similar testimony: T-189-Red2-ENG, page 15, lines 21 – 25. 2201 See para. 608. No. ICC-01/04-01/06 350/593 14 March 2012

systematically recruiting children into the FPLC, 2202 on the basis of the evidence called during the trial as to the steps taken by the UPC/FPLC leaders (including Floribert Kisembo and Eric Mbabazi) and Hema elders as regards recruitment and mobilisation, the Chamber is sure that considerable pressure was exerted on various communities to send young people, including children under the age of 15, to join the UPC/FPLC army during the time frame of the charges. c) UPC/FPLC training centres 786. P-0055 gave evidence about specific UPC/FPLC camps where training occurred, in Bunia, Rwampara, Bule, Fataki and Khari. He testified that members of the main staff visited the training camps, including the Chief of Staff, and that he personally visited the camps at Rwampara and Khari. P-0055 said President Lubanga went to 2203 Rwampara, which was not a great distance from Bunia. 2204 P-0055 testified that once the UPC was in control of Bunia he travelled to a UPC camp to deliver weapons to the soldiers, although he was not yet a member. 2205 He indicated many children were at the military camp, the great majority of whom were adults. Whilst P-0055 said he did 2206 not know their ages, 2207 he nonetheless testified that there were some “PMFs” amongst the troops. 2208 787. The Chamber heard evidence on the presence of children in a number of UPC/FPLC training camps. Although D-0019 testified that the UPC/FPLC had only three training camps: Mandro, Rwampara

2202 T-345-ENG, page 18, lines 18 – 21. 2203 T-175-Red2-ENG, page 68, lines 2 – 25 and page 82, lines 6 – 11. 2204 T-175-Red2-ENG, page 82, lines 12 – 14. 2205 T-174-CONF ENG, page 25, line 17 to page 26, line 23. 2206 T-174-Red2-ENG, page 39, lines 10 – 14. 2207 T-174-Red2-ENG, page 39, lines 2 – 9. 2208 T-174- Red-ENG, page 38, lines 10 –21. No. ICC-01/04-01/06 351/593 14 March 2012

and Bule 2209 (he suggested Mandro closed at the end of October 2002), other witnesses described training occurring elsewhere, 2210 including at the UPC/FPLC headquarters and at camps in Mongbwalu and Kilo. The Chamber has considered this issue in more detail below.

(1) The UPC/FPLC headquarters in Bunia 788. As mentioned above, P-0014 saw children being trained at the UPC headquarters in Bunia during the summer of 2002. 2211 When P-0014 asked Richard Lonema about a particular five-year-old child, he was told “if they get in early then they are going to grow up as real soldiers” and that young children of this age were trained to become informers, by selling water and groundnuts on the streets. 2212 789. The defence challenges the credibility of P-0014’s account that he saw children aged 5 to 18 in the training camps between 30 July and 20 August 2002, on the basis that D-0019 testified that the UPC did not have a military wing at this time. 2213 However, a number of witnesses gave a significantly different account. P-0014 broadly agreed with P- 0041, who suggested many FPLC soldiers had been trained prior to his return from Kinshasa in August 2002 (or were undergoing training at that time), 2214 and D-0037 asserted that the force under Chief Kahwa, which was re-named the FPLC in August 2002, was in existence by June 2002. 2215 The Chamber accepts the testimony of P-0014 that the UPC was providing military training to children under the age of 15

2209 T-345-Red2-ENG, page 20, line 24 to page 23, line 17. 2210 T-345-Red2-ENG, page 21, lines 18 – 23. 2211 T-179-CONF-ENG, page 65, lines 13 – 24 and T-179-Red2-ENG, page 83, line 8 to page 84, line 18; T-184-CONF-ENG, page 60, lines 7 – 11. 2212 T-179-Red2-ENG, page 84, lines 1 – 18. 2213 ICC-01/04-01/06-2773-Red-tENG, paras 572 – 573, referring to T-342-FRA, page 4, line 25 to page 5, line 4. 2214 T-125-Red2-ENG, page 67, lines 20 – 23 and page 11, lines 1 – 2. 2215 T-349-ENG, page 20, line 20 to page 21, line 12. No. ICC-01/04-01/06 352/593 14 March 2012

between 30 July and 20 August 2002 and that recruitment continued thereafter. 2216 790. P-0016 recounted an occasion when President Lubanga visited the UPC/FPLC staff headquarters to talk to the troops in order to boost their morale. Critically, he noted that children under the age of 15 were present. He could not recall the date of this event, but he 2217 indicated that it was “at the beginning of the time we came out of Mandro”. 2218 P-0016 arrived in Mandro a few days after the attack on Bunia when Governor Lompondo was forced to flee the city, 2219 and he remained there for 10 days. 2220 P-0016 must therefore have left Mandro at the end of August or beginning of September 2002. This coincides with Thomas Lubanga’s return to Bunia around 1 September 2002. 2221 On the basis of all the relevant evidence, the Chamber concludes that this visit by Thomas Lubanga to the headquarters to talk to the troops must have taken place in September 2002. Whether Thomas Lubanga was aware that children below the age of 15 were present during this particular visit will be addressed below. 791. In all the circumstances, the Chamber is satisfied that children under the age of 15 were trained by the UPC/FPLC at its headquarters from July 2002 and this continued after September 2002.

(2) The Rwampara training camp 792. Video footage shown during P-0030’s evidence records a visit by Mr

2216 T-182-Red2-ENG, page 11, line 22 to page 12, line 7 and T-179-Red-ENG, page 60, lines 10 – 20. 2217 T-190-Red2-ENG, page 13, line 11 to page 17, line 9. 2218 T-190-Red2-ENG, page 17, lines 5 – 9. 2219 T-190-Red2-ENG, page 57, lines 5 – 11; T-189-Red2-ENG, page 10, line 1 to page 11, line 6. 2220 T-190-Red2-ENG, page 58, lines 17 – 19. 2221 T-181-Red2-ENG, page 54, lines 2 – 7 (P-0014). No. ICC-01/04-01/06 353/593 14 March 2012

Lubanga to the Rwampara training camp on 12 February 2003, 2222 and the defence does not dispute that this visit took place. The film 2223 shows recruits who were clearly under the age of 15. In particular, the Chamber considers that the child shown at counter 00:06:57 wearing military clothing and carrying a weapon is under the age of 15. The footage also shows a number of other children who are under the age of 15, 2224 carrying weapons or wearing military uniforms. P-0030 explained that these children were recruits but there were not even sufficient sticks for all of them to carry (as a substitute for firearms). 2225 The Chamber has accepted this evidence, particularly given the children were addressed at a military camp by the President of the UPC. 793. In the same video, the accused, wearing a military uniform and accompanied by armed soldiers, spoke to the recruits and encouraged them in their military training, and he said that as soon as it was completed, they would be provided with weapons, prior to being deployed to protect the population. 2226 He indicated they would be useful soldiers in the field. 2227 The Chamber has dealt with the particular arguments advanced by the defence on this video in the chapter on individual criminal responsibility. It is sufficient in this context to observe that the accused saw UPC/FPLC recruits under the age of 15 at the camp in Rwampara in February 2003.

2222 EVD-OTP-00570, T-128-CONF-ENG, page 28, line 25 to page 29, line 8 and T-128-Red2-ENG, page 37, lines 2 – 6. 2223 ICC-01/04-01/06-2773-Red-tENG, para. 828. 2224 EVD-OTP-00570 at 00:06:57, 00:04:13 to 00:04:18, 00:10:53 to 00:11:14, 00:13:41 to 00:13:54 and 0016:04 to 00:17:10. 2225 T-128-Red2-ENG, page 30, line 22 to page 31, line 20 and page 35, line 2 to page 36, line 11. 2226 T-128-Red2-ENG, page 38, lines 19 – 20. 2227 T-128-Red2-ENG, page 41, lines 12 – 19. No. ICC-01/04-01/06 354/593 14 March 2012

794 P-0055 recalled he visited the Rwampara camp in 2003. 2228 The

witness heard Bosco Ntaganda encourage the recruits, who were 2229

paraded in straight lines and in three rows. 2230 They were mostly

adults, and although there were some children, P-0055’s account was

there were “very few” kadogos. 2231

795 Once the new recruits were registered, they began their military

training. P-0055 did not know whether their ages were included in 2232

the register, and he stated “actually, I wasn’t really interested in

verifying their ages.” 2233

796 In March 2003, 2234 P-0046 and her colleagues spoke to about twelve

children in Rwampara who were former UPC/FPLC child soldiers.

They gave their names, ages, origins and membership in this

particular military group. Around half of them were below 15 years

old. 2235

797 When P-0046 met with demilitarised children in Bunia, she spoke

with them for a few minutes (or longer, if the child was particularly

talkative) in order to clarify his or her status as a child who had

become separated from an armed group. 2236

798 The defence challenges the evidence of P-0046 as to her interviews

with young people at the Rwampara training camp in March 2003. 2237

2228 T-175-CONF-ENG CT, page 69, line 2 to page 70, line 14. 2229 T-175-Red2-ENG, page 70, line 13 to page 71, line 5. 2230 T-175-Red2-ENG, page 71, lines 9 – 22. 2231 T-175-Red2-ENG, page 73, line 16 to page 74, line 3. P-0055 testified that the term kadogo was generally applied to those between 13 and 16 years of age: T-174-Red2-ENG, page 40, line 5 to page 41, line 15. 2232 T-176-ENG, page 24, lines 13 – 17. 2233 T-175-Red2-ENG, page 80, lines 9 – 16. 2234 EVD-OTP-00489, page 55, lines 20 – 21 and page 58, lines 10 – 11. 2235 EVD-OTP-00489, page 58, line 18 to page 64, line 21. 2236 T-205-Red2-ENG , page 70, lines 17 – 21. 2237 ICC-01/04-01/06-2773-Red-tENG, para. 649.

No. ICC-01/04-01/06 355/593 14 March 2012

It is submitted that Rwampara was under the control of the Ugandan forces and as a result it is “extremely questionable” that she would have met minors from the FPLC at the camp at that time. 2238 The defence further submits it was unable to conduct any investigations into the information collected by P-0046 because the report she prepared was withdrawn from the record of the case and the identities of the minors she interviewed were not disclosed. 2239 The Chamber has approached this evidence with particular care, given the risk of prejudice to the accused because the defence was unable to conduct relevant investigations. 799. In this regard, the Chamber notes P-0046’s evidence that the UPDF was occupying Rwampara at the time, and the children –although no longer under the control of an armed group – had previously been in the UPC. The witness explained she met UPDF commanders and a UPC commander named Commander Barongo. The latter was in charge of the camp and facilitated contact with the children. 2240 Notwithstanding the restrictions on defence investigations referred to above, the testimony of P-0046 concerning her interviews with former UPC/FPLC child soldiers in Rwampara was credible, consistent and reliable. 800. On the basis of the evidence set out above, the Chamber is satisfied that children under the age of 15 were trained at Rwampara camp during the period of the charges.

(3) Mandro 801. P-0038 stated that before April 2002 whilst he worked as a military 2238 ICC-01/04-01/06-2773-Red-tENG, paras 649 and 745. 2239 ICC-01/04-01/06-2773-Red-tENG, para. 650. 2240 EVD-OTP - 00491, page 30, line 18 to page 33, line 33 and page 59, lines 4 – 19.

No. ICC-01/04-01/06 356/593 14 March 2012

trainer at the Mandro camp, some of the recruits were under the age of

15 P-0038 was able to assess their ages by their physical 2241

appearance, including their height, and he considered it was easy to

tell who was above and who was below 15 years. 2242 The smaller

recruits could not carry a Kalashnikov for a long period. 2243 Although

the evidence of P-0038 regarding training at Mandro relates

specifically to the period prior to April 2002, 2244 it is nonetheless

relevant to the charges because, as established by the evidence of D-

0037, the recruits who trained there under Chief Kahwa were

thereafter incorporated into the FPLC, during the summer of 2002. In

addition, as developed below, P-0016 testified that training took place

before he arrived in Mandro in August and continued after he left. 2245

802 P-0038 gave evidence that military training, including target

practice, was undertaken in the UPC camp at Mandro. Moreover, 2246

even when the training was complete, the rules of the military

(including as regards behaviour and discipline) were taught at each

parade. 2247 P-0016 gave evidence that at Mandro the recruits learnt

basic drill and how to use a firearm, 2248 although a piece of wood was

substituted for a real weapon, at approximately the same weight. 2249 2250

They stood in front of each other and pretended to shoot, but it

“wasn’t enough training”. 2251 All the recruits – men, women, boys and

2241 T-113-Red2-ENG, page 40, line 7 to page 42, line 4. 2242 T-114-Red2-ENG, page 37, lines 15 – 21. 2243 T-114-Red2-ENG, page 37, lines 20 – 23. 2244 T-114-Red2-ENG, page 43, line 13 to page 44, line 3. 2245 T-189-Red2-ENG , page 25, lines 8 – 15. 2246 T-189-Red2-ENG, page 40, lines 16 – 21. 2247 T-189-Red2-ENG, page 41, lines 7 – 13. 2248 T-189-Red2-ENG, page 41, lines 14 – 18. 2249 T-189-Red2-ENG, page 41, lines 19 – 22. 2250 T-189-Red2-ENG, page 41, lines 22 – 23. 2251 T-189-Red2-ENG, page 41, lines 23 – 25.

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girls – were involved. 2252

803 P-0038 was familiar with the final stages of training, 2253 which the

commander conducted with the new arrivals; this included children

under 15, as well as adults. 2254 All the recruits were taught how to use

AK-47s and light arms, and how to fight the enemy. 2255 They were

instructed as to the appropriate way to welcome the President. 2256

Children wore the same uniforms as the older soldiers, which were

adjusted by the tailor if they were too big. 2257 The uniforms were green

camouflage, with green boots. 2258 The children were armed with AK-

47s 2259 and they were deployed throughout the armed forces on the

basis of their training. 2260

804 P-0016 testified that he was at the Mandro training camp for about

10 days 2261 in August or early September 2002, after the battle of Bunia,

by which time Thomas Lubanga had become president. 2262 There were

over a hundred recruits and others at the camp, three quarters of

whom were children. 2263 Many of these children had lost their

parents. 2264 There were a considerable number of attacks before the

FPLC was established, and the witness indicated that many children

used those attacks as an opportunity to join the army, in order to take

2252 T-189-Red2-ENG, page 42, lines 7 – 11. 2253 T-114-Red2-ENG, page 11, lines 2 – 4. 2254 T-114-Red2-ENG, page 11, lines 3 – 7. 2255 T-114-Red2-ENG, page 11, lines 12 – 13. 2256 T-114-Red2-ENG, page 11, lines 8 – 12. 2257 T-114-Red2-ENG, page 38, lines 5 – 7. 2258 T-114-Red2-ENG, page 38, lines 12 – 18. 2259 T-114-Red2-ENG, page 38, line 7. 2260 T-114-Red2-ENG, page 11, lines 7 – 8. 2261 T-189-Red2-ENG, page 13, lines 14 – 23. 2262 T-189-Red2-ENG, page 3, lines 6 – 11, page 9, line 22 to page 11, line 24 and page 17, lines 9 – 14. 2263 T-189-Red2-ENG , page 15, lines 7 – 21. 2264 T-189-Red2-ENG , page 15, lines 20 – 22.

No. ICC-01/04-01/06 358/593 14 March 2012

revenge. 2265 The ages of the children ranged from 13 to 17 years old. 2266

805 P-0016 was asked how many of the children were aged 14 and

below during his training at Mandro. 2267 He said he did not know the

exact number, 2268 but it was less than 50 percent. 2269 Training was an

ongoing activity, 2270 and when he arrived two or three batches of

children were already at Mandro, and others had already been

assigned to other places, such as Tchomia, Nizi, Iga-Barrière and

Kasenyi. 2271 According to P-0016, none of the children at Mandro in

August or early September 2002 were younger than 13 years. 2272

806 The defence criticises the witness’s evidence as to the proportion of

the children he saw at Mandro who were under 15 years, describing

the evidence as “extremely confused”. 2273 The Chamber does not agree

with this assessment.

807 P-0016 testified that he knew a number of very young girls 2274 who

cooked at Mandro camp. 2275 When P-0016 was asked how he

concluded there were only young girls at Mandro, 2276 he indicated that

“[a]s a parent and as a man of experience”, he could tell by the

appearance of the person, as well as by their behaviour and actions. 2277

On his account, there were no girls at the camp who were above the

2265 T-189-Red2-ENG , page 15, lines 22 – 25. 2266 T-189-Red2-ENG , page 16, line 3. 2267 T-189-Red2-ENG , page 23, lines 18 – 21; page 24, lines 6 – 13. 2268 T-189-Red2-ENG , page 24, line 10. 2269 T-189-Red2-ENG , page 24, lines 17 – 18; page 25, lines 12 – 13. 2270 T-189-Red2-ENG , page 25, lines 14 – 15. 2271 T-189-Red2-ENG , page 25, lines 8 – 11; page 24, lines 3 – 5. 2272 T-189-Red2-ENG , page 16, lines 4 – 7. 2273 ICC-01/04-01/06-2773-Red-tENG, para. 415. 2274 T-189-Red2-ENG, page 26, lines 11 – 15. 2275 T-189-Red2-ENG, page 26, lines 13 – 14. 2276 T-189-Red2-ENG, page 26, lines 16 – 17. 2277 T-189-Red2-ENG, page 26, lines 18 – 22.

No. ICC-01/04-01/06 359/593 14 March 2012

age of 17. 2278 He did not give an exact indication of their ages, but said that “they must have been very young” as they behaved “like girls who were still at home”. 2279 He said their manner of playing, and the way they lived in the community, demonstrated that they were very young. 2280 He indicated they braided a particular type of grass in the way that young girls who have not reached the age of maturity tend to do, as if they are braiding the hair of a doll. 2281 808. The Chamber has already discussed the defence challenge to P- 0016’s assessment of the age of the children he saw and it has concluded he provided a reliable explanation as to how he estimated their ages.

809 When P-0017 went to the Mandro training camp in late 2002 he saw a number of recruits, including boys and girls between 12 and 14 years old. 2282 The recruits, who were dressed in civilian clothes, did not carry weapons, but boys and girls “in service” had weapons with them. 2283 When P-0017 returned to Mandro in March 2003, it had been attacked and the recruits had left, leaving only soldiers who had taken up combat positions in the camp, including one “young” soldier who was a bodyguard for one of the commanders. 2284 810. P-0041 suggested that Bosco Ntaganda indicated he was responsible for training the soldiers at Mandro. 2285 811. Given the consistency and credibility of these witnesses, the

2278 T-189-Red2-ENG, page 27, line 1. 2279 T-189-Red2-ENG, page 27, lines 4 – 7. 2280 T-189-Red2-ENG, page 27, lines 9 – 10. 2281 T-189-Red2-ENG, page 27, line 10 to page 28, line 1. 2282 T-154-Red2-ENG, page 40, line 16 to page 41, line 13. 2283 T-154-Red2-ENG, page 41, line 21 to page 42, line 7. 2284 T-154-Red2-ENG, page 42, line 8 to page 44, lines 7 – 18. 2285 T-125-Red2-ENG, page 52, lines 4 – 7. No. ICC-01/04-01/06 360/593 14 March 2012

Chamber is satisfied there were a significant number of children under the age of fifteen who were trained by the UPC/FPLC at Mandro camp during the period of the charges.

(4) Mongbwalu 812. The Chamber has heard evidence that children under the age of 15 years were trained at the UPC camp in Mongbwalu. Two witnesses, P-0016 and P-0038, gave credible, reliable and consistent evidence to this effect. As discussed above, the Chamber is of the view that it can rely on the age estimates of these witnesses. 813. P-0017 visited the training camp in Mongbwalu during his time with the UPC, between late August/early September 2002 and August 2003. He saw between 380 and 420 recruits there, including children 2286 under the age of 15. 2287 814. During the final military training at Mongbwalu that involved P- 0038, around the end of 2002, 2288 many of the trainee child soldiers were within the age range of 13 to 16, although the witness was unable to estimate the exact number. 2289 815. On the basis of this evidence, the Chamber concludes that children under the age of 15 were trained by the UPC/FPLC at Mongbwalu during the period of the charges.

2286 P-0017 joined the UPC when it took over Bunia, which was in late August / early September 2002. T-154-Red2, page 16, lines 18 – 24. He remained in the UPC until August 2003, T-154-Red2, page 17, line 11 – 15. 2287 T-154-Red2-ENG, page 41, lines 12 – 13 (stating that “children” means those from 12 – 14 years of age); page 44, line 21 to page 46, line 3. 2288 T-114-Red2-ENG, page 6, line 22 to page 14, line 21. 2289 T-113-Red2-ENG, page 35, line 15 to page 36, line 10. No. ICC-01/04-01/06 361/593 14 March 2012

(5) Kilo

816 P-0017 worked in Kilo at the beginning of 2003, 2290 and on one

occasion a child soldier was killed when they were ambushed. 2291 The

witness did not know his age, although they found his body. 2292 It

follows that the Chamber is unable to rely on this particular piece of

testimony.

817 According to P-0017, an appreciable number of recruits came to the

camp at Kilo at this time, 2293 who in the main were between 16 and

20 2294 There were pygmies who were short but older. 2295 The average

age was between 16 and 18 and no one was older than 30. 2296

818 However, this witness also indicated that although most recruits

were above 16 years, 2297 on one occasion there was a problem with a

child whose mother came to the camp to complain. She was 2298

crying, and the battalion commander spoke with her. The woman 2299 2300

said that her child was only 12 and she wanted him back. 2301 She cried

at the camp entrance for days. She repeatedly said: “Give me my son

back, he’s only 12.” 2302 This was the youngest child the witness saw at

the camp. The UPC soldiers eventually chased his mother away. 2303 2304

2290 P-0017 testified that after the battle of Mongbwalu, which he stated took place at the end of 2002, close to the beginning of 2003, he went on to Kilo. T-154-Red2-ENG, page 25, lines 13 – 16 and page 23, lines 14 – 15; T-157-Red2-ENG, page 80, lines 17 – 22. P-0038 stated that the battle of Mongbwalu took place between end of November 2002 and the beginning of December 2002, T-113- Red2-ENG, page 48, line 25 to page 49, line 5. 2291 T-157-Red2-ENG, page 86, lines 16 – 19; page 88, lines 3 – 8. 2292 T-157-Red2-ENG, page 87, lines 24 – 25. 2293 T-157-Red2-ENG, page 84, lines 14 – 15. 2294 T-157-Red2-ENG, page 84, line 19. 2295 T-157-Red2-ENG, page 84, line 20. 2296 T-157-Red2-ENG, page 85, lines 3 – 5. 2297 T-157-Red2-ENG, page 85, lines 5 – 6. 2298 T-157-Red2-ENG, page 84, lines 20 – 22. 2299 T-157-Red2-ENG, page 85, line 16. 2300 T-157-Red2-ENG, page 85, lines 16 – 17. 2301 T-157-Red2-ENG, page 84, lines 21 – 23; page 85, line 8. 2302 T-157-Red2-ENG, page 84, lines 21 – 22; page 85, lines 6 – 8. 2303 T-157-Red2-ENG, page 84, lines 23 – 24.

No. ICC-01/04-01/06 362/593 14 March 2012

The Chamber has taken this evidence into account, although it is unable to conclude on the basis of this single incident that children under the age of 15 were trained at Kilo.

(6) Conclusion 819. Given the consistency of these witnesses, the Chamber is sure that between September 2002 and 13 August 2003 children under the age of 15 were recruited into the UPC/FPLC, and they were taken either to the UPC headquarters in Bunia or to the military camps at Rwampara, Mandro, and Mongbwalu for training. The submission of the prosecution that the UPC had 20 training camps has not been substantiated. 5. Use of child soldiers

820 As set out above, those who actively participated in hostilities included a wide range of individuals, from those on the front line, who participated directly, through to those who were involved in a myriad of roles supporting the combatants. The decisive factor in deciding whether an indirect role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger by becoming a potential target. The ages of the children are dealt with in the Chamber’s consideration of the detailed evidence relating to each of them, as set out below.

2304 T-157-Red2-ENG, page 85, line 7, lines 9 - 10; page 86, lines 5 – 6. No. ICC-01/04-01/06 363/593 14 March 2012

a) Participation in battles and presence on the

battlefield

821 P-0038 stated that once the children had completed their training

they were deployed across the UPC/FPLC military structure. 2305

According to P-0016 they were provided with equipment ( e.g.

weapons and uniforms) at Mandro, although there were insufficient 2306

uniforms for all the recruits once they were fully integrated. 2307

Thereafter, the children were sent to Bunia prior to being posted. 2308 P-

0038 stated that they fought in battles, 2309 either as soldiers or as

bodyguards for the commanders, 2310 and some were deployed in this

way on a permanent basis. 2311

822 P-0038 saw adults and children (including some under the age of

15), 2312 whilst he was serving in his brigade within the UPC during late

2002 2313

823 The Chief of Staff provided children below 15 years of age with

weapons when their training was completed, and some were assigned

to P-0038’s brigade. 2314 The latter indicated that children in this age

group primarily fought as soldiers, although the commanders also

used them as bodyguards. 2315 They fought in battles, 2316 and P-0038 saw

children – under instructions from the commanders – shooting at the

enemy along with the adults, 2317 in circumstances that exposed them to

2305 T-113-Red2-ENG, page 44, lines 16 – 17. 2306 T-189-Red2-ENG, page 57, lines 12 – 13 and 18 and page 58, lines 1 – 2. 2307 T-189-Red2-ENG, page 57, line 22 to page 58, line 1 (P-0016). 2308 T-189-Red2-ENG, page 57, lines 13 – 14 and 18 – 19 (P-0016). 2309 T-113-Red2-ENG, page 44, lines 21 – 24 (P-0038). 2310 T-113-Red2-ENG, page 44, lines 18 – 20. 2311 T-114-Red2-ENG, page 14, lines 9 – 12 (P-0038). 2312 T-113-Red2-ENG, page 35, lines 5 – 20. 2313 T-114-Red2-ENG, page 6, line 22 to page 24, line 21. 2314 T-114-Red2-ENG, page 14, lines 2 – 14. 2315 T-113-Red2-ENG page 44, lines 18 – 20. 2316 T-113-Red2-ENG, page 44, lines 21 – 24. 2317 T-113-Red2-ENG, page 44, line 25 to page 45, line 3.

No. ICC-01/04-01/06 364/593 14 March 2012

enemy fire. 2318 Indeed, P-0038 was aware that children were killed. 2319

They were not as strong as adults, and since they could not run as fast

when fleeing some were caught or came under fire from the enemy. 2320

P-0038 particularly referred to children being wounded or killed

whilst fighting for the UPC during the second “liberation” of Bunia in

May 2003 and he noted that one of the bodyguards of the Chief of Staff

received fatal shrapnel wounds. 2321 Furthermore, some children were

shot and killed when they entered Mongbwalu in November 2002, 2322

and others who were under the age of 15 took part in the battle of

Kobu in February or March 2003. 2323

824 P-0038 testified that two brigades were involved in a battle against

the Lendu in Mongbwalu at the end of November 2002 and the

beginning of December 2002. 2324 The first brigade was Salumu’s, which

was reinforced by other soldiers, and the second was Jerôme

Kakwavu’s from Aru and Mbidjo. There were numerous soldiers in 2325

Salumu’s brigade, including adults and children. 2326 The witness gave

evidence that children of 13 and 14 years old were used in this battle,

acting as bodyguards, escorts and as front-line soldiers. 2327

825 P-0016 did not accept the recruits were sent to different sites

depending on whether they were adults or children. 2328 He said that

once the recruits left the centre, they were soldiers and they were all

2318 T-113-Red2-ENG, page 45, lines 4 – 12. 2319 T-113-Red2-ENG, page 45, lines 13 – 15. 2320 T-113-Red2-ENG, page 45, lines 17 – 20. 2321 T-114-Red2-ENG, page 17, line 13 to page 18, line 1. 2322

T-114-Red2-ENG, page 18, lines 1 – 4.

2323 EVD-OTP-00623 at DRC-OTP-0074-0481 (stating that the UPC/FPLC attacked the Lendu in Kobu in February/March 2003); T-114-Red2-ENG, page 14, lines 13 – 23 (confirming that his entire brigade, including children, fought at Kobu); page 21, line 1 to page 22, line 25 (describing the battle in Kobu). 2324 T-113-Red2-ENG, page 48, line 24 to page 50, line 22. 2325 T-113-Red2-ENG, page 50, lines 13 – 22. 2326 T-113-Red2-ENG, page 51, line 25 to page 52, line 2. 2327 T-113-Red2-ENG, page 52, line 13 to page 53, line 3. 2328 T-189-Red2-ENG, page 60, lines 10 – 17.

No. ICC-01/04-01/06 365/593 14 March 2012

similarly deployed, irrespective of age. 2329 Accordingly, youth did not

bestow any particular advantage in this context. 2330

826 P-0012 gave evidence that he saw child soldiers, many of whom

were under 15, 2331 in the armed groups in Bunia in 2003. 2332 He

described how some from the UPC/FPLC were in the front line at the

battle of Bunia on 12 May 2003. 2333

827 At about this time in Bunia, a child soldier from the UPC/FPLC in

civilian clothing, who was carrying a Kalashnikov, 2334 asked P-0012 for

his telephone. 2335 The child did not come up to the witness’s shoulder

as they stood beside each other, 2336 and P-0012 could not say whether

he was even 12 years old. P-0012 knew his UPC/FPLC commander, 2337

whom he had met two days earlier. 2338

828 The defence maintains that each soldier in the FPLC had a uniform,

and therefore this child’s civilian clothing casts serious doubt as to

whether he was a member of that particular armed group. 2339 It is

further contended that the statements of P-0012 fail otherwise to

demonstrate the link between the child and the UPC/FPLC – indeed it

is suggested they tend to indicate that he was within the troops of

Commander Tchaligonza. 2340

829 D-0037 and D-0019 both testified that conditions in Bunia in May

2329 T-189-Red2-ENG, page 60, lines 14 – 16. 2330 T-189-Red2-ENG, page 60, lines 16 – 17. 2331 T-168-Red2-ENG, page 75, line 22 to page 76, line 1. 2332 T-168-Red2-ENG, page 73, lines 9 – 11. 2333 T-168-Red2-ENG, page 76, line 19 to page 77, line 16; page 74, lines 1 – 3. P-0012 corrected the date (12 May 2003) of the attack in Bunia: T-168-Red2-ENG, page 75, lines 4 – 6. 2334 T-168-Red2-ENG, page 76, line 19 to page 78, line 11. 2335 T-168-Red2-ENG, page 77, lines 7 – 9. 2336 T-168-Red2-ENG, page 77, lines 22 – 24. 2337 T-168-Red2-ENG, page 77, lines 9 – 10. 2338 T-168-Red2-ENG, page 79, line 22 to page 80, line 15. 2339 ICC-01/04-01/06-2773-Red-tENG, para. 554. 2340 ICC-01/04-01/06-2773-Red-tENG, para. 554.

No. ICC-01/04-01/06 366/593 14 March 2012

2003 were chaotic and it was very difficult to distinguish between the FPLC and other military forces. D-0019 gave evidence that FPLC 2341 soldiers abandoned their uniforms after 6 March 2003, and that fighters from other groups had also collected them from the warehouses at the Chief of Staff’s offices, so that “pretty much everyone” wore these particular FPLC uniforms, and there was a ”state of total confusion”. 2342 According to D-0037, the only way to identify the force to which a soldier belonged was by identifying his commander. 2343 830. The Chamber is satisfied that the testimony of P-0012 concerning the young UPC/FPLC soldier he saw in May 2003 is accurate. Furthermore, due to the prevailing circumstances in Bunia at that time (as described by various witnesses), it was not uncommon for soldiers, including from the FPLC, to wear civilian clothing. The Chamber is equally satisfied that the witness was well placed to give evidence about the matters set out above, given he was inside the MONUC zone in Bunia where he was able to photograph UPC/FPLC soldiers and he could talk with the relevant UPC/FPLC commander. 2344 831. The youngest child that P-0046 personally referred to the demobilisation centres in Bunia was 11 years old. 2345 The witness interviewed this child in October or November of 2003. 2346 He had been with the UPC for a year, having been recruited when he was 10 years old. 2347 He participated in battles and had been a bodyguard for

2341 T-349-ENG, page 16, line 12 to page 17, line 2 (D-0037); T-341-ENG, page 33, line 10 to page 34, line 17 (D-0019). 2342 T-341-ENG, page 34, lines 4 – 17. 2343 T-349-ENG, page 17, lines 10 – 12. 2344 T-168-Red2-ENG, page 76, line 19 to page 80, line 15. 2345 T-205 -Red2-ENG, page 68, lines 15 – 17; page 69, lines 7 – 12. 2346 T-205 -Red2-ENG, page 69, lines 15 – 21. 2347 T-205 -Red2-ENG, page 69, lines 15 – 24. No. ICC-01/04-01/06 367/593 14 March 2012

Mr Kisembo in Bunia. 2348 The witness stated that it was possible that the centres received even younger children of whom she was unaware. 2349 832. P-0014 also gave specific examples of having seen or having met child soldiers, including two children aged 14 or younger, among the injured in Kampala in October 2002, who the witness said were Gegeres and Hemas who were fighting for the UPC. 2350 833. Based on notes of meetings with children in Rwampara and Bunia, P-0046 testified that 26 of them who were under 15 years served with the UPC/FPLC army, including by participating in combat, between mid-2002 and mid-2003. 2351 834. On the basis of the evidence analysed above, the Chamber is satisfied that children under the age of 15 were used by the UPC/FPLC between September 2002 and 13 August 2003, in order to participate in combat in Bunia, Kobu and Mongbwalu, amongst other places. b) The use of child soldiers as military guards 835. P-0016, who joined the UPC in late August 2002, 2352 gave evidence that children deployed in Bunia after being trained at Mandro acted as guards at the military headquarters, the presidency or Camp Ndromo. 2353 Outside Bunia, it was easiest to deploy children to Tchomia, Kasenyi, Bogoro and Nyamavi, where it was generally quiet. 2354 Additional soldiers were sometimes used to guard the border

2348 T-205 -Red2-ENG, page 69, line 23 to page 70, line 1. 2349 T-205 -Red2-ENG, page 69, lines 12 – 14. 2350 T-182-Red2-ENG, page 41, lines 4 – 16. 2351 T-207-Red2-ENG, page 12, lines 18 – 22; T-206-Red2-ENG, page 48, line 24 to page 49, line 13. 2352 P-0016’s evidence was that he joined in the UPC around late August 2002 and left in November 2002. T-189-Red2-ENG, page 3, line 6 to page 4, line 9. 2353 T-189-Red2-ENG, page 58, lines 17 – 19. 2354 T-189-Red2-ENG, page 58, lines 22 – 24. No. ICC-01/04-01/06 368/593 14 March 2012

area between the Congo and Uganda, 2355 and soldiers were sent to other places such as Katoto, Iga-Barrière and Centrale. These were 2356 “very sensitive” zones where the Lendu made “trouble”. 2357 As a result, it was necessary to send soldiers to “calm things down”, 2358 who had to be ready for any eventuality. 2359 Soldiers were posted at the port at Mahagi and along the lake to prevent the Ugandans from “coming to do misdeeds in the Congo.” 2360 836. After his arrest in October 2002 by the UPC/FPLC, P-0024 was beaten by armed UPC militiamen and left in a pit near the EPO School, and child soldiers guarded him. 2361 These guards were about 10, 11, or 12 years old – “no more than that” – and other kadogos aged 10 to 2362 12 were nearby. 2363 837. The defence relies on the fact that these estimates as to age were based solely on the witness’s personal assessment. 2364 However, as set out above, the Chamber has accepted that it is generally possible to identify children who are clearly below 15 years of age, and the witness’s evidence that he was guarded by children aged between 10 and 12 is credible and reliable, particularly given he had worked for more than a year with demobilised child soldiers in Ituri, and was accordingly familiar with children within this age range. 838. The Chamber concludes, on the basis of the testimony of P-0016 and P-0024, that a significant number of children under the age of 15 were 2355 T-189-Red2-ENG, page 58, line 23 to page 59, line 20. 2356 T-189-Red2-ENG, page 59, lines 10 – 12. 2357 T-189-Red2-ENG, page 59, lines 17 – 18. 2358 T-189-Red2-ENG, page 60, lines 3 – 4. 2359 T-189-Red2-ENG, page 60, lines 8 – 9. 2360 T-189-Red2-ENG, page 59, lines 23 – 25. 2361 T-170-Red2-ENG, page 72, line 13 to page 75, line 14. 2362 T-170-Red2-ENG, page 76, lines 1 – 3. 2363 T-170-Red2-ENG, page 76, lines 3 – 4. 2364 ICC-01/04-01/06-2773-Red-tENG, para. 588. No. ICC-01/04-01/06 369/593 14 March 2012

used by the UPC/FPLC as military guards during the period of the charges. c) Bodyguards and escorts of commanders and other high-ranking UPC/FPLC officials 839. P-0055 testified that all the members of the main staff had escorts, and these included kadogos. During his visits to the commanders in 2365 the field, P-0055 saw kadogos acting as their bodyguards. Given P- 2366 0055’s testimony that the kadogos ranged in age from 13 to 16 years old, the Chamber is unable to conclude on the basis of his evidence alone that the children at the various places he mentioned in his testimony were necessarily younger than 15, and has only drawn conclusions from his evidence when it was corroborated by the testimony of other witnesses. 840. P-0014 also testified about a 14 year old child who worked as a bodyguard with the express permission of Thomas Lubanga. 2367 841. On 6 March 2003, P-0017 saw Commander Bosco Ntaganda’s aidede-camp, known as 6-1 Sierra, in Bunia. The witness thought that his bodyguards included two child soldiers who were below 15 years of age. 2368 One of these boys was dressed in civilian clothes with a military hat, whilst the other wore a civilian t-shirt, and military trousers and boots. 2369 They were carrying Kalashnikovs. 2370 At one point, the children ran from their positions because shells, fired from the airport, were falling close by, and one of the boys lost his boots

2365 T-176-Red2-ENG, page 46, lines 19 – 22; page 47, lines 5 – 6; page 47, line 25 to page 48, line 3. 2366 T-177-CONF-ENG, page 32, lines 10 – 19. 2367 T-185-CONF-ENG, page 12, line 25 to page 13, line 2 and page 26, line 21 to page 27, line 8. 2368 T-158-CONF-ENG, page 17, line 8 to page 19, line 2. 2369 T-158-Red2-ENG, page 19, lines 4 – 7. 2370 T-158-Red2-ENG, page 19, lines 15 – 18. No. ICC-01/04-01/06 370/593 14 March 2012

because they were too large for him. 2371

842 After this incident, the soldiers travelled towards Mongbwalu, 2372

but the route thereafter (they took the road to Baku, Mamedi and

Maitulu) 2373 was in total chaos. 2374 P-0017 was with his unit, 2375 and en

route to Mamedi he saw the Chief of Staff, Floribert Kisembo, along

with other members of the general staff, such as the G4 (known by the

name Papa Romeo Charlie), the G5 Eric Mbabazi and various

commanders and staff members, along with representatives of the

various brigades. 2376 He gave evidence that there were children

amongst the soldiers. 2377

843 The Chief of Staff tried to establish how many soldiers had arrived

in Mamedi, 2378 but the situation was in disarray and some had fled. 2379

The Chief of Staff wanted to reorganise in order to set up a new

structure, 2380 and given the commanders had a large number of

bodyguards and there was a lack of soldiers for the units, the Chief of

Staff asked the bodyguards to join the troops. 2381 P-0017 gave evidence

that this explained why young children who acted as bodyguards for

the commanders joined the troops. 2382

844 D-0019 and P-0017 both testified that they spent approximately a

month in Mamedi. D-0019 said that on 11 March 2003 he left 2383

2371 T-158-Red2-ENG, page 19, lines 7 – 10. 2372 T-158-Red2-ENG, page 19, lines 21 – 22. 2373 T-158-Red2-ENG, page 19, lines 23 – 25. 2374 T-158-Red2-ENG, page 19, lines 22 – 23; page 20, line 4. 2375 T-158-Red2-ENG, page 20, lines 14 – 15. 2376 T-158-Red2-ENG, page 20, line 22 to page 21, line 11. 2377 T-158-Red2-ENG, page 21, lines 12 – 15. 2378 T-158-Red2-ENG, page 22, lines 3 – 4. 2379 T-158-Red2-ENG, page 22, lines 6 – 7 and 10. 2380 T-158-Red2-ENG, page 22, lines 10 – 11. 2381 T-158-Red2-ENG, page 22, lines 12 – 14. 2382 T-158-Red2-ENG, page 22, lines 14 – 16. 2383 T-344-Red-ENG, page 42, line 20 to page 43, line 1; T-158-Red2-ENG, page 21, lines 21 – 25.

No. ICC-01/04-01/06 371/593 14 March 2012

Mongbwalu – together with a group of FPLC soldiers led by Floribert Kisembo – following attacks by the UPDF and the Lendu, and several days later they reached Mamedi where they remained for a month. 2384 Some of the FPLC commanders arrived at Mamedi with their bodyguards, whose ages D-0019 described as follows: “quite possibly they were under 18, but that doesn’t mean they were under 15 […] you did have commanders with small bodyguards, but being small in Ituri does not mean you’re a child”. 2385 D-0019’s suggestion that the bodyguards who arrived at Mamedi were under the age of 18, but not necessarily under the age of 15, coupled with the testimony of P-0017, is insufficient to contradict the statements that commanders used bodyguards under the age of 15. 845. The Chamber is of the view that P-0017 provided an honest and accurate account, particularly as regards the ages of the children he saw and their roles in connection with the armed forces. He witnessed children under the age of 15, including girls, amongst the UPC/FPLC troops in Lalo, some of whom were in the military units but the majority, particularly the girls, acted as bodyguards. 2386 P-0038 also gave evidence that certain commanders used girls as their bodyguards. 2387 P-0017 testified, “in general at the UPC it was easy for a young child to end up being a bodyguard. They were not very demanding, they were not asking for money to buy what they wanted, they didn’t have a girlfriend, they couldn’t drink, whereas older young soldiers had other troubles as well. A child – as long as he can wash and eat, that’s all he needs, while adults, elder soldiers, want more

2384 T-341-ENG, page 25, line 16 to page 27, line 16; T-344-Red-ENG, page 43, line 2 to page 44, line 11. 2385 T-345-ENG, page 3, line 24 to page 6, line 6. 2386 T-154 -Red2-ENG , page 29, lines 15 – 18; page 81, line 18 to page 83, line 15. 2387 T-114-Red2-ENG, page 24, line 1. No. ICC-01/04-01/06 372/593 14 March 2012

than that.” 2388 P-0017 indicated that as regards the children at Lalo,

“you can see the difference with other older children that might be

there, and it’s something you could really see. You saw they were less

than 15.” 2389 His evidence was that their ages may have been in the

range of 10 to 12 – they varied – but they were younger than 15. 2390

846 When P-0041 was first appointed to his position in the UPC/FPLC, a

commander assigned him approximately 12 bodyguards. The 2391

witness assessed they were between 13 or 14 to about 16 years of age

and, in any event, none of the guards had reached the fourth year of

primary school. Therefore, they were very young 2392 and each of them

was still a boy. The witness lived in a hotel where the bodyguards 2393

waited for him at the front. When P-0041 left the hotel, he was

accompanied by one of the guards, leaving the others at the hotel. 2394

After several days a single bodyguard replaced the twelve, and 2395 2396

the commander told the witness that he had returned them to the

front. 2397

847 P-0041’s replacement bodyguard was a small child – he gave his age

as 14 – who had been trained at Mandro after 8 August 2002. 2398 P-0041

said that he thought he was 14 or 15 years old. The younger brother 2399

of the new bodyguard, who was also serving as a bodyguard in

2388 T-154 -Red2-ENG , page 83, lines 7 – 12. 2389 T-154 -Red2-ENG , page 63, lines 12 – 22. 2390 T-154 -Red2-ENG , page 82, lines 1 and 2. 2391 T-125-Red2-ENG, page 50, line 5 to page 54, line 14. 2392 T-125-Red2-ENG, page 50, lines 15 – 21. 2393 T-125-Red2-ENG, page 52, lines 14 – 16. 2394 T-125-Red2-ENG, page 52, lines 20 – 25. 2395 The witness later agreed that the 12 bodyguards worked for him for one week. T-126-Red2-ENG, page 55, lines 11 – 13. The Chamber has concluded that this slight variance in his testimony on this subject does not affect his credibility. 2396 T-125-Red2-ENG, page 50, lines 4 – 12; T-126-Red-ENG, page 48, lines 12 – 15. 2397 T-125-Red2-ENG, page 53, line 8 to page 54, line 14. 2398 T-125-Red2-ENG, page 48, line 24 to page 49, line 11. 2399 T-125-Red2-ENG, page 56, lines 8 – 10.

No. ICC-01/04-01/06 373/593 14 March 2012

Mongbwalu, frequently visited P-0041’s residence. 2400 The new bodyguard began working with P-0041 in December 2002, immediately after his training (he had been given a uniform but not a weapon). 2401 He was with the witness between January and March. 2402 The witness gave him a weapon although he did not appreciate this meant he was committing a crime. 2403 848. The witness took this child as his bodyguard because he knew his family. 2404 Whenever the police saw these young guards (the kadogos) they seized their weapons, saying to them “you can’t carry out guard service”. On these occasions, the witness spoke with the commander in charge in order to recover the confiscated weapon. 2405 849. P-0041 said that all those who held a similar position in the UPC had bodyguards, and that “[u]sually bodyguards were young persons. We were not taking adults. We were using young persons.” His evidence was that the majority of the soldiers serving in the UPC were over 22 years of age but some were 10 to 13, and above. 2406 850. P-0041 gave evidence that younger soldiers (those in the region of 14 to 16 years of age) were selected because they were obedient. They needed little care because they did not have children or family responsibilities. 2407 851. P-0038 testified that child soldiers, both girls and boys, were “more used” as body guards (acting as escorts for several of the

2400 T-125-Red2-ENG, page 56, lines 11 – 14. 2401 T-125-Red2-ENG, page 49, lines 15 – 19. 2402 T-126-Red-ENG, page 56, line 16 to page 57, line 5. 2403 T-126-Red2-ENG, page 57, lines 6 – 18. 2404 T-125-Red2-ENG, page 49, lines 18 – 19. 2405 T-125-Red2-ENG, page 49, lines 21 – 25. 2406 T-125-Red2-ENG, page 54, line 15 to page 55, line 8. 2407 T-125-Red2-ENG, page 56, lines 17 – 25. No. ICC-01/04-01/06 374/593 14 March 2012

commanders), because children were fearless – in contrast with adults

– and they did not ask a great deal of their commanders. There was 2408

no particular criteria applied when assigning children, save that some

commanders preferred to have young children as they were “more

desirable”. 2409 The younger children followed their orders more

diligently than older children. 2410

852 According to P-0038, General Kisembo, Bosco Ntaganda and Chief

Kahwa each had children under the age of 15 working as their

bodyguards and escorts. 2411 Although he was not sure of the exact

number of bodyguards used by General Kisembo, they were divided

into two separate platoons – one for children and one for adults. 2412

853 The children, whilst acting as bodyguards, watched over their

commanders and protected their residences. They controlled access by

visitors to the commanders, 2413 and they followed them everywhere,

including to war. P-0038 indicated that the child bodyguards wore 2414

military uniforms and they carried arms: indeed, according to the

witness, all UPC personnel bore arms. 2415 Bodyguards accompanied

commanders such as Abelanga when they went to war. 2416

854 Video footage taken on 14 January 2003 and introduced during 2417

the evidence of P-0030 shows a group from the UPC meeting with

Lendu representatives near the city of Lipri. 2418 The UPC delegation

2408 T-113-Red2-ENG, page 36, lines 11 – 23. 2409 T-114-Red2-ENG, page 14, line 24 to page 15, line 6. 2410 T-114-Red2-ENG, page 15, lines 16 – 17. 2411 T-113-Red2-ENG, page 36, line 24 to page 37, line 5. 2412 T-114-Red2-ENG, page 16, lines 6 – 11. 2413 T-113-Red2-ENG, page 37, lines 11 – 17. 2414 T-113-Red2-ENG, page 37, lines 17 – 18. 2415 T-113-Red2-ENG, page 37, lines 21 – 23. 2416 T-114-Red2-ENG, page 24, lines 9 – 11 (P-0038). 2417 T-129-Red2-ENG, page 4, lines 20 23. 2418 EVD-OTP-00572 and T-128-Red2-ENG, page 60, line 18 to page 61, line 6.

No. ICC-01/04-01/06 375/593 14 March 2012

included Commander Ali, 2419 John Tinanzabo and Mathieu Amboko Bebetu. They were escorted by armed UPC/FPLC soldiers wearing uniforms, some of whom are clearly below the age of 15. 2420 855. P-0014 also said he saw several children serving under Commander Jerôme Kakwavu in Aru in March or April 2003. 2421 One child was acting as an escort to Commander Kakwavu, whilst another was punished for having made a mistake (this particular child refused to give up his weapon when he was imprisoned). 2422 856. As set out above, the defence has challenged this evidence, 2423 which the Chamber has not relied on because it is not clear whether Mr Kakwavu’s forces were under the control of Thomas Lubanga at the relevant time. 2424 857. Based on the entirety of the evidence, the Chamber is satisfied that a significant number of children under the age of 15 were used by the UPC/FPLC as escorts and bodyguards for the main staff and the commanders, between September 2002 and 13 August 2003. d) Thomas Lubanga’s bodyguards 858. As discussed above, P-0030 testified that he went to Thomas Lubanga’s residence in Bunia about two or three times a week at certain periods during the timeframe of the charges when Mr Lubanga visited the town. On these occasions he noticed bodyguards as young as nine or ten years old, wearing uniforms and bearing weapons,

2419 T-128-Red2-ENG, page 61, line 15 to page 62, line 4. 2420 EVD-OTP-00572, 00:00:50; 00:02:47; 00:28:42; T-128-Red2-ENG, page 63, lines 2- 9 and page 65, line 9 to page 66 line 1; T-129-Red2-ENG, page 28, line 20 to page 29, line 17. 2421 T-182- Red2-ENG, page 25, line 20 to page 26, line 1. 2422 T-182-Red2-ENG, page 26, lines 1 – 22. 2423 ICC-01/04-01/06-2773-Red-tENG, para. 575. 2424 Commander Kakwavu’s departure from the UPC was discussed in T-178-CONF-ENG, page 19, line 16 to page 20, line 5 (P-0055). No. ICC-01/04-01/06 376/593 14 March 2012

guarding the accused’s residence. 2425 It follows that his assessment of their ages is not based on an isolated visit. As discussed elsewhere in this Judgment, there is video footage of a MONUC delegation visiting Mr Lubanga’s office on 24 February 2003 (an occasion when P-0030 played with the kadogos who formed part of the military guard) that shows a UPC bodyguard who is clearly under the age of 15. 2426 859. The defence observes that during his examination in court, P-0030 agreed he told prosecution investigators that the kadogos he saw at the UPC headquarters in Bunia appeared to be between 14 and 15 years of age. 2427 The witness gave similar evidence in Court as regards the ages of the bodyguards of Mr Ntaganda and Mr Kisembo (he said that they were aged 13 and upwards) 2428 He stated additionally that Mr Lubanga had bodyguards as young as 9 years old. 2429 The witness therefore did not contradict himself on this issue. 860. P-0030 testified about video footage taken during a presidential rally at the city stadium on 11 January 2002 2430 which was held for Mr Lubanga when he returned from a trip to Goma. 2431 Children wearing uniforms and carrying machine guns guarded the accused. It is clear some of these children were under the age of 15. 2432 861. Other video footage, taken on 23 January 2003, shows a public event

2425 T-128-CONF-ENG, page 8, line 5 to page 9, line 20 and T-128-Red2-ENG, page 19, line 11 to page 21, line 19. 2426 EVD-OTP-00574, 01:49:02 and T-129-Red2-ENG, page 57, line 13 to page 58, line 4. 2427 T-131-Red2-ENG, page 8, lines 2 – 6. 2428 T-128-Red2-ENG, page 24, lines 3 – 12 and page 55, line 2 – 6. 2429 T-128-Red2-ENG, page 19, line 11 to page 21, line 19. 2430 T-128-Red2-ENG, page 51, lines 19 – 20. 2431 T-128-Red2-ENG, page 51 lines 15 – 20. 2432 EVD-OTP-00571, 02:47:15 – 02:47:19. In addition the Chamber observes that at 02:22:52 – 02:22:54 there are children who could be under the age of 15 but they appear too briefly to enable a definite finding. No. ICC-01/04-01/06 377/593 14 March 2012

attended by Mr Lubanga, 2433 along with other UPC leaders such as the

military commander, Eric Mbabazi. A young man, evidently under 2434

the age of 15, is filmed wearing camouflage clothing and carrying

weapons. 2435 P-0030 testified that he belonged to the same group as the

other soldiers in the footage, namely the UPC/FPLC. 2436

862 Mr Lubanga is also filmed returning to his residence after an event

at the Hellenique Hotel on the same day (23 January 2003), 2437

travelling in a vehicle accompanied by members of the presidential

guard. 2438 Two young individuals in camouflage clothing, who are

clearly under the age of 15, are to be seen sitting with armed men

wearing military clothing. The size and general appearance of these 2439

two young individuals, when compared with other children and the

men who are with them in the vehicle, leads to the conclusion that

they are under the age of 15.

863 P-0055 gave evidence that the President’s escort protected his

convoy when he was travelling. 2440 The witness was unsure as to the

exact size of this escort but he suggested it was considerable, 2441 and

included adults and children. 2442 He testified about two particular

PMFs who were part of the accused’s convoy. In addition, he said 2443

2433 T-129-Red2-ENG, page 16, line 20 to page 19, line 19 and EVD-OTP-00571, 02:04:22 (Mr Lubanga’s delegation arrives at the scene). 2434 EVD-OTP-00571, 02:03:41, T-129-Red2-ENG, page 18, lines 18 – 20. 2435 EVD-OTP-00571, 02:02:44. 2436 T-129-Red2-ENG, page 18 lines 4 – 14. 2437 EVD-OTP-00574, 00:34:52, T-129-Red2-ENG, page 27, lines 22 – 25. 2438 EVD-OTP-00574, 00:35:44, T-129-Red2-ENG, page 28, lines 3 – 25. 2439 EVD-OTP-00574, 00:36:21. 2440 T-176-Red2-ENG, page 49, lines 8 – 15. 2441 P-0055 stated that the escort was like a battalion and he specified that in the UPC, a battalion comprised between 150 and 200 soldiers: T-176-Red2-ENG, page 48, lines 10 – 13; page 49, lines 4 – 7. 2442 T-176-Red2-ENG, page 48, lines 23 – 24. 2443 T-176-Red2-ENG, page 49, lines 16 – 18.

No. ICC-01/04-01/06 378/593 14 March 2012

the kadogos in the main staff, including the PMFs 2444 and those who accompanied the President, wore uniforms and carried arms. 2445 864. P-0016 testified that there were ten children under the age of 17 in the “Presidential Protection Unit” (“PPU”), acting as the President’s personal bodyguards. 2446 Initially he indicated the youngest of these children “could have been 14”, and then he stated there were “no 2447 more than four” children who were 13 and 14 years of age within the PPU. 2448 The defence submits the witness did not explain how he assessed the ages of these guards with this degree of accuracy, and in any event it is argued it is impossible to make a sufficiently accurate visual distinction between teenagers in this age group. However, as 2449 discussed above, this witness gave a persuasive explanation as to how he generally assessed the ages of children. Although he did not specify how he came to the conclusion that the youngest members of the PPU were 13 or 14, and notwithstanding the Chamber’s recognition that differentiating between the ages of children can be difficult, on the basis of his detailed evidence the Chamber is satisfied that he was in a position to make a precise evaluation in this regard. Given he was in the vicinity of the PPU on a daily basis, the Chamber is satisfied that he saw children who were under the age of 15 years amongst the guards within the PPU. 865. P-0041 gave evidence about President Thomas Lubanga’s bodyguards, who were located not far from the witness’s place of

2444 T-178-Red2-ENG, page 77, lines 9 – 15. 2445 T-176-Red2-ENG, page 50, lines 2 – 6. 2446 T-189-Red2-ENG, page 28, lines 19 – 25 and page 30, line 22 to page 31, line 14. 2447 T-189-Red2-ENG, page 30, line 15 to page 31, line 19. 2448 T-189-Red2-ENG, page 30, line 15 to page 31, line 19; page 35, line 22 to page 36, line 2. 2449 ICC-01/04-01/06-2773-Red-tENG, para. 417. No. ICC-01/04-01/06 379/593 14 March 2012

work 2450 (150 – 200 metres away), 2451 and who comprised a mixture of adults and young people. The bodyguards of the National 2452 Secretaries 2453 were dressed and armed in a similar manner to those assigned to the witness (unlike the guards of the military commanders who had different weapons and were dressed differently). 2454 866. D-0019 testified that he went to Thomas Lubanga’s office regularly between September 2002 and 6 March 2003 and he never saw children under the age of 18 within the presidential guard. 2455 However, as discussed above, the Chamber has approached the testimony of D- 0019 that directly relates to Thomas Lubanga with caution and in light of the contradictory evidence provided by other witnesses, does not rely on this statement. 867. D-0011 also gave evidence that between September 2002 and March 2003 and again from May 2003 until Mr Lubanga’s departure from Kinshasa, he was at Mr Lubanga’s side on a daily basis and he did not, on any occasion, see minors in the accused’s bodyguard. 2456 868. The Chamber notes D-0011 somewhat qualified this evidence during examination by the prosecution, when he indicated he was not with Mr Lubanga in Rwampara on 12 February 2003, and although he “mostly accompanied” the accused, in reality he usually remained in Bunia when the President travelled, which he suggested was a rare event. 2457 The Chamber also notes that D-0011 was unaware of any

2450 T-125-Red2-ENG, page 55, lines 21 – 23. 2451 T-125-Red2-ENG, page 55, line 24 to page 56, line 1. 2452 T-125-Red2-ENG, page 56, lines 2 – 5. 2453 T-125-Red2-ENG, page 55, lines 14 – 20. 2454 T-125-Red2-ENG, page 57, lines 1 – 7. 2455 T-341-ENG, page 12, lines 2 – 18. 2456 T-347-ENG, page 29, line 19 to page 30, line 11; page 69, lines 15 – 19. 2457 T-347-ENG, page 57, line 22 to page 58, line 25. No. ICC-01/04-01/06 380/593 14 March 2012

official procedures for verifying the ages of the recruits. 2458 869. As set out above, the Chamber has determined that P-0016, P-0030, P-0041 and P-0055 were consistent, credible and reliable witnesses, and when their accounts are considered alongside the video footage described above – which clearly portrays children amongst Mr Lubanga’s bodyguards – the Chamber discounts the essentially irreconcilable evidence of D-0011 and D-0019 on this issue. On the basis of the accounts of P-0016, P-0030, P-0041 and P-0055 as well as the video footage, the Chamber is satisfied that between September 2002 and 13 August 2003, Thomas Lubanga, as President and Commander-in-Chief of the UPC/FPLC, used a significant number of children under the age of 15 within his personal escort and as his bodyguards. e) The Kadogo Unit 870. D-0019 saw nineteen children staying near Floribert Kisembo in the compound at Mamedi. They were assumed to be orphans who had sought the safety of the military camp, and they included former soldiers. D-0019 denied they were engaged in military activities. 2459 2460 His evidence was that the children he saw were under the age of 18 but not necessarily under the age of 15, 2461 and D-0019 rejected the suggestion that Mr Kisembo decided to create a Kadogo Unit in Mamedi. 2462 871. However, P-0017 testified that the Chief of Staff instituted the

2458 T-347-ENG , page 41, lines 17 – 22. 2459 T-341-ENG, page 29, line 12 to page 30, line 15 and T-345-ENG, page 6, line 7 to page 7, line 19. 2460 T-345-ENG, page 8, lines 4 – 12, page 10, line 24 to page 11, line 2 and page 12, line 23 to page 13, line 16. 2461 T-345-ENG, page 5, lines 12 – 20 and page 7, line 25 to page 8, line 3. 2462 T-345-ENG, page 12, line 12 to page 13, line 16. No. ICC-01/04-01/06 381/593 14 March 2012

Kadogo Unit 2463 at Mamedi and Maitulu. 2464 He said it was nearly the

size of a whole platoon (there were slightly fewer than 45 members), 2465

and the members were less than 15 years old. 2466 The witness thought

that the youngest member “must have been around 12” years old. 2467

The Chief of Staff transferred these individuals to the general staff in

order to take care of them, and P-0017 suggested they were 2468

protected on account of their vulnerability. 2469 During this period,

some of the children acted as bodyguards for the Chief of Staff, 2470

although it was stipulated that they were not to be the first to go into

the town; indeed, they became “almost untouchable”. 2471

872 The defence contends that P-0017 failed to give an accurate account

of the ages of the children in the Kadogo Unit, and instead he simply

made an estimate that the youngest child was “around” 12 without

conducting any process of verification. Given that the UPC/FPLC 2472

generally failed to establish the ages of children within the armed

forces, the evidence of P-0017 that children under 15 years of age were

within the Kadogo Unit (particularly those as young as 12) was

consistent, credible and reliable.

873 P-0017 testified that a child soldier, who had been a member of the

Kadogo Unit, died in battle just before the Artemis force arrived in

June 2003. 2473 The Unit was still at the General Staff when a MONUC

2463 T-158-Red2-ENG, page 22, lines 17 – 18. 2464 T-158-Red2-ENG, page 22, lines 19 – 22. 2465 T-158-Red2-ENG, page 22, line 23 to page 23, line 2. 2466 T-158-Red2-ENG, page 23, line 6. 2467 T-158-Red2-ENG, page 23, lines 7 – 9. 2468 T-158-Red2-ENG, page 23, lines 19 – 21; page 23, line 24 to page 24, line 5. 2469 T-158-Red2-ENG, page 23, lines 22 – 23. 2470 T-158-Red2-ENG, page 24, lines 6 – 12. 2471 T-158-Red2-ENG, page 45, lines 18 – 19. 2472 ICC-01/04-01/06-2773-Red-tENG, paras 444 and 742. 2473 T-158-Red2-ENG, page 46, lines 15 – 16; page 56, lines 21 – 24.

No. ICC-01/04-01/06 382/593 14 March 2012

representative visited the general headquarters during that month. 2474 The witness stated that at “[…] this time Ete” was the commander of the kadogo platoon. 2475

874 P-0017 indicated that two girls were part of the Unit when it was first established, and in due course he saw them with the commander. The witness assessed they were around 13 or 14 2476 2477 years old. 2478

875 It was P-0017’s account that at an early stage the commanders ordered the kadogos to take property from certain local villages. 2479 Later, they were followed when they came under the care of the general staff (see above). As a result, it was more difficult to leave the camp to visit the villages, 2480 and the trainers monitored them to ensure they did not behave improperly. 2481

876 The defence submits the testimony of P-0017 demonstrates that grouping the kadogos within a unit was intended to protect them. 2482 It is emphasised that when P-0017 was asked if members of the kadogo unit undertook military duties, he said “[d]uring that period of time they had no special responsibility” 2483 and “[s]ome people were bodyguards for the Chief of Staff. These were in charge of following him around […] but about military tasks, I’m not sure that they went to patrol or to fetch water or anything else they were asked to do.” 2484

2474 T-158-Red2-ENG, page 45, lines 5 – 8. 2475 T-158-Red2-ENG, page 45, lines 8 – 15. 2476 T-158-Red2-ENG, page 26, lines 8 – 11. 2477 T-160-Red2-ENG, page 58, lines 19 – 25. 2478 T-158-Red2-ENG, page 26, lines 20 – 23. 2479 T-158-Red2-ENG, page 28, line 24 to page 29, line 2. 2480 T-158-Red2-ENG, page 29, lines 2 – 5. 2481 T-158-Red2-ENG, page 29, lines 13 – 14. 2482 ICC-01/04-01/06-2773-Red-tENG, para. 442. 2483 ICC-01/04-01/06-2773-Red-tENG, para. 443, T-158-Red-ENG, page 24, lines 6 – 9. 2484 T-158-Red2-ENG, page 24, lines 10 – 16.

No. ICC-01/04-01/06 383/593 14 March 2012

He indicated “Loringa”, a member of Floribert Kisembo’s general staff, was in charge of the kadogos. The children were made to sing 2485 military songs, and Loringa taught them how to march and he “took care of them”. 2486 The songs helped the children forget their suffering. 2487 877. The Chamber concludes from the evidence of P-0017 that approximately 45 child soldiers within the ranks of the UPC/FPLC, some of them under the age of 15, were grouped together in the spring of 2003 in a “Kadogo Unit”. Save for his denial that Floribert Kisembo created a “Kadogo Unit”, of which the Chamber is unpersuaded because D-0019 demonstrated partiality on this matter during his testimony, the details of D-0019’s evidence on the children in Mamedi largely supports the testimony given by P-0017. The existence of this unit further demonstrates the presence of children within the UPC/FPLC during the period of the charges. f) Domestic work 878. P-0055 testified that although PMFs acted as bodyguards and served within the companies, their most important role was to assist the commanders by cooking, along with “other feminine tasks, routine tasks carried out by women.” 2488 Nonetheless, PMFs also participated in combat, they acted as guards and went out with the patrols, and in this sense they undertook the same routine duties as the other soldiers. 2489 879. D-0019 gave evidence that he saw a young girl between 14 and 16 2485 T-158-Red2-ENG , page 24, line 22 to page 25, line 2. 2486 T-158-Red2-ENG , page 24, line 11 to page 25, line 22. 2487 T-158-Red2-ENG, page 25, lines 12 – 22. 2488 T-178-Red2-ENG, page 77, line 24 to page 78, line 3. 2489 T-178-Red2-ENG, page 78, lines 6 -10. No. ICC-01/04-01/06 384/593 14 March 2012

years of age 2490 assisting the Chief of Staff’s wife with domestic work at Mamedi. 2491 880. P-0017 stated that girl soldiers were usually assigned household tasks. 2492 As analysed above, P-0016 stated that a number of very young girls cooked at the camp at Mandro. 2493 881. When P-0038 was asked about the functions performed by the girls, and whether cooking was their only responsibility, he replied that 2494 the girls (also) did everything undertaken by the others, 2495 and they cooked twice each day. 2496 882. The Chamber has taken into account the evidence concerning domestic work undertaken by girls under the age of 15 when the support provided by the girl exposed her to danger by becoming a potential target. On the basis of the evidence overall, the Chamber concludes that during the period of the charges a significant number of girls under the age of 15 were used for domestic work, in addition to the other tasks they carried out as UPC/FPLC soldiers, such as involvement in combat, joining patrols and acting as bodyguards. g) Conditions of use of child soldiers (1) Punishment 883. P-0016 indicated that there were many different types of punishment at Mandro camp, and some recruits died as a result. 2497

2490 T-345-ENG, page 8, line 13 to page 10, line 23. 2491 T-345-ENG, page 8, lines 13 – 14 and page 9, lines 2 – 4; T-341-ENG, page 29, lines 17 – 18. 2492 T-160-Red2-ENG, page 60, lines 14 – 25 2493 See para. 807. 2494 T-189-Red2-ENG, page 28, lines 2 – 4. 2495 T-189-Red2-ENG, page 28, lines 5 – 6. 2496 T-189-Red2-ENG, page 28, lines 6 – 9. 2497 T-189-Red2-ENG, page 44, lines 13 – 14. No. ICC-01/04-01/06 385/593 14 March 2012

The witness described a punishment referred to as “kafuni”. 2498

Typically, a type of cane with a small bulge at the end was used for

this purpose, called a gongo. 2499 Sometimes those punished received in

the region of 300 strokes and if hit on the nape of the neck they could

“die easily from that”. 2500 Indeed, two individuals at Mandro died in

this way, one of whom was “more or less an adolescent” and the 2501

other was aged about 14 years. 2502 At first nobody talked about these

deaths because they were afraid, but in due course some of them

raised the issue because they “could not stomach it any more”. 2503 P-

0016 learnt what was happening from the children, 2504 and one

individual who provided this information was flogged until he lost the

use of his right arm, which remains defective. 2505 The two deaths

occurred approximately four days before P-0016’s return to Bunia

from Mandro, in late August or early September 2002. 2506

884 Another punishment was called “kiboko” which involved a

whip. 2507 This was administered on parade, during training or in places

that were out of sight in the camp. 2508 Torture was used, 2509 such as

whipping people who were tied up, 2510 and a wide range of objects

featured during punishment (as administered by the commander of 2511

2498 T-189-Red2-ENG, page 44, lines 16 – 17; page 45, lines 2 – 3. 2499 T-189-Red2-ENG, page 45, lines 6 – 9. 2500 T-189-Red2-ENG, page 44, lines 18 – 19; page 45, lines 3 – 4. 2501 T-189-Red2-ENG, page 46, lines 18 – 21. 2502 T-189-Red2-ENG, page 47, lines 14 – 18. 2503 T-189-Red2-ENG, page 46, lines 21 – 23. 2504 T-189-Red2-ENG, page 46, line 25 to page 47, line 3. 2505 T-189-Red2-ENG, page 47, lines 3 – 4 and 7 – 10. 2506 T-190-Red2-ENG, page 65, lines 8 – 10. 2507 T-189-Red2-ENG, page 44, line 18; page 45, line 13. 2508 T-189-Red2-ENG, page 45, lines 19 – 20. 2509 T-189-Red2-ENG, page 44, lines 19 – 20. 2510 T-189-Red2-ENG, page 46, lines 13 – 14. 2511 T-189-Red2-ENG, page 45, lines 4 – 5.

No. ICC-01/04-01/06 386/593 14 March 2012

the centre). 2512 885. P-0014 also saw recruits punished at the headquarters if they committed certain errors. 2513 Their buttocks were whipped, for instance whilst they were lying on the ground or when their hands and legs were held. 2514 886. P-0014 also gave evidence about seeing an apparently hungry child, who was crying and calling for his mother. P-0014 stated: 2515

[…] the reaction of those who were with me […] was to say, “you see, that is 2516 good. They are going to grow up as true soldiers.” 887. While there is the possibility that some of the incidents described by P-0016 occurred in September 2002, P-0014’s evidence immediately precedes the timeframe of the charges. However, as analysed above, there is no indication that there was demobilisation in August 2002, before the period of the charges. Therefore, the Chamber relies on this evidence as demonstrating practices that would have continued into the period of the charges, and it supports the testimony of other witnesses as to the type of punishment that was administered to the recruits during the relevant timeframe. 888. P-0017 testified that it was common in the UPC for individuals to be whipped and imprisoned (although the latter less frequently). He 2517 2518 described a particular occasion when he witnessed some young soldiers being punished. He was told that having smoked cannabis,

2512 T-189-Red2-ENG, page 45, lines 15 – 16. 2513 T-179-Red2-ENG, page 83, lines 16 – 17. 2514 T-181-Red2-ENG, page 17, lines 6 – 10. 2515 T-181-Red2-ENG, page 19, lines 9 – 12. 2516 T-181-Red2-ENG, page 19, lines 13 – 15. 2517 T-158-Red2-ENG, page 31, lines 20 – 21. 2518 T-158-Red2-ENG, page 31, lines 21 – 22. No. ICC-01/04-01/06 387/593 14 March 2012

they “became insubordinate” and threatened to use a gun. 2519 They were arrested and whipped, whilst lying on the ground. He said the 2520 trainers were responsible for this punishment. 2521 Sanctions for violations of UPC regulations or orders were generally the responsibility of the senior person present, 2522 although on occasion someone further up in the hierarchy took the decision as to punishment. 2523 P-0017 described a further punishment that involved putting those concerned in a trench. 2524 889. Based on this evidence, the Chamber concludes that a number of recruits would have been subjected to a range of punishments during training with the UPC/FPLC, particularly given there is no evidence to suggest they were excluded from this treatment. These punishments are described as part of the context in which children under the age of 15 were conscripted, enlisted and used by the UPC/FPLC.

(2) Sexual Violence 890. According to the evidence of P-0046, all the girls she met at the demobilisation centres, except for a few who had been protected by certain women in the camps, told the witness that they had been sexually abused, most frequently by their commanders but also by other soldiers. 2525 Some fell pregnant, resulting in abortions; 2526 and there were instances of multiple abortions. 2527 The witness gave evidence that the psychological and physical state of some of these

2519 T-158-Red2-ENG, page 32, lines 5 – 8. 2520 T-158-Red2-ENG, page 32, lines 7 – 9. 2521 T-158-Red2-ENG, page 32, lines 10 – 11. 2522 T-158-Red2-ENG, page 67, lines 20 – 21. 2523 T-158-Red2-ENG, page 67, lines 21 – 23. 2524 T-158-Red2-ENG, page 32, lines 15 – 23. 2525 T-207 -Red2-ENG , page 30, line 14 to page 31, line 1. 2526 T-207 -Red2-ENG , page 31, lines 2 – 4. 2527 T-207 -Red2-ENG , page 38, lines 11 – 14. No. ICC-01/04-01/06 388/593 14 March 2012

young girls was catastrophic. 2528 891. The youngest victim of this sexual abuse interviewed by P-0046 was 12 years old. 2529 The witness stated that some of those who became pregnant were thrown out of the armed group and ended up on the streets of Bunia. 2530 Others went to join their relatives, and although they may have felt they remained part of the UPC, the latter failed to provide them with support. It was difficult to reintegrate them into 2531 their families because the girls were stigmatised, and significant mediation was necessary. 2532 The witness stated that the children provided her with a clear account of systematic sexual violence in the camps. 2533 892. In answer to a question as to whether sexual violence was committed against the PMFs during training, 2534 P-0016 indicated the trainers and the other guards in the centre took advantage of the situation and raped the recruits, and that the perpetrators included the commander of the centre. 2535 The female recruits at Mandro were raped, irrespective of their age and notwithstanding a strict prohibition in this regard. 2536 P-0016 gave evidence of the common practice amongst some high-ranking UPC officials of using young girl recruits as domestic servants in their private residences. 2537 The commander of the centre at Mandro had four such individuals, and the other instructors used girls for housework, as well as sexually

2528 T-207 -Red2-ENG , page 31, lines 16 – 18. 2529 T-207 -Red2-ENG , page 35, lines 17 – 23. 2530 T-207 -Red2-ENG , page 37, lines 12 – 20. 2531 T-207 -Red2-ENG , page 37, lines 20 – 23. 2532 T-207- Red2-ENG , page 39, lines 3 – 19. 2533 T-207 -Red2-ENG , page 31, lines 4 – 6. 2534 T-191-Red2-ENG, page 15, lines 15 – 18. 2535 T-191-Red2-ENG, page 15, lines 19 – 21 and page 30, line 4 to page 31, line 8. 2536 T-191-Red2-ENG, page 16, lines 1 – 13. 2537 T-191-Red2-ENG, page 16, lines 14 – 17. No. ICC-01/04-01/06 389/593 14 March 2012

abusing them. 2538 However, P-0016 also said that it was difficult to determine the age of the recruits who were raped from their appearance. 2539

893 P-0055 gave evidence that when he visited the camps he received complaints “along those lines” that there was sexual violence against girl soldiers, sexual slavery and forced impregnation, although he indicated these events were infrequent. 2540

894 The evidence from P-0038 was that although girls acted as bodyguards, they were often used to prepare food and to provide sexual services for the commanders. 2541 The commanders particularly treated the girls as if they were their “women” or their wives. 2542

895 P-0038 said Commander Abelanga kept a girl under 15 years old at his home, and Commander Ndjabu retained another as his bodyguard (she later became pregnant by the brigade commander). 2543 P-0038 noticed that Commander Abelanga had a particular girl with him for a considerable period of time, in Mongbwalu and in Bunia. 2544 It was commonly known and commented on that this girl was Commander Abelanga’s “wife”. 2545 She prepared the commander’s food and notwithstanding her saying “I don’t want to”, her cries were heard 2546 at night. 2547

896 In the view of the Majority, given the prosecution’s failure to

2538 T-191-Red2-ENG, page 16, line 18 to page 17, line 4. 2539 T-191-Red2-ENG, page 29, lines 20 – 25. 2540 T-178-Red2-ENG, page 78, line 11 to page 79, line 7. 2541 T-114-Red2-ENG, page 23, lines 16 – 18. 2542 T-114-Red2-ENG, page 23, lines 18 – 19. 2543 T-114-Red2-ENG, page 23, lines 21 – 25. 2544 T-114-Red2-ENG, page 24, lines 17 to page 25, line 4. 2545 T-114-Red2-ENG, page 25, lines 8 – 11. 2546 T-114-Red2-ENG, page 27, lines 2 – 7. 2547 T-114-Red2-ENG, page 26, lines 21 – 25.

No. ICC-01/04-01/06 390/593 14 March 2012

include allegations of sexual violence in the charges, as discussed above, this evidence is irrelevant for the purposes of the Article 74 Decision save as regards providing context. Therefore, the Chamber has not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused. In due course, the Chamber will hear submissions as to whether the issue assists as regards sentence and reparations. h) The self-defence forces 2548 897. The Chamber heard evidence about the local self-defence forces that allegedly included children below the age of 15. D-0007, who was the co-ordinator of the Hema self-defence committees in Ituri during the relevant period, 2549 gave extensive evidence on the creation and the circumstances of these groups. He said they included children 2550 under the age of 15. 2551 Indeed, he suggested age was not taken into account and anyone able to fight could become a member: 2552 “[i]f somebody could fight with a machete or with a spear, and if there were weapons, if he could carry a firearm, we would give it to him.” 2553 D-0019 confirmed that children below the age of 15 were included in these groups. 2554 The Chamber is only able to consider this evidence for the purposes of the charges if the self-defence forces were under the control of the UPC/FPLC. 898. The prosecution submits that the self-defence forces were in existence prior to the period of the charges and they were incorporated

2548 The terms “self-defence forces”, “self-defence groups” and “self-defence committees” have been used interchangeably by the witnesses before the Chamber. 2549 T-348-ENG, page 25, lines 1 – 3. 2550 T-348-ENG, page 23, line 4 to page 31, line 5. 2551 T-348-ENG, page 34, lines 3 – 6. 2552 T-348-ENG, page 24, lines 8 – 15. 2553 T-348-ENG, page 24, lines 13 – 15. 2554 T-340-ENG, page 70, lines 5 – 13. No. ICC-01/04-01/06 391/593 14 March 2012

into the UPC/FPLC when that organisation was created. 2555 It is

submitted the UPC/FPLC had control over these former village

forces, 2556 and that children of all ages were sent to be trained by the

UPC/FPLC, including children under the age of 15. 2557

899 The defence argues these groups maintained their independent

existence after September 2002, and they continued acting 2558

autonomously during and well beyond the period of the charges. 2559

900 Although D-0007 gave evidence to the effect that children under the

age of 15 were used by the self-defence forces, 2560 he suggested they

were separate from the UPC/FPLC – indeed, the UPC “threatened to

disarm” the self-defence fighters. He testified that his self-defence 2561

committee was created at a meeting of commanders of the APC in

Fataki in 1999; every village in which the Hema lived had self-defence

committees; and they continued to exist until 2004. 2562 D-0007 indicated

“young boys” were sent to train with the UPC/FPLC in Mandro, but 2563

they never returned and instead remained with the UPC troops. 2564

However, D-0007 denied that the self-defence groups sent boys under

the age of 15 to be trained by the UPC, and he emphasised that adults

alone were involved and the boys below the age of 15 stayed at

home. 2565 He stated that age was taken into account because “you can’t

send a child to follow military training”. 2566 It is significant there was

2555 ICC-01/04-01/06-2748-Red, paras 349 and 350. 2556 ICC-01/04-01/06-2748-Red, para. 352. 2557 ICC-01/04-01/06-2748-Red, para. 355. 2558 ICC-01/04-01/06-2773-Red-tENG, paras 929 and 930. 2559 ICC-01/04-01/06-2773-Red-tENG, paras 931 – 933. 2560 T-348-ENG, page 33, line 13 to page 34, line 6. 2561 T-348-ENG, page 42, line 14 to page 43, line 18; page 46, lines 9 – 15. 2562 T-348-ENG, page 23, line 12 to page 24, line 3 and page 24, lines 24 – 25. 2563 T-348-ENG, page 36, lines 6 – 11 and page 36, line 20 to page 37, line 1. 2564 T-348-ENG, page 36, lines 12 – 19. 2565 T-348-ENG, page 37, lines 5 – 11. 2566 T-348-ENG, page 38, lines 4 – 9.

No. ICC-01/04-01/06 392/593 14 March 2012

no challenge during the trial as regards D-0007’s testimony that young people from the self-defence forces who were sent to train with the UPC/FPLC never returned. 901. Regarding D-0007’s evidence as to age, 2567 the prosecution argues it is inconceivable that the self-defence forces would restrict the age of the recruits who were sent to train with the UPC/FPLC in order to enhance protection for the Hema villages. The prosecution submits 2568 that given D-0007 did not meet with the accused or receive any orders from him or the FPLC until February 2003 – when he was first advised that children under 15 should not be armed – it is unlikely the selfdefence groups would have imposed an age restriction which was limited to those who were sent to train with the UPC/FPLC. 2569 The prosecution argues that D-0007 would have been unaware whether children under the age of 15 were trained or used by the UPC/FPLC because he did not visit all the villages. 2570 902. Given the inconsistency between D-0007’s testimony that children of all ages were included in the self-defence groups and that “young boys” were sent to the UPC for training, and his later account that only those above 15 were sent, the Chamber has disregarded his evidence on this issue. In any event it is implausible to suggest that the selfdefence forces made special arrangements (based on age) as regards the recruits who were sent for training with the UPC/FPLC, when they did not verify the ages of the children who were given weapons and who they allowed to fight. On this basis, there is a strong inference to be drawn that some of the young people sent by the self-defence forces 2567 T-348-ENG, page 60, lines 1 – 6. 2568 ICC-01/04-01/06-2748-Red, para. 353. 2569 ICC-01/04-01/06-2748-Red, para. 354, referring to T-348-ENG, page 60, lines 10 – 14 and page 39, lines 7 – 16. 2570 ICC-01/04-01/06-2748-Red, para. 354. No. ICC-01/04-01/06 393/593 14 March 2012

to train with the UPC/FPLC were under the age of 15. 903. D-0037 described the self-defence forces as organisations that were set up within the villages, and he emphasised that they were separate entities that had not been incorporated into, and did not belong to, the FPLC. 2571 He indicated that even when FPLC structures were adopted, the self-defence forces remained independently active, and (in contrast) those who were trained as soldiers remained with the FPLC. 2572 D-0037 distinguished the self-defence force in Mandro he had belonged to, which had been integrated into the FPLC, 2573 from the other self-defence forces in the villages that remained independent of the FPLC. Although D-0037 stated that “[a]t the training centre in 2574 Mandro, everyone went there. It was a time when the war against the Hemas targeted the entire community, hence everyone came to join the group”, he indicated that when his group joined the FPLC 2575 structure, other independent self-defence forces remained active. D- 2576 0037 further emphasized that people often confused the self-defence forces with the FPLC, notwithstanding their separate command structures. 2577 Despite D-0037’s acceptance that the FPLC demobilisation orders referred to the self-defence forces, he stated 2578 they were not part of its chain of command, and he suggested the orders issued by the Chief of Staff were “perhaps” directed at commanders who were located close to where self-defence fighters might have been operating. D-0037 additionally gave evidence that 2579

2571 T-349-ENG, page 58, lines 1 – 6 and page 59, lines 6 – 8. 2572 T-349-ENG, page 59, lines 4 – 11. 2573 T-349-ENG, page 58, line 12 to page 59, line 6. 2574 T-349-ENG, page 59, lines 4 – 6. 2575 T-349-ENG, page 7, lines 12 – 14. 2576 T-349-ENG , page 59, lines 8 – 11. 2577 T-349-ENG , page 60, lines 5 – 12. 2578 EVD-D01-01096 and EVD-D01-01097. These will be addressed in detail in Section IX(B)(3). 2579 T-349-ENG , page 59, line 25 – page 60, line 16. No. ICC-01/04-01/06 394/593 14 March 2012

demobilisation was to be enforced regardless of the hierarchy of the self-defence groups “everywhere and wherever [child soldiers] are found”. 2580 D-0037 further testified that the demobilisation orders were “perhaps” directed at commanders in the area where self-defence groups were active. This, however, was only an assumption on his part. Nonetheless, D-0037’s evidence on these issues was credible and reliable. 904. In addition, a report dated 16 February 2003 addressed to the UPC’s general administrator of security refers to the demobilisation instructions of 21 October 2002 and 27 January 2003, and it indicates they had been correctly disseminated to all the major units. Guidance was requested, given the opposition from the self-defence forces to demobilise and disarm the children in their groups. 2581 D-0037 testified that he had drafted and signed this document on the orders of Bosco Ntaganda. It follows that even though the FPLC had control of the 2582 region at the time and interacted with the self-defence groups, many of the latter remained independent of the FPLC. 905. D-0019 also gave evidence about the self-defence committees, indicating that the issue of children within those groups was discussed within the executive. 2583 He suggested the UPC resisted sharing power with other groups. 2584 Moreover, D-0019 testified that the self-defence groups did not necessarily follow the policies of the UPC at the time, and because there were children amongst them who needed to be reintegrated within their communities, they “had to be disarmed first and foremost, regardless of the age of the militants in those 2580 T-349-ENG , page 60, lines 16 – 20. 2581 EVD-D01-01097. 2582 EVD-D01-01097; T-349-ENG , page 12, lines 5 – 12 and page 13, lines 22 – 24 (D-0037). 2583 T-341-ENG, page 4, lines 13 – 15. 2584 T-341-ENG, page 4, lines 15 – 17. No. ICC-01/04-01/06 395/593 14 March 2012

groups.” 2585 He added the UPC had established a mechanism to assist with the reintegration process and to take responsibility for children under the age of 18 from all the armed groups, including the “vigilante forces”. 2586 Although the Chamber has approached D-0019’s testimony with caution, other credible evidence supports his account on this issue, and the Chamber accepts his testimony that the self-defence groups remained separate entities. 906. The Chamber is therefore persuaded the evidence given by D-0007, D-0037 and D-0019, along with the report referred to above, demonstrates that some of the self-defence forces remained independent of the FPLC. D-0037’s statement that “everyone came to join the group” must be viewed in the context of the entirety of his evidence, and it is clear he was not asserting that all the village selfdefence groups were trained at Mandro prior to incorporation into the FPLC.

907 Given their independent existence, the UPC/FPLC was not responsible for any children below the age of 15 who were recruited or used by these groups, save that the Chamber accepts the evidence of D-0007 demonstrates that some children below the age of 15 were sent to the UPC/FPLC for training and never returned. 908. The Chamber sought to call D-0005 as a Court witness, to explore whether children under the age of 15 were included in some of the Hema self-defence groups and whether the accused took any steps to facilitate their demobilisation. Although this witness did not 2587

2585 T-341-ENG, page 4, lines 18 – 24 2586 T-341-ENG, page 5, lines 4 – 17. 2587 Redacted Decision on the Prosecution’s Application to Admit Rebuttal Evidence from Witness DRC-OTP-WWWW-0005, 28 April 2011, ICC-01/04-01/06-2727-Red, paras 62-67. No. ICC-01/04-01/06 396/593 14 March 2012

testify, 2588 there is sufficient reliable evidence on this issue for the Chamber to reach any necessary conclusions on this issue.

6 Overall Conclusions as regards conscription, enlistment and use of children under the age of 15 within the UPC/FPLC

909 It is alleged that the accused conscripted and enlisted children under the age of 15 years into the armed forces of the UPC/FPLC and that he used them to participate actively in hostilities between 1 September 2002 and 13 August 2003.

910 The Chamber has already set out its conclusion that the UPC/FPLC was an armed group. 2589 a) Conscription and enlistment in the UPC/FPLC 911. The Chamber finds that between 1 September 2002 and 13 August 2003, the armed wing of the UPC/FPLC was responsible for the widespread recruitment of young people, including children under the age of 15, on an enforced as well as a “voluntary” basis. The evidence of witnesses P-00055, P-0014 and P-0017, coupled with the documentary evidence establishes that during this period certain UPC/FPLC leaders, including Thomas Lubanga, Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were particularly active in the mobilisation drives and recruitment campaigns that were directed at persuading Hema families to send their children to serve in the UPC/FPLC army. 2590

2588 T-355-ENG, page 3, line 13 to page 6, line 16. 2589 See paras 546-547. 2590 See paras 770 and 785. No. ICC-01/04-01/06 397/593 14 March 2012

912 P-0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046 and P- 0055 testified credibly and reliably that children under 15 were “voluntarily” or forcibly recruited into the UPC/FPLC and sent to either the headquarters of the UPC/FPLC in Bunia or its training camps, including at Rwampara, Mandro, and Mongbwalu. Video evidence introduced during the testimony of P-0030 clearly shows recruits under the age of 15 in the camp at Rwampara. 2591 The letter of 12 February 2003, (EVD-OTP-00518) further corroborates other evidence that there were children under the age of 15 within the ranks of the UPC. 913. The evidence of P-0016, P-0014 and P-0017 demonstrates that children in the camps endured a harsh training regime and they were subjected to a variety of severe punishments. The evidence of P-0055, P-0017 and P-0038 establishes that children, mainly girls, were used for domestic work for the UPC commanders. The Chamber heard evidence from witnesses P-0046, P-0016, P-0055 and P-0038 that girl soldiers were subjected to sexual violence and rape. P-0046 and P-0038 specifically referred to girls under the age of 15 who were subjected to sexual violence by UPC commanders. As discussed above, in the view of the Majority, sexual violence does not form part of the charges against the accused, and the Chamber has not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused. 914. In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted and enlisted into the UPC/FPLC forces between 1 September 2002 and

2591 EVD-OTP-00570. No. ICC-01/04-01/06 398/593 14 March 2012

13 August 2003. b) Use of children under 15 to participate actively in hostilities 915. The testimony of P-0002, P-0016, P-0017, P-0024, P-0030, P-0038, P- 0046, P-0055, D-0019 and D-0037 and the documentary evidence has demonstrated that children under the age of 15 were within the ranks of the UPC/FPLC between 1 September 2002 and 13 August 2003. The evidence of P-0038, P-0016, P-0012, P-0046, P-0014, D-0019 and D-0037 proves that children were deployed as soldiers in Bunia, Tchomia, Kasenyi, Bogoro and elsewhere, and they took part in fighting, including at Kobu, Songolo and Mongbwalu. The evidence of 2592 witnesses P-0016 and P-0024 establishes that the UPC used children under the age of 15 as military guards. The evidence of P-0017 reveals that a special “Kadogo Unit” was formed, which was comprised principally of children under the age of 15. The evidence of P-0014, P- 0017, D-0019, P-0038 and P-041, as well as the video footage EVD-OTP- 00572, demonstrates that commanders in the UPC/FPLC frequently used children under the age of 15 as bodyguards. 2593 The accounts of P-0030, P-0055, P-0016 and P-0041, along with the video evidence, clearly prove that children under the age of 15 acted as bodyguards or served within the presidential guard of Mr Lubanga. 2594 916. In all the circumstances, the evidence has established beyond reasonable doubt that children under the age of 15 were conscripted, enlisted and used by the UPC/FPLC to participate actively in hostilities between 1 September 2002 and 13 August 2003.

2592 See Section VIII(B)(2). 2593 See Section VIII(B)(2) and (5). 2594 EVD-OTP-00571, 02:47:15 – 02:47:19; EVD-OTP-00574, 00:36:21 and 01:49:02. No. ICC-01/04-01/06 399/593 14 March 2012

XI. INDIVIDUAL CRIMINAL RESPONSIBILITY OF THOMAS LUBANGA (ARTICLE 25(3)(a) OF THE STATUTE)

A. THE LAW

1 The Mode of Liability Charged

917 The prosecution charged Thomas Lubanga as a co-perpetrator

under Article 25(3)(a) of the Statute, and the Pre-Trial Chamber

confirmed the charges on this basis.

2595

Article 25 Individual criminal responsibility

1 The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (emphasis added) […]

2 The Decision on the Confirmation of Charges

918 In its Decision on the Confirmation of Charges, Pre-Trial Chamber I

held that liability as a co-perpetrator under Article 25(3)(a) attaches

only to individuals who can be said to have “control over the

crime”.

2596

919 The Confirmation Decision outlined three main approaches to

2595 ICC-01/04-01/06-803-tEN, para. 410. 2596 ICC-01/04-01/06-803-tEN, paras 326–338.

No. ICC-01/04-01/06 400/593 14 March 2012

distinguish between principals and accessories if a crime is committed by a number of individuals: the objective approach, the subjective approach and the control over the crime approach. 2597 920. The Pre-Trial Chamber held that under the control over the crime approach, in contrast to the objective approach, 2598 the principals to a crime are not limited to those who physically carry out the objective elements of the offence. Rather, principals also include those individuals who, in spite of their absence from the scene of the crime, control or mastermind its commission because they decide whether and, if so, how the offence will be committed. 2599 921. The Pre-Trial Chamber described the subjective approach as “mov[ing] the focus from the level of contribution to the commission of the offence as the distinguishing criterion between principals and accessories and plac[ing] it instead on the state of mind in which the contribution to the crime was made”. It was said that “[a]s a result, 2600 only those who make their contribution with the shared intent to commit the offence can be considered principals to the crime, regardless of the level of their contribution to its commission”. 2601 Declining to follow the subjective approach, the Pre-Trial Chamber held that the level or degree of the contribution to a crime was a central element in determining the liability of principals. 2602

2597 ICC-01/04-01/06-803-tEN, paras 326–330. 2598 ICC-01/04-01/06-803-tEN, para. 328. 2599 ICC-01/04-01/06- 803 -tEN, para. 330. 2600 ICC-01/04-01/06-803-tEN, para. 329. 2601 ICC-01/04-01/06-803-tEN, para. 329. 2602 ICC-01/04-01/06-803-tEN, para. 329. An additional argument rejecting the subjective approach was made in paragraphs 334 and 335 of the Confirmation Decision: in the Pre-Trial Chamber’s view, those who know of the intent of a group of persons acting with a criminal purpose to commit a crime, or who aim to further the criminal activity by intentionally contributing to its commission (Article 25(3)(d) of the Statute) would be considered principals rather accessories to a crime, “had the drafters of the Statute opted for a subjective approach for distinguishing between principals and accessories.” No. ICC-01/04-01/06 401/593 14 March 2012

922 Applying this interpretation of Article 25(3)(a), the Pre-Trial Chamber held that co-perpetration “is rooted in the notion of the division of essential tasks for the purpose of committing a crime by two or more persons acting in a concerted manner”. 2603 As a result “although none of the participants has overall control over the offence because they all depend on one another for its commission, they all share control because each of them could frustrate the commission of the crime by not carrying out his or her task”. 2604 923. In the Decision on the Confirmation of Charges, the Pre-Trial Chamber set out what it described as the objective elements of coperpetration as follows: (i) the “existence of an agreement or common plan between two or more persons”; 2605 and (ii) the “co-ordinated essential contribution made by each co-perpetrator resulting in the realisation of the objective elements of the crime.” As regards the 2606 subjective elements of co-perpetration, it stated that “[t]he Chamber […] requires above all that the suspect fulfil the subjective elements of the crime with which he or she is charged […]”. 2607 These subjective elements are said to be: (i) “the suspect and the other co-perpetrators […] must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime”; 2608 and (ii) the suspect must be aware of the “factual circumstances enabling him or her to jointly control the crime.” 2609

2603 ICC-01/04-01/06- 803- tEN, para. 342. 2604 ICC-01/04-01/06- 803 -tEN , paras 342 and 347. 2605 ICC-01/04-01/06- 803 -tEN, para. 343. 2606 ICC-01/04-01/06- 803 -tEN , para. 346. 2607 ICC-01/04-01/06- 803 -tEN , para. 349. 2608 ICC-01/04-01/06- 803 -tEN , para. 361. 2609 ICC-01/04-01/06- 803 -tEN , para. 366. No. ICC-01/04-01/06 402/593 14 March 2012

a) The Pre-Trial Chamber’s Conclusions on the “Objective” Elements 924. Addressing the first objective element (the “existence of an agreement or common plan between two or more persons”), the Pre- Trial Chamber held that the “plan must include an element of criminality, although it does not need to be specifically directed at the commission of a crime”. 2610 The Chamber decided that it suffices:

(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or (ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a noncriminal goal) will result in the commission of the crime, and (b) accept such 2611 an outcome. 925. Turning to the second objective element (a “co-ordinated essential contribution by each co-perpetrator resulting in the realisation of the objective elements of the crime”), the Pre-Trial Chamber indicated that “only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the crime”. 2612 b) The Pre-Trial Chamber’s Conclusions on the “Subjective” Elements 926. The Pre-Trial Chamber addressed the mental element of the crimes under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute. First, it noted that the general subjective element(s) for all crimes within the jurisdiction of the Court set out in Article 30 of the Statute apply

2610 ICC-01/04-01/06- 803 -tEN, para. 344. 2611 ICC-01/04-01/06- 803 -tEN, para. 344. 2612 ICC-01/04-01/06- 803 -tEN, paras 342 and 347. No. ICC-01/04-01/06 403/593 14 March 2012

“unless otherwise provided”. 2613 In particular, the Pre-Trial Chamber indicated that “intent” and “knowledge” can only be established: i) if the person is [aware] that a circumstance exists or a consequence will occur in the ordinary course of events; and ii) if the person means to engage in the relevant conduct and means to cause the relevant consequences or is aware that it will occur in 2614 the ordinary course of events. 927. It suggested that “the “cumulative” reference to “intent” and “knowledge” “requires the existence of a volitional element on the part of the suspect”. This “volitional element” was described as encompassing three situations (dolus directus of the first degree, dolus directus of the second degree and dolus eventualis ). 2615 928. As the Pre-Trial Chamber observed, Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Elements of Crimes provide that the offence under consideration is committed if it is established that the accused “knew or should have known” that the relevant individual was under 15 years. It concluded that this is one of the exceptions to the 2616 requirement of “intent and knowledge” under Article 30. 2617 929. Notwithstanding that conclusion, the Pre-Trial Chamber determined that the “should have known” standard within the relevant Elements of Crimes was not applicable in the present case, given that “co-perpetration based on joint control over the crime requires that all the co-perpetrators, including the suspect, be mutually aware of, and mutually accept, the likelihood that implementing the common plan would result in the realisation of the objective elements

2613 ICC-01/04-01/06-803-tEN, para. 350. 2614 ICC-01/04-01/06-803-tEN, para. 350. 2615 ICC-01/04-01/06-803-tEN, paras 351-352. 2616 ICC-01/04-01/06-803-tEN, para. 357. 2617 ICC-01/04-01/06-803-tEN, para. 359. No. ICC-01/04-01/06 404/593 14 March 2012

of the crime.” 2618 930. The Pre-Trial Chamber decided that mutual awareness and acceptance on the part of the co-perpetrators that the plan “may result in the realisation of the objective elements of the crime” justifies the conclusion that the individual contributions “may be attributed” to each participant and that each of them is to be held criminally responsible “as principals to the whole crime”. 2619 931. The Pre-Trial Chamber distinguished between two scenarios as regards dolus eventualis : first, when there is a substantial risk the objective elements of the crime will occur (i.e. in the ordinary course of events), and second, when the risk is low. In the first scenario, “mutual acceptance” can be inferred from: “(i) the awareness by the suspect and the other co-perpetrators of the substantial likelihood that implementing the common plan would result in the realisation of the objective elements of the crime; and (ii) the decision by the suspect and the other co-perpetrators to implement the common plan despite such awareness.” 2620 As to the second scenario, the participants “must have clearly or expressly accepted the idea that implementing the common plan would result in the realisation of the objective elements of the crime”. 2621 932. The Pre-Trial Chamber further observed, with respect to the existence of an armed conflict, that “the Elements of Crimes require only that ‘[t]he perpetrator was aware of factual circumstances that established the existence of an armed conflict‘, without going as far as to require that he or she conclude[s], on the basis of a legal assessment 2618 ICC-01/04-01/06-803-tEN, para. 365. 2619 ICC-01/04-01/06-803-tEN, paras 361 and 362. 2620 ICC-01/04-01/06-803-tEN, para. 363. 2621 ICC-01/04-01/06- 803 -tEN, para. 364 . No. ICC-01/04-01/06 405/593 14 March 2012

of the said circumstances, that there was an armed conflict”. 2622 933. The Pre-Trial Chamber considered that an element of “joint control over the crime” is that the suspect was aware of “the factual circumstances enabling him to jointly control the crime”. It found “this requires the suspect to be aware (i) that his or her role is essential to the implementation of the common plan, and hence in the commission of the crime, and (ii) that he or she can – by reason of the essential nature of his or her task – frustrate the implementation of the common plan, and hence the commission of the crime, by refusing to perform the task assigned to him or her”. 2623 3. The Submissions a) The Prosecution Submissions on the “Objective” Elements of the Crime 934. In its closing submissions, the prosecution accepts that under “coperpetration” the accused, in the function or role assigned to him, needs to exercise control over the crime. It is submitted that this can 2624 be established either because (i) he was “assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed” (emphasis added); 2625 or (ii) “the role assigned to the accused ex ante was central to the implementation of the plan, [but] it appears in retrospect that his or her contribution was substantial though not essential, to the

2622 ICC-01/04-01/06-803-tEN, para. 360. 2623 ICC-01/04-01/06-803-tEN, para. 367. 2624 ICC-01/04-01/06-2748-Red, para. 64. 2625 ICC-01/04-01/06-2748-Red, para. 64. No. ICC-01/04-01/06 406/593 14 March 2012

implementation of the common plan” (original emphasis). 2626 935. As to (i) above, the central role will be made out “where an accused has actually made an essential contribution to the implementation of the common plan” 2627 ( i.e. an ex post facto essentiality analysis). 936. As to (ii), the prosecution submits that “[a] contribution is ‘substantial’ where the crime might still have occurred absent the contribution of the Accused, but not without great difficulty.” The 2628 prosecution argues that “functional control remains a requirement for this second scenario, as it is determined ex ante and on the basis of the role assigned to the Accused and not on the basis of the actual contribution”. 2629 937. Therefore, by the prosecution’s formulation, the accused can be said to have had “control over the crime” either because his actual contribution at the execution stage was “essential” to the commission of the crime or the role assigned to the accused was “central to the implementation of the plan” but “it appears in retrospect that his actual contribution was “substantial” though not essential.” 2630 938. The prosecution further asserts that it is not necessary to establish that the accused “physically perpetrated any of the elements of the crimes or that he was present at the crime scene”. It is suggested it is unnecessary to prove “that the objective elements of an offence have been personally perpetrated by the co-perpetrators”. Instead, it is argued in accordance with the Confirmation Decision that it is sufficient for the prosecution to establish “that the objective elements 2626 ICC-01/04-01/06-2748-Red, para. 65. 2627 ICC-01/04-01/06-2748-Red, para. 65. 2628 ICC-01/04-01/06-2748-Red, para. 65. 2629 ICC-01/04-01/06-2748-Red, para. 65. 2630 ICC-01/04-01/06-2748-Red, para. 65. No. ICC-01/04-01/06 407/593 14 March 2012

of (the) offence (were) carried out by a plurality of persons acting within the framework of a common plan”. 2631 939. The prosecution relies on the Pre-Trial Chamber’s finding that although the common plan “need not be specifically directed at the commission of a crime,” it “must include an element of criminality.” 2632 Submissions on the “Subjective” Elements of the Crime 940. The prosecution submits that, in order to establish that the accused acted with intent , it must prove that he “meant to engage in the relevant conduct and meant to bring about the objective elements of the crimes or was aware that they would occur in the ordinary course of events (Articles 30(2)(a) and (b) of the Statute). 2633 As to knowledge, the prosecution suggests it must prove that the accused was aware of the existence of the circumstances relevant to the underlying crimes, and that, in the ordinary course of events, his conduct would bring about the objective elements of the crimes.” 2634 941. It is argued by the prosecution that in order to establish proof of the relevant circumstances of co-perpetration, it must establish (i) “the Accused was aware that the common plan amounted to or involved the commission of a crime;” and (ii) he “was aware of the factual circumstances that enabled him to exercise functional control over the crime.” 2635 942. The prosecution’s submissions on the impact of the Elements of Crimes on the mental element of the relevant offences are particularly

2631 ICC-01/04-01/06-2748-Red, para. 66. 2632 ICC-01/04-01/06-2748-Red, footnote 105. 2633 ICC-01/04-01/06-2748-Red, para. 68. 2634 ICC-01/04-01/06-2748-Red, para. 69. 2635 ICC-01/04-01/06-2748-Red, para. 70. No. ICC-01/04-01/06 408/593 14 March 2012

significant. For the crimes established under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), the Elements of Crime provides as regards the issue of age “[t]he perpetrator should have known that such persons were under the age of 15 years”. The prosecution suggests that since the accused has been charged as a co-perpetrator, “[…] in light of the general requirements for co-perpetration […], this special subjective element may not be applicable in this case” (emphasis added). 2636 This is further elaborated in the relevant footnote:

See the requirements of a common plan and of awareness by the accused that the plan involves the commission of a crime and that the implementation of the plan will bring about the objective elements of the crime in the ordinary course of events. In this case, the Prosecution argues that the Accused knew that children under the age of 15 would be conscripted, enlisted or used to participate actively in hostilities as a result of the implementation of the 2637 Common Plan. 943. This stance was confirmed in the Prosecution’s Reply to the ‘Conclusions finales de la Défense’:

The specific mens rea required for the crime of enlistment, as stipulated in Article 8 of the Rome Statute, is inapplicable in this case where the Accused is charged with co-perpetration based on joint control over the crimes. That the Accused, and all co-perpetrators, must be mutually aware of and accept the likelihood that implementing the common plan would result in the execution of the objective elements of the crimes, renders the “should have known” 2638 standard redundant. 944. It follows that the prosecution does not invite a conviction of the accused on the basis that “he should have known” that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. Rather, it submits the Chamber should only convict the accused if the Chamber finds he knew that children under 15 years of age were being conscripted or enlisted into the national armed

2636 ICC-01/04-01/06-2748-Red, para. 72. 2637 ICC-01/04-01/06-2748-Red, para. 72, footnote 123. 2638 ICC-01/04-01/06-2778-Red, para. 39. No. ICC-01/04-01/06 409/593 14 March 2012

forces or were being used to participate actively in hostilities. 945. Finally, the prosecution submits that, while it must prove that the accused was aware of the factors that establish the existence of a relevant armed conflict, it does not have to prove that the accused was aware that those factors amounted to an “armed conflict”, whether international or non-international in character. 2639 b) The Defence Submissions on the “Objective” Elements of the Crime 946. The defence suggests that under Article 67(1)(a) of the Statute, the accused is “[to] be informed promptly and in detail of the nature, cause and content of the charge” and, under Article 74(2), the Trial Chamber’s decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. It is argued against this statutory framework, his liability is to be assessed solely on the basis of the charges confirmed by the Pre-Trial Chamber. The defence relies on certain jurisprudence from the ad hoc tribunals to the effect that an accused should not be at risk of a conviction on a basis that differs from the “mode of responsibility” alleged when the proceedings were instituted. 2640 It is submitted that the indictment must concisely specify the crimes and the supporting facts, and identify the legal basis and the form of liability. Any ambiguity in this context is to be avoided. 2641 It is argued the other modes of liability provided for in Articles 25(3)(b), (c), (d) and 28 of the Statute, as well

2639 ICC-01/04-01/06-2748-Red, para. 73. 2640 ICC-01/04-01/06-2773-Red-tENG, paras 48 and 49; referring to ICTY, The Prosecutor v. Staki ć , Case No. IT-97-24-A, Appeals Chamber, Judgement, 22 March 2006, para. 62; ICTR, The Prosecutor v. Rukundo, Case No. ICTR-2001-70-A, Appeals Chamber, Judgement, 20 October 2010, para. 37. 2641 ICC-01/04-01/06-2773-Red-tENG, para. 50; referring to ICTY, The Prosecutor v. Krnojelac, Case No. IT-97-25-A, Appeals Chamber, Judgement, 17 September 2003, para. 138. No. ICC-01/04-01/06 410/593 14 March 2012

as indirect involvement under Article 25(3)(a), are unavailable in this case, particularly given the absence of any application under Regulation 55 of the Regulations of the Court to modify the legal characterisation of the facts. 2642 Therefore, the defence argues the accused can only be guilty of an offence committed jointly with another person rather than committed “through” another person. 2643 947. The defence takes issue with the Pre-Trial Chamber’s formulation of co-perpetration based on “control over the crime”, submitting it represents “an excessively broad interpretation of Article 25(3)(a)” and is in breach of Article 22(2). 2644 948. Indeed, the defence suggests it is insufficient for the prosecution to prove that the accused had the power to frustrate the crimes or to punish the perpetrators. 2645 Instead, it is contended the prosecution must establish “a positive, personal and direct contribution without which the crime would not have existed”. The defence argues that 2646 the responsibility of those who do not participate directly in the execution of a crime can only be based on Article 25(3)(b). 2647 949. The defence advocates a more restrictive co-perpetration test than that set out by the Pre-Trial Chamber. In particular, the defence asserts Article 25(3)(a) requires a “positive act of participation” that is personally and directly undertaken by the accused himself. 2648 The defence argues the use of the verb “commits” means that by his personal acts the accused must have made a contribution without

2642 ICC-01/04-01/06-2773-Red-tENG, paras 50–56. 2643 ICC-01/04-01/06-2773-Red-tENG, para. 57. 2644 ICC-01/04-01/06-2773-Red-tENG, para. 65; ICC-01/04-01/06-803-tEN, para. 341. 2645 ICC-01/04-01/06-2773-Red-tENG, para. 65. 2646 ICC-01/04-01/06-2773-Red-tENG, para. 65. 2647 ICC-01/04-01/06-2773-Red-tENG, para. 67. 2648 ICC-01/04-01/06-2773-Red-tENG, para. 68. No. ICC-01/04-01/06 411/593 14 March 2012

which the crime would not have occurred. 2649

950 Moreover, the defence submits that under Article 25(3)(a), the

contribution of the accused must have been “essential”, in the sense

the crime would not have been committed absent his contribution. In

other words, the contribution must have been a “ conditio sine qua non

for the commission of the crime.” 2650

951 The defence contends that the determination of whether the

accused’s role was “essential” must be made in light of the established

facts and it should not be based on the role assigned to him within the

overall plan, in the abstract. The defence puts the matter thus:

It follows that responsibility under article 25(3)(a) requires direct participation in the crime itself in the form of a “contribution” of greater magnitude than that required for complicity, that is to say, an essential contribution to the commission of the crime. The “contribution” required under article 25(3)(a) must be such that the crime would not have been committed had there been no such contribution. It must be a conditio sine qua non for the commission of the crime. Contrary to the argument advanced by the Prosecutor, the essential character of this contribution must be assessed in the light of the events as they actually occurred and not, abstractly, having regard to the “role” assigned to the accused within the framework of a prior 2651 concerted plan.

952 In support of this position, the defence relies on the Pre-Trial

Chamber’s decision confirming the charges in the Katanga and Ngudjolo

case. 2652

953 Furthermore, the defence submits the approach adopted by the ad

hoc tribunals whereby the alleged participation of aiders, abettors and

accomplices must substantially contribute to the crime, while co-

perpetration requires an essential contribution, further reinforces the

2649 ICC-01/04-01/06-2773-Red-tENG, para. 65; ICC-01/04-01/06-803-tEN, para. 341. 2650 ICC-01/04-01/06-2773-Red-tENG, para. 64. 2651 ICC-01/04-01/06-2773-Red-tENG, para. 64. 2652 The Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of charges, 30 September 2008, ICC-01/04-01/07-717, para. 525; ICC-01/04-01/06-2773-Red-tENG, para. 64, footnote 59.

No. ICC-01/04-01/06 412/593 14 March 2012

contention that responsibility under Article 25(3)(a) involves a significantly greater contribution than that required for complicity. 2653 954. It follows the defence takes issue with the prosecution’s contention that a “substantial” contribution to the execution of a plan is sufficient. 955. The defence argues that to establish criminal liability on the basis of co-perpetration, the common plan must be intrinsically criminal. It is submitted that participation in a plan which “in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration”. 2654 Therefore, it is suggested “mere knowledge ‘of the risk that implementing the common plan will result in the commission of the crime’ is insufficient to engage criminal responsibility by way of co-perpetration.” 2655 Submissions on the “Subjective” Elements of the Crime 956. The defence submits the prosecution must prove that the accused had the relevant level of intent and knowledge when carrying out the material elements of the crime (Article 30(1) of the Statute). The defence argues an accused can only be considered to have had the requisite intention if he meant to engage in the conduct and, as to consequences, he either meant to cause them or was aware that they would occur in the ordinary course of events (Article 30(2)(a) and (b)). 2656 Similarly, “Article 30 provides that “intent” and knowledge […] mean an awareness that a circumstance exists or a consequence

2653 ICC-01/04-01/06-2773-Red-tENG, paras 63 and 64. 2654 ICC-01/04-01/06-2773-Red-tENG, para. 77. 2655 ICC-01/04-01/06-2773-Red-tENG, para. 78. 2656 ICC-01/04-01/06-2773-Red-tENG, paras 858, 865. No. ICC-01/04-01/06 413/593 14 March 2012

will occur in the ordinary course of events.” 2657 957. The defence challenges the approach of the Pre-Trial Chamber that mens rea is established if the accused “is aware of the risk that the objective elements of the crime may result from his or her actions or omissions and accepts such an outcome by reconciling himself or herself with it or consenting to it [also known as dolus eventualis ]”. The defence observes the Pre-Trial Chamber based its conclusions on the first instance Decision in The Prosecutor v. Milomir Stakić . 2658 It contends awareness that something will happen “in the ordinary course of events” is not to be equated with the accused’s awareness of a “risk” that the crime will occur, particularly if that result is improbable. In essence, the defence suggests the concept of dolus eventualis , an “indirect intention” that arises when the possibility of a certain consequence is appreciated by the accused, but he or she proceeds with a reckless disregard as to whether it will occur, does not form any part of Article 30. 2659 To this extent, the defence adopts the approach of Pre-Trial Chamber II when it concluded:

[…] the suspect could not be said to have intended to commit any of the crimes charged, unless the evidence shows that he was at least aware that, in the ordinary course of events, the occurrence of such crimes was a virtually certain consequence of the implementation of the common plan. 2660 The text of article 30 of the Statute does not encompass dolus eventualis, recklessness or 2661 any lower form of culpability. 958. Finally, the defence refers approvingly to the conclusion of Pre-Trial Chambers I and II that one of the requirements is that:

2657 ICC-01/04-01/06-2773-Red-tENG, para. 79. 2658 ICTY, The Prosecutor v. Staki ć , Case No. IT-97-24-T, Trial Chamber, Judgement, 31 July 2003, para. 587; ICC-01/04-01/06-2773-Red-tENG, para. 80, referring to ICC-01/04-01/06-803-tEN, para.

352, which quotes this ICTY judgement.

2659 ICC-01/04-01/06-2773-Red-tENG, paras 81-82. 2660 ICC-01/04-01/06-2773-Red-tENG, para. 83. 2661 ICC-01/04-01/06-2773-Red-tENG, para. 82; ICC-01/05-01/08-424, para. 369. No. ICC-01/04-01/06 414/593 14 March 2012

[…] the suspect must be "aware of his essential role in the implementation of the crime" and must be aware, "due to such essential role, [that he is] capable of frustrating its implementation and accordingly, the commission of the 2662 crime". 959. This requirement has been similarly described by Pre-Trial Chamber II, namely that a co-perpetrator must “be aware of his essential role in the implementation of the crime; and […] due to such essential role, […] be capable of frustrating its implementation and accordingly the commission of the crime”. 2663 960. Focussing on the mental element for crimes under Article 8(2)(b)(xxvi) and 8(2)(e)(vii) as expressly set out in the Elements of Crimes – that “the perpetrator knew or should have known that such person or persons were under the age of 15 years” – the defence accepts this is a statutory exception to the requirement under Article 30 that the accused must have had knowledge of the material elements, together with the necessary intent. However, it is submitted that, as an exception, it should be interpreted “most strictly”. 2664 Therefore, it is argued that the expression “should have known” requires the finding that the accused was legally obliged, either under domestic or international law, to establish the age of the recruits and that a lesser, loosely-formulated obligation simply based on his involvement in recruitment is insufficient. 2665 Further, it is submitted this legal obligation must be assessed in the context of the circumstances of the case. For instance, it would be relevant if the accused was unable to check the age of the recruits. 2666

2662 ICC-01/04-01/06-2773-Red-tENG , para. 85, referring to ICC-01/04-01/06-803-tEN, paras 366-367 and ICC-01/05-01/08-424, para. 371. 2663 ICC-01/05-01/08-424, para. 371. 2664 ICC-01/04-01/06-2773-Red-tENG, para. 87. 2665 ICC-01/04-01/06-2773-Red-tENG, para. 88. 2666 ICC-01/04-01/06-2773-Red-tENG, para. 89. No. ICC-01/04-01/06 415/593 14 March 2012

c) The Legal Representatives of Victims The OPCV’s Submissions on the “Objective” Elements of the Crime 961. The OPCV supports, in its entirety, the approach adopted by the Pre-Trial Chamber in the Confirmation Decision as regards the elements of co-perpetration based on joint control over the crime. 2667 962. The OPCV additionally endorses a particular aspect of Pre-Trial Chamber I’s decision in the confirmation of charges in the Katanga and Ngudjolo case, namely that the “commission of a crime through another person” can be based on the notion of “control over an organisation” and it is suggested that this is a widely accepted legal concept. 2668 963. The OPCV “submits that the forms of individual criminal responsibility set out in Articles 25(3)(b), 25(3)(c), 25(3)(d) and 28 of the Statute are subordinate to those in article 25(3)(a),” and it is suggested that “although they may be applicable under the crime[s] defined in article[s] 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, they can only be taken into account if the Chamber decides that the accused person cannot be considered as the principal to the crime imputed to him either individually or as co-perpetrator.” 2669 The OPCV’s Submissions on the “Subjective” Elements of the Crime 964. Addressing the mental element of the war crimes established by Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), the OPCV submits that although the prosecution must prove that the accused met the intent and knowledge requirements of Article 30, as regards the age of the child

2667 ICC-01/04-01/06-2744-Red-tENG, paras 22-26. 2668 ICC-01/04-01/06-2744-Red-tENG, paras 27-28. 2669 ICC-01/04-01/06-2744-Red-tENG, para. 29. No. ICC-01/04-01/06 416/593 14 March 2012

or children, the requirement is that of negligence: the perpetrator

“should have known” that the “person or persons were under the age

of 15 years”.

2670

As to the mental element of Article 30, the OPCV

interprets it as follows:

[…] the individual concerned (i) knows that his or her actions or omissions will bring about the objective elements of the crime, and (ii) undertakes such actions or omissions with the concrete intent to bring about the objective 2671 elements of the crime (also known as “dolus directus of the first degree”).

965 However, it is suggested that intention on the part of the accused

can also be established in the following two ways:

The aforementioned intentional element also encompasses other manifestations of dolus such as (i) those situations in which the individual in question, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary result of his or her actions or omissions (also known as “ dolus directus of the second degree”), and (ii) those situations in which the individual concerned (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts this result by reconciling himself 2672 or herself with it or consenting to it (also known as “ dolus eventualis ”).

966 As regards the “should have known” test for the age of the child or

the children, the OPCV submits this is met if the accused:

(i) did not know that the victims were under the age of fifteen years at the time they were enlisted, conscripted or used to participate actively in hostilities; and (ii) lacked such knowledge as a result of having failed to act with due diligence in the circumstances in question (it can only be said that the individual should have known if the individual’s lack of knowledge is 2673 due to a failure to comply with his or her duty to act with due diligence).

967 The OPCV observes this is an exception to the “intent and

knowledge” requirement established in Article 30 that is to be applied

as regards the age of the person or the persons concerned. Otherwise,

the Article 30 requirement is applicable to the elements of the war

2670 ICC-01/04-01/06-2744- Red -tENG, para. 16. 2671 ICC-01/04-01/06-2744- Red- tENG, para. 16. 2672 ICC-01/04-01/06-2744- Red -tENG, para. 17. 2673 ICC-01/04-01/06-2744- Red -tENG, para. 19.

No. ICC-01/04-01/06 417/593 14 March 2012

crimes under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), and “including the existence of an armed conflict and the nexus between the acts charged and the armed conflict”. 2674 Submissions of the Legal Representatives of the V01 and V02 Groups of Victims on the Objective Elements of the Crime 968. The legal representatives of the V01 and V02 groups of victims did not address the objective requirements. Submissions of the Legal Representatives of the V01 and V02 Groups of Victims on the Mental Element of the Crime 969. The legal representatives of the V01 group of victims accept that Article 30 requires that the material elements of a crime must be committed with “intent and knowledge”. However, they argue if 2675 the accused was in doubt as to the age of the children, this would not “preclude a conviction”. 2676 It is suggested this issue should be approached on the basis of the true context of the case, namely that Thomas Lubanga is “accused of having recruited an entire army consisting mainly of minors, many of whom were children under the age of 15 years”. It is argued that the Court should consider, in light of the extent of the recruitment in Ituri, a militia of several thousand people, whether he “knew or should have known that that would necessarily entail the recruitment of children under the age of 15 years.” 2677 The legal representatives note “in a country or region where the majority of births are not registered in a civil status registry, where minors do not hold an identity document stating their age, and where many children and even adults do not know their own age, the issue

2674 ICC-01/04-01/06-2744- Red -tENG, para. 19. 2675 ICC-01/04-01/06-2746-Red-tENG, para. 39. 2676 ICC-01/04-01/06-2746- Red -tENG, paras 40 and 43. 2677 ICC-01/04-01/06-2746- Red -tENG, para. 43. No. ICC-01/04-01/06 418/593 14 March 2012

arises as to how a recruiter must act when faced with a child whose age is unknown”. 2678 970. It is argued the use of child soldiers in the DRC is a “phenomenon” that stretches back to the mid-1990s 2679 and that when the UPC army was created “the use of child soldiers in armed groups was the rule, not the exception”. In those circumstances, it is submitted Mr 2680 Lubanga must have known that in order to avoid recruiting child soldiers into this new armed group, strict instructions prohibiting their conscription or enlistment were necessary. 2681 Finally, the legal representatives suggest the accused “could not have been unaware of the unlawful and criminal nature of this practice”. 2682 971. The legal representatives of the V02 group of victims adopt a broadly similar position to the OPCV as regards the mental element the prosecution is required to establish. They submit that Pre-Trial Chamber I correctly identified Article 30, with its requirement of “intent and knowledge”, as providing the applicable mental element for the crimes charged, 2683 with the exception of the “should have known” level of knowledge about the ages of children who were recruited. The Chamber notes the V02 legal representatives did not 2684 advance any submissions on the Pre-Trial Chamber’s final conclusions that this lower standard does not apply in the circumstances of this case, on the basis that the accused is charged as a co-perpetrator.

2678 ICC-01/04-01/06-2746- Red -tENG, para. 41. 2679 ICC-01/04-01/06-2746- Red- tENG, para. 44. 2680 ICC-01/04-01/06-2746- Red -tENG, para. 47. 2681 ICC-01/04-01/06-2746- Red -tENG, paras 44-48. 2682 ICC-01/04-01/06-2746- Red -tENG, para. 50. 2683 ICC-01/04-01/06-2747- Red -tENG, paras 90-91. 2684 ICC-01/04-01/06-2747- Red -tENG, paras 92-95. No. ICC-01/04-01/06 419/593 14 March 2012

4 Relevant provisions

972 In accordance with Article 21 of the Statute, the Chamber has

considered the following provisions.

973 Article 25 of the Statute establishes the modes of individual criminal

responsibility under the Statute, as follows:

Article 25 Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

974 Article 30 establishes the general mental element required for all the

No. ICC-01/04-01/06 420/593 14 March 2012

crimes under the jurisdiction of the Court:

Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: a) In relation to conduct, that person means to engage in the conduct; b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

975 The mental element and the application of Article 30 is addressed in

the Elements of Crimes in the General Introduction and the section

concerning crimes under Article 8:

Elements of Crimes General Introduction […] 2. As stated in article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies. Exceptions to the article 30 standard, based on the Statute, including applicable law under its relevant provisions, are indicated below. 3. Existence of intent and knowledge can be inferred from relevant facts and circumstances. […]

No. ICC-01/04-01/06 421/593 14 March 2012

Article 8 War crimes Introduction The elements for war crimes under article 8, paragraph 2 (c) and (e), are subject to the limitations addressed in article 8, paragraph 2 (d) and (f), which are not elements of crimes. The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea. With respect to the last two elements listed for each crime: (a) There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or noninternational; (b) In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or noninternational; (c) There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ‘took place in the context of and was associated with’. Article 8 (2) (e) (vii) War crime of using, conscripting and enlisting children Elements […] 3. The perpetrator knew or should have known that such person or persons were under the age of 15 years. 4. The conduct took place in the context of and was associated with an armed conflict not of an international character. 5. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

No. ICC-01/04-01/06 422/593 14 March 2012

5 Analysis a) The Objective Requirements 976. In the view of the Majority, both the Romano Germanic and the Common Law legal systems have developed principles about modes of liability. However, at their inception, neither of these systems was intended to deal with the crimes under the jurisdiction of this Court, i.e. the most serious crimes of concern to the international community as a whole. The Statute sets out the modes of liability in Articles 25 and 28 and, they should be interpreted in a way that allows properly expressing and addressing the responsibility for these crimes. 977. Articles 25(3)(a) to (d) establish the modes of individual criminal responsibility under the Statute, other than the “[r]esponsibility of commanders and other superiors”, which is addressed in Article 28. Under Article 25(3)(a), an individual can be convicted of committing a crime: (i) individually; (ii) jointly with another; or (iii) through another person. Under Articles 25(3)(b) to (d), an individual can be convicted of: (i) ordering, soliciting or inducing a crime; (ii) acting as an accessory to a crime; or (iii) contributing to a crime committed by a group acting with a common purpose. 978. The Pre-Trial Chamber decided, pursuant to Article 61(7) of the Statute, there was sufficient evidence to establish substantial grounds to believe that Mr Lubanga committed the crimes charged, under Article 25(3)(a), as a direct co-perpetrator. The Chamber will limit its analysis of Mr Lubanga’s responsibility to this mode of liability. 979. In considering the scope of liability under Article 25(3)(a) of the

No. ICC-01/04-01/06 423/593 14 March 2012

Rome Statute, the Chamber notes, as set out above, 2685 that the Appeals Chamber has stated that the provisions of the Statute are to be interpreted in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties. 2686 Hence, the relevant elements of Article 25(3)(a) of the Statute, that the individual “commits such a crime […] jointly with another […] person”, must be interpreted in good faith in accordance with the ordinary meaning to be given to the language of the Statute, bearing in mind the relevant context and in light of its object and purpose. 2687 (1) The Common Plan or Agreement 980. Article 25(3)(a) stipulates that a crime can be committed not only by an individual acting by himself or through another person, but also by an individual who acts jointly with another. To establish liability as a co-perpetrator under Article 25(3)(a), it is necessary there are at least two individuals involved in the commission of the crime. This is evident from the use of terms “jointly with another” in Article 25(3)(a). 981. As the Pre-Trial Chamber concluded, co-perpetration requires the existence of an agreement or common plan between the coperpetrators. This provides for a sufficient connection between the

2685 See paras 601-602. 2686 See Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal", 13 July 2006, ICC-01/04-168, para. 33; The Prosecutor v. Katanga and Ngudjolo, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07-522, paras 38 and 39; Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", 21 October 2008, ICC-01/04-01/06-1486, para. 40; The Prosecutor v. Bemba, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, footnote 74. 2687 Vienna Convention on the Law of Treaties, adopted on 23 May 1969 and entered into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, Article 31(1). No. ICC-01/04-01/06 424/593 14 March 2012

individuals who together commit the crime and it allows responsibility to be established on a “joint” basis. 2688 982. As set out above, the Pre-Trial Chamber decided that the plan “must include “an element of criminality”, although it does not need to be specifically directed at the commission of a crime.” 2689 In the Confirmation Decision, it was held to be sufficient:

(i) that the co-perpetrators have agreed: (a) to start the implementation of the common plan to achieve a non-criminal goal, and (b) to only commit the crime if certain conditions are met; or (ii) that the co-perpetrators (a) are aware of the risk that implementing the common plan (which is specifically directed at the achievement of a noncriminal goal) will result in the commission of the crime, and (b) accept such 2690 outcome. 983. While the prosecution supports this interpretation, 2691 the defence argues that in order to establish criminal liability on the basis of coperpetration, the common plan must be intrinsically criminal. It is argued that participation in a plan which “in itself is not criminal but merely capable of creating conditions conducive to the commission of criminal acts cannot be regarded as characterising the actus reus of criminal co-perpetration”. 2692 Therefore, it is suggested “mere knowledge ‘of the risk that implementing the common plan will result in the commission of the crime’ is insufficient to engage criminal responsibility by way of co-perpetration.” 2693 984. In the view of the Majority of the Chamber, the prosecution is not required to prove that the plan was specifically directed at committing

2688 ICC-01/04-01/06-803-tEN , para. 343. 2689 ICC-01/04-01/06-803-tEN , para. 344. 2690 ICC-01/04-01/06-803-tEN , para. 344. 2691 ICC-01/04-01/06-2748-Red, footnote 105. 2692 ICC-01/04-01/06-2773-Red-tENG, para. 77. 2693 ICC-01/04-01/06-2773-Red-tENG, para. 78. No. ICC-01/04-01/06 425/593 14 March 2012

the crime in question (the conscription, enlistment or use of children), nor does the plan need to have been intrinsically criminal as suggested by the defence. However, it is necessary, as a minimum, for the prosecution to establish the common plan included a critical element of criminality, namely that, its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed. 985. In order to establish the statutory scope of this first objective requirement, the Majority of the Chamber finds guidance in the manner that the plan is mirrored in the mental element. A combined reading of Articles 25(3)(a) and 30 leads to the conclusion that committing the crime in question does not need to be the overarching goal of the co-perpetrators. 986. The conscription, enlistment and use of children under the age of 15 and using them to participate actively in hostilities is said by the prosecution to have been the result of the implementation of the common plan .2694 Under Article 30(2)(b), intent is established if the person is aware that a consequence will occur in the ordinary course of events. Similarly, Article 30(3) provides that “knowledge” of a consequence means awareness that it (the consequence) “will occur in the ordinary course of events”. Hence, in the view of the Majority, the mental requirement that the common plan included the commission of a crime will be satisfied if the co-perpetrators knew that, in the ordinary course of events, implementing the plan will lead to that result. “Knowledge”, defined as awareness by the co-perpetrators that a consequence will occur (in the future), necessarily means that the co-

2694 ICC-01/04-01/06-2748-Red, paras 74 and 75. No. ICC-01/04-01/06 426/593 14 March 2012

perpetrators are aware of the risk that the consequence, prospectively, will occur. This interpretation is discussed in greater detail below in the section dealing with the mental element. 987. The Majority of the Chamber concludes that as to the objective part of this requirement, this means that the agreement on a common plan leads to co-perpetration if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed.

988 Furthermore, co-perpetration does not require that the agreement or the common plan is explicit in order for the individual conduct of each co-perpetrator to be connected. 2695 Finally, although direct evidence of the plan is likely to assist in demonstrating its existence, this is not a legal requirement. The agreement can be inferred from circumstantial evidence. (2) The Essential Contribution 989. The Pre-Trial Chamber concluded that the contribution of the alleged co-perpetrator must be “essential”. 2696 It stated its conclusion as follows:

In the view of the Chamber, when the objective elements of an offence are carried out by a plurality of persons acting within the framework of a common plan, only those to whom essential tasks have been assigned – and who, consequently, have the power to frustrate the commission of the crime by not performing their tasks – can be said to have joint control over the . 2697 crime 990. The prosecution submits that co-perpetration requires that the accused has “functional control” over the crime:

This means that, when conceiving the common plan, the Accused must have 2695 ICC-01/04-01/06- 803 -tEN, para. 345. 2696 ICC-01/04-01/06- 803 -tEN, paras 342 and 347. 2697 ICC-01/04-01/06- 803 -tEN, para. 347. No. ICC-01/04-01/06 427/593 14 March 2012

been assigned a role that was central to the implementation of the common plan, in the sense that the common plan would not have been carried out in the manner agreed upon without that role being performed. This concept has 2698 been labelled as “functional control”. 991. However, the prosecution qualifies this suggested requirement by submitting that as long as the accused was assigned a central role in the implementation of the plan, it will suffice if in retrospect it appears his or her contribution was substantial, rather than essential. A “substantial” contribution is said to be established when “the crime might still have occurred absent the contribution of the Accused, but not without great difficulty”. 2699 992. The defence contends that a “substantial” contribution is insufficient. It argues the contribution should be conditio sine qua non of the crime and this requirement must be assessed in light of the facts as they actually occurred, rather than assessed on the basis of the “role” assigned to the accused within the framework of a pre-agreed plan. 2700 993. An analysis of the accused’s contribution gives rise to two interrelated questions. The first question is whether it is necessary for the prosecution to establish a connection between the accused’s contribution, taken in isolation, and the crimes that were committed. The second question relates to the nature of the contribution that gives rise to joint responsibility: should it be described as either “more than de minimis ”, “substantial” or “essential”? 994. In the view of the Majority of the Chamber, the wording of Article 25(3)(a), namely that the individual “commits such a crime […] jointly with another”, requires that the offence be the result of the combined

2698 ICC-01/04-01/06-2748-Red, para. 64. 2699 ICC-01/04-01/06-2748-Red, para. 65. 2700 ICC-01/04-01/06-2773-Red-tENG, para. 64. No. ICC-01/04-01/06 428/593 14 March 2012

and coordinated contributions of those involved, or at least two of them. None of the participants exercises, individually, control over the crime as a whole but, instead, the control over the crime falls in the hands of a collective as such. 2701 Therefore, the prosecution does not need to demonstrate that the contribution of the accused, taken alone, caused the crime; rather, the responsibility of the co-perpetrators 2702 for the crimes resulting from the execution of the common plan arises from mutual attribution, based on the joint agreement or common plan. 995. Article 25(3)(a) must be read in the context of the section establishing the modes of liability, in accordance with the Appeals Chamber’s jurisprudence set out above. 2703 996. Both Articles 25(3)(a) and (d) address the situation in which a number of people are involved in a crime. In the judgment of the Majority, the critical distinction between these provisions is that under Article 25(3)(a) the co-perpetrator “commits” the crime, whilst under Article 25(3)(d) the individual “contributes in any other way to the commission” of a crime by a group of individuals acting with a common purpose. The Majority’s view is that a systematic reading of these provisions leads to the conclusion that the contribution of the coperpetrator who “commits” a crime is necessarily of greater significance than that of an individual who “contributes in any other way to the commission” of a crime. 997. Article 25(3)(c) establishes the liability of accessories – those who aid, abet or otherwise assist in the commission or attempted 2701 Stratenwerth, Schweizerisches Strafrecht, Allgemeiner Teil I, Die Straftat (2011), 13/49; Maurach/Gössel/Zipf, Strafrecht, Allgemeiner Teil, second volume (1989), page 288. 2702 Claus Roxin, Strafrecht Allgemeiner Teil, volume II (2003), 25/213. 2703 See paras 601-602. No. ICC-01/04-01/06 429/593 14 March 2012

commission of the crime. In the view of the Majority, principal liability “objectively” requires a greater contribution than accessory liability. If accessories must have had “a substantial effect on the commission of the crime” 2704 to be held liable, then co-perpetrators must have had, pursuant to a systematic reading of this provision, more than a substantial effect. 998. The conclusion that principal liability must require more than accessory liability is supported, in the view of the Majority, by the statutory provision on attempt liability (Article 25(3)(f) of the Statute). Only those individuals who attempt “to commit” a crime, as opposed to those who participate in a crime committed by someone else, can be held liable under that provision. The same conclusion is supported by the plain language of Articles 25(3)(b) and (c), which require for secondary liability that the perpetrator at least attempt to commit the crime. As such, secondary liability is dependent on whether the perpetrator acts. Conversely, principal liability, which is closer to the violation of the legal interests protected by the norm, is not the subject of such dependence. Hence, the Majority concludes that this confirms

2704 ICTY, The Prosecutor v. Tadi ć , Case No. IT-94-1-T, Trial Chamber, Opinion and Judgment, 7 May 1997, paras 688 – 692; ICTY, The Prosecutor v. Delali ć et al., Case No. IT-96-21-T, Trial Chamber, Judgement, 16 November 1998, paras 325 – 329; ICTY, The Prosecutor v. Naletili ć & Martinovi ć , Case No. IT-98-34-T, Trial Chamber, Judgement, 31 March 2003, para. 63; ICTY, The Prosecutor v. Blagojevi ć & Joki ć , Case No. IT-02-60-T, Trial Chamber, Judgement, 17 January 2005, para.726; ICTY, The Prosecutor v. Muci ć et al., Case No. IT-96-21-A, Judgement, Appeals Chamber, 20 February 2001, para. 352; ICTY, The Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgement, 10 December 1998, paras 226, 229, 231, 233 – 235; ICTY, The Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Trial Chamber, Judgement, 25 June 1999, para. 61; ICTY, The Prosecutor v. Tadi ć , Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999, para. 229; ICTY, The Prosecutor v. Vasiljevi ć , Case No. IT-98-32-A, Appeals Chamber, Judgement, 25 February 2004, para. 102; ICTY, The Prosecutor v. Blaški ć , Case No. IT-95-14-A, Appeals Chamber, Judgement, 29 July 2004, paras 46, 48; ICTY, The Prosecutor v. Br ñ anin, Case No. IT-99-36-T, Trial Chamber, Judgement, 1 September 2004, para. 271; ICTR, The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, para. 43; ICTR, The Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, Judgement and Sentence, 27 January 2000, para. 126; ICTR, The Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Chamber, Judgment, 22 January 2004, para. 597; ICTR, The Prosecutor v. Ntakirutimana & Ntakirutimana, Case No. ICTR-96-10 & ICTR- 96-17-T, Trial Chamber, Judgment, 21 February 2003, para. 787; SCSL, CDF Appeal Judgment, para. 73. No. ICC-01/04-01/06 430/593 14 March 2012

the predominance of principal over secondary liability, which, in turn,

supports a notion of principal liability that requires a greater

contribution than accessory liability.

999 The Majority is of the view that the contribution of the co-

perpetrator must be essential , as has been consistently and invariably

established in this Court’s jurisprudence. The Statute differentiates

2705

between the responsibility and liability of those persons who commit a

crime (at Article 25(3)(a)) and those who are accessories to it (at

Articles 25(3)(b) to (d)). It would be possible to expand the concept of

principal liability (or “commission” or “perpetration”), to make it

more widely applicable, by lowering the threshold that the accused’s

contribution be essential. However, lowering that threshold would

deprive the notion of principal liability of its capacity to express the

blameworthiness of those persons who are the most responsible for the

most serious crimes of international concern. Instead, a notion of co-

perpetration that requires an essential contribution allows for the

2705 ICC-01/04-01/06- 803 -tEN, paras 346-348; The Prosecutor v. Katanga and Ngudjolo, Decision on the confirmation of the charges, 30 September 2008, ICC-01/04-01/07-717, paras 524 to 526; The Prosecutor v. Bemba, Decision pursuant to Article 61 (7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor, 15 June 2009, ICC-01/05-01/08-424, para 350; The Prosecutor v. Banda and Jerbo, Corrigendum of the "Decision on the Confirmation of Charges”, ICC-02/05-03/09-121- Corr-Red, 7 March 2011, paras 136-138; The Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, 8 February 2010, ICC-02/05-02/09-243-Red, para. 153; The Prosecutor v. Callixte Mbarushimana, Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, 28 September 2010, ICC-01/04-01/10-1, para. 30, and Decision on the Confirmation of Charges, 16 December 2011, ICC-01/04-01/10 -465-Red, paras 273 and 279; The Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3, para. 212; The Prosecutor v. Ruto, Kosgey and Sang, Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March 2011, ICC-01/09-01/11-01, para. 40, and Decision on the Confirmation of Charges against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 23 January 2012, ICC-01/09-01/11-373, para. 40; The Prosecutor v. Muthaura, Kenyatta and Ali, Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 8 March 2011, ICC-01/09-02/11-01, para. 36, and Decision on the Confirmation of Charges against Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 23 January 2012, ICC-01/09-02/11-382-Red, paras 297, 401- 404 and 419; The Prosecutor v. Gbagbo, Warrant of Arrest for Laurent Koudou Gbagbo, 23 November

2011, ICC-02/11-01/11-1, para. 10; the Chamber established that “by implementing the plan, the coperpetrators exercised joint control over the crimes. Given the position of each member and their role as regards the plan, they made a coordinated and essential contribution to its realisation” [emphasis

added].

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different degrees of responsibility to be properly expressed and addressed.

1000 The determination as to whether the particular contribution of the accused results in liability as a co-perpetrator is to be based on an analysis of the common plan and the role that was assigned to, or was assumed by the co-perpetrator, according to the division of tasks. In 2706 the view of the Majority what is decisive is whether the co-perpetrator performs an essential role in accordance with the common plan, and it is in this sense that his contribution, as it relates to the exercise of the role and functions assigned to him, must be essential. 1001. Furthermore, the co-perpetrator’s role is to be assessed on a case-by-case basis. This assessment involves a flexible approach, undertaken in the context of a broad inquiry into the overall circumstances of a case. 1002. The defence submits that co-perpetration requires “personal and direct participation in the crime itself”, 2707 and that the responsibility of those who do not participate directly in the execution of a crime is reflected in Article 25(3)(b) rather than Article 25(3)(a). 2708 It contends that Article 25(3)(a) requires direct participation in the crime. 2709

2706 Thomas Weigend, “Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges”, Journal of International Criminal Justice 6 (2008), page 480; Stratenwerth/Kuhlen Allgemeiner Teil I, Die Straftat (2011), 12/83. See also Gerhard Werle, “Individual Criminal Responsibility in Article 25 ICC Statute”, Journal of International Criminal Justice 5 (2007), page 962; Gerhard Werle, Principles of International Criminal Law (2009), paras 466 to 468 and 472; Roger S. Clark, “Drafting a general part to a penal code: some thoughts inspired by the negotiations on the Rome Statute of the International Criminal Court and by the Court’s first substantive law discussion in the Lubanga Dyilo confirmation proceedings”, Criminal law forum (2008), pages 545 et seq; William A. Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 429; Kai Ambos, La parte general del derecho penal internacional (2005), page 189. 2707 ICC-01/04-01/06-2773-Red-tENG, para. 66. 2708 ICC-01/04-01/06-2773-Red-tENG, para. 67. 2709 ICC-01/04-01/06-2773-Red-tENG, para. 73. No. ICC-01/04-01/06 432/593 14 March 2012

1003 However, the Chamber agrees with the conclusions, firstly, of the Pre-Trial Chamber that criminal liability in this context is “not limited to those who physically carry out the objective elements of the offence, but also include(s) those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed”. 2710 Secondly, the Chamber agrees with the prosecution that “[i]t is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene”. 2711 1004. Those who commit a crime jointly include, inter alia , those who assist in formulating the relevant strategy or plan, become involved in directing or controlling other participants or determine the roles of those involved in the offence. This conclusion makes it unnecessary for the prosecution to establish a direct or physical link between the accused’s contribution and the commission of the crimes.

1005 Hence, the Chamber is of the view that the accused does not need to be present at the scene of the crime, so long as he exercised, jointly with others, control over the crime. 1006. The Majority therefore concludes that the commission of a crime jointly with another person involves two objective requirements: (i) the existence of an agreement or common plan between two or more persons that, if implemented, will result in the commission of a crime; and (ii) that the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime. These two requirements must be assessed on the basis of all the

2710 ICC-01/04-01/06-803-tEN, para. 330. 2711 ICC-01/04-01/06-2748-Red, para. 66. No. ICC-01/04-01/06 433/593 14 March 2012

evidence related to the alleged crime. b) The Mental Element 1007. Article 30 defines the requirement of “intent” by reference to three particular factors: conduct, consequence and circumstance. First, pursuant to Article 30(2)(a), a person has intent if he or she “means to engage in the conduct”. Second, under Article 30(2)(b) and in relation to a consequence, it is necessary that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Third, by Article 30(3) “knowledge” “means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. 1008. As noted earlier, the Pre-Trial Chamber decided that the subjective elements that the suspect must fulfil are the following: (i) 2712 “[t]he suspect and the other co-perpetrators […] must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and […] must all mutually accept such a result by reconciling themselves with it or consenting to it”; and (ii) “the awareness by the suspect of the 2713 factual circumstances enabling him or her to jointly control the crime”. 2714 1009. The Pre-Trial Chamber decided that the “cumulative” reference to “intent” and “knowledge” in Article 30 means there must be a “volitional element” on the part of the accused. This encompasses not only situations in which the suspect:

2712 ICC-01/04-01/06- 803 -tEN , para. 349. 2713 ICC-01/04-01/06- 803 -tEN , para. 361. 2714 ICC-01/04-01/06- 803 -tEN , para. 366. No. ICC-01/04-01/06 434/593 14 March 2012

i) knows that his or her actions or omissions will bring about the objective elements of the crime, and ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known 2715 as dolus directus of the first degree)

but also the “other forms of the concept of dolus ”.

2716

The Pre-Trial

Chamber was of the view that these include:

i) situations in which the suspect, without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus 2717 directus of the second degree); and

ii) situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or 2718 consenting to it (also known as dolus eventualis ).

1010 The Pre-Trial Chamber considered that within dolus eventualis

“two kinds of scenarios are distinguishable”. First, if the co-

perpetrator was aware of a substantial risk that his conduct will bring

about “the objective elements of the crime”, his intent can be inferred

from the fact that he acted in the manner agreed in spite of this level of

awareness

.2719

Second, if there was a low risk of bringing about “the

objective elements of the crime”, “the suspect must have clearly or

expressly accepted the idea that such objective elements may result

from his or her actions or omissions”.

2720

1011 The conscription or enlistment of children under the age of 15 or

using them to participate actively in hostilities is said by the

prosecution to have been the result of the implementation of a common

2715 ICC-01/04-01/06- 803 -tEN , para. 351. 2716 ICC-01/04-01/06- 803 -tEN , para. 352. 2717 ICC-01/04-01/06- 803 -tEN , para. 352. 2718 ICC-01/04-01/06-803-tEN, para. 352. 2719 ICC-01/04-01/06- 803 -tEN , para. 353. 2720 ICC-01/04-01/06-803-tEN, paras 354 and 364.

No. ICC-01/04-01/06 435/593 14 March 2012

plan. 2721 The drafting history of the Statute suggests that the notion of dolus eventualis , along with the concept of recklessness, was deliberately excluded from the framework of the Statute ( e.g. see the use of the words “unless otherwise provided” in the first sentence of Article 30). 2722 The plain language of the Statute, and most particularly the use of the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis . 2723 The Chamber accepts the approach of Pre-Trial Chamber II on this issue. 2724 1012. In the view of the Majority of the Chamber, the “awareness that a consequence will occur in the ordinary course of events” means that the participants anticipate, based on their knowledge of how events ordinarily develop, that the consequence will occur in the future. This prognosis involves consideration of the concepts of “possibility” and “probability”, which are inherent to the notions of “risk” and “danger”. Risk is defined as “danger, (exposure to) the possibility of loss, injury or other adverse circumstance”. 2725 The co-perpetrators only “know” the consequences of their conduct once they have occurred. At the time the co-perpetrators agree on a common plan and throughout its implementation, they must know the existence of a risk that the consequence will occur. As to the degree of risk, and pursuant to the wording of Article 30, it must be no less than awareness on the 2721 ICC-01/04-01/06-2748-Red, paras 74 and 75. 2722 Roger S. Clark, “The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the elements of offences”, Criminal Law Forum (2001), page 301; Roger S. Clark, “Drafting a General Part to a Penal Code: some thoughts inspired by the negotiations on the Rome Statute of the International Criminal Court and by the Court’s first substantive law discussion in the Lubanga Dyilo confirmation proceedings”, Criminal Law Forum (2008), page 529; War Crimes Research Office, Modes of Liability and the Mental Element: Analyzing the early jurisprudence of the International Criminal Court, Washington College of Law, American University (September 2010), page 69 et seq. 2723 War Crimes Research Office, Modes of Liability and the Mental Element: Analyzing the early jurisprudence of the International Criminal Court, Washington College of Law, American University (September 2010), page 69 et seq. 2724 ICC-01/05-01/08-424, paras 364-369. 2725 th See Oxford Dictionary (2002, 5 ed). No. ICC-01/04-01/06 436/593 14 March 2012

part of the co-perpetrator that the consequence “will occur in the ordinary course of events”. A low risk will not be sufficient.

1013 The Chamber is of the view that the prosecution must establish, as regards the mental element, that: (i) the accused and at least one other perpetrator meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or they were aware that in implementing their common plan this consequence “will occur in the ordinary course of events”; and

(ii) the accused was aware that he provided an essential contribution to the implementation of the common plan.

1014 As already highlighted, the general mental element contained in Article 30(1) (“intent” and “knowledge”) applies to all crimes under the jurisdiction of the Court “[u]nless otherwise provided”. Article 8(2)(e)(vii), which gives the Court jurisdiction over the war crime of “conscripting and enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities” does not derogate from this principle. However, under Article 8(2)(e)(vii) of the Elements of Crimes the following requirement is set out:

3 The perpetrator knew or should have known that such a person or persons were under the age of 15 years. 1015. This lesser mental element raises a number of issues, including: (i) whether it is possible, under the framework of the Rome Statute, for the Elements of Crimes to alter any of the material elements of the crimes established in the Statute; and (ii) the scope and interpretation

No. ICC-01/04-01/06 437/593 14 March 2012

of this “should have known” requirement. However, as set out above, the prosecution does not invite a conviction of the accused on the basis “he should have known” that the individuals who were conscripted or enlisted, or who were used, were under the age of 15 years. It submits the Chamber should convict the accused only if it finds he knew there were children under 15 years. The Majority of the Chamber 2726 considers it is unnecessary to approach the case on any other basis, and it would be inappropriate to rule on these substantive issues in the abstract. 1016. Addressing the contextual elements, and in accordance with Element 5 of Article 8(2)(e)(vii) and the introduction to Article 8 of the Elements of Crimes, the accused must be “aware of [the] factual circumstances that established the existence of an armed conflict.” It is not necessary for the prosecution to prove he knew that there was an armed conflict. The accused must also be aware of the link between 2727 these factual circumstances and his conduct. 1017. Judge Fulford has written a concurring opinion which is attached to this Judgment. 6. Conclusions of the Chamber

1018 For the reasons set out above, the prosecution must prove in relation to each charge that:

(i) there was an agreement or common plan between the accused and at least one other co-perpetrator that, once

2726 ICC-01/04-01/06-2748-Red, para. 72, footnote 123; ICC-01/04-01/06-2778-Red, para. 39 et seq. 2727 ICC-01/04-01/06- 803 -tEN , para. 360. No. ICC-01/04-01/06 438/593 14 March 2012

implemented, will result in the commission of the relevant crime in the ordinary course of events;

(ii) the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime;

(iii) the accused meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or he was aware that by implementing the common plan these consequences “will occur in the ordinary course of events”;

(iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; and

(v) the accused was aware of the factual circumstances that established the existence of an armed conflict and the link between these circumstances and his conduct.

B. THE FACTS

1019 The prosecution submits Thomas Lubanga, Floribert Kisembo, Bosco Ntaganda, Chief Kahwa Panga Mandro, Rafiki Saba Aimable, and other senior FPLC commanders, including commanders Tchaligonza, Bagonza and Kasangaki – the alleged co-perpetrators in this case 2728 – agreed upon a plan and acted together in order to build an army that included young people and to create a political

2728 ICC-01/04-01/06-2748-Red, para. 77. No. ICC-01/04-01/06 439/593 14 March 2012

movement. Furthermore, it is said they used political and military means to take control of Bunia and to exercise authority throughout Ituri. The accused is alleged to have coordinated and to have had the “final say” as to the group’s activities. 2729 As a result, children under the age of 15 were allegedly conscripted and enlisted, and used to participate actively in hostilities. 2730 1020. The defence contends that the prosecution modified its allegations as to this “common plan” to the extent that the crimes charged were first described as a consequence rather than an objective of the implementation of the plan, but in due course they were said to be an integral element. The defence submits that as a result the 2731 nature of the case against the accused significantly changed, and it argues the responsibility of Thomas Lubanga should only be considered within the framework of the facts and the law established by the Pre-Trial Chamber. 2732 1021. The Chamber has concluded that the enlistment of children under the age of 15 and using them to participate actively in hostilities was the result of the implementation of the common plan. 2733 As discussed above, it is not necessary for the plan to have been directed specifically at committing the crime in question, and the Chamber has considered the issue on this basis. 2734 1022. The defence contends that the events prior to September 2002 fall outside the period covered by the charges, and therefore they are

2729 ICC-01/04-01/06-2748-Red, para. 78. 2730 ICC-01/04-01/06-2748-Red, para. 74. 2731 ICC-01/04-01/06-2786-Red-tENG, paras 5 – 9. 2732 ICC-01/04-01/06-2786-Red-tENG, paras 7 and 8. 2733 ICC-01/04-01/06-2748-Red, para. 74 and ICC-01/04-01/06-803-tENG, paras 344 and 377. 2734 See para. 984. No. ICC-01/04-01/06 440/593 14 March 2012

not covered by the present Judgment. 2735 The prosecution has advanced contrary submissions. In the view of the Chamber, 2736 evidence relating to the period before September 2002 may assist in establishing the background and context of the events that fall within the timeframe of the charges. In addition, evidence concerning an earlier period of time may be directly relevant and admissible as regards the crimes confirmed by the Pre-Trial Chamber, including the relationship between the accused and his alleged co-perpetrators, depending on the circumstances as analysed below. 1023. In determining whether Thomas Lubanga is criminally responsible for the crimes charged, the Chamber has considered, first, whether a common plan existed between the accused and his alleged co-perpetrators, and, second, whether the contribution of the accused amounted to an essential contribution. The Chamber has examined the context of the creation of the UPC; the objectives of that 2737 organisation; the events leading up to the takeover of Bunia; the creation and the structures of the FPLC (the armed wing of the UPC); and the roles of Thomas Lubanga and the alleged co-perpetrators, before and during the timeframe of the charges. Thereafter, the Chamber has examined whether the prosecution has proved the required mental element on the part of the accused.

2735 ICC-01/04-01/06-2773-Red-tENG, para. 801. 2736 ICC-01/04-01/06-2778-Red, para. 11. 2737 As explained above in Section III, The letters “RP” were added to the end of “UPC” in September 2002. See T-342, lines 15 – 16 (D-0019) and T-125-Red-ENG, page 17, line 19 to page 19, line 20 (P- 0041). However, the Chamber notes that the witnesses usually referred to the “UPC” and often treated the UPC and FPLC interchangeably. Herein, the Chamber refers to the UPC and the UPC/RP as “UPC”, and the UPC with its army the FPLC as the UPC/FPLC. No. ICC-01/04-01/06 441/593 14 March 2012

1 COMMON PLAN a) The co-perpetrator’s alleged alliance (Summer 2000 – March 2002)

1024 To establish the existence of a common plan between the alleged co-perpetrators, the Chamber has examined whether they were in contact with one another and, if so, what the nature of the contact and their relationship was in the period preceding September 2002. 1025. The prosecution suggests that Thomas Lubanga and his coperpetrators had formed a political and military alliance by September 2000. 2738 It is submitted that in the summer of 2000 they began recruiting Hema youths who later formed the armed wing of the UPC. 2739 1026. The defence disputes this submission, and in particular contests the prosecution’s assertion that the UPC was created by the same soldiers who participated in a 2000 rebellion against the RCD-ML, the then government in power. 2740 The defence further submits it has not been proved that the accused maintained contact with the mutiny’s leaders between July 2000 and March 2002. 2741 1027. P-0012 gave evidence that 15 September 2000 – the date when the UPC was created – was also when Thomas Lubanga became the spokesman for a group of young Hema mutineers who had rebelled against Professor Wamba dia Wamba (because the latter had failed to assist them in their conflict with the Lendus). 2742 P-0012 testified that

2738 ICC-01/04-01/06-2748-Red, paras 83 – 85. 2739 ICC-01/04-01/06-2748-Red, para. 8. 2740 ICC-01/04-01/06-2773-Red-tENG, paras 777, 778 and 781. 2741 ICC-01/04-01/06-2773-Red-tENG, paras 776 and 781. 2742 T-168-Red2-ENG, page 16, line 22 to page 17, line 14. No. ICC-01/04-01/06 442/593 14 March 2012

the rebels set up a mobile force that was trained at Kyankwanzi,

Uganda, in June or July 2000. Adults and children were selected for 2743

this training, the latter having been sent by traditional chiefs and their

parents, including, as seen by P-0012, “a lot of really small young

children”. 2744 P-0012 explained that the future commanders were given

separate training in Jinja. The mutineers who broke away from the 2745

RCD-ML 2746 and founded the UPC were military men. They included

General Tchaligonza, Commander Kasangaki, Chief Kahwa Panga

Mandro, Bosco Ntaganda and Floribert Kisembo, 2747 some of whom

later held positions in the UPC/FPLC. 2748

1028 P-0012 indicated Thomas Lubanga acted as the “spokesperson”

for the youths who had been involved in the mutiny after they

returned to Ituri from their training in Uganda. 2749 However, he also

suggested Mr Lubanga was not actively involved with these children

because, at that stage, they were under the guidance of Jean

Tibasima, 2750 who had charge of them. 2751 Additionally, P-0012 was

unable to describe Thomas Lubanga’s duties as their spokesperson. 2752

1029 The defence contends P-0012’s evidence was that Jean Tibasima

rather than the accused was responsible for sending these youths to

Uganda for training. 2753 The defence further challenges the

prosecution’s assertion that Thomas Lubanga became the spokesman

2743 T-168-Red2-ENG, page 17, lines 1 – 12, page 20, lines 3 – 6 and page 33, lines 20 – 23. 2744 T-168-Red2-ENG, page 22, line 20 to page 23, line 15. 2745 T-168-Red2-ENG, page 20, lines 7 – 9. 2746 The armed branch of the RCD-ML was the APC. 2747 T-168-Red2-ENG, page 19, lines 5 – 8 and page 21, lines 7 – 25 (P-0012). 2748 T-168-Red2-ENG, page 21, lines 20 – 24 (P-0012). 2749 T-168-Red2-ENG, page 19, lines 15 – 17. 2750 T-168-Red2-ENG, page 20, lines 3 – 12. 2751 T- 168-Red2-ENG, page 23, lines 16 – 23. 2752 T- 168-Red2-ENG, page 23, line 24 to page 25, line 1. 2753 ICC-01/04-10/06-2773-Red-tENG, para. 599, referring to testimony of P-0012. See T-168-Red2- ENG, page 23, line 8 to page 24, line 1.

No. ICC-01/04-01/06 443/593 14 March 2012

for the mutineers who broke away from the APC. 2754 1030. The defence highlighted 2755 the fact that P-0012 did not witness the events surrounding the mutiny of Hema soldiers in July 2000, and instead his account was based on discussions with some of the participants, in particular Chief Kahwa and General Tchaligonza. 2756 The Chamber has scrutinised this indirect evidence with care. D-0019 testified that commanders Tchaligonza, Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML. 2757 He indicated the press reported that the Ugandan authorities had offered to provide training for the mutineers at Kyankwanzi and Jinja in Uganda. As set out above, the 2758 Chamber has approached certain aspects of D-0019’s testimony with caution. However, on these issues, his evidence, which essentially corroborates the testimony of P-0012, was credible and reliable. 1031. P-0116 also gave evidence about the training in Kyankwanzi, and in particular Thomas Lubanga’s involvement in the operation. P- 0116, who was based in Bunia during the period shortly before the timeframe of the charges, 2759 testified he was told that the accused had sent children to Uganda during the summer of 2000, and that Mr 2760 2761 Lubanga was with them at the camp. 2762 Chief Kahwa was allegedly also involved in this recruitment. 2763 The Chamber has concluded that this evidence was sufficiently reliable given the circumstances in 2754 ICC-01/04-01/06-2773-Red-tENG, paras 773 - 774. 2755 ICC-01/04-01/06-2773-Red-tENG, paras 544 – 546. 2756 T-169-Red2-ENG, page 26, lines 11 - 19 and T-168-Red2-ENG, page 24, lines 4 – 19. 2757 T-343-ENG, page 4, lines 7 – 11, page 6, lines 9 - 10 and T-340-ENG, page 55, lines 19 – 23. 2758 T-343-ENG, page 13, lines 7 – 16. 2759 T-209-CONF-ENG, page 32, line 3 to page 34, line 24. 2760 T-203-Red2-ENG, page 43, lines 7 – 13, page 44, lines 6 – 8 and page 47, lines 17 – 24.. 2761 Although at one stage the witness referred to 2001 (at T-203-CONF-ENG, page 78, line 7 to page 79, line 3) he amended his response. T-208-CONF-ENG, page 81, lines 21 – 25. 2762 T-203-CONF-ENG, page 45, lines 18 – 24 and page 47, lines 11 – 13. 2763 T-209-Red2-ENG, page 53, line 24 to page 54, line 1. No. ICC-01/04-01/06 444/593 14 March 2012

which it was obtained by P-0116. 2764 Official and humanitarian sources had informed P-0116 in advance there was “a group, a militia, which was managed by Mr Thomas and that was developing and becoming stronger to set up an army”. 2765 1032. Further, it was said Thomas Lubanga had visited the children at the camp and he personally underwent military training and was initiated into military life. Indeed, evidence was given that the 2766 accused said they were “his” children; he had sent them there; and he had the power to bring them back. 2767 P-0116 observed that approximately 165 children, between the ages of 13 and 18, were removed from the training camp, following a surprise visit by UNICEF and other humanitarian organisations. 2768 P-0116 gave evidence that the children concerned were predominantly Hema, and a number of them were under the age of 15. 2769 1033. Some of those who witnessed this transfer of about 700 youths to Uganda told P-0116 they had been taken on Ugandan cargo planes, and it appeared that the accused was in contact with the Ugandan military authorities who gave him the necessary military support. 2770 1034. P-0024 gave evidence that some of the children he interviewed in the course of the demobilisation process were under the age of 15. 2771 P-0024 started working for SOS Grands Lacs between July and

2764 T-209-CONF-ENG, page 40, line 9 to page 41, line 3 and T-203-CONF-ENG, page 45, line 24 to page 47, line 16. 2765 T-203-Red2-ENG, page 42, line 24 to page 43, line 7. 2766 T-203-CONF-ENG, page 45, lines 23 – 25 and page 47, lines 12 – 16. 2767 T-203-CONF-ENG, page 45, line 25 to page 46, line 18. 2768 P-0116 stated only some 12 to 15 were over the age of 18. and “15 or 20” were under the age of 15; see T-203-CONF-ENG, page 30, lines 2 – 7 and page 32, lines 2 – 9. 2769 T-203-CONF-ENG, page 31, line 6 to page 32, line 10 and page 28, lines 21 – 22 (P-0116). 2770 T-209-Red2-ENG, page 47, lines 6 – 18. 2771 T-170-Red2-ENG, page 45, line 19 to page 46, line 1 and page 47, lines 1 – 25 (P-0024). No. ICC-01/04-01/06 445/593 14 March 2012

September 2001. 2772 He stated that the mission of SOS Grands Lacs was to assist with the demobilisation and reintegration of child soldiers who had been brought to Uganda for training. 2773 He suggested the children had been sent to Kyankwanzi because the rebel movement needed additional troops and they resorted to recruiting young children and preparing them for use by the military. In his view the 2774 rebel group that sent the children for training was affiliated with the Hema community. 2775 1035. The defence challenges the suggestion that Thomas Lubanga was involved in recruiting these children. It is argued P-0116’s allegedly “uncorroborated hearsay evidence” is unreliable and, given the children’s identities were not disclosed to the defence, it has not been possible to investigate this information. 2776 1036. In the judgment of the Chamber, P-0116’s testimony was credible and reliable. His evidence, that tends to establish Thomas Lubanga’s involvement in these events, is based on credible sources and the information was verified by the witness. In addition, his account of Thomas Lubanga visiting the children at the camp and personally undergoing training is entirely credible. The Chamber notes that P-0116 had left Bunia by the fall of 2002. Thereafter, he remained professionally involved with the issue of child recruitment in the DRC. 2777 He was undoubtedly well qualified to give evidence on these issues, and his account was credible and reliable. 1037. The defence relies on the evidence of D-0011, who testified that 2772 T-170-Red2-ENG, page 36, lines 13 – 15. 2773 T-170-Red2-ENG, page 37, lines 7 – 14. 2774 T-170-Red2-ENG, page 38, lines 18 – 23 and page 43, line 24 to page 44, line 12. 2775 T-170-Red2-ENG, page 45, line 20 to page 46, line 1. 2776 ICC-01/04-10/06-2773-Red-tENG, paras 596 – 599, 775. 2777 T-209-CONF-ENG, page 32, line 13 to page 36, line 5. No. ICC-01/04-01/06 446/593 14 March 2012

Thomas Lubanga, in conjunction with the NGO SOS Grands Lacs, organised the social reintegration of the children from Kyankwanzi. 2778 1038. Notwithstanding a lack of detail, P-0024 suggested that the NGO SOS Grands Lacs cooperated with the RCD-ML and that Thomas Lubanga was probably involved with the demobilised children from Kyankwanzi given his role as the RCD-ML Minister of Defence. 2779 1039. D-0019 gave evidence that Thomas Lubanga was part of a delegation sent to dissuade Uganda from attacking the mutineers. 2780 He said Thomas Lubanga did not represent the mutineers, but instead he had been sent by prominent individuals in the area to ensure the stability of the town of Bunia, and to protect it in the event of an attack by the Ugandans. 2781 1040. D-0019 also gave evidence that Floribert Kisembo, Bosco Ntaganda, and commanders Kasangaki and Bagonza were absent from Ituri following the summer of 2000 through to March 2002, at the latest. 2782 P-0012 similarly testified that the majority of the alleged coperpetrators were not in Ituri for the greater part of the period between the summer of 2000 and February/March 2002. 2783 1041. P-0041 testified that around July 2000, Thomas Lubanga convened a meeting at his home of those who were to become the signatories to the founding documents of the UPC, in order to discuss 2778 ICC-01/04-01/06-2773-Red-tENG, para. 775, referring to T-346-ENG, page 69, line 22 to page 70, line 25. 2779 T-170-Red-ENG, page 56, line 12 to page 57, line 6. P-0116 also gave evidence that is relevant to this issue, T-203-CONF-ENG, page 69, line 14 to page 73, line 5. 2780 T-343-ENG, page 6, line 23 to page 7, line 14. 2781 T-343-ENG, page 9, lines 8 – 14. In this connection the prosecution refers to a draft letter, dated 27 July 2000 and addressed to the Ugandan authorities, written by the “parents des militaires de l’Armée du Peuple Congolais”, that lists the name of Thomas Lubanga under the heading “Pour les parents des militaires retranchés en brousse”, EVD-OTP-00669. 2782 T-343-ENG, page 49, lines 9 – 24. 2783 T-168-Red2-ENG, page 26, line 14 to page 27, line 22. No. ICC-01/04-01/06 447/593 14 March 2012

the creation of a political party. 2784 Those documents, 2785 including the statute and the organisation’s programme, are dated 15 2786 2787 September 2000 and they are all signed by Thomas Lubanga. The document constituting the UPC and the statute are also signed by numerous other members of the UPC, including Richard Lonema and Rafiki Saba. The Chamber notes that of the co-perpetrators 2788 identified by the prosecution, only Rafiki Saba signed both of these documents. 1042. The prosecution relies on a photograph of the accused together with Floribert Kisembo, Bosco Ntaganda, Rafiki Saba, Commander Kasangaki and others that appeared in the 1 August 2002 edition of a local newspaper, and it is suggested it demonstrates that the accused was associated with the others in the photograph and they had a military agenda. The defence argues the photograph was taken in 2789 July 2000, therefore over two years before the events of August 2002, at a time when the accused had agreed to join talks with the Ugandan authorities in order to resolve the crisis created by the rebellion. 2790 Accordingly, it is suggested the photograph is irrelevant to an alleged “common plan” in July and August 2002. 2791 1043. The Chamber is persuaded that commanders Tchaligonza, Kasangaki, Bagonza, as well as Bosco Ntaganda and Floribert Kisembo were amongst the leaders of the mutiny against the RCD-ML. The evidence is inconclusive as to Thomas Lubanga’s alleged role as

2784 T-125-Red2-ENG, page 15, lines 8 – 18. 2785 EVD-OTP-00517. 2786 EVD-OTP-00661; EVD-OTP-00715 (with handwritten annotations); EVD-OTP-00726. 2787 EVD-OTP-00662. 2788 EVD-OTP-00517 and EVD-OTP-00661. 2789 ICC-01/04-01/06-2748-Red, para. 119; EVD-OTP-00529. 2790 ICC-01/04-01/06-2773-Red-tENG, para. 792. 2791 ICC-01/04-01/06-2773-Red-tENG, para. 792 and ICC-01/04-01/06-2786-Red-tENG, para. 16. No. ICC-01/04-01/06 448/593 14 March 2012

spokesperson for the mutineers. However, the evidence of D-0019, P- 0012 and P-0116 conclusively demonstrates that Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Tchaligonza, Bagonza and Kasangaki were involved in organizing military training in Uganda for Hema youths, including young children during the summer of 2000. Although the Chamber considers the evidence is inconclusive as regards the details of how the children were transported to Uganda and whether Mr Lubanga was in touch with the Ugandan authorities during the relevant period, the evidence of P- 0012, P-0116 and P-0024 demonstrates he was involved with the group of soldiers, which included children, sent by the mutineers to Uganda for training. Indeed, very young children were included in this group. However, it is unnecessary for the Chamber to reach a precise determination of their individual ages because this incident falls outside the period of the charges and is relevant only for general contextual and background purposes. 1044. Although there is persuasive evidence that the accused was involved in the recruitment of these children, his precise role is unclear. The evidence fails to establish the exact nature of the relationship between the accused and the alleged co-perpetrators, and whether there was regular contact between any of them in 2000. However, given his overall involvement, and particularly his visit to the soldiers in the camp in Uganda, the Chamber infers he was in contact with the leaders of the mutiny and Chief Kahwa. The Chamber accepts P-0041’s evidence that Thomas Lubanga was also in touch with his alleged co-perpetrator Rafiki Saba in the summer of 2000, when the founding documents of the UPC were prepared. In addition, the Chamber notes that if the photograph referred to above was taken in

No. ICC-01/04-01/06 449/593 14 March 2012

July 2000, as suggested by the defence, it demonstrates contact between some of the alleged co-perpetrators at that time.

1045 Viewed overall, the evidence rehearsed above provides strong support for the suggestion that during the period prior to the confirmation of the charges – specifically in the summer of 2000 – the accused and some of his principal alleged co-perpetrators, including Floribert Kisembo, Bosco Ntaganda, Chief Kahwa and commanders Kisangaki, Tchaligonza, and Bagonza, were jointly involved in organising the training of Hema youths in the context of the mutiny. Mr Lubanga, inter alia , visited the children, liaised with individuals in Uganda to prevent attacks against the mutineers and was involved in the reintegration of the children following their training. b) Events leading up to and the take-over of Bunia

1046 In determining whether there was a common plan for the purposes of the charges, the Chamber found it of assistance to examine the events surrounding the takeover of Bunia and the events leading to the emergence of the UPC. (1) The emergence of the UPC and of Thomas Lubanga as its leader

1047 The origins of the UPC are disputed. The prosecution suggests that “in parallel with the recruitment and training for the militia” in Uganda, on 15 September 2000 Thomas Lubanga and Mr Rafiki, together with others, signed the founding documents of the UPC. The prosecution describes the UPC in September 2000 as “the political and military group into which [the soldiers trained in Uganda] would be

No. ICC-01/04-01/06 450/593 14 March 2012

incorporated and which would eventually take control of Ituri”. 2792 1048. As discussed above, P-0041 gave evidence that Thomas Lubanga was behind the creation of this political party in the summer of 2000. The founding documents were signed in September of that year. 1049. Further, the prosecution contends that from its inception the UPC had the aim of using military force to achieve its goals, whereas the defence denies that the UPC had military objectives prior to September 2002. 2793 1050. It is submitted by the defence that Mr Lubanga’s position in the government of the RCD-ML during this time is inconsistent with the prosecution’s theory that the UPC existed as a political/military organisation during the same period. 2794 The defence argument is that from April to August 2002, the accused acted for an organisation called the Front pour la réconciliation et la paix or “FRP”, which it is said engaged in initiatives of a purely political nature in order to bring about the end of the government of Mr Mbusa Nyamwisi with the help of the Ugandan authorities. 2795 It is suggested Thomas Lubanga only began his opposition to the RCD-ML in April 2002 when he and others approached the Ugandan authorities in an attempt to have the organisation removed from Bunia. 2796 1051. It is undisputed that Thomas Lubanga served as Minister of Defence for the RCD-ML, having been appointed by Mr Mbusa

2792 ICC-01/04-10/06-2748-Red, para. 86, referring to EVD-OTP-00726, EVD-OTP-00661, EVD- OTP-00715; see also the curriculum vitae of Thomas Lubanga (EVD-OTP-00621 at page 0379), stating that he has been the UPC President since its creation in 2000. 2793 ICC-01/04-01/06-2773-Red-tENG, paras 777, 778 and 781. 2794 ICC-01/04-01/06-2773-Red-tENG, paras 777 - 779. 2795 ICC-01/04-01/06-2773-Red-tENG, para. 785. 2796 ICC-01/04-01/06-2773-Red-tENG, para. 779. No. ICC-01/04-01/06 451/593 14 March 2012

Nyamwisi. 2797 In this position, which he held until April 2002, 2798 the

accused was responsible for the deployment of various commanders,

including Bosco Ntaganda, whom he appointed as his assistant

commander of operations. 2799 During this time, he also served as the

leader of the UPC. 2800

1052 P-0041 testified that Bosco Ntaganda and Kisembo 2801

Bahemuka were a part of the “guard” of Thomas Lubanga when he 2802

was RCD-ML defence minister. 2803 The defence disputes his

description of their roles, 2804 and relies on the testimony of D-0019 that

Bosco Ntaganda and Floribert Kisembo were not Thomas Lubanga’s

bodyguards or under his command. 2805

1053 On this issue, the Chamber notes P-0041’s account concerning

the role of Floribert Kisembo, whom he had not seen before, was based

on having seen him with Thomas Lubanga 2806 and he was unable to

assist during questioning as regards the suggestion that Floribert

Kisembo, as opposed to being a bodyguard, was one of the

2797 T-343-ENG, page 44, line 5 to page 46, line 19 (D-0019, stating that Thomas Lubanga was the defence minister but not confirming the date). T-168-Red2-ENG, page 27, lines 9 – 24 (P-0012). P- 0012 testified that Thomas Lubanga had been appointed the Minister of Defence by Mr Mbusa Nyamwisi by February or March 2002. 2798 P-0041 stated that in April 2002, Thomas Lubanga was the “Commissioner of Defence”, for the RCD-ML. T-124-Red2-ENG, page 78, lines 11 – 14. 2799 T-344-Red-ENG, page 8, lines 11 – 22 (D-0019). D-0019 was not sure, however, whether Thomas Lubanga was able to exercise direct control over the RCD-ML troops. T-343-ENG, page 48, line 17 to page 49, line 2. 2800 T-343-ENG, page 47, lines 15 – 17 (D-0019). 2801 T-125-Red2-ENG, page 3, lines 7 – 10. 2802 The Chamber notes the discrepancy between the names “Floribert Kisembo” and “Kisembo Bahemuka”. However, P-0002 gave evidence that the Chief of Staff of the UPC was General Kisembo Bahemuka (T-162-Red2-ENG, page 12, line 20 to page 13, line 7). In document EVD-OTP-00512, in a letter written on behalf of the Chief of Staff, Mr Kisembo is similarly named as “Kisembo Bahemuka”. In addition, numerous witnesses testified that General Floribert Kisembo was the Chief of Staff (see paras 725, 783, 842), leading to the conclusion that Floribert Kisembo and Kisembo Bahemuka are the same person. 2803 T-125-Red2-ENG, page 3, lines 11 – 12 and T-126-Red2-ENG, page 3, line 22, to page 4, line 3 and page 4, line 21 to page 5, line 10. 2804 ICC-01/04-01/06-2773-Red-tENG, para. 377. 2805 T-340-ENG, page 46, line 6 to page 47, line 16. 2806 T-126-Red2-ENG, page 4, line 21 to page 5, line 2.

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commanders in charge of operations in the APC. 2807 The Chamber, therefore, does not accept P-0041’s suggestion that Floribert Kisembo and Bosco Ntaganda acted as guards for the accused. However, this weakness in his evidence as regards their precise roles before they were appointed to senior positions within the UPC/FPLC does not undermine P-0041’s evidence as a whole. 1054. P-0014 suggested that during this period, Thomas Lubanga, as the President of an “emerging” group called the UPC, 2808 acted as the leader of a number of people. 2809 The evidence of P-0014 was that at the outset the accused referred to the need to organise an army in order to fight against Mr Mbusa Nyamwisi’s military force. P-0014 2810 stated that at one meeting in early June 2002 a significant amount of time was devoted to discussing the tactics to be adopted – using both military and diplomatic means, including the press – in order to develop the awareness of the population in Ituri and to mobilise its people. 2811 According to the witness, Thomas Lubanga suggested “Iturians had to wake up, they had to rise, and team up with him to chase out Mbusa”. 2812 The accused is said to have explained that all available resources and means – military and diplomatic – should be used to eject Mr Mbusa Nyamwisi and the RCD-ML, and he assigned tasks to various individuals and groups. 2813 1055. P-0014 learned about the UPC at this meeting in June 2002 with Paul Avochi, John Tinanzabo, Dr. Kabagambe, Mama Akiki, Adèle

2807 T-126-Red2-ENG, page 5, lines 3 – 10. 2808 T-179-CONF-ENG, page 39, lines 18 – 25. 2809 T-181-CONF-ENG, page 26, lines 4 – 5 and page 92, lines 16 – 21;T-179-CONF-ENG, page 42, line 4 to page 43, line 13. 2810 T-179-Red-ENG, page 45, lines 14 – 21. 2811 T-179-Red2-ENG, page 45, lines 4 – 24. 2812 T-179-Red2-ENG, page 38, line 7 to page 39, line 3. 2813 T-179-CONF-ENG, page 39, lines 8 – 17, page 43, lines 17 – 19 and page 45, lines 16 – 24. No. ICC-01/04-01/06 453/593 14 March 2012

Lotsove, 2814 Kisembo Bitamara and others, and that the organisation was “leading the fight, the combat, and wanted to group together all Iturians to continue the combat”. 2815 1056. P-0014 also gave evidence about Thomas Lubanga’s leadership role by reference to this meeting in Kampala, stating “[…] it was always Thomas Lubanga who took the decision, who took -- who had the final word on everything while he was there. If he said no, then it would be no; and if he gave his approval, then what he approved had to be carried out. […] I would like to tell you that Thomas Lubanga was indeed the leader who approved and disapproved of everything that happened.” 2816 1057. According to P-0014, at one point during the meeting, the accused ordered Chief Kahwa and Mr Beiza to go to Rwanda to obtain weapons. 2817 The witness noticed that Chief Kahwa and Mr Beiza were not in the hotel the following morning, and he received 2818 confirmation of these arrangements from those involved. 2819 1058. The defence challenges P-0014’s credibility, suggesting that several of his statements about the Kampala meeting are inaccurate. For instance, his testimony is criticised on the basis that he did not know whether all the members of the delegation in Kampala in June 2002 were UPC members, and he was unable to say in which capacity two of the participants attended the meeting. 2820 The defence notes P- 0014’s evidence that the first time he heard of the UPC was at the 2814 T-179-CONF-ENG, page 44, lines 14 – 16. 2815 T-179-CONF-ENG, page 44, lines 2 – 10 and page 45, lines 23 – 24. 2816 T-184-CONF-ENG, page 43, lines 16 – 25. 2817 T-179-Red2-ENG, page 46, line 2 to page 47, line 13. 2818 T-179-Red2-ENG, page 46, line 24 to page 47, line 3. 2819 T-179-CONF-ENG, page 46, lines 2 -12 and T-184-CONF-ENG, page 39, line 18 to page 40, line 22. 2820 ICC-01/04-01/06-2773-Red-tENG, para. 571. See T-184-CONF-ENG, page 37, lines 3 – 18. No. ICC-01/04-01/06 454/593 14 March 2012

Kampala meeting, even though the UPC had been in existence prior to June 2002. However, in light of the fact that P-0014 was not a UPC 2821 member, the Chamber does not consider his lack of knowledge on these issues undermines his credibility as to what he observed during the Kampala meeting. 1059. The defence also questions P-0014’s evidence that Thomas Lubanga ordered Mr Beiza and Chief Kahwa to obtain arms in Rwanda, asserting this was simply a deduction based on the fact they were absent for part of the Kampala meeting. 2822 In the Chamber’s view, P-0014’s evidence about the trip is credible and reliable; he spoke with numerous people about this issue; and he gave consistent evidence when examined. (2) The arrest and detention of Thomas Lubanga, interim power and communications during detention (July – August 2002)

1060 It is undisputed that while he was attending the meeting referred to above in Kampala, Uganda, in the summer of 2002 2823 the accused, along with others in his delegation, was arrested and transferred to Kinshasa. There he was detained in the government facility for political prisoners, DEMIAP (“ détection militaire anti patrie ” [Detection of Unpatriotic Activities]), for approximately a month. 2824 In due course, Mr Lubanga was placed under house arrest at the Kinshasa Grand Hôtel 2825 and he was eventually released and

2821 ICC-01/04-01/06-2773-Red-tENG, para. 571. 2822 ICC-01/04-01/06-2773-Red-tENG, para. 571. 2823 T-126-Red2-ENG, page 6, lines 5 – 12 (P-0041). 2824 T-Red2-ENG, page 8, line 11 to page 10, line 19 and T-126-CONF-ENG, page 9, line 9 to page 10, line 19 (P-0041); T-340-ENG, page 45, lines 10 – 25 and T-346-ENG, page 73, lines 10 – 16 (D-0019). 2825 T-125-Red2-ENG, page 10, lines 15 – 19 and T-126-CONF-ENG, page 10, line 22 to page 11, line 12 (P-0041). No. ICC-01/04-01/06 455/593 14 March 2012

transferred to Bunia at the end of August 2002, at the instigation of the Kinshasa authorities. 2826 1061. P-0014 testified that once Thomas Lubanga discovered his group was to be detained and sent to Kinshasa, he delegated authority to Richard Lonema (who was to act as President on an interim basis) and Mbuna Dieudonné, his private secretary. He gave them and others responsibility for the awareness campaigns, mobilisation, supervising recruitment and the army, along with various political matters such as liaising with the relevant groups and parties. 2827 1062. The defence suggests that despite this account, P-0014 also described Mr Lubanga’s arrest and transfer to Kinshasa as coming as a complete surprise to the delegates, which caused panic. 2828 The defence notes P-0041 stressed the “ manu militari ” 2829 nature of the transfer of the delegates to Kinshasa, and it highlights his account that no arrangements were made in Kampala for the September 2002 appointments within the UPC. 2830 However, the Chamber understood P-0041 used the expression “ manu militari ” to describe his involuntary transfer to Kinshasa. Furthermore, P-0014 testified that although the precise moment of Thomas Lubanga’s arrest came as a surprise, the latter had had the foresight to make advance arrangements, given the information that was in circulation. 2831 In all the circumstances, P-0014 and P-0041 have not given contradictory evidence on this issue. 1063. The prosecution relies on the evidence of P-0014 and P-0041 to 2826 See ICC-01/04-01/06-2773-Red-tENG, para. 373. 2827 T-179-CONF-ENG, page 67, lines 23 – 25, page 78, lines 6 – 12 and page 81, line 24 to page 82, line 14. (P-0014); D-0019 confirmed that Mr Lonema and Dieudonné Mbuna managed to avoid an arrest and returned to Bunia, T-344-Red-ENG, page 17, lines 8 – 11. 2828 ICC-01/04-01/06-2773-Red-tENG, para. 571; T-184-Red2-ENG, page 44, lines 8 – 14. 2829 T-125-Red2-ENG, page 9, lines 1 – 2. 2830 ICC-01/04-01/06-2773-Red-tENG, para. 571. 2831 T-184-CONF-ENG, page 44, lines 11 – 14 and page 45, line 4 to page 46, line 7. No. ICC-01/04-01/06 456/593 14 March 2012

support the suggestion that between July 2002 and the end of August 2002 Thomas Lubanga was in contact with Richard Lonema and others in Bunia. 2832

1064 The defence contends that this evidence which involved telephone contact between the detainees and the UPC headquarters in Bunia is implausible because, as P-0041 accepted, mobile telephones 2833 were inoperative in Bunia. 2834

1065 P-0014 testified that Thomas Lubanga talked with Richard Lonema at some point during his detention. 2835 He said Mr Lonema received orders from Thomas Lubanga by telephone while he was acting on the accused’s behalf, between July and August 2002. P- 2836 0014 gave evidence that members of the UPC at the headquarters in Bunia used satellite telephones because there was no cell phone network. 2837 P-0014 also testified that the detainees at DEMIAP had cell phones, although this evidence was contradicted by P-0041, who 2838 suggested that their mobile phones were confiscated and the detainees at DEMIAP had no means of communication. 2839

1066 P-0041, who was in Kinshasa at the same time as Thomas Lubanga, agreed there had been communication between the accused and Bunia in August 2002, and as a result the accused discovered that

2832 ICC-01/04-01/06-2748-Red, paras 103 -104, referring to T-179-CONF-ENG, page 80, lines 6 – 20, page 75, lines 20 – 25, page 76, lines 1 – 25 and page 77, lines 1 – 9; T-181, page 24, lines 2 – 6 (P- 0014); and T-125-CONF-ENG, page 10, lines 18 – 19, page 11, lines 12 – 23, page 12, lines 1 – 3 and page 14, lines 16 – 18. 2833 T-184-CONF-ENG, page 51, line 2. 2834 ICC-01/04-01/06-2773-Red-tENG, para. 373. 2835 T-179-CONF-ENG, page 75, line 20 to page 79, line 24. 2836 T-179-CONF-ENG, page 81, line 11 to page 83, line 3. 2837 T-184-CONF-ENG, page 51, lines 2 – 9. 2838 T-184-Red2-ENG, page 51, lines 19 – 22. 2839 T-126-CONF-ENG, page 9, lines 9 – 17.

No. ICC-01/04-01/06 457/593 14 March 2012

Bunia had been occupied by RCD-ML dissidents. 2840 P-0041 testified that when the delegates were released from DEMIAP they travelled from their hotel nearly every day in order to visit Thomas Lubanga, who was held at the Grand Hotel. 2841 The accused gave them a telephone to contact him. 2842 1067. The Chamber is uncertain of P-0014’s evidence that the detainees were able to communicate by cell phone whilst they were detained at DEMIAP, given the circumstances of their detention and the evidence just rehearsed. However, it is sure that contact by telephone was possible after they were moved to “house arrest” in a hotel, (no later than the end of July/early August 2002). 2843 1068. The defence submits P-0041’s evidence does not support the prosecution suggestion that there was concerted action between the accused and the leaders of the armed rebellion. 2844 The Chamber has concluded, however, that his evidence, as corroborated by P-0014, has demonstrated that the accused and at least some of his alleged coperpetrators were in contact with each other while he was in Kinshasa and Thomas Lubanga thus had the opportunity to give orders and directions. The Chamber found the evidence of P-0014 and P-0041 to be consistent, credible and reliable. 1069. In addition, P-0041 gave evidence that Richard Lonema, who worked with Daniel Litsha, represented Thomas Lubanga whilst the

2840 T-125-Red2-ENG, page 14, lines 14 – 18 and T-126-Red2-ENG, lines 7 – 9. 2841 T-126-Red2-ENG, page 10, line 22 to page 11, line 21. 2842 T-126-Red2-ENG, page 10, line 22 to page 11, line 21. 2843 T-126-Red2-ENG, page 10, line 22 to page 11, line 21. See also ICC-01/04-01/06-2773-RedtENG, para. 372, setting out the timeline of Mr Lubanga’s arrest with reference to the testimony of P- 0041. 2844 ICC-01/04-01/06-2773-Red-tENG, para. 787. No. ICC-01/04-01/06 458/593 14 March 2012

latter was in detention. 2845 By this he meant Richard Lonema acted in place of the President of the UPC in Bunia. P-0041 did not know 2846 who appointed Richard Lonema as Thomas Lubanga’s representative, but he suggested it was probably the President of the UPC himself because “I don’t think another person would appoint you to act on behalf of a different official”. 2847 1070. P-0014 gave similar evidence that Richard Lonema stood in for the accused and he discharged the routine duties of the president, including supervising all the activities of the army such as those that concerned recruitment, military rations, equipment and the army’s general well-being. In addition, he maintained contact with various external groups. 2848 P-0014 testified that Richard Lonema publicly indicated that he was standing in for the President. 2849 As mentioned above, P-0014 said that Richard Lonema received orders from Thomas Lubanga while he was acting on the accused’s behalf between July and August 2002, and he discussed general policy matters with the accused. 2850 1071. P-0002 testified that during this period Richard Lonema was “like a vice-president” because Thomas Lubanga was absent from Ituri. 2851 He indicated that a rally was held in Bunia, attended by a large number of UPC members, including Bosco Ntaganda, Floribert Kisembo and Chief Kawha, at which Richard Lonema represented the

2845 T-125-Red2-ENG, page 24, lines 6 – 17. 2846 Mr Lonema returned to Bunia from Kampala, whilst the others were compelled to travel to Kinshasa. T-125-Red2-ENG, page 25, lines 3 – 8. 2847 T-125-Red2-ENG, page 25, lines 13 – 18. 2848 T-179-Red2-ENG, page 81, line 25 to page 82, line 14 and page 74, line 16 to page 75, line 9. 2849 T-179-Red2-ENG, page 75, lines 1 – 9 and T-184-CONF-ENG, page 46, lines 8 – 18. 2850 T-179-CONF-ENG, page 81, line 11 to page 83, line 3. 2851 T-160-CONF-ENG, page 72, lines 9 – 10 and T-162-CONF-ENG, page 4, lines 23 – 25. No. ICC-01/04-01/06 459/593 14 March 2012

UPC. 2852 Colonel Maguru represented the Kinshasa government, whose role was to reconcile the opposing groups in Bunia. 2853 (3) Recruitment and training before the takeover of Bunia (Summer 2002)

1072 The prosecution submits that throughout the summer of 2002 the co-perpetrators each contributed to the implementation of the common plan – namely, establishing political and military control of Bunia – by setting up training camps, recruiting young people (including children under the age of 15) and securing weapons and uniforms for the recruits. The overall objective was to remove the RCD-ML in order to take control of Bunia in the name of Thomas Lubanga and the UPC/FPLC. 2854 1073. The defence disputes the suggested involvement by Thomas Lubanga or the UPC in the mutiny against the RCD-ML in April and May 2002, given he was absent from Ituri for long periods. 2855 Since the accused was abroad or in detention, the defence submits he could not have contributed to a large-scale recruitment campaign between May and August 2002, as argued by the prosecution. 2856 It is said Mr Lubanga’s activities within the FRP, which did not have an armed wing, were of a purely political nature. The defence suggests 2857 Thomas Lubanga would only have learnt about the existence and outcome of the recruitment campaigns once he returned to Bunia in

2852 T-162-CONF-ENG, page 4, line 13 to page 5, line 4. 2853 T-160-CONF-ENG, page 71, line 21 to page 72, line 10 and T-162-CONF-ENG, page 4, lines 13 – 22 (P-0002). 2854 ICC-01/04-01/06-2748-Red, para. 105. 2855 ICC-01/04-01/06-2773-Red-tENG, para. 787. 2856 ICC-01/04-01/06-2773-Red-tENG, para. 788. 2857 ICC-01/04-01/06-2773-Red-tENG, paras 784 – 788. No. ICC-01/04-01/06 460/593 14 March 2012

late August 2002. 2858

1074 P-0038 testified that he joined “the army of the UPC“ in 2001, 2859

after Chief Kahwa and Bosco Ntaganda held a meeting with the whole

village of Mabanga, including children under the age of 15, during

which they were encouraged to join the army. 2860 After the meeting,

vehicles were “loaded up with young people”, including children

under 15, who were taken to Mandro for training. Chief Kahwa was 2861

known at the time to be the leader of the training centre at Mandro. 2862

1075 P-0038 suggested he was Chief Kahwa’s bodyguard at Mandro

between April and September 2002, 2863 and he accompanied him to the

frequent meetings he held in Katoto, Barrière and other villages. 2864

Chief Kahwa provided information to parents about sending their

children, and others, to be trained as soldiers. 2865 On these occasions

Chief Kahwa was dressed either in military uniform or civilian

clothing, and his bodyguards carried his weapon. Chief Kahwa 2866

indicated to those with whom he spoke that the Lendu were

threatening the villages, and they were asked to assist by sending

children they needed for training at Mandro. 2867 He threatened that if

they did not assist, when war came to their town “we would not come

to rescue them”. 2868

2858 ICC-01/04-01/06-2773-Red-tENG, para. 788. 2859 T-113-Red2-ENG, page 31, lines 9 – 12. The Chamber notes that in his answer in the transcript, the year 2000 is given. However, in view of the question asked, the answer given to the previous question, and the comparison to the French transcript, the correct year is clearly 2001. 2860 T-113-Red2-ENG, page 39, lines 3 – 18; T-114-Red2-ENG, page 44, lines 4 – 7. 2861 T-113-Red2-ENG, page 39, line 19 to page 41, line 4. 2862 T-114-Red2-ENG, page 42, line 19 to page 43, line 8. 2863 T-114-Red2-ENG, page 43, lines 13 – 19. 2864 T-113-Red2-ENG, page 53, line 13 to page 54, line 14. 2865 T-113-Red2-ENG, page 53, lines 20 – 22. 2866 T-114-Red2-ENG, page 85, lines 12 – 15. 2867 T-113-Red2-ENG, page 54, lines 17 – 21. 2868 T-113-Red2-ENG, page 54, lines 19 – 21.

No. ICC-01/04-01/06 461/593 14 March 2012

1076 Children were made available following these meetings, 2869 and the new recruits were driven to the training centre at Mandro in vehicles provided by traders. They were accompanied by Chief Kahwa and his commanders. 2870 The vehicles were either given voluntarily or the commanders seized them from the traders. 2871 Although P-0038 did not see children taken forcibly, they arrived at Mandro immediately after the meetings. 2872 These trips to the villages were frequent, 2873 and boys as well as girls “volunteered”. 2874 As discussed above, 2875 P-0038 was, generally speaking, a credible and reliable witness. 1077. P-0116 testified that the recruitment of children continued during the summer of 2002 “because the UPC was striving to consolidate its position as a strong political movement in the Ituri region. […] And this was common knowledge to everyone.” 2876 1078. Other witnesses testified about the recruitment of children at this time. D-0006 joined the UPC towards the end of May 2002 and he was trained at Mandro. 2877 P-0046 was told about the Hema recruitment campaigns in Bunia and elsewhere in March, April and July 2002. 2878 1079. D-0037 left the APC in 2002, along with other soldiers, and he joined a group in order to defend the Hema community, for which Chief Kahwa set up a training centre in Mandro, involving Bosco

2869 T-113-Red2-ENG, page 54, lines 22 – 24. 2870 T-113-Red2-ENG, page 54, line 24 to page 55, line 1. 2871 T-113-Red2-ENG, page 58, lines 9 – 11. 2872 T-113-Red2-ENG, page 58, lines 15 – 18. 2873 T-113-Red2-ENG, page 55, lines 5 – 13. 2874 T-114-Red2-ENG, page 84, lines 19 – 25. 2875 See paras 340-349. 2876 T-203-CONG-ENG, page 96, lines 16 – 20. 2877 T-254-CONF-ENG, page 71, lines 7 – 12. 2878 EVD-OTP-00489: T-37-EN, page 51, line 13 to page 53, line 19 (testimony of P-0046 before the Pre-Trial Chamber). No. ICC-01/04-01/06 462/593 14 March 2012

Ntaganda. 2879 D-0037 emphasised that this group only became the FPLC when Governor Lompondo was driven out of Bunia. 2880 1080. D-0019 heard that the mutineers withdrew from Bunia around July 2002 in order to live in Mandro, where there was some form of military training. 2881 He said that Floribert Kisembo, Commander Tchaligonza and Bosco Ntaganda were the leaders of the mutineers, although Chief Kahwa was “a leading figure in that particular group”. 2882 There were discussions in the surrounding areas about the recruitment and training of new soldiers at Mandro. 2883 1081. P-0014 testified that during the summer of 2002, in accordance with the UPC’s plan, the recruits were trained to fight against their primary enemy, the RCD-ML. 2884 P-0014 suggested that the Lendus, whom the UPC had been fighting for some time, were a secondary target. 2885 The main military leaders during July and August 2002 included the Chief of Staff Floribert Kisembo, Bosco Ntaganda and Chief Kahwa. 2886 1082. P-0016, who was a former APC soldier, described his arrest by the Ugandans and the visits he received, whilst in detention, from Floribert Kisembo who told him to organise all the APC soldiers he knew so as to form a new army. FPLC soldiers took the witness, and 2887 other former APC soldiers he had gathered together, to the camp at Mandro in August 2002. Bosco Ntaganda decided they would teach

2879 T-349-ENG, page 4, line 16 to page 5, line 18. 2880 T-349-ENG, page 7, line 23 to page 8, line 20 and page 20, line 22 to page 21, line 7. 2881 T-344-Red-ENG, page 17, lines 17 – 18 and page 18, lines 5 – 9. 2882 T-344-Red-ENG, page 18, lines 10 – 15 and T-340-ENG, page 53, line 13 to page 54, line 22. 2883 T-344-Red-ENG, page 18, lines 16 – 18. 2884 T-184-CONF-ENG, page 60, lines 5 – 11. 2885 T-184-CONF-ENG, page 60, lines 12 – 13. 2886 T-181-Red2-ENG, page 12, line 22 to page 13, line 4 (P-0014). 2887 T-189-Red2-ENG, page 9, line 22 to page 10, line 16. No. ICC-01/04-01/06 463/593 14 March 2012

young soldiers how to use the weapons they had received from the UPC. P-0016 stayed at the camp for about 10 days. He was 2888 2889 appointed to a position within the FPLC by the end of August or early September. 2890 P-0016 indicated that the accused was the President of the UPC whilst he was at the camp at Mandro. 2891 1083. The defence submits that P-0016’s evidence demonstrates that his training at Mandro and appointment to a post within the UPC/FPLC predate Thomas Lubanga’s return to Bunia. 2892 It is suggested this proves the armed forces who took over Bunia were under the command of Floribert Kisembo and other rebel leaders, and Thomas Lubanga played no role in the recruitment of soldiers acting under their orders. 2893 In light of P-0016’s evidence as set out above, the Chamber is not persuaded that his appointment took place before Thomas Lubanga returned from Bunia. The role of the accused with respect to the soldiers that took over Bunia is considered below. (4) The takeover of Bunia (August 2002) and the formal establishment of the UPC/FPLC as a political and military organisation

1084 It is the prosecution’s submission that the UPC was responsible for the takeover of Bunia on 9 August 2002. 2894 1085. The prosecution relies on a letter sent on 6 June 2002 from 2895

2888 T-189-Red2-ENG, page 10, line 17 to page 11, line 19. 2889 T-189-Red2-ENG, page 11, line 20 to page 12, line 5. 2890 T-189-CONF-ENG, page 9, line 22 to page 12, line 15 and page 61, lines 9 – 12. The Chamber has come to this result on account of the witness’s description of the various time periods of detention, time spent contacting other former APC soldiers and his stay in the training camp. 2891 T-189-CONF-ENG, page 11, lines 21 – 24 and page 17, lines 11 - 14. 2892 ICC-01/04-01/06-2773-Red-tENG, paras 408 - 411. 2893 ICC-01/04-01/06-2773-Red-tENG, para. 412. 2894 ICC-01/04-01/06-2748-Red, paras 113 - 114. 2895 EVD-OTP-00686. No. ICC-01/04-01/06 464/593 14 March 2012

Governor Molondo Lompondo to the President of the RCD-ML, to suggest that Thomas Lubanga and his movement, the UPC, were organising a militia in Mandro comprised of the Gegere tribes, in order to create an independent state of Ituri and to remove the RCD-ML. 2896 It is argued Mr Lubanga had the support of Chief Kahwa Panga Mandro, and they recruited young people between the ages of 9 and 13, in defiance of the prohibitions of the UN, the Organisation of the African Union, and the Lusaka Agreements against the use of child soldiers. 2897 Governor Lompondo warned of a possible attack by Thomas Lubanga’s militia. 2898 1086. The defence suggests this letter from Governor Lompondo may not be genuine, on the basis it is an unauthenticated copy and the prosecution failed to describe the circumstances in which it came into the possession of the UN. Furthermore, it is said there is no evidence as to who provided it to the prosecution and it is suggested that it appears to have come from someone whose antipathy to the accused is well known, but who was not interviewed. 2899 When this document was admitted from the bar table, the Chamber indicated that although it was admissible, its weight, authenticity and reliability would be dealt with at a later stage. 2900 1087. The letter bears the letterhead of the RCD-ML, it is dated, and it carries what appear to be an official stamp and the signature of the Governor of Ituri, Mr Molondo Lompondo. 2901 The prosecution obtained it from the United Nations on 24 January 2005, before the

2896 EVD-OTP-00686. 2897 EVD-OTP-00686. 2898 EVD-OTP-00686. 2899 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 14. 2900 ICC-01/04-01/06-1981-Anx, pages 15 - 16 (item 27). 2901 EVD-OTP-00686. No. ICC-01/04-01/06 465/593 14 March 2012

arrest warrant against the accused was issued. No explanation has been provided as to why a false document of this kind would have been provided at that stage to the UN and otherwise its validity has not been previously questioned. However, given there is no evidence before the Chamber as to the circumstances in which the document was drafted or obtained, it has not been relied on for purposes of this Judgment. 1088. P-0024 and P-0014 testified that Bunia came under the control of the UPC in August 2002. 2902 P-0014 gave evidence that on 9 August the UPC drove out the RCD-ML. 2903 After the fall of Bunia the President (Mr Lubanga) made it known he was very proud of them, since they had worked to achieve this objective. 2904 D-0011 gave a somewhat different account, in that he attributed the expulsion of the RCD-ML from Bunia to mutineers within the armed wing of the RCD-ML (the APC), who were eventually joined by the UPC. He indicated the 2905 UPC became the UPC-RP – in the absence of Thomas Lubanga, who was in prison – when a core group of soldiers from the RCD-ML mutinied and split away from the APC, with the assistance of the UPC. This account is partially corroborated by D-0019, who said 2906 that the takeover of Bunia in August 2002 was not linked to the UPC of Thomas Lubanga, and instead the mutineers only decided to entrust the leadership to Thomas Lubanga at the end of August 2002. 2907 1089. The prosecution refers to the 17 April 2002 “Political Declaration of the Managerial Staff of Ituri in the Face of Institute Injustice by the 2902 T-171-Red2-ENG, page 29, lines 22 – 25 (P-0024) and T-179-Red2-ENG, page 76, lines 13 – 17 (P-0014). 2903 T-179-Red-ENG, page 76, lines 13 – 17. 2904 T-179-Red-ENG, page 76, lines 7 – 10. 2905 T-346-ENG, page 74, lines 2 – 4. 2906 T-346-ENG, page 73, line 23 to page 74, line 4. 2907 T-343-ENG, page 3, lines 16 – 24 and T-342, page 42, lines 1 – 15. No. ICC-01/04-01/06 466/593 14 March 2012

RCD/KIS-ML under His Excellency Mr. Mbusa Nyamwisi’s Presidency” (“Political Declaration of 17 April 2002”), signed by Thomas Lubanga, which accused the RCD-ML of ethnic discrimination, and of seeking to take over Ituri. 2908 The prosecution suggests this demonstrates that Thomas Lubanga demanded the departure of Mr Mbusa Nyamwisi and Governor Molondo Lompondo. 2909 1090. The defence also relies on the Political Declaration of 17 April 2002, 2910 contending that Thomas Lubanga’s signature is not accompanied by any reference to a position held by him in the UPC – indeed, the UPC is not mentioned throughout the entire document. 2911 The Political Declaration of 17 April 2002 contains the following:

5 Ask our soldiers serving in Ituri to keep calm and let us invite under Congolese Flag all our glorious soldiers (ex. FAZ, FAC, APC) left to their sad 2912 fate by the discriminatory politics of the RCD/KIS-ML. 1091. The defence suggests this document does not support the conclusion that those who signed it had their own armed forces available to them. It is argued that no documents have been introduced for the period before September 2002 to indicate that forces of that kind existed, and the defence relies on P-0041’s evidence that the FRP did not have a military wing. 2913 1092. P-0041 testified that the signatories of the Political Declaration of 17 April 2002 were members of the FRP, save for the 12th signatory,

2908 ICC-01/04-01/06-2748-Red, para. 92, EVD-D01-00050. 2909 ICC-01/04-01/06-2748-Red, para. 92. 2910 EVD-D01-00050. 2911 ICC-01/04-01/06-2773-Red-tENG, para. 780. 2912 EVD-D01-00050 at DRC-0127-0112. 2913 ICC-01/04-01/06-2773-Red-tENG, paras 370, 785; ICC-01/04-01/06-2786-Red-tENG, paras 14 - 15. No. ICC-01/04-01/06 467/593 14 March 2012

Bayau Wa Naiba. 2914 P-0041 suggested Thomas Lubanga was the President of the FRP at that time. As noted above, D-0019 gave 2915 evidence that at least 11 of the 13 signatories were, or later became, members of the UPC. 2916 D-0019 stated that although he had not seen this declaration, he was aware of its content, given it features in all the later UPC decrees. He said it reflected “a landmark event” in the history of the UPC, 2917 when the UPC began to distance itself from the RCD-ML. 2918 However, he declined to comment on whether members of the UPC wanted to remove the RCD-ML. 2919 As mentioned above, the declaration does not refer to the UPC. 1093. The prosecution suggests that within days of the Political Declaration of 17 April 2002, the same individuals who had orchestrated the first mutiny within the APC in 2000 (Floribert Kisembo, Bosco Ntaganda, commanders Tchaligonza, Kasangaki, and Bagonza) organised a second revolt by Hema soldiers in the APC against President Nyamwisi and the RCD-ML, in the summer of 2002. 2920 1094. Similarly, D-0019 said that Floribert Kisembo, Bosco Ntaganda, as well as commanders Tchaligonza, Kasangaki and Bagonza were amongst the soldiers who participated in the April 2002 mutiny within the APC. 2921 P-0012 testified that in April 2002 the conflict began between the rebellious Hema soldiers, who had joined Thomas Lubanga, and Mr Mbusa Nyamwisi’s soldiers when the head of Mr

2914 T-126-Red2-ENG, page 23, line 10 to page 26, line 22. 2915 T-125-Red2-ENG, page 14, line 24 to page 15, line 2. 2916 T-343-ENG, page 57, line 1 to page 58, line 22 and page 61, line 19 to page 62, line 12. 2917 T-343-ENG, page 63, lines 6 – 14 and page 66, lines 8 – 9. 2918 T-343-ENG, page 67, lines 8 – 16. 2919 T-343-ENG, page 66, line 21 to page 68, line 22. 2920 ICC-01/04-01/06-2748-Red, para. 93. 2921 T-343-Red ENG, page 49, lines 9- 24 and page 76, lines 10 – 16. No. ICC-01/04-01/06 468/593 14 March 2012

Mbusa Nyamwisi’s personal guard was assassinated. 2922 1095. D-0019 indicated that Bunia was divided between the mutineers and the troops loyal to Governor Molondo Lompondo. 2923 The prosecution concedes D-0019 rejected the suggestion that the mutineers were loyal or otherwise connected to Thomas Lubanga, 2924 but it is suggested that other evidence contradicts his account. The 2925 prosecution refers to a document entitled “ Histoire de l’Union des Patriotes Congolais (U.P.C.) ”, which states that Bunia was “carved up into two zones of influence, one held by partisans of Thomas Lubanga and the other by men of Governor Mulondo”. 2926 1096. This document, the “ Histoire de l’Union des Patriotes Congolais (U.P.C.) ”, 2927 was shown to D-0019, who said it was a “rough copy” that did not reflect the reality of what occurred, and he rejected the suggestion that the mutineers were loyal to Thomas Lubanga or that UPC soldiers had been responsible for the expulsion of Governor Lompondo in August 2002. However, the witness conceded that Thomas Lubanga had probably read the document and seemingly had corrected the first paragraph on page 6, which contains references to two zones of influence in Bunia. 2928 1097. The document is dated 30 June 2004 and it bears Mr Lubanga’s handwritten annotations. 2929 A paragraph, to which no annotations were made, reads as follows: 2922 T-168-CONF-ENG, page 29, lines 1 – 11. 2923 T-343-ENG, page 82, lines 11 – 20 and page 84, lines 1 – 3. 2924 T-340-ENG, page 47, lines 8 – 20 and page 59, lines 11 – 23. 2925 ICC-01/04-01/06-2748-Red, para. 94. 2926 EVD-OTP-00672, interpreted in Court at T-343-ENG, page 81, line 8 to page 82, line 9 (D-0019). The spelling of the name varies in the transcript: “Mulondo” and “Molondo”. 2927 EVD-OTP-00672. 2928 T-343-ENG, page 80, line 9 to page 84, line 24 and T-344-Red-ENG, page 3, line 12 to page 7, line 3. 2929 EVD-OTP-00672; T-343-ENG, pages 78 - 79; interpretation at page 81, line 8 to page 82, line 7. No. ICC-01/04-01/06 469/593 14 March 2012

On the 17 th of April, through a political statement, the UPC withdrew its trust from Mbusa, and the UPC turned itself into a military political movement. This is because part of the army joined Lubanga’s ranks and created the 2930 nucleus of the armed unit of the UPC. 1098. The 11 August 2002 “Political Declaration of the FRP” 2931 declares that “[t]he armed dissidents of the RCD-ML aligned behind the ex-Minister of Defence of the RCD-ML, Thomas Lubanga, took control of Bunia and its surroundings […]”. 2932 P-0041 testified Thomas Lubanga was the president of the FRP, and he suggested that although the FRP did not have an armed wing, the “armed dissidents” referred to in this declaration were Thomas Lubanga’s “guards”. 2933 1099. The defence takes issue with the claim that some of the dissidents were Thomas Lubanga’s “guards”. 2934 As discussed above, P-0041 appeared to be mistaken about the roles of Floribert Kisembo and Bosco Ntaganda when Thomas Lubanga was the Minister of Defence of the RCD-ML, given he erroneously assumed they were part of the guard of the Ministry of Defence. 2935 It is clear P-0041 referred to the armed dissidents as guards because of this mistake, and therefore P-0041’s account supports other evidence in the trial that Floribert Kisembo and Bosco Ntaganda were involved in the military takeover of Bunia. 1100. P-0041 also said the Ugandans supported RCD-ML dissidents in chasing Governor Molondo Lompondo from Bunia, 2936 although he expressed doubts as to whether an “organised” army existed in

2930 EVD-OTP-00672, as interpreted in Court at T-343-ENG, page 81, line 8 to page 82, line 7 (D- 0019). 2931 EVD-OTP-00663. 2932 Unofficial translation of EVD-OTP-00663. 2933 T-125-Red2-ENG, page 13, line 23 to page 14, line 23. 2934 ICC-01/04-01/06-2773-Red-tENG, para. 377. 2935 See paras 1052-1053. T-125-Red2-ENG, page 3, lines 7 – 12. 2936 T-126-Red2-ENG, page 12, lines 10 – 13. No. ICC-01/04-01/06 470/593 14 March 2012

August 2002. 2937 Notwithstanding the prosecution’s submission that a loyal base of Hema soldiers and other supporters backed Thomas Lubanga, the evidence relied on from P-0041 only tends to demonstrate the existence of the rivalry between Thomas Lubanga and Mr Mbusa Nyamwisi. 2938 D-0019, whilst describing this conflict, did not indicate that Thomas Lubanga was supported by Hema soldiers. 2939 1101. The defence argues that the Political Declaration of the FRP of 11 August 2002 fails to establish that Thomas Lubanga was in control of an armed force affiliated with either the FRP or the UPC. 2940 The defence relies on the testimony of D-0019, who suggested that as regards the takeover of Bunia, “[s]everal people were trying to claim this military victory”. 2941 P-0041 agreed with the contention that it was likely that the FRP wanted to gain political capital from the takeover of Bunia, but he did not suggest the document contained inaccurate information. 2942 In all the circumstances, the evidence discussed above is inconclusive as to whether the FRP or the UPC had their own armed forces available to them in the summer of 2002. 1102. The defence further relies on P-0041’s testimony to suggest a wide cross-section of the population was represented in the UPC and the UPC-RP, and that the Hema were only a small minority. 2943 P-0041 was asked to describe the ethnicity of the signatories to the decree appointing members of the executive of the UPC-RP dated 3 2937 T-125-Red2-ENG, page 14, lines 19 – 23. 2938 T-124-Red2-ENG, page 80, line 20 to page 81, line 4. 2939 T-343-ENG, page 50, line 12 to page 52, line 6. 2940 ICC-01/04-01/06-2773-Red-tENG, paras 378 – 380 and ICC-01/04-01/06-2786-Red-tENG, para. 15. 2941 T-344-Red-ENG, page 28, line 7 to page 29, line 19. 2942 T-124-Red2-ENG, page 80 line 20 to page 81, line 4 and T-126-Red2-ENG, page 15, lines 20 – 25, and T-125-Red2-ENG, page 13, lines 16 – 17. 2943 ICC-01/04-01/06-2773-Red-tENG, paras 399, 781. No. ICC-01/04-01/06 471/593 14 March 2012

September 2002, 2944 and he indicated they included individuals from thirteen different ethnic groups. 2945 1103. A declaration dated 14 September 2002 from the UPC/FPLC Presidency, printed on official UPC letterhead and signed by Thomas Lubanga, sets out the objectives of the UPC-RP and states “the UPC- RP has taken [up] arms to remove all the forces that contribute to the destruction of Ituri” and has “put an end to the management of Ituri by the RCD-ML”. 2946 D-0019 stated this declaration accurately described the objectives of the UPC-RP. 2947 1104. A document dated 22 September 2002 on official UPC/FPLC letterhead, signed by Professor Dhetchuvi, states:

The Union of the Congolese Patriots for Reconciliation and Peace, the acronym of which is the UPC/RP, under the direction of Mr. Thomas Lubanga, is a political and military movement that was created on the 15th of 2948 September 2000. 1105. The defence contends that all the documents from the UPC archives suggesting that the UPC was involved in securing control of Bunia are unreliable as they were only intended as political propaganda. 2949 However, the Chamber does not accept the suggestion that these documents were created, at least in part, for this false purpose. Although they do not demonstrate the UPC had resorted to military action prior to the year 2002, they provide clear support for the oral evidence of various witnesses linking the armed takeover of Bunia with Thomas Lubanga.

2944 EVD-OTP-00721. 2945 T-126-CONF-ENG, page 27, line 9 to page 31, line 25. P-0041 did not know the ethnicity of three individuals on the list and one individual seems to have been skipped during questioning. 2946 EVD-OTP-00674, T-344-Red-ENG, page 36, lines 16 – 19. 2947 T-344-Red-ENG, page 36, lines 13 – 23. 2948 EVD-D01-00078. 2949 ICC-01/06-2773-Red-tENG, para. 786. No. ICC-01/04-01/06 472/593 14 March 2012

1106 In addition, during an interview Thomas Lubanga gave at his

residence in Bunia in June 2003, the accused stated the following

2950

about the UPC:

2951

[…] We came up in arms in 2000, in September. We did so to react to the short-comings and irresponsible behaviour of the RCD/ML that was managing the area. We didn't appreciate their policies. They didn't manage to solve the problems in Ituri and mainly the massacres that had almost become commonplace and institutionalised, and that's why we came up in arms. And the revolution was for -- in the interests of the Congolese in Ituri but also to ensure an amount of discipline among the leading politicians in the Congo. So our work in the UPC has both a political character to it, and on top of that, there's been a lot of conflict with the RCD/ML, because in 2002, on the 9th of August, we actually chased the RCD/ML out of Ituri and we occupied the whole of Ituri. […]

(5) Conclusion

1107 While there is no doubt Thomas Lubanga was a founding

member of the UPC at its creation in September 2000, together with at

least his co-perpetrator Rafiki Saba, there is a clear dispute as to the

nature of the UPC’s aims prior to late August/early September 2002.

The UPC’s founding documents describe a political programme as

well as the organisation’s military ambitions. Other contemporary

documents, including the 22 October 2002 declaration signed by

Thomas Lubanga,

2952

indicate the UPC-RP was a “political-military

movement”, established on 15 September 2000, which had taken up

arms against the RCD-ML.

1108 On the available material there is real uncertainty as to whether,

at the outset, the UPC was created as part of a plan to build an army in

2950 EVD-OTP-00584; T-130-Red2-ENG, page 36, line 18 and page 39, lines 5 – 10 and lines 22 – 23. The Chamber notes that the prosecution submits that the interview took place on 5 June 2003, ICC- 01/04-01/06-2748-Red, para. 281. However, the accused refers to 12 June 2003 in the interview (T- 130-Red2-ENG, page 48, line 23). The Chamber is satisfied that the interview took place in June 2003. 2951 EVD-OTP-00584, interpretation taken from the transcript of the hearing, T-130-Red2-ENG, page 45, lines 13 – 24 (emphasis added). The English transcript refers to the year 2000, but the French transcript (reflecting the original language of the interview) contains the correct date of 9 August 2002. 2952 EVD-OTP-00665.

No. ICC-01/04-01/06 473/593 14 March 2012

order take control of Ituri. Further, although there is evidence that members of the FRP became members of the UPC, the exact relationship between the two groups in the period before August 2002 is unclear. That said, the evidence of witnesses such as P-0041, P-0014 and P-0012, together with the documentary evidence, has established that by the summer of 2002 Thomas Lubanga personally intended to take control of Bunia. His leadership role and ambitions – particularly overthrowing Mr Mbusa Nyamwisi and taking control of Ituri – are reflected in the evidence about the meeting in Kampala in June 2002. 1109. It is also clear that he was in contact with Bosco Ntaganda and Floribert Kisembo while he acted as Minister of Defence for the RCD- ML. 1110. On the basis of the evidence of P-0041, P-0014 and P-0002, the Chamber is persuaded that Thomas Lubanga was represented by Richard Lonema in his absence in the summer of 2002. Mr Lubanga was able to give orders and instructions to his co-perpetrators and other individuals (including Richard Lonema), whilst in detention in Kinshasa. 1111. The Chamber is satisfied that recruitment and training was carried out during the summer of 2002. P-0038’s testimony concerning various recruitment activities carried out by Chief Kahwa and Bosco Ntaganda between 2001 and September 2002 is corroborated by D- 0006 and D-0037, who gave evidence about joining the UPC or its armed group and the training centre in Mandro, with which both Chief Kawha and Bosco Ntaganda were involved. P-0116 and P-0046 similarly referred to recruitment by the UPC or within the Hema community, and P-0014 and P-0016 testified about military training in

No. ICC-01/04-01/06 474/593 14 March 2012

Mandro that was conducted by the UPC. The Chamber accepts P- 0014’s testimony that the main military leaders in July and August 2002 included Floribert Kisembo, Bosco Ntaganda and Chief Kahwa. 1112. The documents discussed above demonstrate the link between Thomas Lubanga and the armed forces that took control of Bunia. Document EVD-D01-00050, which is a declaration of the managerial staff signed, inter alia , by Mr Lubanga, indicates the signatories were dissatisfied the RCD-ML was in power and they were seeking a change of government. Although the UPC is not referred to in this document, D-0019 confirmed that 11 of the 13 signatories, including the accused, would later form part of the UPC. Document EVD-OTP- 00663, a political declaration of the FRP dated 11 August 2002, signed by Mr Lubanga and three others (the latter also signed document EVD-D01-00050) sets out that the FRP, assisted by the armed dissidents from the APC who supported Thomas Lubanga, took control of Bunia and it declared the end of the RCD-ML’s power in Ituri. Whether the forces were officially affiliated to the UPC, as suggested in some of the founding documents, is not determinative. What is relevant is that many of the individuals who signed these two declarations were, or became, members of the UPC/FPLC, the body that exercised control over Ituri after the departure of the RCD-ML from Bunia. Although the involvement of the UPC in the mutiny against the RCD-ML and the subsequent takeover of Bunia in August 2002 is a highly contested issue, the military aims of those who are said to have acted with the accused – including Floribert Kisembo, Chief Kahwa, Bosco Ntaganda and commanders Tchaligonza, Kasangaki, and Bagonza – and their involvement in the August 2002 rebellion are clear. Confirmation of this was provided by D-0019, P-

No. ICC-01/04-01/06 475/593 14 March 2012

0012 and, to an extent, P-0041. The document, the “ Histoire de l’Union des Patriotes Congolais (U.P.C.) ” , suggests that there were two 2953 conflicting parties, namely those loyal to Mr Lubanga and those loyal to Governor Mulondo, and it implies that the forces that took over Bunia were affiliated to the UPC. Document EVD-OTP-00674, along with the evidence of D-0019, demonstrate that the UPC/FPLC Presidency, namely, the accused, acknowledged in September 2002 that the UPC had taken control of Bunia from the RCD-ML by military means. In addition, in the interview Thomas Lubanga gave in June 2003, 2954 he attributed the military takeover of Bunia in August 2002 to the UPC. 1113. P-0016 testified that to his knowledge the structure of the FPLC, and in particular the main staff, was created after the UPC took control over Bunia. However, the Chamber has not accorded any 2955 significant weight to this evidence because its source was not explained. 1114. Regardless of the extent of the UPC’s military involvement in the defeat of the RCD-ML, the UPC-RP claimed responsibility for the victory. It appears that on 2 September 2002 the name “FRP” was dropped. 2956 1115. Thomas Lubanga returned to Bunia around 1 September 2002 2957 and was appointed President of the UPC and Commander in Chief of

2953 EVD-OTP-00672. 2954 EVD-OTP-00584. 2955 T-190-CONF-ENG, page 75, line 25 to page 76, line 8. 2956 P-0041 testified that on 2 September 2002 a decree, signed by Thomas Lubanga, was issued to name the group “UPC/RP” rather than “FRP/UPC”. T-125-Red-ENG, page 17, line 19 to page 19, line 20. 2957 T-181-Red2-ENG, page 53, lines 21 – 22 (P-0014). No. ICC-01/04-01/06 476/593 14 March 2012

the FPLC army (the military wing of the UPC). 2958 This event appears to constitute the formal establishment of the FPLC.

1116 On 2 and 3 September 2002 he appointed the executive of the UPC/FPLC, 2959 including Floribert Kisembo and Bosco Ntaganda – the same men who had been the architects of the rebellion against the RCD-ML and who had been actively involved in recruiting and training recruits prior to the takeover of Bunia. c) The goals of the UPC/FPLC after September 2002

1117 The Chamber heard evidence on the aims of the UPC/FPLC after it had taken control of Bunia and came officially under the leadership of Thomas Lubanga. 1118. P-0012 gave evidence that prior to the accused’s official appointment as President of the UPC/FPLC, it did not function as a political party 2960 and he suggested it only became a separate party when they took control of the city of Bunia after the RCD-ML left. 2961 1119. D-0019 testified that in September 2002 the armed force that had been under the leadership of Chief Kahwa, Floribert Kisembo and Commander Tchaligonza was restructured by the UPC and was named the FPLC. 2962 D-0037 gave similar evidence. 2963 1120. As previously indicated, a declaration from the presidency 2958 T-168-Red2-ENG, page 17, lines 18 – 21 (P-0012) and T-181-Red2-ENG, page 53, line 25 to page 56, line 10 (P-0014). 2959 T-181-Red2-ENG, page 54, line 19 to page 55, line 21 (P-0014); T-124-Red2-ENG, page 69, lines 13 – 19 (P-0041); T-174-Red2-ENG, page 47, line 23 to page 48, line 7, T-175-Red2-ENG, page 4, line 22 to page 5, line 7; T-346-ENG, page 73, lines 10 – 16 (D-0011); D-0011 stated that he thought it was the end of September 2002, but in light of the totality of the evidence, the Chamber is sure that it was in fact at the start of that month. 2960 T-168-Red2-ENG, page 17, lines 19 – 23. 2961 T-168-CONF-ENG, page 17, lines 15 – 18 and page 20, lines 23 - 24. 2962 T-340-ENG, page 68, lines 11 – 17. 2963 T-349-ENG, page 7, line 12 to page 8, line 20 and page 21, lines 1 – 7. No. ICC-01/04-01/06 477/593 14 March 2012

(dated 14 September 2002) 2964 and another from the UPC/FPLC concerning the Inter-Congolese dialogue (dated 22 October 2002) 2965 describe the UPC-RP as a political and military movement that had been in conflict with the RCD-ML. 2966 The Chamber does not accept the defence suggestion that these documents were created as propaganda – the UPC-RP was a political and military body, and it is of note that the defence accepts that the UPC-RP resorted to arms after its formation in September 2002. 2967 1121. A message from the President of the UPC/FPLC dated 11 September 2002 that was broadcast over Radio Candip provided an account of the creation of the UPC and the means of achieving a lasting peace in Ituri. 2968 The aim of the UPC was said to be “genuine reconciliation” and a “durable peace”. 2969 The message ended with the words “ Vive le territoire sous contrôle de l’Union des Patriotes Congolais pour la Réconciliation et Paix ”. It is undisputed that by the beginning 2970 of September 2002, at the latest, the UPC/FPLC was in control of Bunia. 2971 Thomas Lubanga set out in a letter to Kinshasa that his movement was in effective political and military control of the territory. 2972 1122. Moreover, members of the UPC/FPLC publicly described the role that the UPC’s armed forces should play in Ituri. As discussed in

2964 EVD-OTP-00674. 2965 EVD-OTP-00665, read aloud and interpreted in Court at T-342-ENG, page 25, line 23 to page 26, line 5 (D-0019). 2966 Moreover, D-0019 conceded that the UPC-RP as of September 2002 had a political and military character. T-342-ENG, page 36, line 23 to page 37, line 1. 2967 ICC-01/04-01/06-2773-Red-tENG, para. 794. 2968 EVD-OTP-00735; T-125-Red2-ENG, page 21, line 25 to page 22, line 22 and page 23 line 22 to page 24, line 5 (P-0041). 2969 EVD-OTP-00735, pages 3 - 4. 2970 EVD-OTP-00735, page 4. 2971 T-346-ENG, page 74, lines 6 – 12 (D-0019). 2972 EVD-OTP-00664. No. ICC-01/04-01/06 478/593 14 March 2012

greater detail hereafter, Thomas Lubanga spoke of the military aims of

the UPC/FPLC, for example when addressing recruits at the

Rwampara training camp on 12 February 2003.

2973

P-0002, who

attended

2974

a rally on 26 February 2003 at the stadium in the centre of

Bunia,

2975

identified Commander Eric Mbabazi

2976

of the UPC from a

video excerpt. Mr Mbabazi (who was the G5 within the

2977

UPC/FPLC)

2978

stated as follows:

Our young people enlisted in the army in order to seek change. Our army is now called the revolutionary army. It’s an army which first and foremost wants change, change in its country. We need change in our villages, in our land, in our territory. The population wants to see change. The population must be able to see the difference between good and bad. The population will need to see change, and when our young people started this work in the army, it was to chase out a group that was making the Congolese population in the country suffer […] When the army will follow this objective we will tell the population of Ituri to support us, and you know we face a lot of 2979 difficulties, and you know young people are sacrificing themselves.

1123 This was echoed in a speech delivered at the rally on the same

day by an Iturian governor, Mr Misaka:

I would like to congratulate you for walking. You are behind the movement of the UPC and its president, and our march today also shows the support that we provide to our children who work night and day. Here I'm referring to the Patriotic Forces for the Liberation of the Congo, forces patriotiques pour la libération du Congo, and we congratulate them. They are -- they are giving their blood for us to be able to live in peace, for us to be able to live in calm. That's why we congratulate them. They must move on forward. They have given their bodies, their life to protect the population. Without the population, there is no president. If there is no population, there are no 2980 soldiers. There are no governors.

1124 The media was also used to spread the military aims of the

2973 See para. 1242. 2974 T-162-Red2-ENG, page 29, line 24 to page 30, line 1. 2975 T-162-Reds-ENG, page 31, lines 11 – 13 and page 33, lines 1 – 13. 2976 T-162-Red2-ENG, page 37, line 24 to page 38, line 5. 2977 EVD-OTP-00410/EVD-OTP-00676, from time code 00:34:58 to 00:00:38; T-162-Red-ENG, page 35, line 7 to page 37, line 23 (P-0002). 2978 T-154-Red2-ENG, page 24, lines 3 – 4 (P-0017). 2979 Interpretation in court, T-162-Red-ENG, page 36, line 21 to page 37, line 23. 2980 Interpretation in court. T-162-Red2-ENG, page 32, lines 8 – 17.

No. ICC-01/04-01/06 479/593 14 March 2012

UPC/FPLC, and P-0041 indicated that the UPC/FPLC alone was able to broadcast on Radio Candip between September 2002 and March 2003. 2981 P-0014 acknowledged the existence of this restriction, and he noticed many changes in the organisation of the radio programmes. 2982 Each time P-0014 heard Floribert Kisembo on the radio, he spoke from a military perspective and delivered a message that was favourable to the army. 2983 P-0014 understood Floribert Kisembo’s opinion was that peace could only be secured by force and, in essence, he was referring to the Lendus when he spoke about their enemies. 2984 1125. On the basis of the evidence rehearsed above, including the testimony of D-0019 and D-0037, the Chamber finds that by September 2002, at the latest, the UPC had a military wing (the FPLC). The Chamber is persuaded that the UPC exercised political and military control over Bunia, and that it had clear military aims, particularly to expand its role in Ituri. d) Conclusion and legal findings on the common plan

1126 The prosecution submits that by September 2002, the first phase of the common plan had been successfully coordinated and implemented, given the UPC/FPLC controlled Ituri; Thomas Lubanga was President and Commander-in-Chief; the co-perpetrators held senior positions in the movement; and the military wing had an official position, as well as a source of recruits. 2985 The prosecution submits that in order to remain in power and to extend its territorial

2981 T-125-Red2-ENG, page 23 line 22 to page 24, line 5. 2982 T-182-Red2-ENG, page 44, lines 13 – 16. 2983 T-182-Red2-ENG, page 45, lines 5 – 7. 2984 T-182-Red2-ENG, page 45, lines 8 – 10. 2985 ICC-01/04-01/06-2748-Red, para. 137. No. ICC-01/04-01/06 480/593 14 March 2012

control, the army needed to grow in size and strength. 2986 1127. The defence argues the evidence fails to demonstrate the existence of a concerted plan of any kind between Thomas Lubanga and his alleged co-perpetrators prior to early September 2002, 2987 and that from September 2002, the evidence regarding the institutional links between Thomas Lubanga and the civil and military officials of the UPC-RP and the FPLC fails to establish a “concerted plan” of a criminal character. In particular, it is suggested that gaining control of a territory by military means and enlisting recruits, do not in themselves reveal a relevant “element of criminality”, and any crimes that were committed should not be regarded as the inevitable consequence of the underlying project. 2988 1128. The evidence shows there was a significant conflict between Thomas Lubanga and the RCD-ML from at least April 2002, and that the accused headed a group that sought to bring about political changes in Ituri, including the removal of Mr Mbusa Nyamwisi and Governor Molondo Lompondo. As the Chamber has already observed, it is notable that eleven of the signatories of the 17 April 2002 Declaration were later to become members of the UPC/FPLC. Furthermore, the second APC revolt, which occurred at the same time, was directed at Mr Mbusa Nyamwisi and the RCD-ML and once again involved Floribert Kisembo, Bosco Ntaganda, as well as commanders Tchaligonza, and Kasangaki, all of whom are alleged to have been coperpetrators with the accused. The “ Histoire de l’Union des Patriotes Congolais (U.P.C.) ” is of significance in this context: the accused read

2986 ICC-01/04-01/06-2748-Red, para. 137. 2987 ICC-01/04-01/06-2773-Red-tENG, para. 801. 2988 ICC-01/04-01/06-2773-Red-tENG, para. 801. No. ICC-01/04-01/06 481/593 14 March 2012

and annotated it, and whilst he made certain changes he did not alter or comment on the assertion that on 17 April 2002 the UPC became a political-military movement. Furthermore, this document – which, in all the circumstances, the Chamber is satisfied the accused approved, given the detail of the alterations he inserted – sets out that in 2002 part of Bunia was held by his partisans. The Chamber accepts the evidence of P-0014 that he was told in June 2002 by Mr Lubanga that the people of Ituri needed to rise up to oust Mr Mbusa Nyamwisi, and this would be achieved by both diplomatic and military means. For reasons set out elsewhere, the Chamber is satisfied, notwithstanding the criticisms of the defence, that P-0014 was a credible and reliable witness. 1129. Furthermore, the Chamber is of the view the inevitable inference to be drawn from the evidence of P-0014 is that Chief Kahwa and Mr Beiza were sent by the accused to Rwanda to obtain arms.

1130 On all the relevant material, the Chamber is persuaded the accused intended to organise an army in order to fight Mr Nyamwisi and the RCD-ML. Additionally, Mr Lubanga sent a letter which set out that in the summer of 2002 the UPC delegation had been detained in Kinshasa, and it was against the background of his detention that he was provided with assistance in order to exercise his authority by Richard Lonema, Chief Kahwa and others, which included recruiting, mobilising and supervising the army. This conclusion is unaffected by the fact that there may have been little notice of the impending detention of the delegation sent to Kampala in June 2002. The Chamber accepts the evidence that the accused gave Richard Lonema instructions between July and August 2002, and the Chamber notes that, certainly in part, P-0041 agreed with this evidence. Critically, the

No. ICC-01/04-01/06 482/593 14 March 2012

evidence demonstrates the accused and Mr Lonema discussed the general policy that was to be adopted, and the former gave instructions that Mr Lonema acted on. The latter was the accused’s delegate, and Mr Lubanga was kept informed about, and controlled the activities of, the UPC from detention. 1131. During the course of July and August 2002, the main players in the armed group that was eventually transformed into the UPC’s armed branch, the FPLC, included Floribert Kisembo, Bosco Ntaganda and Chief Kahwa, three of the accused’s alleged co-perpetrators, and they had particular responsibility for recruitment and training. 1132. On all the evidence, the Chamber is persuaded the accused was involved, along with some of his co-perpetrators, in the takeover of Bunia. The lack of certainty as to his formal position within the UPC at the time is largely irrelevant because it is the objectives and acts of the co-perpetrators, including the accused, which are critical for the charges. The evidence of P-0016 as to Floribert Kisembo’s and Bosco Ntaganda’s involvement in transferring him (P-0016) and other former APC soldiers to the training camp in Mandro in order to build a new army, and the evidence of D-0037 that the Mandro force was subsequently transformed into the FPLC immediately after the takeover of Bunia, suggests that there was close coordination between the rebels and the members of the UPC. In all the circumstances, D- 0019’s evidence that the rebels only transferred political leadership to Thomas Lubanga after Bunia came under their control lacks credibility. 1133. The evidence has demonstrated that Thomas Lubanga, following his return to Bunia in September 2002, appointed members

No. ICC-01/04-01/06 483/593 14 March 2012

of staff and filled positions within the UPC/FPLC. Elements of the group which became officially known as the FPLC in September 2002, at the latest, had taken up arms during the summer of 2002 to remove the forces that it considered were contributing to the destruction of Ituri, particularly the RCD-ML. 1134. Therefore, at least from September 2002, the accused as President of the UPC-RP endorsed a common plan to build an effective army to ensure the UPC/FPLC’s domination of Ituri, and he was actively involved in its implementation. Thomas Lubanga appointed Chief Kahwa, Floribert Kisembo and Bosco Ntaganda to senior posts within the UPC/FPLC, and they played significant roles in relation to the recruitment and training of soldiers. This plan, including the accused’s involvement, remained essentially unchanged during the time-frame of the charges. 1135. As to the events that took place prior to the period of the charges, the central issue – given the continuous nature of the offences – is whether the co-perpetrators, including the accused, knew that children below the age of 15 who had been previously recruited would remain within the UPC/FPLC following September 2002. The Chamber is satisfied that the armed forces which had been recruited and trained by Chief Kahwa, Floribert Kisembo and Bosco Ntaganda prior to the takeover of Bunia, in due course became part of the FPLC, and the training camps that had been established by Chief Kahwa and Bosco Ntaganda in Mandro continued to be used in this context.

1136 It has been proved that by September 2002 at the latest Thomas Lubanga, the President of the UPC/FPLC, had entered into an agreement, and thereafter participated in a common plan, with his co-

No. ICC-01/04-01/06 484/593 14 March 2012

perpetrators to build an effective army in order to ensure the UPC/FPLC’s political and military control over Ituri. This plan resulted in the conscription, enlistment and use of children under the age of 15 to participate actively in hostilities, a consequence which occurred in the ordinary course of events. This conclusion satisfies the common-plan requirement under Article 25(3)(a). 2. THOMAS LUBANGA’S ESSENTIAL CONTRIBUTION

1137 Given the requirement that Thomas Lubanga provided an essential contribution, it is necessary to analyse his role and his contribution in accordance with the common plan. 1138. The prosecution contends that “[w]ithout the contribution of the accused as head of the UPC/FPLC and architect of its policies, the implementation of the common plan using criminal means – the recruitment and use of child soldiers – would have been frustrated”. 2989 It is argued that to demonstrate an essential contribution by the accused in the implementation of the common plan, “it is sufficient in this case that the Accused was in control over the FPLC and had an instrumental role in the functioning of the military”. 2990 1139. The defence argues that the accused has not been prosecuted as a civil or military commander who is responsible for the acts of his subordinates, but instead for his personal responsibility for the alleged crimes. 2991 It suggests that whether Thomas Lubanga had effective control over the FPLC and had knowledge of the crimes is immaterial in the instant case. Further, it is argued that Thomas Lubanga’s alleged

2989 ICC-01/04-01/06-2778-Red, para. 18. 2990 ICC-01/04-01/06-2778-Red, para. 19. 2991 ICC-01/04-01/06-2773-Red-tENG, para. 818. No. ICC-01/04-01/06 485/593 14 March 2012

central role in the functioning of this organisation cannot be characterised as amounting to an “essential contribution” and it is insufficient to form the basis of responsibility as a co-perpetrator. 2992 The defence submits the accused’s logistical and organisational role as regards military operations, including providing the FPLC with weapons and ammunition, is irrelevant to his alleged contribution to the crimes with which he is charged. 2993 The defence suggests the leader of a political-military group cannot be considered criminally responsible for crimes committed by his or her troops solely on the basis of having provided logistical support or having facilitated their activities. 2994 Therefore, it is argued that activities of this kind cannot constitute an essential contribution to the recruitment or use of children under the age of 15 in combat, because the offences were not dependent on the alleged role the accused. The defence submission 2995 is that an overall coordinating falls short of an essential contribution. 2996 1140. In order to determine whether Thomas Lubanga performed an essential role in accordance with the common plan, the Chamber has examined his position within the UPC/FPLC and the entirety of the contribution he made to the conscription, enlistment and use of children under the age of 15 to participate actively in hostilities. a) Thomas Lubanga’s role in the UPC/FPLC (1) Thomas Lubanga’s position in the UPC/FPLC

2992 ICC-01/04-01/06-2773-Conf, paras 818 – 820 and ICC-01/04-01/06-2786-Red-tENG, paras 24 – 28. 2993 ICC-01/04-01/06-2773-Red-tENG, paras 824 and 825. 2994 ICC-01/04-01/06-2773-Red-tENG, para. 824. 2995 ICC-01/04-01/06-2773-Red-tENG, para. 824. 2996 ICC-01/04-01/06-2773-Red-tENG, para. 826. No. ICC-01/04-01/06 486/593 14 March 2012

1141 The Chamber heard evidence relating to the issue of Thomas

Lubanga’s role within the UPC/FPLC and to the question of whether

he was, de facto , in a position to exercise the authority accorded to him

in his official role as President of the UPC/FPLC.

1142 It is undisputed that Thomas Lubanga was the President of the

UPC and Commander-in-Chief of its armed wing, the FPLC, 2997

throughout the period of the charges. Several witnesses gave 2998

evidence that decisions were taken and orders were issued by the

President or the Presidency, and they were all under the President’s

authority. 2999 P-0012 stated the accused was never referred to by any

title other than the President of the UPC, and P-0016 indicated that 3000

he understood the expression “the Presidency” to refer to Thomas

Lubanga. 3001 His evidence was that the FPLC was commanded by the

Presidency, and that Thomas Lubanga, as the President of the UPC, 3002

was therefore the Commander-in-Chief. P-0014 indicated that in 3003

accordance with the laws that were announced over the radio, 3004

Thomas Lubanga, as President of the UPC/FPLC, was also the

National Secretary for Defence. 3005 On this basis, P-0014 concluded

Thomas Lubanga was the political leader of the army, and he observed

that there had been a clear statement to the effect that he was the

2997 See the Agreement entitled “Agreement between the UPC/RP and the UPDF” signed on behalf of the “UPC/RP (FPLC)”, EVD-OTP-00693; T-349-ENG, page 8, lines 15 – 20 and page 20, line 20 to page 21, line 12 (D-0037). 2998 T-168-Red2-ENG, page 17, lines 18 – 21 and page 72, lines 3 – 6 (P-0012); T-170-Red2-ENG, page 51, lines 12 – 14 (P-0024); T-179-Red2-ENG, page 39, line 23 (P-0014); T-189-Red2-ENG, page 4, lines 10 – 15 (P-0016); T-113-Red2-ENG, page 32, lines 1 – 5 (P-0038) . 2999 T-179-Red-ENG, page 39, lines 23 – 25 (P-0014); T-125-Red2-ENG, page 40, lines 17 – 19 (P- 0041); T-175-CONF-ENG, page 20, lines 3 – 4 and page 22, lines 12 – 23 (P-0055). 3000 T-168-Red2-ENG, page 72, lines 3 – 6. 3001 T-189-Red2-ENG, page 4, lines 21 – 24. 3002 T-189-Red2-ENG, page 4, lines 19 – 20 (P-0016). 3003 T-189-Red2-ENG, page 4, lines 21 – 24; T-190-Red2-ENG, page 37, line 24 to page 38, line 5 (P- 0016). 3004 T-181-Red2-ENG, page 54, line 24 to page 55, line 5. 3005 T-181-Red2-ENG, page 56, lines 1 – 5.

No. ICC-01/04-01/06 487/593 14 March 2012

Commander-in-Chief of the army – put otherwise, there was no one in command above him. 3006 1143. When he returned to Bunia around 1 September 2002, 3007 Thomas Lubanga, as President, appointed members of his staff and filled positions within the UPC/FPLC. 3008 P-0041 testified that the decree of 2 September 2002 which gave the group the name UPC-RP, instead of the FRP-UPC, was signed by Thomas Lubanga, although he could not say who decided on the change. 3009 As President of the UPC/FPLC, Thomas Lubanga also issued a decree appointing the Governor and the two Vice-Governors of Ituri. 3010 1144. The disputed evidence from P-0014 was that civilians and members of the military made suggestions to Thomas Lubanga for his decision. 3011 The witness gave evidence that after 20 August 2002, once the accused had arrived, the members of the political and military elite included Thomas Lubanga, John Tinanzabo, Daniel Litsha, Adèle Lotsove, Pilo Kamaragi, Richard Lonema and, at the outset, Chief Kahwa. 3012 1145. P-0055 stated that the Chief of Staff and the Deputy Chief of Staff were responsible for implementing any plans concerning the structure of the army, in particular the establishment of sectors and brigades, and these decisions were subject to the approval of President

3006 T-181-Red2-ENG, page 56, lines 5 – 10. 3007 T-181-Red2-ENG, page 53, line 21 to page 54, line 7 (P-0014). 3008 T-181-Red2-ENG, page 54, line 19 to page 55, line 15 (P-0014); T-124-CONF-ENG, page 69, lines 13 – 21 (P-0041); T-174-CONF-ENG, page 47, line 23 to page 48, line 7, T-175-CONF-ENG, page 4, line 22 to page 5, line 7 (P-0055). See also the decree appointing members of the government, EVD-OTP-00721 dated 3 September 2002, signed by Thomas Lubanga. 3009 T-125-Red2-ENG, page 17, line 19 to page 19, line 5. 3010 EVD-OTP-00734. 3011 T-181-CONF-ENG, page 94, line 1 to page 95, line 8. 3012 T-181-CONF-ENG, page 92, line 23 to page 93, lines 7 – 17. No. ICC-01/04-01/06 488/593 14 March 2012

Lubanga. 3013 When dealing with meetings the accused held on military matters, P-0014 gave evidence that, at the outset, the accused had insufficient technical knowledge of military matters, but he learnt quickly and easily became familiar with the subject. 3014 P-0014 was told, even at this early stage, that Mr Lubanga either approved or disapproved certain operations that were being planned. 3015 1146. As an example of Thomas Lubanga’s authority within the UPC/FPLC, P-0014 gave evidence that after September 2002, all the members of the UPC executive 3016 had been ordered by President Lubanga to go to Mandro for two weeks’ training. 3017 The defence challenged this indirect evidence, but P-0014 maintained his account. 3018 1147. After several months in power, Thomas Lubanga appointed a new executive by the UPC/FPLC decree of 11 December 2002. 3019 Article 1 stated that defence and security were the responsibility of the Presidency and the positions of Minister and Deputy Minister for Defence were unassigned. 3020 Thomas Lubanga therefore retained the defence and security portfolio for himself. 1148. The Chamber heard evidence on the involvement of the accused in planning and contributing to operations. Thomas Lubanga’s private secretary (D-0011) gave evidence that whilst he was working for the accused from, approximately, August 2002 to September 2004, 3021 he

3013 T-175-CONF-ENG, page 33, lines 13 – 14. 3014 T-181-CONF-ENG, page 97, lines 2 – 4. 3015 T-181-CONF-ENG, page 97, lines 4 – 6. 3016 T-185-Red2-ENG, page 11, lines 9 – 11. 3017 T-182-CONF-ENG, page 19, lines 19 – 25. 3018 T-185-Red2-ENG, page 13, lines 18 – 21. 3019 EVD-OTP-00687. 3020 EVD-OTP-00687. 3021 T-346-ENG, page 74, lines 6 – 15 and page 75, lines 3 – 6. No. ICC-01/04-01/06 489/593 14 March 2012

was responsible for procuring the military rations or supplies that had been purchased by Thomas Lubanga. 3022 1149. During an interview at his residence in Bunia, 3023 the accused indicated the UPC/FPLC had bought ammunition from Uganda, 3024 and in a letter dated 12 July 2003, a General in the “ Force Multinationale Intérimaire ” was requested to return weapons seized from the UPC/FPLC at a camp in Miala. The Chamber notes the accused did 3025 not sign this letter personally and someone signed it on his behalf. 1150. P-0016 gave evidence to the effect that President Lubanga was not involved in planning military operations conducted by the FPLC because he was not a soldier, and instead he waited at his residence for reports from his Chief of Staff and others. 3026 Instead, he suggested Mr Lubanga had a role securing the provisions that were used by the soldiers during these operations. 3027 P-0016 indicated the accused issued instructions for this purpose, in that he “would give it to the Chief of Staff. And the G4 would go out to get food.” 3028 P-0016 testified that Mr Lubanga negotiated with the traders, whom P-0016 referred to as the “brothers” of the accused, to collect money or vehicles for the army (the latter were used to secure food or for transport). 3029 P-0016 also indicated “he couldn’t have another role” other than providing logistical support. 3030 P-0016 testified that following “negotiations” between Mr Lubanga, Bosco Ntaganda,

3022 T-346-ENG, page 75, lines 14 – 16. 3023 EVD-OTP-00584 at 01:03:00 – 01:04:00; T-130-Red2-ENG, page 39, lines 5 – 10 and lines 22 – 23. 3024 EVD-OTP-00584, interpretation from transcript T-130-Red2-ENG, page 48, lines 14 – 19. 3025 EVD-OTP-00685. 3026 T-190-Red2-ENG, page 9, lines 19 – 24. 3027 T-190-Red2-ENG, page 10, line 10 to page 11, line 8. 3028 T-190-Red2-ENG, page 10, lines 10 – 12. 3029 T-190-Red2-ENG, page 10, line 24, to page 11, line 8. 3030 T-190-Red2-ENG, page 10, line 10. No. ICC-01/04-01/06 490/593 14 March 2012

“Ali” 3031 and the RCD, 3032 weapons were dropped from aircraft at the military base in Mandro, where there was a weapons depot. The 3033 Chamber concludes there is strong evidence that the accused provided support for the troops in this way. However, the Chamber does not accept the evidence of P-0016 as to the extent of Mr Lubanga’s control over operations. His account was, at least in part, inconsistent and it was difficult to follow, and it was improbable when compared with other witnesses on this issue, whose evidence the Chamber has accepted. 1151. Other evidence demonstrates the accused was involved substantively in military affairs. P-0055 testified that the accused was involved in planning a particular operation in 2003 before fighting occurred between the UPC/FPLC and the UPDF in Bunia. 3034 The witness suggested the arrangements for this operation were made in the presence of the accused at the latter’s residence. More generally, 3035 the witness stated that when Bosco Ntaganda and the main staff planned operations, they informed the President of their requirements and he secured the necessary finances and logistical support. 3036 P-0055 also described an occasion when the accused gave instructions in the course of a tense military event and a “battle plan” was drawn up by the Chief of Staff in his office. 3037 1152. P-0017 testified that after the operations in Kobu, Bambu and

3031 The Chamber notes that “Ali” could be referring to Ali Mbuyi, who was said to have replaced Idriss Bobale as G2. P-0016 said the G2 was responsible for security, T-189-CONF-ENG, page 5, line 20 to page 6, line 1 and page 80, lines 7 – 10 (P-0016). 3032 T-189-Red2-ENG, page 43, line 20 to page 44, line 5. 3033 T-189-Red2-ENG, page 43, lines 20 – 24. 3034 T-175-CONF-ENG, page 10, lines 1 – 13. 3035 T-175-Red2-ENG, page 10, line 24 to page 11, line 8. 3036 T-178-Red2-ENG, page 61, line 21 to page 62, line 18 and page 63, lines 5 – 16; T-175-Red2- ENG, page 11, lines 8 – 11 and lines 20 – 21. 3037 T-178-CONF-ENG, page 29, line 2 to page 31, line 19. No. ICC-01/04-01/06 491/593 14 March 2012

Lipri, most of his brigade returned to Bunia where it was billeted in the EPO camp close to the residence of the accused. While the 3038 witness was in Bunia, he escorted his brigade commander, Salumu, to the accused’s residence although he was unaware of the reasons for the visit. 3039 After about an hour and a half, Commander Salumu left the meeting with the accused and told P-0017 that “[t]he orders were just to take the camp”. 3040 The witness did not understand this to mean that Thomas Lubanga had issued these orders, but rather the commander did not want to tell him anything. 3041 Notwithstanding this lack of detail, P-0017’s evidence concerning this meeting lends support to the account of P-0055. 1153. P-0014 testified that after August 2002, Adèle Lotsove, Neme Ngona, Floribert Kisembo and Chief Kahwa were in Aru in order to deploy UPC soldiers peacefully and to mobilise the population in support of the UPC. The witness also testified that Adèle Lotsove 3042 had been entrusted by Thomas Lubanga to speak with the “notables” in Aru so as to gain support for the accused. 3043 They each made reports by telephone to Thomas Lubanga. 3044 1154. P-0014 suggested the military participated in this exercise, given there were troops in Aru, and the Chief of Staff, Floribert Kisembo, led the UPC contingent and Commander Jerôme Kakwavu, who was accompanied by troops, was also present. 3045 The witness indicated Thomas Lubanga received reports from Floribert Kisembo

3038 T-158-Red2-ENG, page 13, line 17 to page 14, line 10. 3039 T-158-Red2-ENG, page 14, lines 3 to 17 and page 15, line 20 to page 16, line 13. 3040 T-158-Red2-ENG, page 16, line 15 to page 17, line 1 (P-0017). 3041 T-158-Red2-ENG, page 17, lines 2 – 7 (P-0017). 3042 T-181-CONF-ENG, page 82, line 16 to page 84, line 6. 3043 T-181-CONF-ENG, page 83, lines 19 – 22 and T-181-Red2-ENG, page 84, lines 15 – 23. 3044 T-181-Red2-ENG, page 82, lines 20 – 21. 3045 T-181-Red2-ENG, page 83, line 23 to page 84, line 3 and lines 7 – 11. No. ICC-01/04-01/06 492/593 14 March 2012

by telephone, 3046 and Chief Kahwa and Floribert Kisembo spoke to Thomas Lubanga, who had ordered the transfer of soldiers from Bunia. 3047 P-0014 stated that Chief Kahwa and Floribert Kisembo were informed by Thomas Lubanga that soldiers would be arriving shortly. 3048 P-0014 understood this was an order, given the soldiers then arrived. P-0014 noticed they were wearing new uniforms and 3049 they had been given new weapons. 3050 1155. In this context P-0014 also gave evidence on the accused’s involvement in procuring weapons and uniforms. 3051 According to information he received, weapons and uniforms had been airdropped near Mandro, having come from Rwanda pursuant to an agreement between the UPC and Rwanda. 3052 P-0014 testified that Chief Kahwa and Beiza Nembe had already established contacts in this context. 3053 The witness suggested the weapons delivery was arranged on the basis of instructions given by the accused before he was detained in Kinshasa, and that the accused was informed about developments in the field and was in direct contact with the Rwandan authorities. 3054 The Chamber accepts this evidence. 1156. However, the Chamber also heard evidence to the effect that Thomas Lubanga may not have been in full control of the FPLC, and that other members of his staff made decisions that he had not

3046 T-181-CONF-ENG, page 82, lines 20 – 21, page 83, line 11 and page 85, lines 9 – 14. 3047 T-181-CONF-ENG, page 83, line 3 to page 86, line 3. 3048 T-181-CONF-ENG, page 82, line 13 to page 86, line 21. 3049 T-181-CONF-ENG, page 83, lines 3 – 11 and page 85, lines 16 – 25. 3050 T-181-Red2-ENG, page 87, lines 11 – 19. 3051 T-181-CONF-ENG, page 87, line 11 to page 89, line 25. 3052 T-181-CONF-ENG, page 88, line 21 to page 89, line 10 and page 89, line 23 to page 91, line 23. P-0014 received the same information from another source as well. T-181-CONF-ENG, page 90, lines 14 – 15. 3053 T-181-CONF-ENG, page 88, line 21 to page 89, line 4 and page 89, line 23 to page 91, line 8 (P- 0014). 3054 T-181-CONF-ENG, page 90, line 24 to page 92, line 6. No. ICC-01/04-01/06 493/593 14 March 2012

necessarily agreed to or authorised. 1157. P-0012 testified that although on 5 March 2003 Thomas Lubanga had indicated that he did not want the FPLC to attack the UPDF forces, his view had not prevailed. 3055 Similar evidence was given by P- 0038, who said that Commander Salumu, as one of the UPC/FPLC brigade commanders in the field, was very angry after a meeting attended by the brigade commanders, the Chief of Staff and Thomas Lubanga, and he told P-0038 that the accused did not want to attack the Ugandans. 3056 However, Commander Salumu instructed P-0038 they were nonetheless to attack the following morning, 3057 and the battle of Bunia – when the FPLC attacked the Ugandan troops – took place on 6 March 2003. 3058 It is to be emphasised that the Chamber heard contradictory evidence concerning this incident. 3059 1158. The defence suggests the evidence of P-0012 and P-0038 shows that the Military High Command could reverse Thomas Lubanga’s decisions and thus he did not have effective power or control over the FPLC. 3060 However, the evidence concerning the battle with the Ugandans is unclear and it is of note that P-0012 and P-0038 gave indirect evidence. Although the witnesses corroborate each other to the extent that Thomas Lubanga may not, certainly at one stage, have agreed with the final decision, it is impossible to determine whether Thomas Lubanga was overruled or if he was persuaded by his staff that the battle should occur. In any event, the evidence shows that the accused was centrally involved in these discussions and was consulted

3055 T-169-CONF-ENG, page 48, line 22 to page 49, line 14 and page 50, lines 5 – 8. 3056 T-114-Red2-ENG, page 74, line 15 to page 75, line 17. 3057 T-114-Red2-ENG, page 75, lines 17 – 18. 3058 T-114-Red2-ENG, page 74, lines 7 – 11. 3059 See references in ICC-01/04-01/06-2748-Conf, para. 260. 3060 ICC-01/04-0/106-2773-Conf, paras 474 - 475. No. ICC-01/04-01/06 494/593 14 March 2012

on relevant military decisions. 1159. In addition to his evidence on the logistical assistance provided by the accused, P-0016 also appeared to suggest, at least potentially, that the Chief of Staff, Floribert Kisembo, and his two deputies, Bosco Ntaganda and Mr Nfomo, presented various military issues to the President only after they had been resolved. The inferences to be 3061 drawn from this particular evidence are uncertain. However, in light of the material overall, including an incident during which Bosco Ntaganda and Floribert Kisembo were reprimanded for acting without informing the accused, 3062 the Chamber is not persuaded that it demonstrates, or establishes the real possibility, that the authority of the accused was limited or undermined by his staff. 1160. On the issue of appointments within the FPLC, P-0016 understood that the Chief of Staff, Floribert Kisembo, proposed his own appointment within the FPLC hierarchy. Further, P-0016 3063 suggested that Idriss Bobale was removed as the G2 responsible for military and civilian security and replaced by one of Bosco Ntaganda’s brothers, Ali Mbuyi, because Mr Ntaganda wanted to have a member of his family in this position. 3064 1161. Similarly, P-0055 indicated that although President Lubanga officially appointed him to his position within the hierarchy of the FPLC, 3065 he believed the decision may have been made by certain leaders within the main staff (the “high command”), and thereafter

3061 T-189-Red2-ENG, page 64, lines 3 – 20. 3062 See reference to evidence of the relevant witness in ICC-01/04-01/06-2748-Conf, para. 262. 3063 T-189-Red2-ENG, page 62, lines 8 – 16. 3064 T-189-Red-ENG, page 8, line 11 to page 9, line 14. 3065 T-174-CONF-ENG, page 47, line 23 to page 48, line 7, T-175-CONF-ENG, page 4, line 22 to page 5, lines 5 – 7 and T-178-CONF-ENG, page 16, lines 18 – 22. No. ICC-01/04-01/06 495/593 14 March 2012

simply endorsed by Thomas Lubanga. 3066 P-0055 indicated that a member of the main FPLC staff treated him as a member of the UPC/FPLC prior to his appointment and he helped him with insignificant tasks, despite the lack of a letter of appointment at that time. 3067 The defence suggests the circumstances of P-0055’s later appointment confirm that the accused did not exercise any de facto control over the military. 3068 The defence also refers to a mission when P-0055 accompanied a high-ranking FPLC official to distribute weapons prior to his appointment, and suggests Mr Lubanga was unaware of this involvement by P-0055. 3069 However, the latter stated that although he participated in this weapons delivery at a particular location, he accompanied the high-ranking FPLC officer “as a visitor” rather than in an official capacity. 3070 1162. The Chamber is satisfied that notwithstanding the undoubted influence and the various duties of Floribert Kisembo and Bosco Ntaganda as regards appointments and other staffing matters, given the inevitable necessity for the President to delegate a large number of significant tasks and the structure of the UPC/FPLC, they remained under his ultimate authority.

1163 That said, it is necessary to address further evidence on this issue. P-0017 confirmed the extensive statements he had made to the investigators to the effect that Floribert Kisembo was in charge of the army; that his influence was greater than that of Thomas Lubanga; and

3066 T-178-CONF-ENG, page 12, lines 20 – 24, page 13, line 3 to page 14, line 22. 3067 T-178-CONF-ENG, page 10, lines 19 – 24. 3068 ICC-01/04-01/06-2773-Red-tENG, para. 484. 3069 ICC-01/04-01/06-2773-Red-tENG, para. 484. 3070 T-178-Red2-ENG, page 9, lines 2 – 15. No. ICC-01/04-01/06 496/593 14 March 2012

the latter played a political rather than a military role. 3071 This witness

never personally heard President Thomas Lubanga give military

commands, and he said it was the Chief of Staff, Floribert Kisembo,

who visited the army and issued orders. 3072 P-0017 testified that while

he was in Mamedi with Mr Kisembo and they were discussing their

return to Bunia, Mr Kisembo commented that the President habitually

talked about political affairs, but “this time” they would use arms to

pacify the situation if necessary. 3073 P-0017 also described an incident

when Floribert Kisembo, accompanied by Thomas Lubanga, visited

the soldiers on their return from military training in Rwanda, in about

November 2002. 3074 P-0017 suggested he and other soldiers were

surprised to see Mr Lubanga wearing a military uniform, because the

President was a political figure. 3075 According to P-0017:

I went to Mandro. There were recruits there. I did not hear the name of Thomas. Nobody talked about the influence of Thomas. There was more talk of Kahwa instead, and that's why I have always considered, even after I left the UPC, I have always considered that the person in charge of military affairs in the UPC is Kahwa. That's my opinion. When I look at the activities carried out by Mr. Lubanga when we were in the UPC, when I look at those 3076 activities, I will say that he, rather, handled the political side of things.

1164 The prosecution suggests P-0017 may not necessarily have been

aware of the accused’s role in giving military orders, because he was

with Commander Salumu’s brigade. 3077 The Chamber notes that

although P-0017 provided detailed evidence about lower-level military

structures and practices in the field, his testimony that Thomas

3071 T-160-Red2-ENG, page 41, lines 18 – 25, page 42, line 17 to page 43, line 11 and page 44, line 10 to page 46, line 16. 3072 T-160-Red2-ENG, page 44, line 25 to page 45, line 2 and page 45, lines 8 – 11. 3073 T-160-Red2-ENG, page 45, lines 4 – 8. 3074 T-154-Red2-ENG, page 40, lines 7 – 12, page 66, line 25 to page 67, line 2 and page 69, line 2 to page 71, line 11. 3075 T-160-Red2-ENG, page 49, line 12 to page 50, line 6. 3076 T-160-Red2-ENG, page 46, lines 18 – 25. 3077 ICC-01/04-01/06-2748-Red, para. 254.

No. ICC-01/04-01/06 497/593 14 March 2012

Lubanga did not play a military role was essentially a general impression he had formed, based in part on the fact that “nobody [at Mandro] talked about the influence of Thomas”. 3078 The witness made it clear he never “personally heard or assisted or attended personally an occasion in which orders were given by President Thomas Lubanga”. However, when asked if the Chief of Staff had to report 3079 to anyone above him, the witness unequivocally stated that whilst Floribert Kisembo, the Chief of Staff, “was the supreme chief in the army, the president of the UPC was the person above him”. 3080 Therefore, although P-0017 may have formed the impression that Floribert Kisembo’s influence in the army was greater than that of the accused, he critically conceded that the President of the UPC/FPLC was the Chief of Staff’s superior within the hierarchy. 1165. P-0017 further testified that, after the Artemis operation in June 2003 and the ensuing fighting, Floribert Kisembo attempted to 3081 become the President of the UPC/FPLC when Thomas Lubanga was in Kinshasa, and in fact proclaimed himself President of the UPC/FPLC when he returned to Bunia. 3082 However, the attempted coup in December 2003 was unsuccessful and the accused was confirmed in his role as President of the UPC/FPLC the same month. 3083 Given the date of the incident, it is not an indication of a lack of authority on the part of the accused during the period of the charges. 1166. D-0011 referred to a period before May 2003 “during which we 3078 T-160-Red2-ENG, page 46, lines 18 – 19. 3079 T-160-Red2-ENG, page 44, line 25 to page 45, line 2. 3080 T-154-Red2-ENG, page 24, lines 14 – 19. 3081 D-0019 stated that Artemis was deployed in June 2003, T-345-ENG, page 51, line 25 to page 52, line 3. 3082 T-160-Red2-ENG, page 56, lines 7 – 20. 3083 Letter condemning the attempted coup and confirming Thomas Lubanga as President, signed by the Interim President of the UPC/FPLC, dated 9 December 2003: EVD-D01-01092; D-0019 confirmed that he was Interim President in the absence of Thomas Lubanga, T-342-ENG, page 52, lines 2 – 9. No. ICC-01/04-01/06 498/593 14 March 2012

[the UPC/FPLC] weren’t in a position to manage affairs in the

territory”. D-0037 likewise gave testimony that there was a period 3084

when the structures within the UPC/FPLC may not have been

functioning: D-0037 stated that the various divisions of the main staff

continued to function in Bunia up until the war with the Ugandans. 3085

After the UPC was driven out of Bunia on 6 March 2003, the witness

joined other troops in order to find shelter from the Ugandans, who

were hunting down anyone who had served with the FPLC. 3086 When

the Ugandans left in May 2003, the FPLC and other armed groups

returned to Bunia. 3087 D-0037 maintained it was difficult to distinguish

the FPLC troops from other forces, 3088 given everyone carried weapons

and there was a lack of control over those in the military. 3089 This

apparently chaotic situation is reflected in the minutes, drafted and

signed by D-0037, of a meeting on 16 June 2003 in Bunia that was 3090

attended by, amongst others, Rafiki Saba and Bosco Ntaganda. 3091 It

was reported that unlike the period before 6 March 2003, the army was

undisciplined and the issue of “independent” troops needed to be

addressed. 3092 It was also said it was necessary to demobilise the child

soldiers and to deliver them to the NGOs, and in this context there was

reference to a UPC demobilisation decree of 1 June 2003. 3093

1167 The defence further suggests the FPLC was a precarious alliance

3084 T-347-ENG, page 35, line 25 to page 36, line 5; D-0011 described where he and the accused went when they had to flee between the 6 March 2003 when the UPC/FPLC was forced out of Bunia and the end of May when the FPLC had retaken Bunia and they could return, T-347-ENG, page 12, line 5 to page 14, line 9. 3085 T-349-ENG, page 23, line 25 to page 24, line 5. 3086 T-349-ENG, page 15, line 21 to page 16, line 1. 3087 T-349-ENG, page 16, lines 9 – 23. 3088 T-349-ENG, page 16, line 24 to page 17, line 2. 3089 T-349-ENG, page 17, lines 4 – 12. 3090 T-349-ENG, page 17, lines 21 – 25 and page 19, lines 6 – 15 (D-0037). 3091 EVD-D01-01098 and T-349-ENG, page 18, line 23 to page 19, line 2 (D-0037). 3092 EVD-D01-01098 at page 2. [Unofficial translation.] Original: “Je sais qu’il y a des troupes indépendantes, mais il faut que cela cesse immédiatement.” 3093 EVD-D01-01098.

No. ICC-01/04-01/06 499/593 14 March 2012

of autonomous forces rather than a properly structured army under a commander-in-chief, as indicated by the continuous stream of defections by the main FPLC commanders, along with their troops. 3094 For instance, P-0055 testified that a few days before 6 March 2003, Jérôme Kakwavu left the UPC and founded his own movement, the FAPC. P-0055 also indicated that at about this time, commanders 3095 Munyalizi, Tchaligonza and Kasangaki left the UPC and the latter two established a separate movement, PUSIC, under the leadership of Chief Kahwa. 3096 The defence submits the additional defection by the Chief of Staff, Floribert Kisembo, and his troops in December 2003 reveals the autonomy and independent authority of the military leaders, thereby demonstrating the accused’s lack of a central role in the FPLC’s military structure, which was headed by Floribert Kisembo. 3097 1168. However, during an interview Thomas Lubanga gave at his residence in Bunia in early June 2003, 3098 he said the situation in Bunia was relatively calm following the arrival of the UPC army. 3099 Mr Lubanga explained he was the President of the UPC and he described the FPLC army as trained, equipped, well organised and experienced. 3100 He distinguished the FPLC from other armed groups, suggesting that it is not a “militia”, but an army built on political objectives. 3101 Thomas Lubanga referred to the UPC’s absence from

3094 ICC-01/04-01/06-2773-Red-tENG, para. 815. 3095 T-178-Red2-ENG, page 18, line 22 to page 19, line 1 and page 19, line 16 to page 20, line 5. 3096 T-178-Red2-ENG, page 63, line 17 to page 64, line 8. 3097 ICC-01/04-01/06-2773-Red-tENG, paras 816 and 817, referring to EVD-D01-01092, a letter on official UPC/FPLC letterhead dated 9 December 2003 referring to an attempted coup by Commander Kisembo and Daniel Litsha and recognising Thomas Lubanga as the President. 3098 EVD-OTP-00584; T-130-Red2-ENG, page 36, line 18 and page 39, lines 5 – 10 and lines 22 – 23. 3099 EVD-OTP-00584, starting at 00:58:38. Interpretation in T-130-Red2-ENG, page 42, line 20 to page 43, line 3. 3100 Interpretation in T-130-Red2-ENG, page 43, line 25 to page 44, line 11. 3101 Interpretation in T-130-Red2-ENG, page 44, lines 6 – 11. No. ICC-01/04-01/06 500/593 14 March 2012

Bunia for a few months between 6 March and 12 June, 3102 and he asserted the Ugandans had created a “confusing situation” in Ituri by distributing arms and creating divisions amongst the people, in order to justify their continued presence in the region. 3103 He said the Ugandans had armed child soldiers who had previously been demobilised during the UPC’s absence between March and June. 3104 1169. Although the March 2003 conflict with the Ugandans and the defections of some of the commanders in the FPLC appear to have had an adverse effect on the FPLC, there is no suggestion that it collapsed. A number of official documents, including the demobilisation order of 1 June 2003, and the evidence about a variety of meetings demonstrate that the UPC/FPLC continued to function after March 2003. Additionally, taking into account the statements of the accused in the interview just referred to, the Chamber is persuaded that he exercised substantive authority as President and Commander-in-Chief. Overall, the accused was more than the UPC/FPLC’s figurehead: he was the organisation’s active President and he had ultimate control, including as regards military matters. The accused was involved in planning military operations and he played a key role in providing logistical support, including weapons, ammunition, food, uniforms, military rations and other supplies for the FPLC troops. Furthermore, Mr Lubanga appointed his co-perpetrators to the different positions they held within the political and military structure of the UPC/FPLC. The evidence demonstrates that the UPC/FPLC had a clear hierarchy with lines of reporting and communication. This issue is described in greater detail below. In summary, the accused was the ultimate

3102 Interpretation in T-130-Red2-ENG, page 48, lines 22 – 23. 3103 Interpretation in T-130-Red2-ENG, page 48, lines 5 – 13. 3104 Interpretation in T-130-Red2-ENG, page 48, lines 14 – 24. No. ICC-01/04-01/06 501/593 14 March 2012

authority in that political-military structure. (2) Other staff in the UPC

1170 The Chamber heard other evidence on the general hierarchy and structures within the UPC/FPLC, as well as the functions exercised by some of its staff. 1171. P-0041 gave evidence concerning the organisation of the UPC/ FPLC in September 2002, highlighting its political and military wings. There was a governor and various territorial administrators, and the President appointed the individuals who were responsible for the military. 3105 P-0041 suggested that the administration in Ituri was comparable to the government of a country, and the national secretary for each domain was not only superior to the provincial governor but worked directly with the office of the UPC President. 3106 P-0041 expressed the view that the President was uppermost in the hierarchy, followed by the secretary general, the ministers or national secretaries, the governor and the various other officials who controlled the territory. 3107 It follows from this testimony that the President was able exercise authority over all those in the administration. 1172. In 2002 and 2003, General Floribert Kisembo was the Chief of Staff, and he served under Thomas Lubanga, the President of the 3108

3105 T-125-Red2-ENG, page 27, lines 5 – 8. 3106 T-125-Red2-ENG, page 26, lines 2 – 9. 3107 T-125-Red2-ENG, page 26, lines 13 – 17. 3108 T-154-Red2-ENG, page 21, lines 11 – 12 and 21 – 23 (P-0017 gave evidence on the staff hierarchies for the time he was in the UPC/FPLC, which was from early 2002 to August 2003, T-154- Red2-ENG, page 16, lines 18 – 20 and page 17, lines 11 – 15); T-175-CONF-ENG, page 17, lines 14 – 17 (P-0055); T-168-Red2-ENG, page 46, lines 6 – 8 (P-0012); T-125-Red2-ENG, page 27, line 8 (P- 0041); T-188-CONF-ENG, page 95, lines 7 – 8 and 11 – 13 (P-0016); T-113-Red2-ENG, page 32, lines 1 – 5 (P-0038). No. ICC-01/04-01/06 502/593 14 March 2012

UPC/FPLC. 3109 Bosco Ntaganda was the Deputy Chief of Staff with

responsibility for military operations; Chief Kahwa was the Minister 3110

of Defence (but only at the outset); 3111 Professor Dhetchuvi was the

Minister of Foreign Affairs; 3112 and Adèle Lotsove, Minister of

Economy and Finance. 3113 Richard Lonema was the National Secretary

of Economy, Commerce and Industry; John Tinanzabo, the National

Secretary for Pacification and Reconciliation; and Djokaba Lambi

Longa became the Assistant National Secretary of the Interior. 3114

Daniel Litsha became the First Secretary of the UPC/FPLC, a post that

was initially referred to as the Secretary General of the UPC when the

list of the executive was issued. 3115 Rafiki Saba worked with the staff at

the main staff headquarters. 3116

1173 The Chief of Staff in the UPC/ FPLC had two deputies: one was

in charge of the administration and logistics and the other controlled

intelligence, including operations. The latter was Bosco 3117

Ntaganda, 3118 who witnesses confirmed was inferior in rank to

3109 T-154-Red2-ENG, page 24, lines 14 – 19 (P-0017); T-175-CONF-ENG, page 20, lines 3 – 4 and page 22, lines 12 – 23 (P-0055). 3110 T-175-CONF-ENG, page 17, lines 14 – 17 (P-0055); P-0041 stated that Bosco Ntaganda was Floribert Kisembo’s “assistant”, T-125-Red2-ENG, page 27, lines 8 - 9 (P-0041); T-113-Red2-ENG, page 32, lines 1 – 5 (P-0038); T-349-ENG, page 9, lines 5 – 7 and page 21, lines 13 – 15 (D-0037); T- 168-Red2-ENG page 46, lines 6 - 7 (P-0012). 3111 T-168-Red2-ENG, page 46, line 3 (P-0012); T-113-Red2-ENG, page 32, lines 1 – 5 and page 37, lines 7 – 8 (P-0038); EVD-OTP-00721, T-126-Red2-ENG, page 27, line 11 to page 28, line 1 (P-0041). The decree includes the title “Assistant National Secretary” rather than Minister. 3112 T-168-Red2-ENG, page 46, lines 10 – 12 (P-0012); EVD-OTP-00721, T-126-Red2-ENG, page 27, lines 11 – 12 and page 27, line 21 to page 31, line 25 (P-0041). The decree includes the title “National Secretary” rather than Minister. 3113 T-168-Red2-ENG, page 46, lines 13 – 14 (P-0012); EVD-OTP-00721. 3114 EVD-OTP-00721; T-126-Red2-ENG, page 27, line 11 to page 28, line 1 (P-0041). 3115 T-184-Red2-ENG, page 52, lines 2 – 6 (P-0014). 3116 T-175-Red2-ENG, page 17, lines 19 – 22 (P-0055). 3117 T-175-Red2-ENG, page 17, lines 14 – 17 (P-0055); P-0041 stated that Bosco Ntaganda was Floribert Kisembo’s “assistant”; T-125-Red2-ENG, page 27, lines 8 - 9 (P-0041) and T-113-Red2- ENG, page 32, lines 1 – 5 (P-0038). T-188-Red2-ENG, page 95, lines 1 – 13 and T-189-Red2-ENG, page 76, lines 9 – 18 (P-0016). 3118 T-175-CONF-ENG, page 17, lines 14 – 17 (P-0055); T-113-Red2-ENG, page 32, lines 1 – 5 (P- 0038); T-349-ENG, page 9, lines 5 – 7 and page 21, lines 13 – 15 (D-0037); T-168-Red2-ENG page 46, lines 5 - 7 (P-0012).

No. ICC-01/04-01/06 503/593 14 March 2012

Floribert Kisembo. 3119

1174 Floribert Kisembo exercised authority over those at G1, G2, G3,

G4 and G5 levels within the FPLC. 3120 The Chamber heard evidence

that Luhala Mbala was the G1 responsible for staff management and

the administration of the FPLC. 3121 Commander Idris Bobale, later

replaced by Ali Mbuyi, was the G2 in charge of intelligence,

surveillance and security. It was suggested that the G2 was 3122

responsible for training children in military intelligence. 3123 Floribert

Kisembo appointed John Hoyeti as the G3, with responsibility for

areas such as organisation, instruction and operations. 3124 P-0017 and

P-0038 testified that Bosco Ntaganda was a G3, but given the 3125

strength of the evidence that he was the head of operations and in

charge of the G3s, the Chamber has disregarded this contention. The

G4, Papy Maki, was responsible for food and logistics. Eric 3126 3127

Mbabazi, as G5, was concerned with relations between soldiers and

civilians, and morale issues, 3128 and P-0038 referred to a further G5 by

the name of Lobho. 3129 D-0037 gave evidence that these men, as heads

3119 T-160-Red2-ENG, page 44, lines 2 – 5 (P-0017); T-178-CONF-ENG, page 47, line 6 to page 48, line 2 and T-175-CONF-ENG, page 18, line 5 to page 19, line 22 and page 21, line 13 to page 22, line 1 (P-0055), also referring to the flowchart of the army EVD-OTP-00452. 3120 T-154-Red2-ENG, page 21, lines 11 – 13 (P-0017); T-188-Red2-ENG, page 95, lines 4 – 12 (P- 0016); T-113-Red2-ENG, page 32, lines 8 – 9 (P-0038). 3121 T-189-CONF-ENG, page 80, lines 2 – 6 (P-0016) and T-113-Red2-ENG, page 32, line 19 (P- 0038). 3122 T-154-Red2-ENG, page 24, lines 3 and 10 (P-0017, referring to “Ali”); T-189-Red2-ENG, page 5, line 22 to page 6, line 1 and page 8, lines 11 – 14 (P-0016); T-181-CONF-ENG, page 96, lines 7 – 9, page 97, line 25 to page 98, line 2 and page 98, lines 7 – 9 (P-0014 ). 3123 T-184-Red-ENG, page 24, line 24 to page 25, line 1 (P-0014). 3124 See for example transcript reference in ICC-01/04-01/06-2748-Conf, para. 240. 3125 T-113-Red2-ENG, page 32, lines 15 – 16 and page 33, lines 4 – 5 (P-0038) T-154-Red2-ENG, page 24, lines 3 – 4 (P-0017). 3126 T-189-Red2-ENG, page 80, lines 12 - 13 (P-0016). 3127 T-113-Red2-ENG, page 32, line 9 and 16 – 17 (P-0038); T-154-Red2-ENG, page 24, lines 11 – 12 and T-158-Red2-ENG, page 34, line 9 (P-0017). 3128 T-154-Red2-ENG, page 24, lines 4, 12 – 13 (P-0017); T-189-Red2-ENG, page 77, lines 11 – 19 (P- 0016) and T-175-Red2-ENG page 17, lines 17 – 19 (P-0055, stating that the staff included an individual with the name of Mr Eric). 3129 T-113-Red2-ENG, page 32, lines 10, 17 – 18.

No. ICC-01/04-01/06 504/593 14 March 2012

of divisions, were ultimately responsible to the Chief of Staff, Commander Kisembo. 3130 1175. As mentioned above, P-0055 suggested the Chief of Staff and his Deputy were responsible for the structure of the army, by establishing the sectors and brigades and deploying the troops. 3131 P-0017 testified that the brigades came under the army staff, and the brigade 3132 commanders were answerable to the sector commanders. P-0038 3133 indicated the generals, including the brigade generals, had overall responsibility for the army. 3134 P-0055 provided details on the way the FPLC was organised, including information on sectors, brigades and battalions, with the help of various diagrams. Two witnesses who 3135 were UPC/FPLC soldiers further described the structure within the UPC/FPLC. 3136 1176. The evidence demonstrates the UPC/FPLC was a wellstructured organisation, with the accused and some of his alleged coperpetrators discharging significant functions. The accused was clearly able to exercise authority over all those within the UPC/FPLC. (3) Lines of reporting within the FPLC hierarchy

1177 In order to establish whether the accused played an essential role in accordance with the common plan, the Chamber has examined whether reporting mechanisms were in place to ensure that he was fully informed of developments and was in a position to issue 3130 T-349-ENG, page 22, line 23 to page 23, line 1. 3131 T-175-Red2-ENG, page 30, lines 21 – 25, page 33, lines 7 – 10. 3132 T-154-Red2-ENG, page 21, lines 13 – 16. 3133 T-154-Red2-ENG, page 21, lines 14 – 15. 3134 T-113-Red2-ENG, page 33, lines 14 – 16. 3135 EVD-OTP-00452; EVD-OTP-00453; EVD-OTP-00454. 3136 T-154-Red2-ENG, page 16, line 22 to page 17, line 15, page 21, lines 10 – 20, and page 34, line 7 to page 35, line 4 and a hand-drawn diagram of the army structures, EVD-OTP-00396 (P-0017); T- 113-Red2-ENG, page 34, lines 4 – 8 and page 35, lines 1 – 8 (P-0038). No. ICC-01/04-01/06 505/593 14 March 2012

instructions that were communicated at an appropriate level within

the FPLC hierarchy.

1178 P-0041 suggested, as set out above, that the governors reported

to the national secretaries, who in turn reported to the Presidency. 3137

Floribert Kisembo and Bosco Ntaganda reported to the President and

the Minister of Defence, and P-0016 said that if there was a problem 3138

with information, Bosco Ntaganda was in a position to provide

information to the Minister of Defence, for onward transmission to the

President. 3139 However, for problems with operations, Mr Ntaganda

went directly to the President, as he alone could make a decision. 3140

1179 Although there were some discrepancies in his evidence as to

whether the reports were delivered on a daily or monthly basis, 3141 P-

0055 testified that given his position within the UPC/FPLC, 3142 he

provided information to President Lubanga on the military situation

through the latter’s secretary or office. P-0055’s reports were based 3143

on the material he received from members of his staff. 3144 There were a

number of reports that Mr Lubanga asked for personally, 3145 for

instance about an incident in which several civilians had been

murdered by UPC/FPLC troops. P-0055 also recalled personally 3146

handing over a second report to Mr Lubanga concerning a military

3137 T-125-Red2-ENG, page 26, line 22 to page 27, line 2, T-124-CONF-ENG, page 69, lines 13 – 25, page 71, line 21 to page 72, line 4, and page 74, lines 5 – 7 (P-0041); EVD-OTP-00384. 3138 T-175-Red2-ENG, page 22, lines 17 – 20 (P-0055); T-189-Red2-ENG, page 5, lines 5 – 16 and T- 189-Red2-ENG, page 6, lines 4 – 7 (P-0016). 3139 T-189-Red2-ENG, page 7, lines 13 – 15. 3140 T-189-Red2-ENG, page 7, lines 17 – 20 (P-0016). 3141 See T-175-CONF-ENG, page 7, lines 12 – 14 as compared with T-175-CONF-ENG, page 14, lines 16 – 17 and page 15, lines 15 – 21 (P-0055). 3142 T-175-CONF, page 17, line 16 to page 18, line 3. 3143 T-175-Red2-ENG, page 7, lines 2 – 14 and page 14, line 22 to page 15, line 4. 3144 T-175-Red2-ENG, page 15, line 23 to page 16, line 4. 3145 T-175-Red2-ENG, page 7, lines 14 – 16 (P-0055). 3146 T-175-CONF-ENG, page 8, lines 3 – 17 (P-0055).

No. ICC-01/04-01/06 506/593 14 March 2012

confrontation in Bunia. 3147 In addition, P-0055 submitted reports to the Chief of Staff. 3148 1180. P-0016 testified it was necessary for those at G-level to submit reports to the Chief of Staff, who then prepared his own report for his immediate superior on the basis of this information. 3149 P-0016 stated that the commander at Mandro, who attended at the training centre, communicated with Bosco Ntaganda and the Commander-In-Chief. 3150 D-0037 further indicated that Bosco Ntaganda, as Chief of Operations and Deputy Chief of Staff, was aware of the reports from the brigades and battalions in the field. 3151 1181. P-0038 gave evidence that Floribert Kisembo issued orders to the brigade commanders, which were passed to the battalion and company commanders, who in turn transmitted them so that they reached the platoon commanders. 3152 Therefore, within the military, orders came down through the hierarchy. 3153 1182. The prosecution also relies on various documents to show that Thomas Lubanga regularly received information on both important and trivial matters, and he issued orders. 3154 It submits that the G2, Idris Bobale, submitted reports and requests directly to the accused, as demonstrated by a request for the reopening of a training centre, dated December 2002. 3155 However, the Chamber has not attributed any weight to this latter document as it does not bear a particular date in

3147 T-175-CONF-ENG, page 8, lines 6 – 8. 3148 T-178-CONF-ENG, page 48, lines 18 – 20 and T-175-Red2-ENG, page 16, lines 5 – 9. 3149 T-189-Red2-ENG, page 83, line 19 to page 84, line 4. 3150 T-189-Red2-ENG, page 43, lines 5 – 19. 3151 T-349-ENG, page 30, line 20 to page 31, line 5. 3152 T-113-Red2-ENG, page 46, lines 1 – 19. 3153 T-113-Red2-ENG, page 46, line 5. 3154 ICC-01/04-01/06-2748-Red, paras 270 – 275. 3155 ICC-01/04-01/06-2748-Red, para. 274; EVD-OTP-00666. No. ICC-01/04-01/06 507/593 14 March 2012

December 2002 or a document number, and it is not signed or stamped.

1183 The prosecution further submits that “[e]ven sector commanders, a level below main staff officers at Bunia, ensured that the accused was informed of key developments related to critical military operations, such as the takeover of Mongbwalu and the establishment of youth committees in the town”. In support, the 3156 prosecution refers to a decision of 27 December 2002, signed by a commander and a representative of the UPC/FPLC, which is copied to the President of the UPC/FPLC. 3157 In this document, appointments are made to different posts, including to the youth committees, in the city of Mongbwalu that had been liberated on 24 December 2002. 3158 1184. In a presidential letter of 10 December 2002, the accused gave Floribert Kisembo instructions relating to the recovery of military equipment from the civilian population and he requested reports on this issue. 3159 In addition, a document dated 11 August 2003 from the President’s Cabinet office, that concerns the re-structuring of the FPLC military units in the interior, was copied to Thomas Lubanga. 3160 However, the defence submits it lacks probative value, and the 3161 Chamber notes that although it is printed on paper bearing the official UPC letterhead and a stamp, it is unsigned and a line has been drawn through it. On this basis, it has not been relied on by the Chamber. 1185. An order dated 22 October 2003 addressed to all the FPLC Brigade Commanders and signed by the Chief of Staff, which relates to 3156 ICC-01/04-01/06-2748-Red, para. 274. 3157 EVD-OTP-00710. 3158 EVD-OTP-00710. 3159 EVD-OTP-00712. 3160 EVD-OTP-00497. 3161 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 9. No. ICC-01/04-01/06 508/593 14 March 2012

the recovery of public assets, was copied to the accused. 3162 Even though it is dated shortly after the period of the charges, the Chamber considers it gives an indication as to the kind of information that was brought to the attention of Thomas Lubanga in his capacity as President of the UPC/FPLC. 1186. The prosecution also refers to the demobilisation orders, which will be addressed in detail below, and it suggests that despite their alleged deceptive purpose, they reflect the military authority of the accused. 3163 1187. A document informing the accused of the appropriation of a motorbike by an FPLC soldier, dated 16 December 2002, supports 3164 the prosecution’s suggestion that trivial information as well as essential matters relating to military operations and the FPLC structure were reported to the accused. 3165 1188. A monthly report sent by the G5, Eric Mbabazi, 3166 provides a comprehensive survey of the military situation facing, and the difficulties encountered by, the FPLC. The defence submits that it contradicts the claim that the accused was closely informed about the FPLC’s activities, because it was addressed to the Chief of Staff alone. This argument is unpersuasive, because P-0055 and P-0016 3167 testified that Bosco Ntaganda and Floribert Kisembo reported to the accused, 3168 and the fact that it was addressed to the Chief of Staff, Mr

3162 EVD-OTP-00725. 3163 ICC-01/04-01/06-2748-Red, para. 272. 3164 ICC-01/04-01/06-2748-Red, para. 275; EVD-OTP-00510. 3165 ICC-01/04-01/06-2748-Red, para. 275. 3166 EVD-OTP-00457. 3167 ICC-01/04-01/06-2773-Red-tENG, para. 807. 3168 T-175-Red2-ENG, page 22, lines 19 – 23 (P-0055); T-189-Red2-ENG, page 5, lines 5 – 16 and page 6, lines 4 – 7 (P-0016). No. ICC-01/04-01/06 509/593 14 March 2012

Kisembo, who was the official head of the G-level staff, 3169 is consistent with the UPC/FPLC structures as described to the Chamber.

1189 When setting out the circumstances of his appointment, P-0016 indicated there was a list setting out the various positions in the FPLC that bore the signature of the Chief of Staff, Floribert Kisembo, which must have been sent to the Office of the President, Thomas Lubanga, since everything that happened within the military was reported to him. 3170 P-0016 initially indicated that the President as Commander-in- Chief should have been informed about any military matters, 3171 asserting that “[i]f an army is well-structured, then that’s how things are done”. However, as underlined by the defence, P-0016 also 3172 3173 stated that the UPC/FPLC was not a “real” army, as they were not properly trained. 3174 In particular, the witness asserted that whereas he had received training for nine months as a soldier in the Congolese national armed forces, the FPLC companies and platoons were 3175 trained “within a week” or were not trained at all. 3176 On this basis, the witness indicated that the President was not told everything, or informed about all the operations. 3177 He therefore appeared to suggest that although reporting mechanisms were in place, they were not always implemented. Notwithstanding this evidence, given the testimony of other witnesses that there was a hierarchy and a regular flow of information, and the documentary evidence identified by the

3169 T-154-Red2-ENG, page 21, lines 12 – 13 (P-0017), T-188-Red2-ENG, page 95, lines 4 – 5 and 11 – 12 (P-0016), T-113-Red2-ENG, page 32, lines 8 – 9 (P-0038) and T-349-ENG, page 22, line 23 to page 23, line 1 (D-0037). 3170 T-189-Red2-ENG, page 62, line 8 to page 64, line 5. 3171 T-189-Red2-ENG, page 64, lines 3 – 5 and 10 – 15 and lines 19 – 20. 3172 T-189-Red2-ENG, page 84, lines 17 – 18. 3173 ICC-01/04-01/06-2773-Red-tENG, para. 812. 3174 T-189-Red2-ENG, page 84, lines 17 – 19. 3175 T-189-Red2-ENG, page 41, lines 8 – 10. 3176 T-189-Red2-ENG, page 84, lines 19 – 22. 3177 T-189-Red2-ENG, page 84, lines 22 – 24. No. ICC-01/04-01/06 510/593 14 March 2012

prosecution, the Chamber is unpersuaded by P-0016 that there was a lack of effective reporting.

1190 In light of the totality of this evidence, the Chamber is persuaded that structured and efficient reporting mechanisms were in place to ensure that the accused was informed of all significant developments within the FPLC. He was, therefore, in a position to give relevant instructions, which were distributed, as needed, down through the FPLC hierarchy. (4) Means of communication

1191 Turning to the question of whether the necessary technical requirements were in place in order for information and instructions to be communicated within the FPLC hierarchy, P-0055 testified that the main members of staff had a “call” radio for long distances, and they otherwise used Motorolas. 3178 P-0055 also referred to the “manpack, […] a type of radio for communicating over long distances”, which was used at the brigade level. P-0055 recalled 3179 3180 an instance in which Thomas Lubanga had personally called him using a Motorola. 3181 1192. P-0016 corroborated P-0055’s evidence that within the FPLC, in addition to the standard Motorolas they used F-13 devices, which 3182 were large Motorolas, referred to as “phonies”. Bosco Ntaganda, 3183 Floribert Kisembo, Thomas Lubanga 3184 and other individuals in Aru had these devices, which had special frequency ranges and antennae 3178 T-175-Red2-ENG, page 24, lines 15 – 18 and page 25, line 23 to page 26, line 5. 3179 T-175-Red2-ENG, page 31, line 17 to page 32, line 14 and page 45, lines 10 – 12. 3180 T-175-Red2-ENG, page 49, line 1. 3181 T-175-CONF-ENG, page 26, lines 8 – 19. 3182 T-190-Red2-ENG, page 18, lines 9 – 11 (P-0016), T-175-Red2, page 44, lines 15 – 18 (P-0055). 3183 T-190-Red2-ENG, page 17, line 24 to page 18, line 4 (P-0016), 3184 T-190-Red2-ENG, page 24, lines 4 – 14 (P-0016). No. ICC-01/04-01/06 511/593 14 March 2012

for long-range communication. 3185

1193 Video evidence introduced in the course of P-0030’s testimony

depicts Mr Tinanzabo, at the time the National Secretary for

Pacification, 3186 holding a Motorola radio during the accused’s visit to

the Rwampara camp, on 12 February 2003. 3187 Similarly, FPLC

Commander Liganda had a radio in his hand during a meeting of 3188

UPC and Lendu representatives near the city of Lipri. 3189

1194 P-0016 stated that the communications included, for example,

morning security updates between the units, or distributing other

news. 3190 P-0016 testified that during operations, phonies and

Motorolas were used in the field and orders were given in this way. 3191

The Chief Operator responsible for communications controlled the

phonies from Bosco Ntaganda’s residence, and the messages that were

sent and received were recorded in personal logbooks. 3192 The Chief of

Staff, Floribert Kisembo, had his own personal logbook, as did other

high-ranking UPC/FPLC officers. 3193 P-0038’s evidence on the use of

Motorolas and phonies was that during battles the higher

commanders and those at the headquarters were aware of the details

of what was occurring, enabling them to issue orders. Some of the 3194

higher commanders, such as General Kisembo, had a satellite

3185 T-190-Red2-ENG, page 18, lines 6 – 16 (P-0016). 3186 T-128-Red2-ENG, page 34, lines 9 – 13. 3187 EVD-OTP-00570 at 2:45 and T-128-Red2-ENG, page 34, lines 7 – 16 and page 37, lines 2 – 6 (P- 0030). 3188 EVD-OTP-00572 at 00:03:27. 3189 T-128-Red2-ENG, page 60, line 12 to page 61, line 7 and page 66, lines 22 – 24 (P-0030). 3190 T-190-Red2-ENG, page 22, lines 4 – 15. 3191 T-190-Red2-ENG, page 22, lines 7 – 22. 3192 T-190-Red2-ENG, page 22, line 23 to page 25, line 17 (P-0016) and T-175-CONF-ENG, page 32, lines 8 – 14, page 46, lines 1 – 3 and 18 – 22, page 48, lines 14 – 19 and page 49, lines 2 – 4 (P-0055). 3193 T-175-CONF-ENG, page 48, lines 10 – 19 (P-0055). 3194 T-113-Red2-ENG, page 46, line 10 to page 48, line 1.

No. ICC-01/04-01/06 512/593 14 March 2012

telephone known as a Thuraya. 3195

1195 Although P-0017 at one stage gave evidence “with certainty”

that he was unaware of anyone communicating with President

Lubanga, 3196 there were occasions when he was at the General Staff

(supervising the guard because heavy weapons were installed at the

house of the Chief of Staff, Floribert Kisembo), and he was told by 3197

Mr Kisembo’s bodyguards that the Chief of Staff sometimes talked to

Thomas Lubanga. 3198 According to P-0017, Mr Kisembo alone had a

phone, 3199 and he said that the survival of the soldiers was dependent

on the Chief of Staff’s ability to communicate. 3200 The witness asked

Floribert Kisembo’s bodyguards what was discussed when the Chief

of Staff was talking. 3201 Sometimes the bodyguards did not know but

on other occasions they said he was speaking to Thomas Lubanga. 3202

However, the soldiers were unaware of the details of their

discussions. 3203

1196 Evidence was provided on the call signs assigned to each

individual when the phonies or manpacks were used, 3204 including

Thomas Lubanga, whose sign was “No. 1”, 3205 Floribert Kisembo, 3206

Bosco Ntaganda and Mr Rafiki. P-0055 recognized one of the 3207 3208

logbooks for recording messages sent by the phonies, and he

3195 T-113-Red2-ENG, page 46, line 25 to page 47, line 1 (P-0038) and T-158-Red2-ENG, page 27, lines 17 – 20 (P-0017). 3196 T-158-Red2-ENG, page 27, lines 23 – 24. 3197 T-158-Red2-ENG, page 28, lines 7 – 8. 3198 T-158-Red2-ENG, page 28, lines 8 – 11. 3199 T-158-Red2-ENG, page 35, line 1. 3200 T-158-Red2-ENG, page 34, line 24 to page 35, line 1. 3201 T-158-Red2-ENG, page 35, lines 2 – 3 (P-0017). 3202 T-158-Red2-ENG, page 35, lines 3 – 4 and 7 – 8 (P-0017). 3203 T-158-Red2-ENG, page 35, lines 4 - 5 (P-0017). 3204 T-175-Red2-ENG, page 24, lines 21 – 25 (P-0055). 3205 T-175-Red2-ENG, page 25, lines 18 – 19 (P-0055). 3206 T-175-Red2-ENG, page 25, lines 16 – 17 (P-0055) Call sign: “Zulu Mike”. 3207 T-175-Red2-ENG, page 25, lines 14 – 15 (P-0055) Call sign: “Tango Romeo”. 3208 T-175-Red2-ENG, page 25, lines 20 – 22 (P-0055) Call sign: “Romeo Kilo”.

No. ICC-01/04-01/06 513/593 14 March 2012

commented on a message about a military operation in Mongbwalu that allegedly included information on an injured child who was one of the troops. 3209 He indicated there were messages that referred to Thomas Lubanga by his call sign “No. 1” and he recalled an occasion when the accused provided information by telephone about an incident addressed in one of the messages. The defence suggests the 3210 logbook 3211 clearly shows that the instructions concerning the military units and operations came from the Staff or other commanders within the FPLC rather than the accused. 3212 Although the Chamber does not accept the entirety of the prosecution’s suggestion – that the logbook confirms the accused was in control 3213 – it nonetheless demonstrates that the phonies were one of the means of communication, including for the accused. It follows that the Chamber rejects the defence suggestion that the logbook demonstrates the accused did not issue instructions. 1197. Based on the evidence above, the Chamber is satisfied that the UPC/FPLC had the technical means required to ensure that information and instructions could be effectively communicated via the established hierarchy between the accused and other FPLC staff. (5) Meetings

1198 The Chamber heard evidence about meetings within the organisation that provided insight into the extent of the accused’s involvement in the decision-making processes of the FPLC.

3209 T-176-Red2-ENG, page 70, line 15 to page 78, line 17. 3210 T-177-CONF-ENG, page 8, line 1 to page 11, line 25. 3211 EVD-OTP-00409. 3212 ICC-01/04-01/06-2773-Red-tENG, para. 806. 3213 ICC-01/04-01/06-2778-Red, para. 22. No. ICC-01/04-01/06 514/593 14 March 2012

1199 P-0014 testified that he was told that Thomas Lubanga often held military meetings with Floribert Kisembo, Richard Lonema, other officers, and, at the outset, Chief Kahwa. 3214 1200. P-0016 gave evidence that although the meetings held by President Lubanga at his residence did not involve all the main staff, very often the Chiefs of Staff were included. Therefore, the 3215 3216 meetings usually had selected attendees, and the President invited 3217 staff from the military headquarters to his office for this purpose. 3218 The witness indicated the senior officers, particularly the two Chiefs of Staff, Bosco Ntaganda and Floribert Kisembo, were “in the habit of going to the president’s residence”. P-0016 said it was like Bosco 3219 Ntaganda’s home and that he came and went as he pleased. 3220 1201. P-0041 also referred to the meetings of the officers when decisions about “military secrets” were made, which he suggested were chaired by the President or his delegate, such as the Chief of Staff. 3221 The defence correctly notes that P-0041 stated that he did not participate during these meetings because he was not a military officer. 3222 However, given the evidence of P-0014 and P-0016, the Chamber is persuaded that the accused convened meetings with the military staff, even in the absence of eyewitness evidence that he presided over them. 1202. P-0055 stated that given the continuous fighting in Bunia, it was

3214 T-181-CONF-ENG, page 96, lines 10 – 14. 3215 T-190-Red2-ENG, page 5, lines 17 – 21 and T-189-Red2-ENG page 84, lines 10 – 12. 3216 T-190-Red2-ENG, page 5, lines 21 – 24. 3217 T-189-Red2-ENG, page 84, lines 10- 12 (P-0016). 3218 T-189-Red2-ENG, page 85, lines 2 – 9. 3219 T-189-Red2-ENG, page 85, lines 8 – 17. 3220 T-189-Red2-ENG, page 85, lines 16 – 17. 3221 T-126-Red2-ENG, page 67, lines 11 – 24. 3222 ICC-01/04-01/06-2786-Red-tENG, para. 34. No. ICC-01/04-01/06 515/593 14 March 2012

impossible to hold regular monthly meetings of the UPC general staff at their headquarters. Therefore, although P-0055 did not see the 3223 President at the meetings that included all the commanders, 3224 he testified that Mr Lubanga held meetings with Floribert Kisembo and Bosco Ntaganda. 3225 1203. The Chamber heard evidence concerning a particular meeting during which Mr Lubanga reprimanded Bosco Ntaganda and Floribert Kisembo for an action that was undertaken without the accused being informed. 3226 The prosecution suggests that this event established that the military Chiefs understood the accused was in charge. 3227 1204. Generally, meetings would be held when there were problems. 3228 For instance, Mr Lubanga convened and presided over a meeting during fighting between the UPDF and the UPC. 3229 P-0055 also gave evidence about the relatively frequent meetings between Mr Mafuta and Mr Lubanga, when the latter was advised on matters relating to the UPC. 3230 As regards the reliability of this evidence, the defence challenges P-0055’s assertion that Mr Mafuta was a founding member, or indeed a member at all, of the UPC, and it highlights that P-0055, at one stage, said he never attended a meeting between Mr Mafuta and Thomas Lubanga and he was unaware of the subject of

3223 T-175-CONF-ENG, page 40, lines 7 – 13 (P-0055). 3224 T-175-CONF-ENG, page 40, lines 18 – 21 (P-0055). The Chamber notes the dispute between the defence (ICC-01/04-01/06-2773-Red-tENG, para. 486 and ICC-01/04-01/06-2786-Red-tENG, para. 37) and the prosecution (ICC-01/04-01/06-2778-Conf, para. 24) but finds the evidence is clear since P- 0055 stated that although he never saw the president taking part in a meeting with all of the commanders, “there were meetings where not all of the commanders attended where there were Rafiki […] Kisembo, Bosco” and others. T-175-CONF-ENG, page 40, lines 20 – 23. 3225 T-175-CONF-ENG, page 40, lines 20 – 23. 3226 See the description of events and transcript reference in ICC-01/04-01/06-2748-Conf, para. 262 and footnote 728. 3227 ICC-01/04-01/06-2748-Red, para. 262. 3228 T-175-CONF-ENG, page 40, lines 7 – 13 and page 41, lines 23 – 24 (P-0055). 3229 T-175-CONF-ENG, page 42, line 21 to page 43, line 5 (P-0055). 3230 T-176-CONF-ENG, page 18, line 17 to page 21, line 17; T-174-Red-ENG, page 35, lines 19 – 21. No. ICC-01/04-01/06 516/593 14 March 2012

their discussions. 3231 As rehearsed above, all the relevant evidence demonstrates that Mr Mafuta played a significant role within the UPC, even if it is unclear at what point in time he took up the official position of special adviser to the President and military adviser to the UPC/FPLC. He was a signatory of the document constituting the UPC, dated 15 September 2000. In the course of his testimony, P-0055 3232 indicated that Mr Lubanga and Mr Mafuta often spoke to each other in their mother tongue, which P-0055 does not understand, or they talked together in a separate room. 3233 However, if there were subjects that were of concern to the witness, he was able to participate in the discussions. 3234 It follows that even if P-0055 did not attend formal meetings with the accused and Mr Mafuta, he met with both of them in a more informal manner on numerous occasions. The Chamber is satisfied that P-0055’s testimony on this issue is credible, given, inter alia, it is based on the witness’s own first-hand knowledge. 1205. Mr Lubanga once called P-0055 to a meeting at his residence, so as to ask him about a military confrontation in which civilians were killed, and he ordered the removal of a commander. 3235 1206. P-0017 testified that in June 2003 the Chief of Staff, Floribert Kisembo, frequently met with Mr Lubanga at his residence after the UPC/FPLC returned to Bunia. 3236 The witness was aware of this because he was part of the unit that protected the Chief of Staff, and escorted him to the residence. 3237 Sometimes the meetings lasted up to

3231 ICC-01/04-01/06-2773-Red-tENG, paras 501 – 503. 3232 EVD-OTP-00517. 3233 T-176-Red2-ENG, page 18, lines 7 – 9. 3234 T-176-Red2-ENG, page 18, lines 3 – 11. See also T-176-CONF-ENG, page 17, lines 13 – 21. 3235 T-175-CONF-ENG, page 8, line 20 to page 9, line 5. 3236 T-158-Red2-ENG, page 40, line 1 to page 41, line 25. 3237 T-158-Red2-ENG, page 42, lines 1 – 12 (P-0017). No. ICC-01/04-01/06 517/593 14 March 2012

an hour. 3238 P-0017 also stated that during the morning assemblies, which the accused did not attend, they received their orders for the 3239 day and the Chief of Staff reported what President Lubanga had said. 3240 1207. P-0041 testified that the national secretaries also met with the President and Radio Candip disseminated the minutes or the outcome of these meetings. According to P-0041, given the extent to which 3241 the minutes were broadcast, the only inference to be drawn is that there were regular meetings, particularly in the period between 2 September 2002 and 6 March 2003. 3242 Until 6 March 2003, P-0041 did not attend because he had not been made national secretary, but he 3243 was present on a few occasions once his position changed. 3244 The use of child soldiers was discussed in the President’s office in Bunia, and the President read out a decree he had signed regarding their demobilisation, so that “we would not have difficulties with […] human rights.” 3245 The witness could not recall the exact date of this meeting, but indicated that it was after the return of the UPC to Bunia in around May 2003. 3246 1208. P-0002 visited the Presidency almost every day up until March 2003. 3247 The UPC army guarded Thomas Lubanga’s residence and office, located near the EPO School, in order to ensure his safety. 3248 P- 0002 testified that executive meetings were sometimes held at the 3238 T-158-Red2-ENG, page 43, lines 1 – 3 (P-0017). 3239 T-158-Red2-ENG, page 44, lines 5 – 10. 3240 T-158-Red2-ENG, page 43, line 19 to page 44, line 10. 3241 T-125-Red2-ENG, page 40, lines 21 – 23. 3242 T-125-Red2-ENG, page 41, lines 8 – 16. 3243 T-125-Red2-ENG, page 41, lines 17 – 22. 3244 T-125-Red2-ENG, page 42, lines 2 – 9. 3245 T-125-Red2-ENG, page 42, lines 12 – 24 (P-0041). 3246 T-125-Red2-ENG, page 43, lines 1 – 3 (P-0041). 3247 T-162-CONF-ENG, page 5, line 14 to page 10, line 19. 3248 T-162-CONF-ENG, page 11, lines 10 – 16 (P-0002). No. ICC-01/04-01/06 518/593 14 March 2012

residence or in his office, and on occasion these meetings involved delegations from MONUC. Apart from MONUC personnel, the 3249 witness saw members of the UPC and soldiers visit the residence, 3250 including the Chief of Staff, General Kisembo, the assistant Chief of Staff, General Bosco Ntaganda who was in charge of operations, the presidential staff and the army staff. P-0002 was unaware of what 3251 was discussed, as the meetings were held in private. 3252 D-0011 said he attended “executive committee meetings” at the Presidency on approximately two or three occasions. 3253 1209. In addition, certain video footage shows the accused in the presence of some of his alleged co-perpetrators. P-0030 testified that Rafiki Saba and Floribert Kisembo attended a presidential rally in Bunia on 11 January 2003 together with Thomas Lubanga following the latter’s return from Goma. 3254 1210. P-0030 gave evidence about a video that was filmed on a single day in three different locations (Shari, Bunia and Katoto) sometime after the UPC had re-taken Bunia around May 2003. 3255 The video showed Thomas Lubanga in the company of Floribert Kisembo and Rafiki Saba, all of whom the witness recognised. Similarly, P-0030 3256 recognised Thomas Lubanga, Rafiki Saba and Bosco Ntaganda at a

3249 T-162-CONF-ENG, page 10, line 24 to page 11, line 2. 3250 T-162-CONF-ENG, page 11, lines 7 – 11. 3251 T-162-Red2-ENG, page 12, line 20 to page 13, line 7. 3252 T-162-Red2-ENG, page 13, lines 13 – 20. 3253 T-348-ENG, page 5, line 24 to page 6, line 2. 3254 T-128-CONF-ENG, page 51, line 17 to page 55, line 15, EVD-OTP-00571 at 02:25:07 – 02:35:13. 3255 The prosecution indicates that the date of the film is 1 June 2003, see ICC-01/04-01/06-2748-Conf- Anx2. 3256 T-129-Red2-ENG, page 61, line 23 to page 78, line 16, EVD-OTP-00578 at 00:35:24, 00:36:50 and 01:23:58. No. ICC-01/04-01/06 519/593 14 March 2012

meeting between UPC/FPLC and military officers from Uganda 3257

held in Bunia on 23 January 2003. Thomas Lubanga, Floribert 3258

Kisembo and Rafiki Saba were included in a video of a public rally in

Bunia on 3 June 2003, in which the accused thanked the UPC army for

its involvement in previous events in Bunia. 3259 The defence suggests

the video EVD-OTP-00579 fails to demonstrate that Mr Lubanga was

personally involved in military recruitment. 3260

1211 The video footage establishes that some of the co-perpetrators

were in contact with each other, given it shows that Thomas Lubanga

was accompanied by John Tinanzabo, 3261 Commander Kasangaki, 3262

Rafiki Saba and Bosco Ntaganda. In addition, there is footage of 3263 3264

the accused, 3265 on 12 February 2003, visiting the Rwampara camp

where he told the recruits that the commanders “are helping us carry

out training, managing the army” and that he saw these commanders

every day. 3266

1212 On the basis of this evidence, the Chamber is satisfied the

accused regularly met with members of his staff, including members

of the military, and with at least some of his alleged co-perpetrators.

On the basis of the other evidence discussed in the sections above, the

Chamber is also persuaded that the accused played an active role in

3257 T-129-CONF-ENG, page 13, line 23 to page 16, line 1 (commenting on 00:38:35; 00:38:40 and 00:38:47 of EVD-OTP-00573) and page 22, lines 11 – 16 (commenting on 02:10:26 of EVD-OTP- 00573). 3258 EVD-OTP-00573, T-129-Red2-ENG, page 17, lines 3 – 4. 3259 T-129-CONF-ENG, page 79, line 13 to page 83, line 24; EVD-OTP-00579 between 02:37:53 and 02:51:24 (interpretation included in the transcript). 3260 ICC-01/04-01/06-2773-Red-tENG-Anx2, page 10. 3261 EVD-OTP-000570 at 00:02; T-128-Red2-ENG, page 34, lines 7 – 13 (P-0030). 3262 EVD-OTP-000570 at 00:03:12; T-128-Red2-ENG, page 34, line 21 to page 35, line 16 (P-0030). 3263 EVD-OTP-000570 at 00:01:51; T-128-Red2-ENG, page 33, line 24 to page 34, line 3 (P-0030). 3264 EVD-OTP-000570 at 00:04:04; T-128-Red2-ENG, page 35, lines 15 – 18 (P-0030). 3265 EVD-OTP-000570 at 00:00:24; T-128-Red2-ENG, page 33, lines 19 – 22 (P-0030). 3266 EVD-OTP-000570; T-128-Red2-ENG, page 37, lines 2 – 23 (interpretation taken from the transcript).

No. ICC-01/04-01/06 520/593 14 March 2012

making decisions and issuing instructions. (6) Conclusion

1213 Thomas Lubanga was the President of the UPC/FPLC during the relevant period, and the evidence (witnesses P-0012, P-0016, P- 0014, P-0041, P-0055, P-0017 and D-0011, as rehearsed above), as well as the video EVD-OTP-00584, demonstrates that he was the Commander-in-Chief of the army as well as its political leader. This is further supported by the documents the accused signed in his position as President and that reflect his role as head of the political and military hierarchy of the UPC/FPLC. EVD-OTP-00721, EVD-OTP- 00734 and EVD-OTP-00687 clearly show that Mr Lubanga appointed key officials within the UPC/FPLC, in his position as the leader of the UPC/FPLC. 1214. The evidence of P-0041, P-0055, P-0038, P-0012, P-0017, P-0016 and D-0037 demonstrates that various individuals within the UPC/FPLC, including some of the co-perpetrators, were assigned to particular posts within the organisation. EVD-OTP-00721, a UPC decree signed by the accused and dated 3 September 2002 describes the accused as President of the UPC/FPLC, Floribert Kisembo as Chief of Staff, Bosco Ntaganda as the Deputy Chief of Staff with responsibility for military operations; Chief Kahwa as the Minister of Defence (but only at the outset); Professor Dhetchuvi was the Minister of Foreign Affairs; and Adèle Lotsove, as Minister of Economy and Finance. Richard Lonema was the National Secretary of Economy, Commerce and Industry; John Tinanzabo, the National Secretary for Pacification and Reconciliation; and Djokaba Lambi Longa became the Assistant National Secretary of the Interior. Daniel Litsha became the

No. ICC-01/04-01/06 521/593 14 March 2012

First Secretary of the UPC/FPLC (a post that was initially referred to as the Secretary General of the UPC when the list of the executive was issued). Rafiki Saba worked with the staff at the main staff headquarters. 1215. The Chamber heard disputed and – in some instances – contradictory evidence from witnesses P-0012, P-0038, P-0016, P-0055, P-0017, D-0011 and D-0037 as to the extent to which the accused had day-to-day control over military affairs. However, whether or not he was involved in every detail of the military decisions within the UPC/FPLC is not determinative of the essential character of the role performed by the accused in accordance with the common plan. The evidence of P-0041, P-0055, P-0016 and P-0038 analysed above demonstrates that the accused was at the summit of the civil and military hierarchy, that he attended, even if he did not preside over, military meetings and he received reports on a regular basis. The documentary evidence, such as EVD-OTP-00710 and EVD-OTP-00725, which addressed FPLC military matters and were sent or copied to the accused, further shows that Mr Lubanga was consulted and received reports whenever a particular problem or issue arose. Document EVD- OTP-00510 demonstrates that Mr Lubanga was kept informed about even the most inconsequential issues. 1216. The evidence of witnesses P-0055, P-0016, P-0030 and P-0017 testified that UPC officials and staff, including the accused, used radios and satellite or mobile phones to communicate with each other. Furthermore, video footage (EVD-OTP-00570 and EVD-OTP-00572) shows UPC officials using the radios described to the Chamber. It has been established that the accused and his co-perpetrators possessed the technology that enabled them to communicate with each other and

No. ICC-01/04-01/06 522/593 14 March 2012

that the accused could receive information and issue instructions by radio or telephone.

1217 The evidence of P-0014, P-0016, P-0041, P-0055, P-0017 and P- 0002 establishes the accused held meetings of both a formal and informal nature with military personnel (including his co-perpetrators, Floribert Kisembo and Chief Kahwa) at his residence, and it has been demonstrated he made decisions on operations.

1218 Video footage EVD-OTP-00571 is of a rally in Bunia on 11 January 2003 attended by the accused and two of his co-perpetrators, Rafiki Saba and Floribert Kisembo. Video EVD-OTP-00573 shows the accused in company with Rafiki Saba and a third co-perpetrator, Bosco Ntaganda, on 23 January 2003. Therefore, there is clear evidence that the accused and his co-perpetrators met with each other and were otherwise in personal contact during the period of the charges. Furthermore, the demobilisation orders (analysed below), as well as other documentary evidence, demonstrate that Mr Lubanga issued orders that were communicated and followed within the UPC/FPLC. 1219. Military leaders dealing with forces on this scale will not be involved in all aspects of the decision-making process. The evidence demonstrates that there was a hierarchy within the army and a functioning structure that would have enabled an appropriate degree of delegation, certainly as regards routine operational decisions. This conclusion does not diminish the extent to which the accused was aware of what was happening within the armed forces or his overall responsibility for, or involvement in, their activities. Instead, it is an inevitable result of his position as the overall commander. The Chamber is persuaded beyond reasonable doubt that the evidence

No. ICC-01/04-01/06 523/593 14 March 2012

demonstrates that Thomas Lubanga was the ultimate authority within the organisation and he was informed, on a substantive basis, as to the operations carried out by the FPLC officials, including his coperpetrators Floribert Kisembo and Bosco Ntaganda. 1220. As mentioned above, the period of conflict between 6 March and June 2003, when the UPDF was in Bunia, and the defections of some of the commanders may have had an adverse effect on the structures within the UPC, but the Chamber is not persuaded that they led to a breakdown of the chain of command or significantly undermined the authority of the accused as the head of the organisation. According to P-0041, after the return of the UPC to Bunia in around May 2003, the accused held meetings and issued decrees, thus acting as President and Commander-in-Chief of the UPC/FPLC in exactly the same way as prior to the takeover of Bunia by the UPDF in March 2003.

1221 Thomas Lubanga has not been charged on the basis of acts undertaken by his subordinates solely on account of his position within the UPC/FPLC. It is necessary for the Chamber to address the questions as to whether, inter alia , he led the UPC/FPLC and whether he had knowledge of the crimes in determining whether his role under the common plan was essential. 1222. The evidence discussed above demonstrates, beyond reasonable doubt, that the accused’s function within the hierarchy of the UPC/ FPLC, along with his involvement in planning military operations and his key role in providing logistical support – including weapons, ammunition, food, uniforms, military rations and supplies for the FPLC troops – resulted in his role being essential within the

No. ICC-01/04-01/06 524/593 14 March 2012

UPC/FPLC. 1223. The consequences of the implementation of the common plan, and the contribution of the accused thereto, are discussed in greater detail below. b) Thomas Lubanga’s individual contribution to the conscription and enlistment of children under the age of 15 or using them to participate actively in hostilities 1224. In order to determine whether the accused made an essential contribution to the common plan that resulted in the conscription, enlistment and use of children below the age of 15 between September 2002 and August 2003, the Chamber has considered the evidence in the case relating to his personal involvement in relation to these crimes.

(1) Recruitment initiatives 1225. Various witnesses gave evidence about Thomas Lubanga’s involvement in recruiting soldiers. 1226. The prosecution relies on P-0055’s evidence as regards recruitment by the cadres who were supposedly trained by the accused. 3267 This is challenged by the defence. 3268 At one point P-0055 stated the accused organised the training for the purposes of mobilisation (he did not suggest the accused conducted the training himself, as argued by the prosecution). 3269 P-0055 repeatedly emphasised he did not know how the training was conducted or by

3267 ICC-01/04-01/06-2748-Red, para. 289. 3268 ICC-01/04-01/06-2773-Red-tENG, para. 836. 3269 T-175-Red2-ENG, page 77, lines 5 – 19. No. ICC-01/04-01/06 525/593 14 March 2012

whom because the cadres had been trained by the time he joined the UPC. Given P-0055 conceded he did not have personal knowledge 3270 of these events, the Chamber has not relied on this assertion. 1227. However, there was further evidence from P-0055 that demonstrates Thomas Lubanga’s personal involvement in the recruitment process. Taking into account the defence challenges to 3271 his evidence addressed above, the Chamber is persuaded that P-0055’s testimony on this issue is credible and reliable. 1228. The prosecution highlights that Eric Mbabazi, the G5 within the UPC, 3272 was required to meet with the Chief of Staff and the accused to discuss recruitment, for which he was responsible. The defence 3273 argues that the role and conduct of the G5 does not establish an essential contribution by the accused, and it is suggested it shows that the enlistment, training and use of recruits occurred without the accused’s personal participation because they fell solely within the ambit of the military authorities. 3274 1229. The defence further suggests that the accused did not participate at any stage in the recruitment operations. 3275 It relies on D-0019 and P- 0041’s evidence to the effect that the armed individuals who were organised in September 2002 under the name the “FPLC” were recruited by dissident soldiers from the APC and Chief Kahwa, at a time when the accused could not have contributed to this operation,

3270 T-177-Red2-ENG, page 46, line 5 to page 47, line 5; T-177-Red2-ENG, page 47, line 18 to page 48, line 3. 3271 T-176-CONF-ENG, page 21, line 24 to page 23, line 18. 3272 T-154-Red2-ENG, page 24, lines 4 and 12 – 13 (P-0017); T-189-Red2-ENG, page 77, lines 11 – 19 (P-0016); T-175-Red2-ENG, page 17, lines 14 – 18 (P-0055). The latter only stated that the staff included an individual with the name of “Mr Eric”. 3273 ICC-01/04-01/06-2748-Red, para. 289. 3274 ICC-01/04-01/06-2773-Red-tENG, paras 840 and 849. 3275 ICC-01/04-01/06-2773-Red-tENG, paras 833 – 837. No. ICC-01/04-01/06 526/593 14 March 2012

and that there was no systematic recruitment from 2 September 2002. The evidence of P-0055 is cited as support for the contention 3276 that the enlistment of young people occurred mainly at the instigation of the commanders, along with P-0016’s account that a recruitment policy had not been instituted. 3277 1230. P-0016 testified that recruitment was theoretically conducted by the G5 but instead the recruits arrived voluntarily. He stated that 3278 while he was in the FPLC, he never saw the G5 conducting recruitment and he did not see any recruits being brought to the camp in vehicles. 3279 As mentioned above, 3280 the Chamber does not to accept this evidence and it has concluded that campaigns directed at raising awareness were conducted by the UPC/FPLC during the relevant timeframe. 1231. P-0046 gave evidence about an incident in which Thomas Lubanga was allegedly involved in abducting a former child soldier. Paragraph 88 of the final report of MONUC on its special investigations in March and April 2003, 3281 contains an excerpt of the account of the 14 year old child who had been allegedly captured on a road in Mongbwalu by President Lubanga and six other UPC members, in February 2003. 3282 P-0046 did not investigate this account, 3283 which was given to her by a child during a special mission in Bunia in March. 3284 When questioned about this event, P-0046 stated

3276 ICC-01/04-01/06-2773-Red-tENG, paras 834 and 837. 3277 ICC-01/04-01/06-2773-Red-tENG, para. 838. 3278 T-189-Red2-ENG, page 81, lines 6 – 25. His evidence as to whether or not the G3 was also theoretically involved is unclear. 3279 T-189-Red2-ENG, page 81, lines 20 – 25 (P-0016). 3280 See para. 911. 3281 EVD-OTP-00480 at DRC-OTP-0152-0309; T-208-Red2-ENG, page 31, lines 5 – 11 (P-0046). 3282 EVD-OTP-00480 at DRC-OTP-0152-0309; T-208-Red2-ENG, page 31, lines 12 – 18 (P-0046). 3283 T-208-Red2-ENG, page 31, line 22 to page 32, line 1 (P-0046). 3284 T-208-Red2-ENG, page 32, lines 1 – 5. No. ICC-01/04-01/06 527/593 14 March 2012

that the perpetrators of the abductions were not her main concern: “[i]n that context, what was important for us was to find solutions for those children”, and that it was not the purpose of the documentation for it to be used in a court of justice. 3285 The child’s account appeared to P-0046 “as being perfectly credible”. 3286 It was suggested to P-0046 that Thomas Lubanga was not in Mongbwalu during February 2003, to which she responded that the statement given by the child “was not subject to a specific investigation ” and she noted that the dates given by the children were not always accurate. 3287 P-0046 was unable to say where Thomas Lubanga was in February 2003. 3288 The Chamber is persuaded that P-0046 gave a reliable account of this incident. However, due to the lack of age verification, or any description of the child’s behaviour or appearance supporting the conclusion that the child was under the age of 15, the Chamber has not relied on this evidence to establish that Thomas Lubanga personally recruited children under the age of 15. 1232. In addition, in the context of questioning about the visit of the accused to a training camp in February 2003, when it was suggested to D-0011 (the private secretary of Thomas Lubanga) by the prosecution that the UPC would not have demobilised troops in February 2003 because he would have needed as many troops as possible, D-0011 agreed this was “quite logical” and “right”, and that “[i]f there are a lot of attacks on the outskirts of the town and the power that is established feels threatened, it’s quite normal that one would want to

3285 T-208-Red2-ENG, page 32, lines 5 – 13. 3286 T-208-Red2-ENG, page 32, line 20 to page 33, line 1. 3287 T-208-Red2-ENG, page 33, lines 16 – 24. 3288 T-208-Red2-ENG, page 33, line 25 to page 34, line 2. No. ICC-01/04-01/06 528/593 14 March 2012

mobilise troops in order to face up to the situation.” 3289 1233. With respect to the defence argument that recruitment took place at a time when the accused could not contribute, the Chamber accepts that the militia that was originally comprised of soldiers who had been recruited by Chief Kahwa and others at Mandro in due course became the FPLC. However, the Chamber rejects the defence argument that the evidence of P-0041, D-0019 and P-0055 demonstrates that recruitment into the FPLC was only undertaken before Thomas Lubanga became the President of the UPC/RP and that it was solely the responsibility of individual commanders. Significant evidence in the case has proved that systematic recruitment into the armed wing of the UPC/RP, the FPLC, continued after September 2002. 3290 P-0016’s evidence on this issue was evasive, and, in the context of his account, it is irrelevant for the purposes of Article 8(2)(e)(vii) of the Statute whether or not recruits joined voluntarily if they were under the age of 15. 1234. Based on the evidence of P-0055 and the account of P-0046 concerning the child abducted in Mongbwalu, the Chamber is persuaded Thomas Lubanga was actively involved in the exercise of finding recruits. The Chamber cannot determine, however, whether he was directly and personally involved in recruitment relating to individual children below the age of 15. That said, it is sure that Thomas Lubanga was informed about these activities, for example as a result of his meetings with the G5 responsible for recruitment. The 3291 evidence establishes that he not only condoned the recruitment policy,

3289 T-347-ENG, page 61, line 4 to page 62, line 3. 3290 See paras 770-774, 777-785 and 911. 3291 T-175-Red2-ENG, page 76, lines 19 – 25. No. ICC-01/04-01/06 529/593 14 March 2012

but he also played an active part in its implementation, and he approved the recruitment of children below the age of 15. The statement of his personal secretary, D-0011 that in February 2003 the accused would have had an interest in mobilising troops, rather than demobilising them, supports the conclusion that the accused was informed about, and actively influenced, the decisions on recruitment. 1235. The defence suggests that as soon as the accused became the head of the UPC/RP, he ordered an unequivocal ban on the enlistment of minors. 3292 The implementation of this order is discussed in greater detail below. (2) Troops and camps 1236. The Chamber heard evidence to the effect that the accused personally visited UPC training camps in Mandro, the EPO camp near Bunia, the headquarters and Rwampara. During these visits he addressed the recruits and gave morale-boosting speeches. 3293 The Chamber is satisfied beyond reasonable doubt that at least during the Rwampara visit the accused saw and addressed children under the age of 15 years.

1237 P-0014 was told by two closely involved individuals in September or October 2002 that at some point after September 2002 Mr Lubanga went to the training camp at Mandro to attend the celebrations when the recruits completed their training. 3294 P-0038 testified that he was present when President Thomas Lubanga visited the camp with Chief Kahwa, the Chief of Staff, Floribert Kisembo, and

3292 ICC-01/04-01/06-2773-Red-tENG, para. 834. 3293 Save for at the EPO camp in Bunia, as further set out below. 3294 T-182-CONF-ENG, page 19, lines 11 – 15. No. ICC-01/04-01/06 530/593 14 March 2012

Bosco Ntaganda, on the accused’s return from Kinshasa. 3295 The defence challenges P-0038’s evidence about Thomas Lubanga’s visit to the training camp at Mandro. 3296 Focussing on Thomas Lubanga’s visit to the training camp, the defence submits that P-0038 gave an inconsistent account as to when it occurred. 3297 At one stage P-0038 maintained this took place whilst he was working as a trainer at the camp prior to April 2002, 3298 but later he stated it followed the accused’s return to Bunia on his release from detention in Kinshasa after August 2002. 3299 In the judgment of the Chamber the different accounts from the witness as to the date of the visit are irreconcilable and although many aspects of the witness’s account concerning this event are credible, the confusion as to when it occurred means it is unsafe for the Court to rely on P-0038’s account of this event. The Chamber is persuaded that the accused visited the Mandro training camp in September or October 2002, based on the evidence given by P- 0014 and in light of the role of the individuals who informed P-0014 about the visit of the accused. 1238. P-0016 testified that at some point after he left the camp at Mandro, President Lubanga spoke to the troops at the staff 3300 headquarters, in order to boost their morale and to encourage them to work together. 3301 As discussed above, this must have been around September 2002. 3302 P-0016 said this visit by the accused and his Chief of Staff (which lasted about 30 minutes) was to establish how his main

3295 T-113-Red2-ENG, page 42, lines 8 – 13 and page 43, lines 9 – 11. 3296 ICC-01/04-01/06-2773-Red-tENG, paras 828 and 465 – 471. 3297 ICC-01/04-10/06-2773-Red-tENG, paras 467 – 471. 3298 T-114-Red2-ENG, page 40, line 23 to page 41, line 9 and page 43, line 20 to page 44, line 3. 3299 T-114-CONF-ENG, page 44, line 18 to page 46, line 8. 3300 T-190-Red2-ENG, page 17, lines 5 – 9. 3301 T-190-Red2-ENG, page 13, lines 11 – 15 and page 13, line 24 to page 14, line 22. 3302 See para. 790. No. ICC-01/04-01/06 531/593 14 March 2012

staff and the forces were functioning. 3303 The accused did not say or do

a great deal to boost their morale, but instead he asked the troops to be

calm, suggesting that they wanted peace and they were going to

”remake our country”. 3304 P-0016 testified that adults and children

were present at the parade because “it’s not as if you would chase the

children away” when the President arrived. He indicated the 3305

children were between 13 and 17 years of age. 3306

1239 P-0017 gave evidence about a visit to the EPO camp in Bunia by

the Chief of Staff and President Lubanga around November 2002. 3307 P-

0017 had been amongst the 107 soldiers sent to Rwanda for training

and on their return to Ituri the Chief of Staff, Floribert Kisembo, met

them and they were brought to the EPO camp in Bunia. 3308 P-0017

recalled that when they were asked to assemble, they saw the Chief of

Staff and Thomas Lubanga arrive. The accused was dressed in the 3309

camouflage uniform of the UPC/FPLC, and the Chief of Staff said 3310

they should show respect to the President in military tradition. 3311 The

accused was not at the camp for any appreciable length of time and he

did not speak with the troops when he inspected them. 3312 Indeed, the

accused only remained at the camp for about 15 to 20 minutes. 3313

1240 P-0017’s evidence is supported by the testimony of P-0038, who

was one of the 107 soldiers sent to Rwanda for training between

3303 T-190-Red2-ENG, page 14, line 23 to page 15, line 18. 3304 T-190-Red2-ENG, page 15, lines 5 – 9. 3305 T-190-Red2-ENG, page 16, lines 10 – 15. 3306 T-190-Red2-ENG, page 16, lines 17 – 19. 3307 T-154-Red2-ENG, page 64, lines 20 – 23; page 66, line 25 to page 67, line 4; page 69, line 2 to page 70, line 1. 3308 T-154-Red2-ENG, page 69, lines 2 – 21 (P-0017). 3309 T-154-Red2-ENG, page 69, line 22 to page 70, line 1. 3310 T-154-Red2-ENG, page 70, lines 21 – 22 (P-0017). 3311 T-154-Red2-ENG, page 71, lines 3 – 5 (P-0017). 3312 T-154-Red2-ENG, page 71, lines 6 – 8 and page 72, lines 1 – 5 (P-0017). 3313 T-154-Red2-ENG, page 72, lines 6 – 8.

No. ICC-01/04-01/06 532/593 14 March 2012

September and November 2002. 3314 P-0038 indicated that upon their return the Chief of Staff and other commanders met them at the airport in Bunia, and they were taken to Floribert Kisembo’s residence in Bunia to rest. 3315 The following day they received a visit from Floribert Kisembo together with President Thomas Lubanga. The accused told the recruits that they were to be deployed in the field, and that they should obey orders and fight the enemy. 3316 1241. The Chamber notes there is a slight discrepancy between the witnesses as to the location where the soldiers were brought: P-0017 said it was the EPO camp, whilst P-0038 referred to Floribert Kisembo’s residence. However, on a map annotated by P-0017, Mr 3317 Kisembo’s residence the EPO camp and the residence of the accused were very close to each other. The Chamber is persuaded that the 107 soldiers were brought to the EPO camp, near Floribert Kisembo’s residence, and that the length of time given by P-0017 before the accused came to visit (“some time”) does not contradict the evidence given by P-0038 that the accused visited the next day. It is therefore persuaded Thomas Lubanga visited the EPO camp around the end of November 2002. However, it is not possible to determine whether he saw recruits below the age of 15 whilst he was there. 1242. Finally, the Chamber is satisfied the accused visited the Rwampara training camp during the period of the charges. A video 3318 was introduced through P-0030 that shows a military rally and parade

3314 T-114-Red2-ENG, page 6, line 22 to page 7, line 4 (P-0038). 3315 T-114-Red2-ENG, page 8, line 10 to page 9, line 11. 3316 T-114-Red2-ENG, page 9, line 11 to page 10, line 14 (P-0038). 3317 EVD-OTP-00407; T-157-Red2-ENG, page 64, lines 19 – 21 and page 65, line 10 to page 66, line 21. 3318

EVD-OTP-00570.

No. ICC-01/04-01/06 533/593 14 March 2012

attended by Thomas Lubanga on 12 February 2003,

3319

accompanied by

John Tinanzabo, the Deputy Chief of Staff (Bosco Ntaganda), Rafiki

Saba and other officers such as Commander Kasangaki.

3320

In the first

excerpt, P-0030 identified Thomas Lubanga wearing military

clothing.

3321

The second excerpt shows Thomas Lubanga, again at the

training camp, in the presence of dozens of young people, some of

whom are well below the age of 15.

3322

A young male who is well

below the age of 15 is standing in the front of the group, wearing

camouflage clothing (including a cap) and holding a rifle with the

stock resting on his right wrist.

3323

P-0030 testified that those not

wearing military uniforms were recruits in training to become

soldiers.

3324

While at the camp, Mr Lubanga gave a speech to the

recruits and other soldiers which included the following:

3325

When I first arrived, when I was put in prison, I think there was a building here. The Ugandans arrested me. It’s the second time I come here. I think many have heard the name; they listen to what is said about us on the radio. When you were still civilians, you saw us on television. I am Thomas Lubanga, the president of our party, the UPC. I believe this is the first time many of you see me. (Yes, yes, says the group). You are used to seeing our commanders; they are helping us carry out training, managing the army. I see them everyday. But we have a lot to do, a lot. And from time to time I am asked to go out, hold conferences and meet people; it is difficult for me to always be in touch with you; the chief of staff, commander Bosco should come and see you here. Is he coming here? (the group answers yes, yes). So if he doesn’t come, he will be seen as an enemy but I think he cannot do that because he needs the troops. We have come to see you and encourage you. Why give you courage? Because the work we are doing, we are doing with you. The work you know, being enlisted in the army, trained, using weapons, is blessed. We have just sung about daily suffering, and it is this daily

3319 T-128-Red2-ENG, page 37, lines 2 – 6 (P-0030). 3320 T-128-Red2-ENG, page 31, lines 6 – 11 (P-0030). 3321 T-128-Red2-ENG, page 33, lines 19 – 22; EVD-OTP-00570: 00:00:00 to 00:02:00 (T-128-Red2- ENG, page 25, line 16 to page 26, line 3) at time code 00:00:24. 3322

EVD-OTP-00570: 00:00:00 to 00:38:05; T-128-Red2-ENG, page 33, line 6 to page 46, line 16 (P-

0030). 3323 EVD-OTP-00570 at time code 00:06:57. 3324 T-128-Red2-ENG, page 31, lines 12 – 20. 3325 T-128-Red2-ENG, page 36, lines 23 – 24, page 37, lines 8 – 23; page 38, line 17 to page 39, line 1, page 40, lines 5 – 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10.

No. ICC-01/04-01/06 534/593 14 March 2012

suffering that has made us decide to do what we are doing, correct?

[…] in view of the responsibility we have towards you, because I know we are united, aren’t we? Well, we took an initiative and as soon as you finish your training and you’re given your weapons, you have to go and ensure the safety and security of the population, and this is a very important task to carry out before God and humanity. You shouldn’t take this work lightly. This type of work is of great importance. It can involve suffering whilst you are being trained. However, it’s all to train your endurance and to ensure that you have the capacity. And if a member of the population sees you wearing a uniform, that they feel they can sleep tightly because somebody is guarding their safety. […]

What we need to say is that we are all part of the Congolese people. That is our goal. It’s that goal, that intention, that you must remember during your training. You have to keep that in mind while you are being trained. Keep that goal in mind. And then once you are deployed in the field, you must provide the security of our people, and that is extremely important for our people and before God. […]

And be brave, be courageous, and when you put on your uniform tomorrow, let the people say that here we have the soldiers to provide for our security. We travelled the day before yesterday and we came back yesterday. This army is not an additional army or supplementary army; it’s an essential army. Amongst you, some of you have studied. Those of you who will complete the training will have the opportunity to complete other training courses, and they will gain experience. Some of you will become generals; in fact, there are already generals amongst you. We need to have colonels and captains, and that we have a high-level army that we can present before our people. The job done by the army is something that gives value to all of us. We’re all useful soldiers and we’re part of this army, so that everyone considers himself as a valuable soldier. In keeping with the history of our country, you must keep in mind that you are a useful and valuable soldier, and that we must – we must do whatever we can so that you, indeed, be valuable soldiers. You must complete your training course and then afterwards you will be deployed in the field, in the interests of ourselves, in the interest of our country, and in the interest of our province and in the interests of our party.

1243 The defence does not dispute that the accused visited the

Rwampara camp.

3326

P-0030, who was present, stated that the soldiers

and recruits were of all ages (the youngest was nine years old).

3327

1244 The Chamber is unpersuaded by the defence suggestion that

there is a lack of evidence demonstrating that children below the age

3326 ICC-01/04-01/06-2773-Red-tENG, para. 828. 3327 T-128-Red2-ENG, page 48, lines 6 – 14.

No. ICC-01/04-01/06 535/593 14 March 2012

of 15 were at the Rwampara camp. 3328 Earlier in this Judgment the Chamber addressed the defence contention that the video evidence is irrelevant for these purposes and decided it is admissible and reliable whenever the children filmed are obviously below the age of 15. 3329 1245. As already indicated, the Chamber concludes that Thomas Lubanga visited the Rwampara camp in mid-February 2003 and saw and addressed recruits below the age of 15.

1246 The Chamber is satisfied the accused visited the troops and training camps during the period of the charges, in the circumstances described above.

(3) The bodyguards of Thomas Lubanga and soldiers close to him

1247 Deploying children under the age of 15 as bodyguards falls within the scope of Article 8(2)(e)(vii) since it constitutes the use of children to participate actively in hostilities. 3330 The Chamber examines below evidence concerning the soldiers who were responsible for ensuring the security of Thomas Lubanga.

1248 As already set out above, P-0055 gave evidence to the effect that there were children amongst the accused’s bodyguards, and that the kadogos wore uniforms and carried weapons. 3331 He confirmed that the term “kadogos” refers to children between 13 and 16 years of age. 3332 This evidence is corroborated by P-0041 who testified that each commander, as well as the various UPC officials at all levels from the

3328 ICC-01/04-01/06-2786-Red-tENG, para. 48. 3329 See para. 644. 3330 See para. 628. 3331 See para. 863; T-176-Red2-ENG, page 47, line 22 to page 48, line 13 and lines 23 – 24, page 49, lines 8 – 18, page 50, lines 2 – 6. 3332 T-178-Red2-ENG, page 36, lines 12 – 16. No. ICC-01/04-01/06 536/593 14 March 2012

president through to the national secretaries, had bodyguards who

were usually young people since “[they] were not taking adults”. P- 3333

0041 indicated that although most of the soldiers serving in the UPC

were 22 years of age or older, there were also children in the 10 to 13

age bracket. 3334 P-0041 gave evidence that the President’s bodyguards

were visible, having been positioned about 150 to 200 metres away

from the witness’s place of work. 3335 Neither P-0055 nor P-0041 gave

their ages, although P-0055 indicated that they included children (see

above) and P-0041 stated that there were also “young persons” among

them and that the children he saw serving as bodyguards to others

were between 14 and 16 years old. 3336

1249 Video excerpts were introduced through P-0030 that include

some of the accused’s bodyguards. One sequence 3337 is of a

presidential rally for Thomas Lubanga at the city stadium on the

latter’s return from a trip to Goma. This event took place on 11 3338

January 2003. 3339 A second sequence of the same event 3340 shows the

moment when the President was about to enter the stadium. 3341 P-0030

identified the figure in blue or purple traditional dress as Thomas

Lubanga. P-0030 testified that the accused spoke to the population 3342

about asking the UPDF, the Ugandan soldiers, to leave Ituri. 3343 The

witness gave evidence about how the military personnel travelling in a

3333 T-125-Red2-ENG, page 54, line 15 to page 55, line 22. 3334 T-125-Red2-ENG, page 54, line 18 to page 55, line 8. 3335 T-125-Red2-ENG, page 55, line 21 to page 56, line 1 (P-0041). 3336 T-125-Red2-ENG, page 56, lines 2 – 19. 3337 EVD-OTP-00571 from 02:21:25 to 02:23:00; T-128-Red2-ENG, page 49, line 25 to page 50, line 6 (P-0030). 3338 T-128-Red2-ENG, page 51, lines 15 – 20 and page 53, lines 15 – 16 (P-0030). 3339 T-128-Red2-ENG, page 55, lines 2 – 6 (P-0030). 3340 EVD-OTP-00571 at 02:21:25 to 02:25:07; T-128-Red2-ENG, page 52, line 24 to page 55, line 2 (P-0030). 3341 EVD-OTP-00571 at time code 02:22:37; T-128-Red2-ENG, page 52, line 24 to page 53, line 4 (P- 0030). 3342 EVD-OTP-00571 at time code 02:23:06; T-128-Red2-ENG, page 54, lines 8 – 10. 3343 T-129-Red2-ENG, page 51, lines 17 – 18 and page 55, line 18 to page 56, line 4.

No. ICC-01/04-01/06 537/593 14 March 2012

truck were the accused’s bodyguards. 3344 One of them is standing up holding a rocket-propelled grenade-launcher, whilst the guard sitting third from the left is noticeably smaller than the others and is significantly below 15 years of age. 3345 1250. In addition, P-0030 identified a young man with a shaved head wearing camouflage fatigues (standing next to a taller male in camouflage fatigues and a cap) as a member of the UPC. He is 3346 clearly carrying a rifle and he is obviously younger than the other males in military dress standing nearby. However, in the judgment of the Chamber it is not possible to determine whether he was below the age of 15 years.

1251 In the same excerpt P-0030 identified another soldier in the foreground (wearing camouflage clothing, including a cap, with a rifle across his right shoulder) as a member of the UPC/FPLC. 3347 From his appearance he was significantly below 15 years of age. P-0030 believed he was one of those maintaining security whilst Thomas Lubanga made his speech. 3348 1252. In another video excerpt filmed on 23 January 2003, Mr Lubanga is seen returning to his residence after an event at the Hellenique Hotel. Two young men in camouflage clothing who are significantly 3349 below 15 years of age are sitting with taller, armed males in military

3344 EVD-OTP-00571 at time code 02:22:37 to 02:22:54; T-128-Red2-ENG, page 53, lines 11 – 25 (P- 0030). 3345 EVD-OTP-00571 at time code 02:22:52. 3346 EVD-OTP-00571, at time code 02:44:18; T-128-Red2-ENG, page 56, lines 5 – 18 (P-0030). 3347 EVD-OTP-00571, from time code 02:47:16 to 02:47:19; T-128-Red2-ENG, page 56, line 23 to page 57, line 5 (P-0030). 3348 T-128-Red2-ENG, page 57, lines 6 – 19. 3349 EVD-OTP-00574 from time code 00:32:40 to 00:35:44; T-129-Red2-ENG, page 26, line 19 to page 28, line 22 (P-0030). No. ICC-01/04-01/06 538/593 14 March 2012

clothing. 3350 P-0030, who was present throughout the day, 3351 identified

them as members of the presidential guard. 3352

1253 In a further video of events on 23 January 2003, 3353 a young man

wearing camouflage clothing and a green hat is in a truck with other

males wearing military clothing, whom the witness had previously

identified as Thomas Lubanga’s bodyguards. Although he is 3354

younger than the others around him, his eyes are partly shaded by his

hat, and the Chamber was unable to determine whether he was below

the age of 15.

1254 On 24 February 2003, a MONUC delegation visited President

Lubanga’s office. P-0030 gave evidence to the effect that during this 3355

visit he was outside “having fun with these young soldiers, these

young kadogos, who were part of the protective forces” responsible

for guarding the office of the President. 3356 The footage includes a

bodyguard, playing with an insect, who is evidently under the age of

15 3357

1255 It is unclear whether the soldiers filmed in EVD-OTP-00585, 3358

who were guarding Thomas Lubanga at his residence, were younger

than 15 years of age. The Chamber has not relied on this excerpt.

1256 However, in the same video, footage showing an English-

3350

EVD-OTP-00574 at time code 00:36:22; T-129-Red2-ENG, page 26, line 19 to page 28, line 22 (P-

0030). 3351 T-129-CONF-ENG, page 29, lines 17 – 20 (P-0030). 3352 T-129-Red2-ENG, page 28, lines 19 – 25 (P-0030). 3353 T-129-Red2-ENG, page 39, lines 12 – 17 (P-0030). 3354 EVD-OTP-00575, at time code 00:35:04; P-0030 identified Thomas Lubanga’s escort at T-129- Red2-ENG, page 37, lines 10 – 12 at time code 00:32:39. 3355 EVD-OTP-00574 at 01:30:48; T-129-Red2-ENG, page 48, lines 1 – 7 and page 53, lines 16 – 20 (P-0030). 3356 T-129-Red2-ENG, page 57, lines 14 – 25 (P-0030). 3357 EVD-OTP-00574 at 01:49:02; T-129-Red-ENG, page 57, lines 13 – 20 (P-0030). 3358 EVD-OTP-00585 at time code 00:09:09.

No. ICC-01/04-01/06 539/593 14 March 2012

speaking journalist at a rally was also admitted into evidence. 3359 At least one of the young armed soldiers at the rally P-0030 identified as having taken place at Iga Barrière, 3360 and where Thomas Lubanga was present and addressed the crowd, is well below the age of 15 in appearance and in comparison with other soldiers. 3361 P-0030 confirmed that the soldiers in the sequence were from the UPC and although he could not recall the exact date of the event, he suggested it was when the UPC had regained control over Bunia. 3362 1257. P-0030 testified that additional footage of the same day in Iga Barrière showed Thomas Lubanga addressing a crowd. 3363 A young male who is apparently responsible for maintaining security is filmed in the foreground wearing camouflage clothing and a green cap. 3364 P- 0030 said he was from the UPC/FPLC. 3365 As mentioned above, P-0030 could not recall the exact date, but suggested this event occurred whilst the UPC was in power in Bunia. Although this individual 3366 appears to be below 15 years of age when he faces the camera, 3367 the Chamber is uncertain as to his exact age, and accordingly it has not relied on this excerpt as supporting the charges. 1258. P-0016 testified that there were children in the Presidential Guard. 3368 P-0016 explained why he was well placed to give this

3359 EVD-OTP-00585. 3360 T-130-Red2-ENG, page 70, lines 17 – 18. 3361 EVD-OTP-00585 from time code 00:40:08 onwards; T-130-Red2-ENG, page 70, lines 19 – 21. 3362 T-130-Red2-ENG, page 70, line 25 to page 71, line 6. 3363 T-130-Red2-ENG, page 73, lines 3 – 21 and page 70, lines 17 – 18. 3364 EVD-OTP-00586 from time code 01:00:55 onwards; T-130-Red2-ENG page 72, lines 2 – 5. 3365 T-130-Red2-ENG, page 79, line 21 to page 80, line 6 (P-0030). 3366 T-130-Red2-ENG, page 70, line 17 to page 71, line 6 (P-0030). He confirmed that the footage showed the same scene as in the previous video excerpt EVD-OTP-00585; T-130-Red2-ENG, page 73, lines 3 – 21. 3367 EVD-OTP-00586 at time code 01:01:02. 3368 T-189-Red2-ENG, page 23, lines 23 – 25; T-189-CONF-ENG, page 29, lines 1 – 4. No. ICC-01/04-01/06 540/593 14 March 2012

evidence. 3369 The Presidential Guard was also known as the PPU. 3370 They were under the Commander-in-Chief, although “from the strictly military standpoint” they answered to the Chief of Staff. 3371 When the President travelled from his residence or office, he was accompanied by those members of the PPU who were on duty. 3372 The chief escort, who reported to the lead commander, compiled their roster, which was made available to the general staff. 3373 P-0016 gave inconsistent evidence as to the number of the guards he saw who were under the age of 15, but his evidence was that the youngest (of whom there were no more than four) were 13 to 14 years old. 3374 P-0016 said the uniforms of the PPU were the same as the rest of the FPLC and they all had weapons. 3375 The PPU also included female soldiers known as PMFs, some of whom were younger. 3376 On the basis of this evidence, the Chamber is persuaded there were at least a few children under the age of 15 within the PPU. 1259. P-0016 described a particular child soldier, who was about 13 years of age, as a “little one” who was “really too small”. 3377 P-0016 testified that whilst in the FPLC this child had served as a bodyguard with Bosco Ntaganda and Floribert Kisembo, and thereafter with the Presidency. 3378 P-0016 said that for the latter assignment, he needed to

3369 T-189-CONF-ENG, page 23, line 23 to page 24, line 2. 3370 T-189-Red2-ENG, page 28, lines 19 – 20 and page 36, lines 9 – 15 (P-0016). 3371 T-189-Red2-ENG, page 33, lines 16 – 20 (P-0016). 3372 T-189-Red2-ENG, page 37, lines 14 – 23 (P-0016). 3373 T-189-Red2-ENG, page 37, line 24 to page 39, lines 1- 3 (P-0016). 3374 T-189-Red2-ENG, page 30, line 15 to page 31, line 19 and page 34, lines 13 – 22; page 35, line 22 to page 36, line 2 (P-0016). 3375 T-189-Red2-ENG, page 32, line 24 to page 33, line 12. 3376 T-189-Red2-ENG, page 33, line 24 to page 34, line 22 and page 35, line 22 to page 36, line 8 (P- 0016). 3377 T-189-Red2-ENG, page 16, lines 7 – 14. 3378 T-189-Red2-ENG, page 32, lines 4 – 11. No. ICC-01/04-01/06 541/593 14 March 2012

be a member of the PPU. 3379 1260. The defence relies on the evidence of D-0011 and D-0019 to support the claim that there were no children under the age of 15 amongst the soldiers assigned to guard the accused. 3380 D-0019 testified he did not notice any minors amongst them, and he said all the bodyguards of the accused he had met were adults. D-0011 gave 3381 evidence that between September 2002 and March 2003 he was by Thomas Lubanga’s side effectively on a daily basis. 3382 During this period he was in contact every day with most of the soldiers, and his evidence was that the members of the presidential bodyguard were adults – he indicated there were no child soldiers in the entourage of the accused. 3383 D-0011 also said he was with Thomas Lubanga on a regular basis between May 2003 and the latter’s departure for Kinshasa, and he had been in a position to notice that there were no 3384 minors amongst the accused’s bodyguard during this period. D- 3385 0011 emphasised there were no children aged between 13 and 17 in the Presidential Guard or serving under the accused. 3386 Furthermore, he said he had not seen any child soldiers within the UPC between September 2002 and May 2003, and if there were any, they may have been deployed in the interior (meaning not in towns). 3387 However, given the wealth of contrary evidence in the case, including clear video evidence, the Chamber finds that D-0019’s and D-0011’s testimony on the absence of child soldiers amongst Thomas Lubanga’s body guards

3379 T-189-Red2-ENG, page 32, lines 19 – 23 (P-0016). 3380 ICC-01/04-01/06-2773-Red-tENG, para. 847. 3381 T-340-ENG, page 41, lines 12 – 19 and page 42, lines 16 – 19. 3382 T-347-ENG, page 29, lines 19 – 22. 3383 T-347 -ENG, page 29, line 23 to page 30, line 3. 3384 T-347-ENG, page 30, lines 4 – 7. 3385 T-347-ENG, page 30, lines 8 – 11. 3386 T-347- ENG, page 69, line 9 to page 70, line 3. 3387 T-347- ENG, page 35, lines 20 – 24 and page 36, lines 9 – 13. No. ICC-01/04-01/06 542/593 14 March 2012

lacks credibility. 1261. The defence submits that the prosecution ”concealed” exonerating testimony from a former bodyguard of the accused to the effect that there were no child soldiers under the age of 15 in the FPLC or within his Presidential Guard until a very late stage in the proceedings, by which point it was impossible for the defence to investigate and arrange for him to testify. In this individual’s 3388 statement, he suggested that although there were 15 or 17 year old children at Thomas Lubanga’s residence, he never saw 15-year old child soldiers in the UPC and he observed that Thomas Lubanga was opposed to recruiting child soldiers. Again, this statement lacks 3389 credibility given it is contradicted by a wealth of evidence that has been accepted by the Chamber. 1262. On the basis, in particular, of the video footage the Chamber is persuaded there were children below the age of 15 who were responsible for ensuring the security of the accused during public events. In addition, P-0016’s evidence, which the Chamber accepts, was unequivocal as to the presence of approximately four children aged between 13 and 14 years within the PPU. P-0055 gave evidence that Thomas Lubanga’s escorts included children and that he was accompanied by kadogos wearing uniforms and carrying arms, but he was not specific as to their ages. P-0041 similarly confirmed that there were children below the age of 15 amongst the bodyguards of various UPC officials, although he was less precise as to the age of the bodyguards of the accused. In light of the entirety of the evidence, the

3388 ICC-01/04-01/06-2773-Red-tENG, para. 848, referring to ICC-01/04-01/06-2657-Conf-tENG, paras 279 – 280 and EVD-D01-00773. 3389 EVD-D01-00773, paras 67 and 68 at DRC-OTP-0233-0042 and 0043. No. ICC-01/04-01/06 543/593 14 March 2012

Chamber is satisfied that children below the age of 15 worked for Thomas Lubanga, and other UPC officials, as bodyguards. c) Conclusions and legal findings on the essential contribution of Thomas Lubanga 1263. The prosecution submits the accused made an essential contribution to the common plan to take over Ituri using military means, including the use of children under 15, through his control over the FPLC and the directions he gave to recruit and use children under 15. 3390 It argues that the accused established the context for the recruitment and mobilisation of young people, 3391 and that by using children under the age of 15 in his bodyguard unit, as the head of the UPC/FPLC, he was setting an example for the means by which Ituri was to be conquered. 3392 1264. The defence argues the accused could not have been involved in the establishment of the FPLC as an armed force in September 2002, and that the evidence of P-0016, P-0055 and D-0037 demonstrates that recruitment and training fell within the jurisdiction of the military authorities. 3393 The defence suggests that before and during the period of the charges it was the military leaders who determined and implemented the measures necessary to create an armed force, and the political leader of the UPC/FPLC was uninvolved with recruitment and military operations. 3394 The defence argues that the commanders, under the leadership of the Chief of Staff, had exclusive command of the units; the civilian authorities did not interfere in the execution of military operations; and the accused did not have a role as regards the 3390 ICC-01/04-01/06-2778-Red, para. 18. 3391 ICC-01/04-01/06-2778-Red, para. 29. 3392 ICC-01/04-01/06-2778-Red, para. 36. 3393 ICC-01/04-01/06-2773-Red-tENG, paras 849 – 852. 3394 ICC-01/04-01/06-2773-Red-tENG, paras 853 - 854. No. ICC-01/04-01/06 544/593 14 March 2012

army. 3395 It submits that Thomas Lubanga therefore did not make an essential contribution to the commission of the crimes with which he is charged. 3396 1265. The defence also notes that the prosecution does not argue that the accused was personally involved in allocating recruits within the military units at the end of their training or in the detail of their deployment, functions which were handled by the commanders of the units acting on the orders of the Chief of Staff. 3397 In consequence, it is suggested by the defence that the accused did not make an essential contribution to the FPLC soldiers’ active participation in hostilities. 3398 1266. Although recruitment and training fell within the jurisdiction of the military authorities, the evidence has demonstrated that Thomas Lubanga was well-informed on military matters and he endorsed the recruitment initiatives. There is persuasive evidence of a conversation in which the accused acknowledged that he frequently tried to convince the population to provide food and to make young people available to join, and to train with, the UPC army. 3399 He visited training camps, 3400 where he encouraged the recruits (who included children under the age of 15), and he made speeches at public rallies, in order to motivate the population to support the war effort. 3401 Moreover, there is evidence that he gave orders on military affairs: for example, there is an account concerning soldiers who arrived in Aru on the accused’s instruction, following telephone conversations with 3395 ICC-01/04-01/06-2773-Red-tENG, paras 855 and 856. 3396 ICC-01/04-01/06-2773-Red-tENG, para. 857. 3397 ICC-01/04-01/06-2773-Red-tENG, para. 844. 3398 ICC-01/04-01/06-2773-Red-tENG, para. 845. 3399 See description of events in ICC-01/04-01/06-2748-Conf, para. 288 and transcript reference in footnote 783. 3400 See paras 786, 790, 792, 1163, 1211, 1236-1246. 3401 See, e.g., EVD-OTP-00586; T-130-Red2-ENG, page 72, lines 2 – 9 and interpretation at page 73, line 6 to page 76, line 6. No. ICC-01/04-01/06 545/593 14 March 2012

Floribert Kisembo and Bosco Ntaganda. P-0055 also provided detailed evidence about an incident that occurred at a stage when there were tensions between the UPC/FPLC and the UPDF that demonstrates the accused gave instructions on military matters. 3402 1267. The defence also argues the accused’s visit to the Rwampara training camp and his speech to the recruits do not constitute an “essential contribution” because there is nothing to suggest the recruitment and training operations would have ended if this visit had not taken place. 3403 It is contended this event would not have influenced the recruitment operations conducted by the military leaders. In the judgment of the Chamber, the speech given by the 3404 accused during the Rwampara visit, when viewed along with the other evidence rehearsed above, establishes Thomas Lubanga’s position of authority and his control over the other co-perpetrators, some of whom were present during the accused’s speech ( e.g. Bosco Ntaganda, John Tinanzabo and Rafiki Saba). The essential nature of his contribution to the common plan is not established by the discrete and undisputed fact that he visited the Rwampara camp, but instead it is founded on the entirety of the evidence relating to the contribution he made as the highest-ranking official within the UPC. 1268. The defence further alleges the accused’s speech does not demonstrate unqualified approval of the conduct of the military leaders, because he did not direct thanks or praise at the leaders who were present. 3405 1269. During his speech in Rwampara Mr Lubanga highlighted the 3402 T-178-CONF-ENG, page 28, line 21 to page 31, line 19. 3403 ICC-01/04-01/06-2786-Red-tENG, para. 46. 3404 ICC-01/04-01/06-2786-Red-tENG, para. 46. 3405 ICC-01/04-01/06-2786-Red-tENG, para. 47. No. ICC-01/04-01/06 546/593 14 March 2012

need for armed troops and he referred to the role of the commanders as regards training and deployment. He encouraged those present, including children who were under the age of 15, to complete their training in order to become soldiers, and to receive their weapons so they would be able to fight. The lack of any thanks directed at the commanders is a peripheral issue. The central factor is that the accused supported the continued recruitment, training and deployment of soldiers of all ages. He said if his chief of staff did not visit a camp, he would consider him to be an enemy. 3406 This establishes the accused’s authority over the other military leaders who were directly in charge of the military training provided to children under the age of 15 at the UPC’s camps. 1270. The Chamber concludes beyond reasonable doubt that the accused, by virtue of his position as President and Commander-in- Chief from September 2002 onwards, was able to shape the policies of the UPC/FPLC and to direct the activities of his alleged coperpetrators. The established reporting structures; the lines of communication within the UPC/FPLC; and the meetings and close contact between the accused and at least some of the alleged coperpetrators, support the conclusion that he was kept fully informed throughout the relevant period and he issued instructions relating to the implementation of the common plan. Thomas Lubanga personally assisted in the military affairs of the UPC/FPLC in a variety of ways. He was involved in planning military operations and he exercised a key role in providing logistical support, by ensuring weapons, ammunition, food, uniforms and military rations and other supplies were available for the troops. The fact that other alleged co-

3406 EVD-OTP-00570, interpretation at 128-Red2-ENG, page 37, lines 16 – 19. No. ICC-01/04-01/06 547/593 14 March 2012

perpetrators, such as Floribert Kisembo and Bosco Ntaganda, were more involved with the day-to-day recruitment and training of soldiers, 3407 including those under the age of 15, does not undermine the conclusion that Mr Lubanga’s role was essential to the implementation of the common plan. In addition, the accused and other commanders were protected by guards, some of whom were below 15. As set out above, the use of children as bodyguards for the commanders amounts to their use to participate actively in hostilities. The role of the accused within the UPC/FPLC and the hierarchical relationship with the other co-perpetrators, viewed in combination with the activities he carried out personally in support of the common plan, as demonstrated by the rallies and visits to recruits and troops, lead to the conclusion that the implementation of the common plan would not have been possible without his contribution. 1271. Viewed in its entirety, the evidence demonstrates that the accused and his alleged co-perpetrators, including particularly Floribert Kisembo, Chief Kahwa and Bosco Ntaganda, worked together and each of them made an essential contribution to the common plan that resulted in the enlistment, conscription and use of children under the age of 15 to participate actively in hostilities. 1272. In light of the evidence above, the Chamber is persuaded beyond reasonable doubt that the accused made an essential contribution to the common plan for the purposes of Article 25(3)(a).

3407 For example, T-179-Red2-ENG, page 63, lines 1 – 3 (P-0014); T-125-Red2-ENG, page 52, lines 6 – 7 (P-0041); T-189-Red2-ENG, page 17, lines 15 – 20 (P-0016); T-189-Red2-ENG, page 29, lines 16 – 25, page 30, line 24 to page 31, lines 4 and 19 and page 35, line 25 to page 36, line 2 (P-0016). No. ICC-01/04-01/06 548/593 14 March 2012

3 MENTAL ELEMENT a) Intent and knowledge 1273. Pursuant to Article 30, the prosecution has the obligation of establishing that Thomas Lubanga committed the crimes of conscripting, enlisting and using children below the age of 15 to participate actively in hostilities, with the necessary intent and knowledge. 1274. It is necessary, therefore, for the prosecution to establish that Thomas Lubanga intended to participate in implementing the common plan, and, additionally, that he was aware that the conscription, enlistment or use of children below the age of 15 “will occur in the ordinary course of events” 3408 as a result of the implementation of the common plan. The Chamber needs to be 3409 satisfied the accused knew that the children were under the age of 15 years and, additionally, he was aware that he was providing an essential contribution to the implementation of the common plan. Finally, it is for the prosecution to establish the accused was aware of the existence and the factual circumstances that established the existence of an armed conflict. 1275. The prosecution argues that the accused (1) established the circumstances that led to the recruitment of children under 15 in the ordinary course of events, and (2) knew this would occur, or was aware there was a substantial likelihood that the crimes would

3408 See Article 30(2)(b) and (3). 3409 The Chamber notes the defence arguments that the prosecution relied on a degree of probability rather than certainty that the crime would be committed on account of the common plan. As the Chamber has determined the legal basis on which it has examined the evidence, it will not discuss these arguments in any detail. (See ICC-01/04-01/06-2773-Red-tENG, paras 869 - 871). No. ICC-01/04-01/06 549/593 14 March 2012

occur. 3410 It submits the evidence demonstrates the accused had intent and knowledge within the terms of Article 30. 3411 1276. The defence argues the alleged crimes were not a virtually certain consequence of creating the armed force and thereafter using it in the armed conflict. 3412 Equally, the defence suggests the prosecution has not established that voluntary enlistment in the FPLC by children under the age of 15 was the virtually certain consequence of the various recruitment activities. 3413 It is argued that although it was difficult to verify the ages of recruits, a policy requiring age verification was in place and was implemented, thereby considerably reducing the risk that children under the age of 15 would be enlisted. 3414 Any deliberate enlistment of children under the age of 15 by the military authorities was, therefore, in violation of this prohibition. The defence further argues the prosecution has not 3415 established how the essential contribution ascribed to the accused inevitably resulted in the conscription or use of children under the age of 15 to participate actively in hostilities. 3416 The defence contends there is no evidence to suggest that the accused was personally involved, or had knowledge of, any forcible recruitment of children under the age of 15 into the FPLC or their use to participate actively in hostilities. 3417 Finally, the Chamber is reminded the accused has not been prosecuted on the basis of superior responsibility, and it is suggested it has not been established that he condoned or participated in the crimes with

3410 ICC-01/04-01/06-2778-Red, para. 40. 3411 ITT-01/04-01/06-2778-Red, para. 41. 3412 ICC-01/04-01/06-2773-Red-tENG, para. 872. 3413 ICC-01/04-01/06-2773-Red-tENG, paras 873 – 879. 3414 ICC-01/04-01/06-2773-Red-tENG, paras 876 – 878. 3415 ICC-01/04-01/06-2773-Red-tENG, paras 876 – 877. 3416 ICC-01/04-01/06-2773-Red-tENG, paras 881 – 883. 3417 ICC-01/04-01/06-2773-Red-tENG, paras 884 – 888. No. ICC-01/04-01/06 550/593 14 March 2012

which he is charged. 3418

1277 The evidence presented to the Chamber establishes that the

accused said he frequently tried to convince the population to provide

food and to make youngsters available in order to join, and to train

with, the army of the UPC/FPLC. 3419 Thomas Lubanga was in close

contact with Mr Mafuta, who is said to have played an important 3420

role in recruiting children and advising the accused on policy. The 3421

accused frequently saw or was in contact with the senior UPC staff,

many of whom were significantly involved in conscripting, enlisting,

using and training of child soldiers, including Floribert Kisembo, 3422

Bosco Ntaganda, and Chief Kahwa. Moreover, numerous 3423 3424

witnesses gave evidence that all the armed groups in Ituri and

elsewhere used child soldiers. 3425 In a conversation with P-0046,

Thomas Lubanga referred to children who had joined the UPC/FPLC

because they were orphans and needed protection, thereby 3426

accepting there were children within the UPC/FPLC. Thomas Lubanga

used child soldiers below the age of 15 as his bodyguards within the

PPU; 3427 he gave speeches and attended rallies where UPC/FPLC

soldiers below the age of 15 were present; and given the extent of 3428

the contact between the accused and senior members of the FPLC, the

Chamber concludes that he was aware that children under the age of

3418 ICC-01/04-01/06-2773-Red-tENG, paras 886 and 889. 3419 See description of the conversation as set out in ICC-01/04-01/06-2748-Conf, para. 288 and transcript reference in footnote 783 of that document. 3420 T-174-Red2-ENG, page 35, lines 6 – 21 (P-0055). 3421 T-174-Red2-ENG, page 32, lines 8 – 11 and page 34, lines 1 – 12 (P-0055). 3422 See paras 1154, 1199-1203, 1206, 1208-1210, 1212, 1217-1218. 3423 See paras 1200, 1202-1203, 1208, 1210-1212, 1218. 3424 See paras 1154, 1199, 1217. 3425 T-158-Red2-ENG, page 61, lines 1 – 11 (P-0017); T-168-Red-ENG, page 76, line 18 (P-0012). 3426 T-206-ENG, page 54, lines 13 – 16 (P-0046); EVD-OTP-00494, T-39-FR, page 83, line 23 to page 84, line 18 (T-39-ENG, page 103, line 5 to page 104, line 2). 3427 See paras 864, 1247-1262. 3428 See paras 790, 792, 860-861, 1236, 1242-1245, 1249-1251, 1256-1257.

No. ICC-01/04-01/06 551/593 14 March 2012

15 formed part of their personal escorts. 3429 1278. The accused visited UPC/FPLC training camps, and specifically at the Rwampara camp he gave a morale-boosting speech to recruits who included young children below the age of 15. 3430 The Chamber is of the view that the video footage of this event provides compelling evidence on Thomas Lubanga’s level of knowledge, which is directly relevant to the mental element of the charges. It is unnecessary to reiterate in this section what the accused, accompanied by some of his co-perpetrators, said at the UPC/FPLC training camp in Rwampara on 12 February 2003. 3431 Irrespective of whether or not there was a policy of verifying the ages of the recruits, it has been established that the accused was aware that the FPLC was recruiting and using child soldiers who were clearly below the age of 15 and he condoned, and he took steps to implement, this policy, along with his co-perpetrators. 1279. The Chamber is persuaded the evidence discussed in the sections above demonstrates that the accused had intent and knowledge with respect to the crimes with which he is charged. In reaching this conclusion, the Chamber has additionally considered the evidence and the arguments submitted by the parties concerning demobilisation as discussed below. (1) Demobilisation 1280. The prosecution suggests that the demobilisation orders issued by the accused were a “sham” and that during the period when the

3429 See paras 1277, 1348; See, e.g., T-113-Red2-ENG, page 36, line 24 to page 37, line 5 (P-0038); T- 125-Red2-ENG, page 54, line 20 to page 55, line 8 and page 55, lines 12 – 20 (P-0041). 3430 See paras 792, 1211, 1242-1245. 3431 T-128-Red2-ENG, page 36, lines 23 – 24, page 37, lines 8 – 23; page 38, line 17 to page 39, line 1, page 40, lines 5 – 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10. No. ICC-01/04-01/06 552/593 14 March 2012

accused was supposedly demobilising children under the age of 18, he failed to question their use as bodyguards or soldiers on the occasions when he saw them. It is argued the evidence has demonstrated that he condoned the continued recruiting and using child soldiers. 3432 The prosecution alleges the demobilisation orders were issued by the accused in response to pressure from the media and the international community. 3433 1281. This is challenged by the defence, 3434 and it argues the accused was opposed to the recruitment of minors throughout the relevant period, and he took appropriate steps to end this practice and to ensure that children were demobilised. The defence submits that 3435 this undermines the suggested mental element, as follows:

From all these observations it is clear that at no time did the Accused approve, accept or tolerate the enlistment of children under the age of 15 years and, a fortiori , their forced enlistment or active participation in hostilities. On the contrary, the trial has shown that each time he found himself in a position to exert his authority, the Accused formally prohibited practices of this nature and ordered the necessary measures to end them. It follows that the mental element required by article 30 for the commission of 3436 the crimes charged cannot be established against the Accused. 1282. D-0011 and D-0019 each gave extensive evidence on issues relating to the accused’s knowledge and intent, including the issue of demobilisation. As discussed above, their account of Thomas Lubanga’s approach to child soldiers, particularly within the UPC/FPLC, is generally lacking in credibility. Although the 3437 Chamber has not relied on their views as to the nature and purpose of the demobilisation orders, it has nonetheless accepted their accounts

3432 ICC-01/04-01/06-2748-Red, paras 20, 307 – 348. 3433 ICC-01/04-01/06-2748-Red, paras 308 – 309, 342 – 344. 3434 ICC-01/04-01/06-2773-Red-tENG, paras 955 – 957. 3435 ICC-01/04-01/06-2773-Red-tENG, paras 834, 890 – 957. 3436 ICC-01/04-01/06-2773-Red-tENG, para. 957. 3437 See paras 784-785, 866-869. No. ICC-01/04-01/06 553/593 14 March 2012

concerning the relevant prevailing circumstances, to the extent that this was supported by other credible evidence. (a) MONUC and NGOs 1283. Representatives of certain NGOs and MONUC discussed the use and demobilisation of child soldiers with representatives of the UPC/FPLC. P-0041 became aware there was an issue concerning child soldiers within the organisation when he worked in a particular section of the executive between September 2002 and mid-2003. 3438 This issue was raised during the weekly discussions he had with a handful of MONUC officers. 3439 In particular, after September 2002, members of the UPC were told they should not use children as soldiers or make them engage in particular forms of work. 3440 P-0012 testified that MONUC or other organisations raised demobilisation issues with the armed groups after March or April 2003. 3441 He stated that although during the earlier meetings other topics were addressed, by the end of August or beginning of September 2003 demobilisation and social reintegration programmes were being discussed. 3442 P-0012 indicated that even though by that time MONUC had become aware that children were within the armed groups, they were unable to demobilise due to a lack of any sufficient assistance. 3443 However, P- 0012 further indicated that during meetings in March and April 2003, the various organisations told the representatives of the armed groups that the use of child soldiers was a serious problem. 3444 It is, however, unclear from P-0012’s evidence whether the UPC was formally

3438 T-124-CONF-ENG, page 69, line 13 to page 70, line 3. 3439 T-125-Red2-ENG, page 47, lines 6 – 14. 3440 T-125-Red2-ENG, page 48, lines 2 – 7 (P-0041). 3441 T-168-Red2-ENG, page 81, line 24 to page 82, line 2. 3442 T-168-Red2-ENG, page 82, line 3 to page 83, line 6. 3443 T-168-Red2-ENG, page 82, lines 10 – 18. 3444 T-168-Red2-ENG, page 82, line 19 to page 83, line 6 (P-0012). No. ICC-01/04-01/06 554/593 14 March 2012

represented at some or all of these meetings. 3445

1284 P-0046 gave evidence about a further MONUC meeting with the

accused on 30 May 2003, at which the issue of child soldiers was

addressed (see below), and representatives of the UPC at all levels –

but in particular those who participated in the Comité de Concertation

des Groupes Armées (“CCGA”) – were reminded repeatedly of their 3446

obligations as regards child protection. P-0046 indicated that these 3447

issues, including forcible recruitment, were regularly raised. 3448

1285 P-0116 testified that after he left Bunia in mid-2002, the

organisation he worked for tried to contact Mr Lubanga about the

recruitment (and re-recruitment) of children. Mr Lubanga refused to 3449

meet with this NGO. 3450 However, P-0116 stated that a meeting on

demobilisation took place during the second half of 2002 between

members of P-0116’s team and Didier Mandey, who P-0116 stated was

the UPC/FPLC’s Minister of Defence and one of Mr Lubanga’s close

aides. 3451 Mr Mandey informed the representatives of the organisation

that their project was not to the advantage of children 3452 and given the

NGO’s inability to care for the children, the UPC/FPLC should not be

asked to be involved in their demobilisation or liberation. 3453

1286 The defence challenges the reliability of P-0116’s evidence on the

basis that the witness said Didier Mandey was the Minister of Defence.

3445 T-168-Red2-ENG, page 83, lines 7 – 25. 3446 T-209-Red2-ENG, page 24, lines 20 – 23 (P-0046). 3447 T-207-Red2-ENG, page 24, lines 8 – 12. 3448 T-207-Red2-ENG, page 40, lines 2 – 15. 3449 T-208-Red2-ENG, page 58, lines 3 – 4 and page 58, line 19 to page 59, line 4 (P-0116). The transcript first refers to the witness leaving in 2003 and then to him leaving Bunia in 2002. Based on the witness’s evidence, 2002 appears to be correct. 3450 T-208-Red2-ENG, page 58, line 23 to page 59, line 4 (P-0116). 3451 T-208-Red2-ENG, page 59, lines 5 – 12 and page 59, line 20 to page 60, line 2; T-209-Red2-ENG, page 68, line 15 to page 69, line 18. 3452 T-208-Red2-ENG, page 59, lines 5 – 9. 3453 T-208-Red2-ENG, page 59, lines 9 – 12.

No. ICC-01/04-01/06 555/593 14 March 2012

It is suggested Chief Kahwa occupied the post of Deputy Minister for Defence of the UPC and was not replaced on his departure. The 3454 defence submits Mr Mandey was never a member of the UPC/FPLC executive and he was not mentioned by any other witness. 3455 Although the defence suggested to P-0116 that Mr Mandey was a member of the RCD-ML and was not involved with Mr Lubanga after March 2002, the witness did not change his evidence on this issue. 3456 However, given this account by P-0116 is not supported by any other witness, the Chamber has not relied on this particular aspect of his testimony. 1287. Nonetheless, there was other evidence to the effect that individuals working in the field of demobilisation were threatened by the UPC/FPLC. P-0024 testified that in October 2002 he did not consider that the UPC would willingly have cooperated with SOS Grands Lacs, because the activities of NGOs of this kind did not accord with the UPC’s expansionist aims. 3457 P-0024 suggested the UPC did not support the activities of humanitarian workers and those involved in human rights because they had different aims from the UPC, given the latter “was out for enrolling children”. P-0024 3458 testified that around November 2002 his organisation had difficulties continuing with its work and many other humanitarian organisations experienced similar difficulties because the UPC’s regime in Bunia was characterised by “general terror tactics”. P-0024 recalled that the UN 3459

3454 ICC-01/04-01/06-2773-Red-tENG, para. 614; To show that Chief Kahwa was not replaced the defence refers to EVD-OTP-00721, a UPC/FPLC decree of 11 December 2002 in which a new executive is appointed, but the Deputy Minister for Defence is no longer listed and Article 1 states that defence and security is the responsibility of the Presidency. 3455 ICC-01/04-01/06-2773-Red-tENG, para. 614. 3456 T-209-Red2-ENG, page 69, lines 19 – 23 (P-0116). 3457 T-170-Red-ENG, page 57, lines 7 – 14. 3458 T-170-Red-ENG, page 57, lines 22 – 24. 3459 T-170-Red-ENG, page 68, lines 2 – 16, see also page 57, lines 14 – 22. No. ICC-01/04-01/06 556/593 14 March 2012

Office for the Coordination of Humanitarian Affairs and the Catholic Church were threatened, and the coordinator of humanitarian activities and one of the Catholic priests were declared persona non grata in Bunia. 3460 This evidence was corroborated by P-0046. 3461 The latter added that in 2002 several individuals belonging to humanitarian organisations were arrested by the administration of the UPC. 3462 P-0046 indicated that in March and May 2003, the NGOs and UN bodies in Bunia had to deal with attacks, and not only by the UPC. 3463 There were threats to staff in humanitarian organisations, and although these may not have been constant, they formed part of the general environment. 3464 P-0116 testified that he left Bunia in mid-2002 because the situation was no longer tolerable for humanitarian and child protection workers. 3465 The organisation he worked for had received covert threats and someone close to Mr Lubanga warned them they ought to be careful and leave. 3466 P-0116 said the organisation only received threats from Mr Lubanga’s group, 3467 and he suggested this was because they were witnessing, and reporting on, the recruitment of children, and working to raise awareness on this issue. They were considered a nuisance because their activities were having an impact. 3468 1288. In addition, D-0037 agreed there were complaints made by the United Nations and other international organisations in October or November 2002 and early 2003 regarding the recruitment of children

3460 T-170-Red-ENG, page 57, lines 16 – 22 and page 67, line 8 to page 68, line 1. 3461 T-206-Red2-ENG, page 53, lines 10 – 14 . 3462 T-206-Red2-ENG, page 53, lines 8 – 10 (P-0046). 3463 T-206-Red2-ENG, page 53, lines 14 – 16 (P-0046). 3464 T-206-Red2-ENG, page 53, lines 17 – 21 (P-0046). 3465 T-203-Red2-ENG, page 81, lines 9 – 13 (P-0116). 3466 T-203-Red2-ENG, page 81, line 14 to page 82, line 9. 3467 T-203-Red2-ENG, page 82, lines 10 – 17. 3468 T-203-Red2-ENG, page 83, lines 7 – 20 (P-0116). No. ICC-01/04-01/06 557/593 14 March 2012

in the FPLC, which were received by his office within the UPC. 3469 In a departure from his earlier testimony, D-0037 indicated he had not been informed about the complaints against the UPC in May or June 2003 3470 and he only learnt about them in the letters that the President of the UPC sent to the commanders. 3471 D-0019 suggested that complaints by MONUC or from other members of the international community about the presence of children in the UPC army were discussed at executive committee meetings, and the UPC President considered it necessary to try and take action in order to protect the FPLC from such accusations. 3472 D-0011 also indicated Thomas Lubanga received complaints from the United Nations and other international organisations during October and November 2002, although he attempted to minimise their significance by suggesting that they were “attacks” of the sort that are usually made against any rebel movement. 3473 1289. The defence rejects the suggestion that pressure was exerted on the FPLC in September and October 2002 because of the presence of children. 3474 It refers to a video excerpt introduced through P-0030 of a meeting between Mr Lubanga and a MONUC delegation on 24 February 2003, in support of the contention that meetings with MONUC occurred in February and the subject of child soldiers was not raised. 3475 It is further submitted that P-0012 confirmed that meetings with MONUC or other NGO that addressed the topic of

3469 T-349-ENG, page 64, lines 1 – 6. 3470 T-350-Red2-ENG, page 2, lines 5 – 9. 3471 T-350-Red2-ENG, page 2, lines 10 – 15. 3472 T-345-ENG, page 63, lines 9 – 23. 3473 T-347-ENG, page 63, line 24 to page 64, line 10 (D-0011). 3474 ICC-01/04-01/06-2773-Red-tENG, para. 899. 3475 ICC-01/04-01/06-2773-Red-tENG, para. 899; EVD-OTP-00577; P-0030 confirmed that the meeting took place on 24 February 2003, T-129-CONF-ENG, page 53, lines 16 – 20. No. ICC-01/04-01/06 558/593 14 March 2012

child soldiers were held in late August or early September 2003. 3476 1290. On the basis of the evidence discussed above, the Chamber is persuaded that by May 2003 at the latest Thomas Lubanga was fully aware of the prohibition on child recruitment and was aware of the concerns of outside bodies as to the recruitment and use of child soldiers, and that this issue was repeatedly raised regardless of the precise nature or context of their meetings. Moreover, the evidence demonstrates the UPC/FPLC attempted to impede the work of the organisations which were involved with helping child soldiers during the period of the charges. On the basis of the testimony of D-0019, D- 0037 and D-0011, the Chamber is satisfied that complaints about the use of child soldiers were levelled at the UPC/FPLC by late 2002 and early 2003, and it accepts D-0019’s evidence that these complaints were discussed at meetings. 1291. Other aspects of the involvement of international and national organisations in demobilisation are discussed below. (b) Demobilisation instructions of 21 and 30 October 2002 (EVD-OTP-00696 and EVD-D01- 01096) 1292. P-0055 was shown a document entitled “ Enrôlement des enfants soldats ” signed on 21 October 2002, which appears to originate from the cabinet of the President. The letter is written on UPC/FPLC 3477 letterhead and is signed by Thomas Lubanga. 3478 It notes that contrary to the UPC ideology, the practice had developed of recruiting children

3476 ICC-01/04-01/06-2773-Red-tENG, para. 899, referring to T-168-CONF-FRA, page 84, lines 10 – 24. 3477 T-176-Red2-ENG, page 57, line 23 to page 58, line 12 (P-0055); EVD-OTP-00696 (previously EVD-OTP-00047). 3478 EVD-OTP-00696. No. ICC-01/04-01/06 559/593 14 March 2012

of both sexes into the armed forces and the revolutionary armies. 3479 As

regards the armed branch of the UPC army (the FPLC) the letter

purports to prohibit this practice, which it is said goes against the

UPC’s prior initiatives concerning the demobilisation of child soldiers

with the NGO SOS Grand-Lacs. 3480 P-0055 indicated he had not been

informed of the document and was not on the list of addressees, 3481

and he had been unaware of its existence. 3482 P-0055 stated he had not

received any order to demobilise child soldiers, and he was not

conscious of any instruction to this effect. 3483

1293 D-0011 was also shown this letter of 21 October 2002, 3484 and he

indicated it was his draft and he “proposed it to the president for

signature, on his recommendation” in October 2002. 3485 According to

D-0011, the President sought in this letter to remind the Chief of Staff

of the FPLC that the ideology of any army that he commands should

include avoiding the enrolment of minors, by which Thomas 3486

Lubanga meant “any individual below the age of 18.” 3487 According to

D-0011, other military groups tended to enrol individuals of all ages,

and since the UPC was establishing a military wing 3488 Thomas

Lubanga wished to indicate to the chiefs of staff “that children were

not to be enlisted in this army.” 3489 D-0011 said “that was a rationale in

which Thomas Lubanga has always moved. Since he started in this

3479 EVD-OTP-00696. The original refers to “[…] une pratique d’enrôlement des mineurs de deux sexes au sein des forces combattantes et dans certaines armées à caractère révolutionnaire […]”. 3480 EVD-OTP-00696. 3481 T-176-Red2-ENG, page 60, lines 10 – 11. 3482 T-176-Red2-ENG, page 61, lines 1 – 2. 3483 T-178-Red2-ENG, page 44, line 21 to page 45, line 8 (P-0055). 3484 T-346-ENG, page 78, lines 8 – 9; EVD-OTP-00696 (previously EVD-OTP-00047). 3485 T-346-ENG, page 78, lines 8 – 22. 3486 T-346-ENG, page 78, lines 22 – 25. 3487 T-346-ENG, page 78, line 25 to page 79, line 1. 3488 The English transcript erroneously refers to the APC (T-346-ENG, page 79, line 13), but the French transcript correctly refers to the FPLC (T-346-FRA, page 68, line 13). 3489 T-346-ENG, page 79, lines 10 – 19.

No. ICC-01/04-01/06 560/593 14 March 2012

field, he’s never wanted children to be enrolled in armies, […].” 3490

1294 The prosecution questioned D-0011 about the reference number “287” on the 21 October letter, which was higher than the reference numbers for documents dated November 3491 and December, 3492 and it was suggested that this violated the administrative regulations in the UPC. D-0011 replied that there was a register for numbering letters 3493 to the Presidency that came from the President’s cabinet and there was a further register for documents sent directly by his private secretary. 3494 He explained that the apparent divergence between the reference numbers occurred because of the existence of these two separate registers (which used discrete systems for assigning numbers to documents), 3495 and because more documents were produced by the President via his private secretary than by the director of his cabinet. It was suggested to D-0011 that the document of 21 October 3496 2002 was a false document, or a “smokescreen”, that had been created deliberately to give a false impression. 3497 D-0011 maintained that the document was genuine and it had not been written after the event for this reason. 3498

1295 Another order dated 30 October 2002 drafted on behalf of the Chief of Staff of the FPLC, Floribert Kisembo, instructs all the commanders of the various units of the FPLC to disarm children below

3490 T-346-ENG, page 79, lines 15 – 19. 3491 EVD-OTP-00684 (previously EVD-OTP-00043) with reference number 146/UPC/RP/CAB/PRES/2002; T-347-ENG, page 71, line 18 to page 72, line 47. 3492 EVD-OTP-00712 (previously EVD-OTP-00184) with reference number 179/UP/RP/CAB/PRES/2002; T-347-ENG, page 71, lines 10 – 25. 3493 T-347-ENG, page 73, lines 2 – 4 and page 74, lines 11 – 13. 3494 T-347-ENG, page 73, lines 5 – 9 and page 74, lines 14 – 18. 3495 T-347-ENG, page 74, line 15 to page 75, line 6. 3496 T-347-ENG, page 73, lines 22 – 25. 3497 T-347-ENG, page 76, lines 8 – 11 and page 77, lines 4 – 7. 3498 T-347-ENG, page 76, lines 12 – 24 and page 77, lines 8 – 13.

No. ICC-01/04-01/06 561/593 14 March 2012

the age of 18, including those within the self-defence forces. 3499 The order is worded generally and does not specify that the commanders should disarm children in the FPLC 3500 and it does not refer to the previous demobilisation order of 21 October 2002. When asked about potential discrepancies in the numbering on this and a later document, D-0037 testified that the reference number of the letter was inappropriate within the context of military regulations and he suggested that given it was a time of war, there may have been problems in the filing – that documents had not been dealt with in the same way and the numbers had possibly “jumped”. 3501 D-0037 accepted there were irregularities in the signature and the stamp, but he did not give a clear explanation as to why the seal was that of the “chargé des operations” if the document was drafted and signed on behalf of the Chief of Staff. 3502 1296. D-0019 testified that the decree dated 21 October 2002 was published and read out on Candip radio station during a news broadcast. 3503 Although D-0019 was unsure about the precise date, he stated it was read out on the date of publication during October 2002, and that this was possibly around the middle of the month. He 3504 explained that in the absence of its own official newspaper, the UPC published documents in the national press and it used programmes on the Radio Nationale et Télévision du Congo . 3505 1297. D-0019 denied that the October and other similar orders were

3499 EVD-D01-01096; T-349-ENG, page 11, lines 2 – 17 (D-0037). 3500 EVD-D01-01096: “Dès à présent, vous devez désarmer endéans 2 (deux) semaines tous les enfants, c’est-à-dire moins de 18 ans. Et cela, même dans les forces d’auto-défense.” 3501 T-349-ENG, page 46, line 21 to page 48, line 18. 3502 T-349-ENG, page 43, line 11 to page 46, line 14. 3503 T-345-ENG, page 60, lines 8 – 13 and page 64, line 6 to page 65, line 19. 3504 T-345-ENG, page 64, lines 12 – 14 and page 64, line 22 to page 65, line 21. 3505 T-345-ENG, page 64, lines 6 – 19. No. ICC-01/04-01/06 562/593 14 March 2012

sham documents, in the sense that it was not intended to put them into effect. 3506 1298. D-0019 also testified that the UPC G5, Eric Mbabazi, spoke on the radio several times in order to make announcements about demobilisation and to raise awareness so as to prevent children from joining the army. D-0019 denied the suggestion that Eric Mbabazi 3507 was actively attempting to recruit more children into the FPLC or that he sent documents complaining about the lack of children and the difficulty in recruiting them into the FPLC. 3508 1299. The Chamber accepts the account provided by D-0019 that the 21 October order was read out over the radio. A UN report admitted into evidence supports the suggestion that UPC documents were broadcast in this way as it contains in its annex a later order, as read out over the radio. 3509 However, given the wealth of evidence demonstrating that recruitment continued unabated in spite of the demobilisation orders, the Chamber rejects D-0019’s evaluation of the nature and the underlying purpose of these orders. 1300. D-0037 similarly disagreed with the prosecution’s assertion that the demobilisation letters were produced at the time solely to fend off complaints by the international community, together with the contention that it was never intended to implement the demobilisation measures. 3510 D-0037 stated that demobilisation started within the RCD-ML in 2001, and indeed individuals were brought from the

3506 T-345-ENG, page 64, lines 2 – 5. 3507 T-345-ENG, page 69, line 24 – page 71, line 11. 3508 T-345-ENG, page 71, line 16 to page 72, line 15. 3509 EVD-OTP-00741 at DRC-OTP-0152-0248. 3510 T-349-ENG, page 62, line 24 to page 63, line 25. No. ICC-01/04-01/06 563/593 14 March 2012

training centres and handed over to NGOs in 2000/2001. 3511 However, D-0037 also acknowledged he knew Eric Mbabazi, the G5, and that from October 2002 through into 2003 the latter was trying, inter alia , to rally young people to attend at the training centres. 3512 D-0037 stated he could not say whether Eric Mbabazi was “recruiting” children. 3513 1301. The defence disputes the prosecution’s claim that the instructions of 21 and 30 October 2002 were only issued following protests from the international community and the NGOs, and it argues there is no evidence of pressure or protests regarding the presence of minors in the FPLC in the period immediately preceding the instructions. The defence further submits that the documents 3514 could not have been intended to mislead MONUC and the NGOs as they were designed for internal use only, and had not been made available to representatives of the international community or the NGOs by members of the UPC/FPLC. It is further suggested that the 3515 fundamental difference between the political documents and the demobilisation orders are that the former were public while the latter were confidential prior to their use at trial. 3516 1302. The prosecution suggests the defence has conceded that the accused routinely drafted false documents. 3517 The defence argues that in relying on this alleged concession, the prosecution appears to accept that some of the documents it relied on to prove the existence of a

3511 T-349-ENG, page 63, lines 16 – 19. 3512 T-349-ENG, page 64, lines 7 – 19. 3513 T-349-ENG, page 64, lines 13 – 16. 3514 ICC-01/04-01/06-2773-Red-tENG, paras 895 – 899. 3515 ICC-01/04-01/06-2773-Red-tENG, para. 900. 3516 ICC-01/04-01/06-2786-Red-tENG, paras 53 – 54. 3517 ICC-01/04-01/06-2778-Red, para. 49. No. ICC-01/04-01/06 564/593 14 March 2012

common plan lack reliability. 3518 1303. The Chamber accepts, contrary to the defence submissions, that the orders were made available to the public via the media. Whether or not the orders were a “sham”, and were issued in response to external pressure, is analysed below. (c) Request for report of 27 January 2003 (EVD- OTP-00697) and letter of 16 February 2003 (EVD- D01-01097) 1304. A letter dated 27 January 2003, and signed by Thomas Lubanga, refers to the demobilisation order of 21 October 2002 and requests a detailed report on the demobilisation of children below the age of 18 within the FPLC from the Chief of Staff. 3519 P-0055 gave evidence that he had not seen this letter and he was unaware of it, although he had been in the UPC at that time. 3520 However, D-0037 indicated he saw the letter when it arrived in the office where he was working. 3521 D-0011 testified that he had drafted the letter following a request by the accused in order to generate a follow-up report from the Chief of Staff of the FPLC in relation to the order that had previously been issued. 3522 1305. A report dated 16 February 2003 addressed to the general administrator of UPC security refers to the demobilisation instructions of 21 October 2002 and 27 January 2003 and states they had been correctly disseminated to all the major units. However, guidance was requested given the opposition from the self-defence forces to

3518 ICC-01/04-01/06-2786-Red-tENG, paras 53 – 54. 3519 EVD-OTP-00697 (previously EVD-OTP-00050). 3520 T-176-Red2-ENG, page 61, lines 10 – 25; T-178-CONF-ENG, page 42, lines 5 – 9 (the letter was the document under tab 2 in the binder) and page 44, line 21 to page 45, line 8. 3521 T-349-ENG, page 11, line 20 to page 12, line 4. 3522 T-347-ENG, page 10, lines 2 – 4 and page 10, line 16 to page 11, line 6. No. ICC-01/04-01/06 565/593 14 March 2012

demobilise and disarm the children in their groups. 3523 D-0037 testified he had drafted and signed the report on the orders of Bosco Ntaganda. 3524 He conceded that the report’s reference number did not appear to be consistent with the military regulations, 3525 and it mistakenly did not contain the reference number given to the 21 October 2002 order. 3526 1306. The prosecution argues the letter of 27 January 2003 is a sham because a genuine follow-up report would have been requested earlier than three months after the demobilisation order was issued in October. 3527 It suggests the letter supports the proposition that the October order was drafted later and backdated, and submits that, in 3528 any event, the follow up order was not implemented and recruitment continued. 3529 The prosecution draws attention to the fact that D-0037 could not explain why the 16 February 2003 report omits the reference number “287” that had allegedly been assigned to the 21 October 2002, and itself contains an erroneous reference number. 3530 1307. The defence argues the two documents of 27 January and 16 February 2003 reflect the intention of the accused to demobilise children and they demonstrate that the instructions issued by Thomas Lubanga in this regard were transmitted to the relevant military authorities, which then proceeded to implement them. 3531 The defence notes the prosecution does not challenge the authenticity of the 3523 EVD-D01-01097; T-349-ENG, page 12, line 5 to page 13, line 24. As was discussed above, the Chamber found that D-0037’s supported the finding that the village self-defence forces existed separately from the FPLC. 3524 EVD-D01-01097; T-349-ENG, page 12, lines 8 – 12. 3525 T-349-ENG, page 55, lines 13 – 23. 3526 T-349-ENG, page 56, lines 2 – 25. 3527 ICC-01/04-01/06-2748-Red, paras 333 – 334. 3528 ICC-01/04-01/06-2748-Red, para. 333. 3529 ICC-01/04-01/06-2748-Red, paras 335 – 339. 3530 ICC-01/04-01/06-2748-Red, para. 330 . 3531 ICC-01/04-01/06-2773-Red-tENG, paras 909 – 913. No. ICC-01/04-01/06 566/593 14 March 2012

documents and it reiterates its argument that they were not created to deceive the international community, given their content. 3532 1308. The Chamber considers the documents of 23 January and 13 February 2003 below, within the context of the evidence in its entirety in order to establish whether they are of relevance, as advanced by the defence, to the mental element of the charges. (d) Letter of 12 February 2003 from the National Secretary for Education (EVD-OTP-00518) 1309. As discussed above, a 12 February 2003 letter from the UPC/FPLC’s National Secretary for Education, Adubango Biri, dated 12 February 2003 and addressed to the UPC/FPLC’s G5 officer, refers to a demobilisation program for child soldiers aged 10 to 15 or 16 years that had been initiated in the name of the UPC and its President. 3533 1310. The prosecution relies on this document to demonstrate that the accused was aware of the presence of children in the UPC/FPLC. 3534 1311. The defence suggests the letter demonstrates that the decisions as to demobilisation were being implemented. 3535 1312. The Chamber accepts that the letter may have been a response to previous demobilisation orders but the relevant question is whether children under 15 years of age formed part of the FPLC troops after September 2002. In the Chamber’s estimation, this letter clearly demonstrates that children under 15 years of age were serving in the FPLC in February 2003.

3532 ICC-01/04-01/06-2773-Red-tENG, paras 914 – 915. 3533 EVD-OTP-00518. 3534 ICC-01/04-01/06-2748, paras 303 and 304. 3535 ICC-01/04-01/06-2773-Red-tENG, paras 919 – 921. No. ICC-01/04-01/06 567/593 14 March 2012

(e) Demobilisation decree of 1 June 2003 (EVD- OTP-00728) 1313. P-0041 described a meeting he attended during which the demobilisation of child soldiers was discussed and the President read out a decree on the issue, dated 1 June 2003, which he had signed in order that they “would not have difficulties with […] human rights.” 3536 P-0041 stated that the issue of child soldiers was on the agenda of the meeting because there was a problem with MONUC and human rights organisations and that the UPC “had to take a decision so that we would not have that problem within the UPC, and so it was that the child soldiers were demobilised.” 3537 1314. The decree provides in Article 1 that any individual below the age of 18 years is demobilised forthwith from the FPLC. 3538 Pursuant to Article 2, a National Secretary and the Chief of Staff were charged with implementing the decree and this was effective from the date it was signed, 1 June 2003. 3539 It does not specifically address the position of child soldiers below the age of 15, and instead refers to “children” in the armed forces. 3540 P-0041 commented that although he had not been provided with the decree, “those concerned [had] most probably received the document”. 3541 He stated that, in principle, the document should have been transmitted by the president’s office to each of the national secretaries, but apparently that did not happen. 3542 D-0037 stated that he recognised the document, having seen it in the office of

3536 T-125-Red2-ENG, page 42, lines 11 – 17 and page 43, line 22 to page 44, line 19 (P-0041); EVD- OTP-00728 (previously EVD-OTP-00051). 3537 T-125-Red2-ENG, page 43, lines 6 – 10 (P-0041). 3538 EVD-OTP-00728. 3539 EVD-OTP-00728. 3540 EVD-OTP-00728. 3541 T-126-Red2-ENG, page 39, lines 2 – 17. 3542 T-125-Red2-ENG, page 43, line 22 to page 44, line 2. No. ICC-01/04-01/06 568/593 14 March 2012

the Chief of Staff. 3543 1315. Since the wording of the decree is contained in an annex to a MONUC report dated 15 June 2003, as broadcasted by Radio Candip on 2 June 2003, 3544 the Chamber is satisfied the contents of the decree were published in the public domain. 1316. Following up on this decree, a document entitled “Memo number 014” dated 5 June 2003, addressed to all brigade commanders of the FPLC and signed by Commander Floribert Kisembo refers to the decree of 1 June 2003 and contains the following instructions: 3545

In accordance with the spirit of decree number 1 bis/UPC/RP/Cab/Pres/2003 of the 1st of June, 2003, of the UPC/RP President, FPLC Commander-in-Chief, you are requested to demobilise all people among our ranks under the age of 18 according to the regular procedure. 1317. Turning to the circumstances in which the 1 June 2003 decree was issued, during the period when the UPC sought to take control of the town of Bunia, a MONUC representative often visited the UPC/FPLC staff headquarters, where the kadogo unit was stationed (indeed, it was present during his visits). 3546 P-0017 gave evidence that the children in the kadogo unit, prior to their disarmament, were dressed in military uniforms and carried weapons. 3547 However, according to P-0017, the major problem for the UPC/FPLC during this period lay with the media, who were perceived by the UPC as a

3543 T-349-ENG, page 17, lines 13 – 20. 3544 EVD-OTP-00741 at DRC-OTP-0152-0248. The text as transcribed from the radio broadcast contains a slight variation to the extent that pursuant to Article 2 a National Inspector (rather than a National Secretary), and the Chief of Staff are responsible for the implementation. 3545 EVD-OTP-00691 (previously EVD-OTP-00052); T-126-Red2-ENG, page 39, line 19 to page 40, line 23. 3546 T-158-Red2-ENG, page 44, line 16 to page 47, line 3 (P-0017). 3547 T-158-Red2-ENG, page 47, lines 6 – 9 and lines 20 – 25. No. ICC-01/04-01/06 569/593 14 March 2012

threat. 3548 The witness explained that:

[p]hotographs were being taken, especially where child soldiers were moving around with weapons. And sometimes they would try to focus on the area where heavy weapons were located, and this was disturbing. This was embarrassing, because this was going to take on a different dimension. A lot was already being said about child soldiers, that it is – was not a good thing. Almost everyone was aware of that at that time. As so that is why I say their presence was threatening, because they would pass by at any time. 3549 […] 1318. At one point, a European foreign journalist was given special permission to interview a kadogo soldier in the UPC/FPLC. 3550 P-0017 stated that the child was no more than 13 years old, and for the interview he was given a red beret and he carried his weapon. 3551 The interview was eventually broadcast on television. 3552 1319. P-0017 testified that the demobilisation order of June was issued within a week of this interview with the child soldier, 3553 and the witness suggested the decision to disarm child soldiers was influenced by this attention on the part of the media. 3554 The Chamber accepts this contention. 1320. Taking into account the evidence concerning the complaints received by the UPC, the evidence of P-0041 relating to meetings in which demobilisation was discussed as a means to avoid human rights problems within the UPC, the evidence of P-0017 on the visits by the MONUC representative and the attention of the media, the Chamber is persuaded the UPC was subjected to strong external pressure because child soldiers were within the FPLC and it is sure the demobilisation

3548 T-158-Red2-ENG, page 48, lines 4 – 5 and page 51, line 18 to page 52, line 12. 3549 T-158-Red2-ENG, page 51, line 23 to page 52, line 12. 3550 T-158-Red2-ENG, page 48, lines 4 – 18 (P-0017). 3551 T-158-Red2-ENG, page 48, line 11 to page 49, line 17. 3552 T-158-Red2-ENG, page 49, line 9 (P-0017). 3553 T-158-Red2-ENG, page 54, line 23 to page 55, line 2. 3554 T-158-Red2-ENG, page 60, line 21 to page 61, line 11. No. ICC-01/04-01/06 570/593 14 March 2012

decree of 1 June 2003 was issued in response to this external pressure. 1321. However, the effective implementation of this order, as well as the other demobilisation instructions, has not been demonstrated, even on a prima facie basis. As analysed below, the evidence proves that child recruitment continued regardless of the external pressure and internal orders to demobilise. (f) Lack of demobilisation, continued recruitment and re-recruitment 1322. Turning to the question of whether the demobilisation orders were implemented, according to P-0017, during a morning assembly at the UPC/FPLC staff headquarters, the Chief of Staff “talked about the fact that he was going to ask the commander in charge of the child soldiers to disarm them. They were not supposed to carry weapons or wear military uniforms.” 3555 Following this announcement, P-0017 stated “we were surprised”. However, having been disarmed, some 3556 of the children remained at the military headquarters because they were provided with meals, although they no longer carried weapons or wore military uniforms. 3557 In particular, children below the age of 15 – the youngest being about 12 years old 3558 – who had originally come from the kadogo unit in Mamedi remained at the headquarters even if they no longer had weapons or uniforms because they felt tied to the headquarters and the Chief of Staff. 3559 P-0017 suggested those child soldiers who joined at a later stage did not feel protected by the

3555 T-158-Red2-ENG, page 47, lines 9 – 19; see also page 52, lines 19 – 22 and page 53, lines 16 – 21. 3556 T-158-Red2-ENG, page 47, lines 12 – 13 (P-0017). 3557 T-158-Red2-ENG, page 47, lines 17 – 19 and page 52, lines 19 – 23 (P-0017). 3558 T-158-Red2-ENG, page 22, line 23 to page 23, line 9 (P-0017). 3559 T-158-Red2-ENG, page 47, lines 13 – 19; page 52, lines 22 – 23; page 54, lines 3 – 11 and lines 19 – 20 (P-0017). No. ICC-01/04-01/06 571/593 14 March 2012

general staff and ran away to other commanders. 3560 He stated he saw them once they had joined units in Mudzipela and Centrale because they were permitted to continue using their weapons provided they were out of sight of the Chief of Staff. 3561 When asked whether he was aware of children being disarmed on other occasions, P-0017 gave evidence that he only saw children from the UPC being disarmed in Bunia. 3562 In Kilo they were following their commanders to Mongbwalu, although he witnessed the departure of numerous child soldiers. 3563 1323. Notwithstanding his evidence on the Chief of Staff initiating the disarmament of child soldiers in Bunia, P-0017 testified that only ten days later those who remained at the military headquarters were again provided with weapons when the Artemis force arrived. 3564 The kadogos who were available when the fighting began in Bunia were re-armed on the order of the Chief of Staff, Floribert Kisembo, to assist in the ongoing fighting. 3565 Although P-0017 initially stated that he thought Mr Lubanga was still in town when the order to re-arm the children was given, he thereafter confirmed an earlier statement in which he had indicated that the order to re-arm the children was given in the middle of battle and it did not come from Thomas Lubanga, who had already left the town. 3566 P-0017 suggested that a child who had been re-armed died in fighting during the course of the night

3560 T-158-Red2-ENG, page 54, lines 14 – 16. 3561 T-158-Red2-ENG, page 47, lines 16 – 19. 3562 T-158-Red2-ENG, page 60, lines 18 – 20 (P-0017). 3563 T-158-Red2-ENG, page 60, lines 10 – 14 (P-0017). 3564 T-158-Red2-ENG, page 53, line 22 to page 54, line 2, page 54, lines 19 – 21 and page 55, lines 4 – 7. D-0019 confirms that Artemis was deployed in June 2003, T-345-ENG, page 51, line 25 to page 52, line 5. 3565 T-158-Red2-ENG, page 54, lines 19 – 21; page 55, lines 4 – 21; T-160-Red2-ENG, page 52, lines 20 – 25 (P-0017). 3566 T-160-Red2-ENG, page 52, line 25 to page 53, line 2; page 55, line 2 – page 56, line 6 (P-0017). No. ICC-01/04-01/06 572/593 14 March 2012

before the Artemis contingent arrived. 3567 P-0017 further gave evidence that the Chief of Staff proclaimed himself as President of the UPC/FPLC on his return to Bunia following the arrival of Artemis and the ensuing battle. 3568 1324. The defence appears to suggest that the accused was not responsible for re-arming the children because he had left the town and Floribert Kisembo “was trying to take control of the UPC”. 3569 However, there is no evidence to suggest that Mr Kisembo was in control or acted against the authority of the accused in the period following the incident with Artemis. His attempted take-over did not occur until December 2003, and the documentary evidence suggests 3570 that Floribert Kisembo acknowledged, at least in a formal sense, the authority of the accused as president as late as November 2003. 3571 In evidence that the Chamber accepts, P-0017 indicated that the UPC/FPLC’s response to the Artemis operation included deploying the children during the battle. Given the continued, essentially uncontested authority of the accused at this time, the return of weapons and uniforms to the child soldiers for this purpose is compelling evidence that their involvement was the result of the common plan, namely to use soldiers of any age to maintain control 3567 Earlier, P-0017 suggested that the children from the kadogo unit in Mamedi were grouped together to protect them and that although some were bodyguards to the Chief of Staff, the witness did not know about military tasks and said that they had no special responsibilities at that time. T-158-Red2-ENG, page 22, line 14 to page 25, line 22. At that time the kadogos had been brought back to the General Staff, which was in Mamedi. T-158-Red2-ENG, page 22, lines 17 – 22 and page 25, lines 23 – 24. The Chamber is persuaded that this earlier testimony does not contradict the evidence that they were rearmed and that at least one child died fighting in the night before Artemis arrived. T-158-Red2-ENG, page 46, lines 12 – 18 and page 56, lines 6 – 24. 3568 T-160-Red2-ENG, page 56, lines 7 – 21 and page 57, lines 1 – 14. 3569 ICC-01/04-01/06-2773-Red-tENG, para. 448. 3570 EVD-D01-01092, a letter dated 9 December 2003 signed by the Interim President of the UPC/FPLC criticises the attempted coup by Commander Kisembo and confirms the presidency of Thomas Lubanga. It is a response to a political declaration of 3 December 2003. 3571 In EVD-OTP-00683, a letter on the UPC/FPLC letterhead dated 1 November 2003, apparently bearing the stamp and signature of Floribert Kisembo himself, informs the accused of a reorganisation of the brigade commanders in the field. No. ICC-01/04-01/06 573/593 14 March 2012

over Bunia rather than representing a decision that had been taken by the Chief of Staff alone.

1325 The Chamber heard evidence that before demobilisation finally occurred in October and November 2003 (after the period of the charges), 3572 there had been “sham” demobilisation attempts by the UPC/FPLC. P-0024 gave evidence that two months after the UPC 3573 took control of Bunia, there were broadcasts by Radio Candip and on television in which the UPC/FPLC “pretended to demobilise certain children”. 3574 P-0024 said children had remained within the armed groups, and they were seen, for instance, acting as bodyguards in their pick-up vehicles. He suggested any demobilisation that occurred 3575 only concerned a limited number of children – he estimated no more than 20. 3576 P-0024 also gave evidence that after the purported demobilisation in October 2002, he saw armed children from the FPLC threatening members of the population. The defence suggests P- 3577 0024’s claim that the UPC/FPLC only pretended to demobilise children was simply his opinion and that he failed to provide further details. 3578 It is argued the witness was biased, and he attempted to minimise the significance and scope of the demobilisation measures which he accepted existed. 3579 The evidence of this witness is evaluated in the context of the other material on this issue. 1326. P-0046 gave similar evidence, namely that the UPC/FPLC

3572 T-207-Red2-ENG, page 28, lines 1 – 10 (P-0046). 3573 T-170-Red-ENG, page 52, line 24 to page 53, line 15 (P-0024). 3574 T-170-Red-ENG, page 52, lines 15 – 19. 3575 T-170-Red-ENG, page 52, lines 19 – 23. 3576 T-170-Red-ENG, page 53, lines 5 – 15. 3577 T-170-Red-ENG, page 53, lines 16 – 21. 3578 ICC-01/04-01/06-2773-Red-tENG, para. 591. 3579 ICC-01/04-01/06-2786-Red-tENG, para. 58. No. ICC-01/04-01/06 574/593 14 March 2012

demobilisation efforts were not genuine, 3580 and that once the demobilisation instructions had been issued, the UPC/FPLC failed to cooperate, notwithstanding the meetings with MONUC representatives that were held several times a week. 3581 P-0046 indicated that during a meeting on 30 May 2003 at Thomas Lubanga’s residence, “contrary to the reaction of other armed groups that I had met with previously, there was no indication on his part of any will to cooperate […] if you will allow me to compare with the FAPC 3582 that I had met with in March, the RCD-ML, or other groups, the Mai Mai groups in the North Kivu who had publicly stated that they were willing to cooperate with child protection agencies from the United Nations, on 30 May, there was no sign of open-mindedness or any will to actually discuss the matter.” 3583 During this meeting, P-0046 informed Thomas Lubanga that MONUC was trying to make a detailed record of the ongoing recruitment of children, 3584 including, in particular, by the UPC/FPLC. 3585 P-0046 showed certain documents to Mr Lubanga, including various international resolutions and other instruments concerning the protection of children, 3586 and they discussed the DRC’s ratification of the Rome Statute. 3587 1327. After the 30 May 2003 meeting between the MONUC delegation and Thomas Lubanga, and once the MONUC teams had been able to monitor the information that was publicly broadcasted, P-0046 was informed about a text, distributed by the Presidency of the UPC, which 3580 EVD-OTP-00489, T-37-EN, page 106, line 22 to page 107, line 25; EVD-OTP-00491, T-39-EN, page 108, line 23 to page 109, line 15 (transcripts of testimony before the Pre-Trial Chamber). 3581 EVD-OTP-00489, T-37-ENG, page 107, lines 10 – 25 (transcript of testimony before the Pre-Trial Chamber). 3582 T-209-Red2-ENG, page 29, lines 3 – 11. 3583 T-207-Red2-ENG, page 25, lines 8 – 18. 3584 T-206-Red2-ENG, page 41, lines 9 – 12. 3585 T-206-Red2-ENG, page 40, line 25 to page 41, line 6. 3586 T-206-Red2-ENG, page 41, lines 7 – 9. 3587 T-206-Red2-ENG, page 41, lines 13 – 19. No. ICC-01/04-01/06 575/593 14 March 2012

referred to the demobilisation of certain children. 3588 In the days following this announcement, P-0046 and others tried unsuccessfully to find the official text. 3589 However, two or three weeks later they were told by one of the child protection agencies that the latter had been contacted by a UPC commander about taking care of some of the children. P-0046 discovered that some of the children who left the 3590 UPC travelled to a particular transit centre, but repeated requests by MONUC and other child protection agencies for an official meeting with members of the UPC on this issue were ignored. 3591 P-0046 gave evidence about an incident in the fall of 2003 when she encountered a child she had previously met at the Rwampara camp in March 2003, who told her that the children she had interviewed at that time had not been demobilised or ordered to return to civilian life. 3592 Generally, the UPC continued to recruit children throughout the time the witness was responsible for Ituri. 3593 After having indicated that many children were released by the UPC in October and November 2003 (in contrast to June), 3594 P-0046 testified that some families asked the centres not to return the children who had been within the UPC to their homes because they were afraid they might be re-recruited. 3595 1328. Supporting the evidence that recruitment continued, the weekly MONUC report of 15 June 2003 (mentioned above) 3596 included in an annex the content of the demobilisation decree as it was read out over the radio, and it contained a section on the continued recruitment of

3588 T-206-Red2-ENG, page 54, lines 21 – 25 (P-0046). 3589 T-206-Red2-ENG, page 55, lines 1 – 3 (P-0046). 3590 T-206-Red2-ENG, page 55, lines 4 – 10 (P-0046). 3591 T-206-Red2-ENG, page 55, lines 11 – 15 (P-0046). 3592 T-206-Red2-ENG, page 12, lines 7 – 24 (P-0046). 3593 T-206-Red2-ENG, page 55, lines 16 – 18 (P-0046). 3594 T-207-Red2-ENG, page 28, lines 1 – 10. 3595 T-207-Red2-ENG, page 29, lines 10 – 16. 3596 See paras 1299 and 1315.

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children. 3597 The report referred in terms to children who were being recruited by the UPC. Although the ages of the children are not 3598 specified, the decree purportedly referred to all children below the age of 18. 1329. P-0024 did not recall that SOS Grands Lacs was involved in any demobilisation initiatives for children undertaken by the UPC – indeed, he did not recall any UPC initiatives of this kind. He 3599 indicated that at the time of the first letter, 21 October 2002, their work in Bunia was becoming difficult, 3600 and in November 2002 their activities were discontinued for security reasons, 3601 with the NGO losing many of the children within its care. 3602 1330. P-0116 did not receive any information about a UPC demobilisation initiative in the period between September 2002 and October 2003, 3603 and he said he would have been aware of an event of this kind on account of his work. According to information P-0116 3604 received, including from child protection workers operating in Bunia at the time, some of the NGOs approached the UPC “through purely bilateral relations” to ask it to release children, but appointments that were made were not kept. P-0116 gave evidence about a meeting 3605 with the child protection unit of MONUC and the donors of the World Bank that took place in March or April 2003 in Kinshasa to discuss demobilisation in the DRC, to which numerous armed groups were

3597 EVD-OTP-00741. 3598 EVD-OTP-00741 at page DRC-OTP-0152-0246. 3599 T-170-Red-ENG, page 54, lines 12 – 17. 3600 T-170-Red-ENG, page 54, lines 15 – 23. 3601 T-170-Red-ENG, page 54, line 18 to page 55, line 23 (P-0024). 3602 T-170-Red-ENG, page 68, lines 2 – 9 (P-0024). 3603 T-208-Red2-ENG, page 65, line 23 to page 66, line 7 and page 67, lines 9 – 7. 3604 T-208-CONF-ENG, page 66, lines 7 – 11. 3605 T-208-Red2-ENG, page 70, lines 2 – 8. No. ICC-01/04-01/06 577/593 14 March 2012

invited. 3606 However, although they wanted to establish contact with the UPC, the latter was not invited because it was considered too dangerous to approach, and, in any event, no one within the UPC was engaged with the issue of child demobilisation. 3607 Therefore, P-0116 suggested it was difficult for the international organisations to contact the UPC on this issue, and it was recognised that it was difficult to persuade the UPC to release children unconditionally. 3608 An initiative, forming part of the national DDR programme and open to all those concerned with the issue, including the armed groups, failed to receive the necessary commitment. 3609 Indeed, prior to October 2003, P-0116 was unaware of any formal commitment on the part of the UPC to release children within its ranks. 3610 1331. In contrast, D-0037 drafted and signed minutes of a meeting he attended on 16 June 2003 that had included, amongst others, Mr 3611 Rafiki and Bosco Ntaganda, in the course of which instructions were 3612 given to demobilise children and to hand them over to the NGOs. 3613 According to the minutes, during the course of this meeting, the question was raised as to how the demobilisation order of 1 June 2003 related to the FPLC, given it had seemingly banned the use of children at its inception. 3614 The following answer was given during the meeting:

[…] With regard to the few child soldiers seen around town, we need to work on them, as you did with the self-defence militias in the field. The decree is 3606 T-208-CONF-ENG, page 67, lines 9 – 24. 3607 T-208-Red2-ENG, page 67, line 24 to page 68, line 3. 3608 T-208-Red2-ENG, page 68, lines 9 – 21. 3609 T-208-Red2-ENG, page 70, lines 9 – 13. 3610 T-208-CONF-ENG, page 70, lines 13 – 16 (P-0116). 3611 EVD-D01-01098; T-349-ENG, page 17, line 21 to page 18, line 4 and page 19, lines 6 – 15 (D- 0037). 3612 EVD-D01-01098; T-349-ENG, page 18, line 23 to page 19, line 2 (D-0037). 3613 EVD-D01-01098. 3614 EVD-D01-01098. No. ICC-01/04-01/06 578/593 14 March 2012

for wide-ranging awareness-raising […] As it stands, faced with evil we need to act for the benefit of society as a whole. This is the argument presented by 3615 the President, which we have adopted. In order to establish the authenticity of the typed minutes of this meeting, the defence refers to particular unsigned, handwritten notes dated 16 June 2003 that, according to D-0019, appear to have been drafted by the Chief of Staff of the FPLC, Floribert Kisembo 3616 and which may be some form of preparatory notes. 3617 The two documents appear to relate to the same meeting, and the defence suggests they demonstrate that demobilising child soldiers was a priority for the FPLC; that the demobilisation policy extended to all minors bearing arms within each of the armed groups in Bunia and Ituri; and certain initiatives in this context had already been implemented. 3618

1332 D-0011 gave evidence that the decree of 1 June 2003 was brought to the attention of the public via the press attaché of the Presidency when he spoke on the radio. The witness indicated that he was 3619 aware the decree had been implemented because it was normal practice to send the decrees to all the national secretaries, who ensured their provisions were put into effect. 3620 According to D-0011, the Chief of Staff had been ordered to disseminate the content of the decree. 3621 Additionally, D-0011 testified that Monsignor Nekoosa, the director of Caritas in Bunia, met with Thomas Lubanga and they discussed transferring the children in the army to Caritas so as to ensure their

3615 EVD-D01-01098, page DRC-D01-0003-5902. The translation is taken from the quote in ICC- 01/04-01/06-2773-Red-tENG, para. 954. 3616 EVD-OTP-00668; T-342-ENG, page 43, lines 10 – 21. 3617 ICC-01/04-01/06-2773-Red-tENG, paras 949 – 951. 3618 ICC-01/04-01/06-2773-Red-tENG, para. 955. 3619 T-347-ENG, page 18, lines 17 – 2. 3620 T-347-ENG, page 19, lines 12 – 22. 3621 T-347-ENG, page 19, line 23 to page 20, line 2. No. ICC-01/04-01/06 579/593 14 March 2012

social re-integration. 3622 The defence relied on notes drafted by D-0011 in which this meeting is mentioned. D-0011 consistently maintained 3623 the demobilisation decree of 1 June 2003 had been effectively implemented, and he denied that children were re-armed by the FPLC/UPC. 3624 Given D-0011’s general lack of credibility on the recruitment and use of child soldiers as discussed above, the Chamber has disregarded his testimony on the implementation of the demobilisation decree. 1333. Moreover, as described in detail earlier, Thomas Lubanga visited the Rwampara training camp in February 2003 – after the first demobilisation orders were issued – and he encouraged the recruits, some of whom were below the age of 15, including by telling them they would be armed and deployed after the completion of their training. 3625 1334. The defence denies that Thomas Lubanga’s visit to the Rwampara camp in February 2003 conflicts with his demobilisation orders and it is asserted that “his kindness towards these irreproachable young people” during his visit to Rwampara should be viewed in light of the firm instructions he gave in this context. 3626 1335. It is to be noted P-0030 gave evidence to the effect that the youngest of the recruits must have been around nine. 3627 Indeed, the images in the video of 12 February 2003 show recruits well below the

3622 T-347-ENG, page 20, lines 2 – 10. 3623 ICC-01/04-01/06-2773-Red-tENG, para. 947, referring to EVD-D01-01094. 3624 T-348-ENG, page 5, lines 5 – 23. 3625 EVD-OTP-00570. 3626 ICC-01/04-01/06-2773-Red-tENG, paras 916 – 917, with reference to the speech he gave: EVD- OTP-00570; T-128-Red2-ENG, page 36, lines 23 – 24, page 37, lines 8 – 23; page 38, line 17 to page 39, line 1, page 40, lines 5 – 11, and page 40, line 23 to page 41, line 17; the interpretation is taken from the court transcript from time code 00:09:07 to 00:26:10. 3627 T-128-Red2-ENG, page 48, lines 11 – 14. No. ICC-01/04-01/06 580/593 14 March 2012

age of 15. 3628 Thomas Lubanga arrived in a military uniform, accompanied by soldiers, and he addressed and encouraged young recruits in their military training. He told them that as soon as they completed their training they would be given weapons and entrusted with the security and safety of the population. 3629 The accused also told them they would be useful soldiers, who were to be deployed in the field. 3630 The Chamber is of the view that the accused intended for those under the age of 15 who were present to be provided with military training before they were sent into combat, treating them identically to those over the age of 15. Even if the procedures for demobilisation were complex and lengthy, as described by P-0046, 3631 the behaviour of the accused was wholly incompatible with a genuine intention to avoid recruiting children into, or to demobilise children from, the FPLC. 1336. The defence also suggests that since most of the recruits present at the training centre were of an appropriate age to be soldiers, the speech he gave was “directed essentially at recruits old enough to be soldiers”. 3632 The Chamber is unable to accept this submission. The accused addressed all the recruits at the Rwampara camp on 12 February 2003 and there is no credible evidence to support the submission that he was only focussing on those above 15. 1337. D-0011 also gave evidence that in February 2003 there were a considerable number of attacks in the outskirts of Bunia, leading to the

3628 See paras 792, 1242-1245. 3629 T-128-Red2-ENG, page 38, lines 19 – 20 (interpretation). 3630 T-128-Red2-ENG, page 41, lines 12 – 17 (interpretation). 3631 EVD-OTP-00494; T-39-ENG, page 102, line 20 to page 103, line 3 and page 109, lines 2 – 9 (transcript of testimony before the Pre-Trial Chamber). 3632 ICC-01/04-01/06-2786-Red-tENG, paras 55 and 56. No. ICC-01/04-01/06 581/593 14 March 2012

need to mobilise (rather than demobilise) the troops. 3633 While the Chamber has not accepted a large part of D-0011’s evidence (given his close relationship with the accused), this statement relates to the circumstances of the conflict rather than the issue of child soldiers, and it is supported by other evidence, accepted by the Chamber, on the issue of the various battles that were fought at that time. D-0011’s confirmation of the need to mobilise at that time also throws light on the attitude of the accused towards the recruits he spoke to at the Rwampara camp on 12 February 2003, as shown in the video EVD- OTP-00570. 1338. In addition, P-0055, who had an important position in the FPLC hierarchy, gave evidence to the effect that he was unaware of any procedures for child soldier demobilisation within the UPC. 3634 He did not attend any UPC meetings, nor was he involved in conversations with Mr Lubanga, Floribert Kisembo, Rafiki Saba, Bosco Ntaganda or Eric Mbabazi, during which the subject of the demobilisation of children within the army was raised. 3635 1339. The Chamber has considered video footage from 31 July 2004. 3636 One of the sequences, shown during P-0030’s evidence, shows speeches given by several UPC members at the UPC/FPLC training camp in Katoto. 3637 Eloy Mafuta addressed the audience as follows: Hello everybody. We’re very pleased with the work being carried out by the youngsters here. You, you know that giving birth to children, well, if somebody cannot give birth to a child, cannot father a child, he’ll be very sad. You can see the work that you, the fathers have already done. You can see

3633 T-347-ENG, page 60, line 19 to page 63, line 6. 3634 T-176-ENG, page 56, lines 1 – 10. 3635 T-176-ENG, page 56, lines 11 – 13 and page 56, line 22 to page 57, line 10. 3636 EVD-OTP-00582. The prosecution indicates the video was filmed on 31 July 2004, ICC-01/04- 01/06-2748-Conf-Anx2, page 20, No. 61. 3637 EVD-OTP-00582; T-130-Red2-ENG, page 11, line 8 to page 12, line 18. No. ICC-01/04-01/06 582/593 14 March 2012

the current situation concerning your children and we would like to thank them for the work they’ve carried out. You can see the fruit of their work. You must not tire. You must continue to work in the same way, because we can see the fruit of your work. And it’s because of these children, it’s thanks to these children that we are living here. We could not live here otherwise. Thanks to the work carried out by your children, we can live in peace here. The work carried out by the children here makes it possible for us to live and to continue to live here. My name is Eloy Mafuta. I’m the presidential 3638 advisor. I’m also military advisor to the UPC.

P-0030 confirmed that the speaker was Eloy Mafuta, the special advisor

to the President and military advisor to the UPC.

3639

1340 Later in the same video, Bosco Ntaganda, wearing a UPC/FPLC

uniform, addressed the crowd:

3640

[…] I’m talking to you as a civilian population and we’re asking for your support for our military actions. We will continue our work until we are sure we have completed our mission. I’m very pleased because if you go to the equatorial region you will find your child who’s a colonel, or in South Kivu or other parts of the Congo you will find your children who are there. They are working on the basis of what you, as parents, have handed down to 3641 them.

1341 He was followed by the Minister of Defence, Mr Mbuna:

The presidential advisor has spoken to you. He’s also the military advisor. He said that we have borne children and these children have grown up. Among those children there are older children and younger children, and that is why the president wanted and authorised us to give them different ranks. These ranks, that’s to show who are the superiors. I think that the ceremony has been in Largu, Blukwa, and there was a lot of talk about that particular day. The president knew that we were going to come here and he asked us to pass on to the population and to the soldiers, to pass on his greetings. You have the greetings of the 3642 president.

1342 P-0030 again confirmed that the speaker was the Minister of

Defence, Mr Mbuna, who was referring to Thomas Lubanga when he

3638 EVD-OTP-00582 at 00:34:25, interpretation in Court: T-130-Red2-ENG, page 14, lines 3 – 17. T-130-Red2-ENG, page 15, lines 2 – 9. 3640 EVD-OTP-00582 at 00:47:09; T-130-Red2-ENG, page 16, lines 6 – 14. 3641 EVD-OTP-00582 at 00:55:00; T-130-Red2-ENG, page 17, line 24 to page 18, line 5. 3642 EVD-OTP-00582 at 00:58:58; T-130-Red2-ENG, page 19, line 20 to page 20, line 4.

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said “the president”. 3643 1343. In one scene a soldier wearing a uniform can be seen, who P- 0030 confirms belongs to the FPLC of the UPC. 3644 He is below the age of 18, which is the age limit as determined in the Presidential decree of 1 June 2003. 1344. Although the video falls outside of the period of the charges, it gives a strong indication that the presidential decree of 1 June 2003 and the preceding demobilisation orders were not implemented. Young soldiers should have been demobilised, yet the speeches indicate that children below the age of 18 were still being targeted for recruitment and they remained within the ranks of the FPLC. Not only did Eloy Mafuta and Bosco Ntaganda speak of children, but Mr Mbuna also explicitly refers to younger and older children who are given different ranks, which excludes the possibility that the term children was meant to describe family ties rather than age.

1345 Given the Chamber’s conclusion that the self-defence forces were independent of the FPLC, and in light of the finding that the demobilisation orders were not genuinely implemented, it is unnecessary to discuss the position of the self-defence forces vis-à-vis demobilisation. 3645 (2) Conclusion 1346. On the basis of the evidence discussed above, the Chamber is persuaded that whether or not the demobilisation orders were implemented for some of the children under the age of 15, others were

3643 T-130-Red2-ENG, page 20, lines 6 – 10. 3644 EVD-OTP-00582 at 00:46:18 to 00:46:23; T-130-Red2-ENG, page 15, lines 11 – 19. 3645 See the defence submissions in ICC-01/04-01/06-2773-Red-tENG, paras 922 – 929. No. ICC-01/04-01/06 584/593 14 March 2012

simultaneously recruited, re-recruited and used by the FPLC throughout the timeframe of the charges. The demobilisation orders additionally prove that Mr Lubanga knew that the recruitment of children was prohibited and that children remained amongst the ranks of the UPC/FPLC in spite of the prohibition. 1347. Focusing on the mental element of the charges, the Chamber is of the view that Thomas Lubanga was fully aware that children under the age of 15 had been, and continued to be, enlisted and conscripted by the UPC/FPLC and used to participate actively in hostilities during the timeframe of the charges. This occurred, in the ordinary course of events, as a result of the implementation of the common plan – to ensure that the UPC/FPLC had an army strong enough to achieve its political and military aims. 1348. Within a functioning military hierarchy, it is necessary that orders are complied with. The defence has been imprecise as to whether the demobilisation order of 21 October 2002 and the decree of 1 June 2003 lead to the conclusion that the resulting crimes did not occur in the ordinary course of events, or whether it is only suggesting that the accused did not have the “intention” to commit the crimes. However, the lack of cooperation on the part of the UPC/FPLC with the NGOs working within the field of demobilisation and the threats directed at human rights workers who were involved with children’s rights tend to undermine the suggestion that demobilisation, as ordered by the President, was meant to be implemented. Instead, Thomas Lubanga used child soldiers below the age of 15 as his bodyguards within the PPU 3646 and he gave speeches and attended

3646 See paras 864, 1247-1262. No. ICC-01/04-01/06 585/593 14 March 2012

rallies where conscripted and enlisted children below the age of 15 were present. Mr Lubanga was aware that children under the age of 3647 15 were within the personal escorts of other commanders. 3648 Moreover, the accused visited UPC/FPLC camps, 3649 and particularly at the Rwampara camp he gave a morale-boosting speech to recruits who included young children who were clearly below the age of 15. As already set out, the Chamber concludes that this video, filmed on 12 February 2003, contains compelling evidence as to Thomas Lubanga’s awareness of, and his attitude towards, the enduring presence of children under the age of 15 in the UPC. b) Awareness of the factual circumstances that established the existence of a non-international armed conflict and the nexus between the commission of the crime and the armed conflict 1349. On the basis of the evidence rehearsed above, the Chamber concludes beyond reasonable doubt that the accused was aware of the factual circumstances that established the existence of an armed conflict throughout the period of the charges. 1350. The accused and other members of the UPC/FPLC articulated the organisation’s military aims. 3650 Child soldiers were recruited as a result of the implementation of a common plan in order to ensure the UPC/FPLC was able to implement its military aims, and the accused was aware that they were being recruited, trained and used in military operations. 3651 Hence, the Chamber finds beyond reasonable doubt that Thomas Lubanga was fully aware of the undoubted link between the 3647 See paras 790, 792, 860-861, 1236, 1242-1245, 1249-1251, 1256-1257. 3648 See paras 1277, 1348, and, e.g., T-113-Red2-ENG, page 36, line 24 to page 37, line 5 (P-0038); T- 125-Red2-ENG, page 54, line 20 to page 55, line 8 and page 55, lines 12 – 20 (P-0041). 3649 See paras 790, 792, 1242-1245. 3650 See paras 1047-1059, 1084-1136. 3651 See paras 1277-1279, 1347-1348. No. ICC-01/04-01/06 586/593 14 March 2012

crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities and the armed conflict or the factual circumstances that established the existence of the armed conflict. 4. OVERALL CONCLUSIONS

1351 The accused and his co-perpetrators agreed to, and participated in, a common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri. This resulted, in the ordinary course of events, in the conscription and enlistment of boys and girls under the age of 15, and their use to participate actively in hostilities. 1352. As indicated in an earlier section of this Judgment, the Chamber has concluded that from late 2000 onwards, Thomas Lubanga acted with his co-perpetrators, who included Floribert Kisembo, Bosco Ntaganda, Chief Kahwa, and commanders Tchaligonza, Bagonza and Kasangaki. Mr Lubanga’s involvement with the soldiers (including young children) who were sent to Uganda for training is of significance. Although these events fall outside the period covered by the charges and are outwith the temporal jurisdiction of the Court, they provide critical background evidence on the activities of this group, and they help establish the existence of the common plan before and throughout the period of the charges. 1353. As further background, the accused was in conflict with the RCD-ML from at least April 2002, and he led a group that sought to bring about political change in Ituri, including the removal of Mr Mbusa Nyamwisi and Governor Molondo Lompondo, if necessary by force. The accused remained in control by delegating his authority,

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whilst he was detained in the summer of 2002 and he sent Chief Kahwa and Mr Beiza to Rwanda to obtain arms. During that period, Floribert Kisembo, Bosco Ntaganda and Chief Kahwa, three of the accused’s principal alleged co-perpetrators, were generally responsible for recruitment and training, which included girls and boys under the age of 15. 1354. The accused and at least some of his co-perpetrators were involved in the takeover of Bunia in August 2002. Thomas Lubanga, as the highest authority within the UPC, appointed Chief Kahwa, Floribert Kisembo and Bosco Ntaganda to senior positions within the UPC/FPLC. The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC. Those children recruited before the formal creation of the FPLC were incorporated into that group, and a number of training camps were added to the original facility at Mandro. The Chamber has concluded that between 1 September 2002 and 13 August 2003, a significant number of highranking members of the UPC/FPLC and other personnel conducted a large-scale recruitment exercise directed at young people, including children under the age of 15, whether voluntarily or by coercion. 1355. The Chamber is satisfied beyond reasonable doubt that as a result of the implementation of the common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri, boys and girls under the age of 15 were conscripted and enlisted into the UPC/FPLC between 1 September 2002 and 13 August 2003. Similarly, the Chamber is satisfied beyond reasonable

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doubt that the UPC/FPLC used children under the age of 15 to participate actively in hostilities, including during battles. They were also used, during the relevant period, as soldiers and as bodyguards for senior officials, including the accused. 1356. Thomas Lubanga was the President of the UPC/FPLC, and the evidence demonstrates that he was simultaneously the Commanderin-Chief of the army and its political leader. He exercised an overall coordinating role over the activities of the UPC/FPLC. He was informed, on a substantive and continuous basis, of the operations of the FPLC . He was involved in planning military operations, and he played a critical role in providing logistical support, including as regards weapons, ammunition, food, uniforms, military rations and other general supplies for the FPLC troops. He was closely involved in making decisions on recruitment policy and he actively supported recruitment initiatives, for instance by giving speeches to the local population and the recruits. In his speech at the Rwampara camp, he encouraged children, including those under the age of 15 years, to join the army and to provide security for the populace once deployed in the field following their military training. Furthermore, he personally used children below the age of 15 amongst his bodyguards and he regularly saw guards of other UPC/FPLC members of staff who were below the age of 15. The Chamber has concluded that these contributions by Thomas Lubanga, taken together, were essential to a common plan that resulted in the conscription and enlistment of girls and boys below the age of 15 into the UPC/FPLC and their use to actively participate in hostilities. 1357. The Chamber is satisfied beyond reasonable doubt, as set out above, that Thomas Lubanga acted with the intent and knowledge

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necessary to establish the charges (the mental element required by Article 30). He was aware of the factual circumstances that established the existence of the armed conflict. Furthermore, he was aware of the nexus between those circumstances and his own conduct, which resulted in the enlistment, conscription and use of children below the age of 15 to participate actively in hostilities.

No. ICC-01/04-01/06 590/593 14 March 2012

XII. DISPOSITION

1358 For the foregoing reasons and on the basis of the evidence submitted and discussed before the Chamber at trial, and the entire proceedings, pursuant to Article 74(2) of the Statute, the Chamber finds Mr Thomas Lubanga Dyilo: GUILTY of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003.

1359 Pursuant to Regulation 55 of the Regulations of the Court, the Chamber modifies the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character from early September 2002 to 13 August 2003. 1360. At the request of the defence and in accordance with Article 76(2) of the Statute and Rule 143 of the Rules, the Chamber will hold a separate hearing on matters related to sentencing and reparations. 1361. The Chamber communicates to the Prosecutor, pursuant to Article 70 of the Statute and Rule 165 of the Rules, its findings that P- 0143, P-0316 and P-0321 may have persuaded, encouraged, or assisted witnesses to give false evidence. 1362. The Majority of the Chamber withdraws the right of dual status witnesses P-0007, P-0008, P-0010, P-0011, P-0298 and P-0299 to participate in the proceedings as victims. 1363. The Chamber withdraws the right of victims a/0229/06,

No. ICC-01/04-01/06 591/593 14 March 2012

No. ICC-01/04-01/06 592/593 14 March 2012

SEPARATE OPINION OF JUDGE ADRIAN FULFORD

1 I write separately to explain my views on the scope of Article 25(3)(a) of the Statute, as regards an individual who is alleged to have committed a crime “jointly with another”.

2 I wish to make clear at the outset that I agree with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied at this stage of this case. Focussing on the requirements of Article 25(3)(a) of the Statute, with minor modifications to ensure compliance with the Statute, the test described at paragraph 1018 mirrors the approach of the Pre-Trial Chamber in the Decision on the Confirmation of Charges, 1 which established (certainly in this context) the principles of law on which the trial has been prosecuted and defended. No substantive warning has been given to the parties that the Chamber may apply a different test, and as a matter of fairness it would be wrong at this late stage to modify the legal framework of the case. In short, it would be unjust to the present accused to apply a different, and arguably lesser, test.

3 Generally, it is my view that the test laid down by the Pre-Trial Chamber is unsupported by the text of the Statute and it imposes an unnecessary and unfair burden on the prosecution.

1 ICC-01/04-01/06-803-tEN, paras 322-367. No. ICC-01/04-01/06 1/14 14 March 2012

The Pre-Trial Chamber’s reading of Article 25(3)(a) of the Statute

4 In its decision on the confirmation of charges, the Pre-Trial Chamber held that under Article 25(3)(a) of the Statute, liability for committing a crime “jointly with another” attaches only to individuals who can be said to have control over the crime. 2 It adopted a five-part test for co-perpetrator liability under this theory, which, as just indicated, is directed at those who “have control over the commission of the offence”. The five elements 3 are: i. The “existence of an agreement or common plan between two or more persons”; 4 ii. The “co-ordinated essential contribution made by each coperpetrator resulting in the realisation of the objective elements of the crime;” 5 iii. “[T]he suspect [must] fulfil the subjective elements of the crime with which he or she is charged”; 6 iv. “[T]he suspect and the other co-perpetrators (a) must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and (b) must all mutually accept such a result by reconciling themselves with it or consenting to it”; 7 and

2 ICC-01/04-01/06-803-tEN, paras 326 – 338. 3 ICC-01/04-01/06-803-tEN, para. 332. 4 ICC-01/04-01/06-803-tEN, para. 343. 5 ICC-01/04-01/06-803-tEN, para. 346. 6 ICC-01/04-01/06-803-tEN, para. 349. 7 ICC-01/04-01/06-803-tEN, para. 361. No. ICC-01/04-01/06 2/14 14 March 2012

v. “[T]he suspect [must be aware] of the factual circumstances enabling him or her to jointly control the crime.” 8

5 The Pre-Trial Chamber, in essence, provided two reasons for adopting the control of the crime 9 approach to co-perpetration. First, to “distinguish[] between principals and accessories”. 10 Second, to ensure that the liability of principals extends to individuals who, notwithstanding their absence from the scene of the crime, exercised control over its commission because they were in a position to decide whether and, if so, how the offence was to be committed. 11 I will first address the basis of this theory, and thereafter explain my approach to joint perpetration under Article 25(3)(a) of the Statute.

The control of the crime theory is unsupported by the text of the Statute

6 As set out above, the Pre-Trial Chamber’s adoption of the control of the crime theory was founded, in the first place, on the perceived necessity to establish a clear dividing line between the various forms of liability under Article 25(3)(a) – (d) of the Statute and, in particular, to distinguish between the liability of “accessories” under Article 25(3)(b) and that of “principals” under Article 25(3)(a) of the Statute. 12 I respectfully disagree with this view.

8 ICC-01/04-01/06-803-tEN, para. 366. 9 ICC-01/04-01/06-803-tEN, para. 322 et seq. 10 ICC-01/04-01/06-803-tEN, paras 327, 330, 335, 338 and 340 11 ICC-01/04-01/06-803-tEN, para. 330. 12 ICC-01/04-01/06-803-tEN, paras 327 – 340. No. ICC-01/04-01/06 3/14 14 March 2012

7 In my judgment, the plain text of Article 25(3) defeats the argument that subsections (a) – (d) of Article 25(3) must be interpreted so as to avoid creating an overlap between them. Article 25(3)(a) establishes the concept of committing a crime through another, whilst Article 25(3)(b) focuses on ordering, soliciting and inducing the commission of the offence. These concepts, which appear in separate subsections, will often be indistinguishable in their application vis-à-vis a particular situation, and by creating a clear degree of crossover between the various modes of liability, Article 25(3) covers all eventualities. Put otherwise, in my judgment the plain language of Article 25(3) demonstrates that the possible modes of commission under Article 25(3)(a) – (d) of the Statute were not intended to be mutually exclusive. 13

8 Some have suggested that Article 25(3) establishes a hierarchy of seriousness as regards the various forms of participation in a crime, with Article 25(3)(a) constituting the gravest example and Article 25(3)(d) the least serious. 14 I am unable to adopt this approach. In my judgment, there is no proper basis for concluding that ordering, soliciting or inducing a crime (Article 25(3)(b)) is a less serious form of commission than committing it “through another person” (Article 25(3)(a)), and these two concepts self-evidently overlap. Similarly, I am unable to accept that the 13 By way of comparison, it is of note that the ad hoc Tribunals have held that the various modes of liability available under their statutes are not mutually exclusive. See, e.g., ICTR, The Prosecutor v. Nahimana et al., Case No. ICTR-99-52-A, Appeals Chamber, Judgment, 28 November 2007, para. 483 (“the modes of responsibility under Article 6(1) of the Statute are not mutually exclusive”); ICTR, The Prosecutor v. Ndindabahizi, Case No. ICTR-01-71-A, Appeals Chamber, Judgment, 16 January 2007, paras 122-123 (conviction for committing, instigating and aiding and abetting the same crime); ICTY, The Prosecutor v. ð ordevi ć , Case No. IT-05-87-1-T, Trial Chamber, Judgment, 23 February 2011, paras 2193-94 (conviction for participation in a joint criminal enterprise and for aiding and abetting). 14 See, e.g., Gerhard Werle, “Individual criminal responsibility in Article 25 ICC Statute”, 5 J. Int’l Crim. Justice 953, 957 (2007) (“Article 25(3)(a)-(d) establishes a value oriented hierarchy of participation in a crime under international law”). No. ICC-01/04-01/06 4/14 14 March 2012

criminality of accessories (Article 25(3)(c)) is greater than those who participate within a group (Article 25(3)(d)), particularly since many of history’s most serious crimes occurred as the result of the coordinated action of groups of individuals, who jointly pursued a common goal.

9 I am also unpersuaded that it will assist the work of the Court to establish a hierarchy of seriousness that is dependent on creating rigorous distinctions between the modes of liability within Article 25(3) of the Statute. Whilst it might have been of assistance to “rank” the various modes of liability if, for instance, sentencing was strictly determined by the specific provision on which an individual’s conviction is based, considerations of this kind do not apply at the ICC. Article 78 of the Statute and Rule 145 of the Rules of Procedure and Evidence, which govern the sentences that are to be imposed, provide that an individual’s sentence is to be decided on the basis of “all the relevant factors”, “including the gravity of the crime and the individual circumstances of the convicted person”. Although the “degree of participation” is one of the factors listed in Rule 145(1)(c) of the Rules, these provisions overall do not narrowly determine the sentencing range by reference to the mode of liability under which the accused is convicted, and instead this is simply one of a number of relevant factors.

10 The control of the crime theory has its origins in the post-war German legal system, where particular domestic considerations – which do not exist at the ICC – have made it appropriate to apply this principle. In adopting this theory, the Pre-Trial Chamber focussed substantially on a

No. ICC-01/04-01/06 5/14 14 March 2012

minority view from the ad hoc tribunals,

15

in that it cited the judgment of

the ICTY Trial Chamber in the Stakić case when it held that the accused

was responsible as a co-perpetrator

16

(the conviction on this basis was set

aside on appeal) and Judge Schomburg’s separate opinion in the ICTR

17

Appeals Chamber’s judgment in the Gacumbitsi case.

18

In these two

instances, the judges relied heavily on the scholarship of the German

academic Claus Roxin as the primary authority for the control theory of

co-perpetration,

19

and in the result, this approach was imported directly

from the German legal system. While Article 21(1)(c) of the Statute

20

permits the Court to draw upon “general principles of law” derived from

national legal systems, in my view before taking this step, a Chamber

should undertake a careful assessment as to whether the policy

considerations underlying the domestic legal doctrine are applicable at

15 ICC-01/04-01/06-803-tEN, footnotes 418, 422 – 26, 432, 434, 436 and 442. 16 ICTY, The Prosecutor v. Milomir Staki ć , Case No. IT-97-24-T, Trial Chamber, Judgment, 31 July 2003 (“Staki ć ”). 17 ICTY, The Prosecutor v. Milomir Staki ć , Case No. IT-97-24-A, Appeals Chamber, Judgment, 22 March 2006, para. 62 and the Disposition at page 141. 18 ICTR, The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-A, Appeals Chamber, Judgment: separate opinion of Judge Schomburg, 7 July 2006 (“Gacumbitsi Schomburg Opinion”). 19 Staki ć , para. 440 (citing Roxin, C, Täterschaft und Tatherrschaft (Perpetration and control over the act), th 6 Edition (1994); Gacumbitsi Schomburg Opinion, para. 17 (citing Roxin, C, Täterschaft und th Tatherrschaft (Perpetration and control over the act), 7 Edition (2000). 20 I note in passing that although Professor Roxin’s scholarship appears to form the basis for the control of the crime theory, the test adopted by the Pre-Trial Chamber differs in material respects from the theory as described by Professor Roxin. For example, Professor Roxin acknowledges that in practice, it is impossible to determine, after the crime has been committed, whether an accused’s contribution was “essential” in the sense that its absence would have thwarted the commission of the crime. See Roxin, Claus, ‘Täterschaft th und Tatherrschaft (Perpetration and control over the act)’, 6 Edition, Berlin, New York, 1994, page 283 (but see also page 280, where he confirms that each co-perpetrator must be able to obstruct or ensure the commission of the crime). Under Professor Roxin’s approach, co-perpetrator liability would attach if the accused had “functional control” and the accused’s contribution was of “substantial importance” (“wesentlicher Bedeutung”) to the commission of the crime. Ibid., pages 280 and 284. Professor Roxin argues that the term “substantial importance” in itself has no tangible content, but affords the judge the discretion to determine, on the facts of the case, whether the accused’s contribution was such that it created a “functional dependency” between the perpetrators. Ibid., page 284. In contrast, the Pre-Trial Chamber held that co-perpetrator liability should attach only if the accused’s contribution was “essential” in the sense that the crime would have been frustrated absent the accused’s contribution. See ICC-01/04-01/06- 803-tEN, para. 347. Similarly, the dolus eventualis standard adopted by the Pre-Trial Chamber differs from the mental element proposed by Professor Roxin. Compare ibid., paras 352-54 with Roxin, page 285.

No. ICC-01/04-01/06 6/14 14 March 2012

this Court, and it should investigate the doctrine’s compatibility with the Rome Statute framework. This applies regardless of whether the domestic and the ICC provisions mirror each other in their formulation. It would be dangerous to apply a national statutory interpretation simply because of similarities of language, given the overall context is likely to be significantly different.

11 This case demonstrates why a detailed assessment of this kind is necessary. Under the German legal system, the sentencing range is determined by the mode of liability under which an individual is convicted, and it is therefore necessary to draw clear distinctions 21 between principals on the one hand and accessories on the other. As set out above, these considerations do not apply at the ICC, where sentencing is not restricted in this way, and this example of the differences that exist is of significance in this context.

12 The second justification advanced by the Pre-Trial Chamber for adopting the control of the offence theory was to establish “principal” liability for individuals who, “in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed”. 22 However, as developed below, in my judgment a plain reading of Article 25(3)(a) establishes the criminal liability of co-perpetrators who contribute to the commission of the crime notwithstanding their absence from the scene, and it is unnecessary to

21 See German Criminal Code (13 November 1998, as amended 2 October 2009), §§ 27(2) and 49(1). English translation available at http://www.gesetze-iminternet.de/englisch_stgb/englisch_stgb.html#StGBengl_000P27 . 22 ICC-01/04-01/06-803-tEN, para. 330. No. ICC-01/04-01/06 7/14 14 March 2012

invoke the control of the crime theory in order to secure this result. 23 Therefore, individuals who are involved indirectly can be prosecuted as co-perpetrators without relying on this principle.

Joint-perpetration under a plain text reading of Article 25(3)(a) of the Statute

13 As it seems to me, the Court’s approach to this issue should be rooted in the plain text of the Statute. The Appeals Chamber has held that the Statute is to be applied in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties, 24 which requires that the Statute’s provisions are to be interpreted “in good faith in accordance with the[ir] ordinary meaning [ . . . ] in their context and in light of [the Statute’s] object and purpose”. 25 In line with these principles, I have sought to give the relevant terms their plain meaning, and it has been unnecessary to read in additional terms in order to give effect to the express words of the Statute.

14 In relevant part, Article 25(3) of the Statute provides:

23 See infra, para. 16. 24 See, e.g., Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168, para. 33; Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled "Decision on the Defence Request Concerning Languages", 27 May 2008, ICC-01/04-01/07-522, paras 38 and 39; Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", 21 October 2008, ICC-01/04-01/06-1486, para. 40; Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled "Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence", 19 November 2010, ICC-01/05-01/08-1019, para. 49. 25 Article 31(1), Vienna Convention on the Law of Treaties, 1155 United Nations Treaty Series 18232, signed on 23 May 1969 and entered into force on 27 January 1980. No. ICC-01/04-01/06 8/14 14 March 2012

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: a. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

15 When establishing joint perpetrator liability, the prosecution must prove that an individual committed the crime jointly with another. The latter words (“jointly with another”) clearly indicate the involvement of at least two people, whilst the expression “commits […] jointly” denotes coordination between the individuals involved. This self-evidently necessitates a sufficient meeting of minds, by way of an agreement, common plan or joint understanding. In practice, this will not always be explicit or the result of long-term planning, and the existence of the joint venture may need to be inferred from the conduct of the co-perpetrators. Although the text of the Statute does not provide that the agreement, common plan or joint understanding must have an overarching criminal goal, the mental element of Article 30 of the Statute must be satisfied, and unless the Court’s legal framework has “otherwise provided”, 26 the joint perpetrators must, at a minimum, be aware that executing the agreement or plan will lead to the commission of a crime within the jurisdiction of the Court “in the ordinary course of events”. I consider it is unhelpful to 27 investigate whether the requirement of awareness (on the part of the accused) that a crime will be committed “in the ordinary course of events” is to be equated with a “possibility”, a “probability”, a “risk” or a “danger” (see paragraph 1012 of the Judgment). Put otherwise, the 26 Article 30(1) of the Statute. 27 Article 30(2)(b) and 30(3) of the Statute. No. ICC-01/04-01/06 9/14 14 March 2012

Chamber’s decision as to whether the accused was aware that something will happen in the ordinary course of events is not assisted by asking the question as to whether he was aware of the possibility, the probability, the risk or the danger that it would occur. The words are plain and readily understandable, and it is potentially confusing to reformulate or to interpret this test using other words. Finally, the verb “commits” requires a contribution to the commission of the crime. Nothing in the Statute requires that the contribution must involve direct, physical participation at the execution stage of the crime, and, instead, an absent perpetrator may be involved. Either way, the use of the word “commits” simply requires an operative link between the individual’s contribution and the commission of the crime. Additionally as regards causation, the plain text of Article 25(3) does not require proof that the crime would not have been committed absent the accused’s involvement ( viz. that his role was essential). 28 Rather, the prosecution must simply demonstrate that the individual contributed to the crime by committing it with another or others.

16 To summarise, a plain text reading of Article 25(3)(a) establishes the following elements for co-perpetration: a. The involvement of at least two individuals. b. Coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to

28 C.f. ICC-01/04-01/06-803-tEN, paras 346-47. No. ICC-01/04-01/06 10/14 14 March 2012

undertake action that, in the ordinary course of events, 29 will lead to the commission of the crime. c. A contribution to the crime, which may be direct or indirect, provided either way there is a causal link between the individual’s contribution and the crime. d. Intent and knowledge, as defined in Article 30 of the Statute, or as “otherwise provided” elsewhere in the Court’s legal framework. I consider it would be unfair, at this stage of the proceedings, to approach the issue of the accused’s knowledge on a lesser basis than “he knew” there were children under the age of 15 who were conscripted, enlisted or used (see paragraph 1015 of the Judgment).

17 Not only is the above approach supported by the plain text of the Statute, it also provides a realistic basis for the Court to conduct its work. It avoids a hypothetical investigation as to how events might have unfolded without the accused’s involvement (which is necessary under the “essential contribution” formulation) and it places appropriate emphasis on the accused’s state of mind, once it is established that he or she contributed to the offence. It seems to me to be important to stress that an ex post facto assessment as to whether an individual made an essential contribution to war crimes, crimes against humanity or genocide will often be unrealistic and artificial. These crimes frequently involve a large number of perpetrators, including those who have controlling roles. It will largely be a matter of guesswork as to the real consequence for the particular crime if the accused is (hypothetically) removed from the 29 Article 30(2)(a) and 30(3) of the Statute. If the mental element for the crime charged is provided elsewhere than Article 30 of the Statute, the “ordinary course of events” standard is to be substituted with the crime’s specific mental element. No. ICC-01/04-01/06 11/14 14 March 2012

equation, and most particularly it will not be easy to determine whether the offence would have been committed in any event.

18 For all of these reasons, I respectfully disagree with the approach to coperpetrator liability on the part of the Pre-Trial Chamber and my judicial colleagues in Trial Chamber I.

Applying the approach of the Pre-Trial Chamber

19 Notwithstanding the conclusions set out above, at this stage in the present case I am of the view that the Chamber ought to apply the tests in paragraphs 1013 and 1018 of the Judgment, which largely mirror the approach of the Pre-Trial Chamber, in the present context. The case has been conducted on the basis of the legal framework established by the Pre-Trial Chamber, which should not be significantly altered if that step would cause material prejudice.

20 One of the Trial Chamber’s principal duties under the Statute is to ensure that the “trial is fair” and “is conducted with full respect for the rights of the accused”. 30 Of particular relevance is the accused’s right, under Article 67(1)(a) of the Statute, to be informed “in detail of the nature, cause and content of the charge[s]” against him. In my view, this requirement for notice means that the accused should not only be informed of the factual allegations against him, but he needs to be aware of the basic outline of the legal framework against which those facts will be

30 Article 64(2) of the Statute. No. ICC-01/04-01/06 12/14 14 March 2012

determined. This ensures that the accused knows, at all stages of the proceedings, what he is expected to meet. This is an essential prerequisite for a fair trial. 31

21 Abandoning the control of the crime theory for the purposes of the Article 74 Decision would significantly modify the law governing the charges, at a stage when the evidence is closed and the parties have made their submissions. The alternative approach which I have described above arguably involves applying a “lesser” test. If at this stage in the proceedings (and without prior notice) the Chamber ruled that the prosecution only has to establish a contribution – as opposed to an “essential” contribution – the trial would be rendered unfair, in violation of Article 64(2) of the Statute. The accused is likely to have made a number of tactical decisions that, at least in part, have been informed by the legal requirements for a conviction. I am therefore in agreement with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied, notwithstanding my overall reservations as to the “control of the crime” theory.

31 See, e.g., ICTY, The Prosecutor v Kupreskic et al., Case No. IT-95-16-T, Trial Chamber, Judgement, 14 January 2000, para. 725 (holding that the right to be informed “of the nature and cause of the charge[s]” requires that accused be “put in a position to know the legal ingredients of the offence charged”); ibid., paras 720-48; European Court of Human Rights, Case of Pelissier and Sassi v. France, Application No. 25444/94, Judgment, 25 March 1999, para. 52 (holding that “in criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterization that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair”). No. ICC-01/04-01/06 13/14 14 March 2012

SEPARATE AND DISSENTING OPINION OF JUDGE ODIO BENITO

1 I agree with the final decision of the Trial Chamber as regards the individual criminal responsibility of Mr Lubanga Dyilo. However, I have a separate and dissenting opinion on three particular aspects of the Judgment. I hereby explain the reasons for my dissent.

A. Legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to actively participate in the hostilities

2 I respectfully disagree with the conclusions of the Majority of the Chamber as regards the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities.

3 The Majority of the Trial Chamber stated, and I agree, that: Addressing the three relevant acts, namely enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities, in each instance the conduct is not defined in the Statute, the Rules or the Elements of Crimes. Accordingly, the scope of the activities covered by Article 8(2)(e)(vii) of the Statute must be determined in 1 accordance with Articles 21 and 22(2) of the Statute […].

4 However, the Majority of the Trial Chamber is failing to address two key elements: i) the concept of “national armed forces” within Article 8(2)(b)(xxvi) of the Rome Statute; and ii) the activities covered by Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely those that should be included within the legal definition of enlistment, conscription and “use to participate actively in the hostilities”. Consequently, I consider that it is important to evaluate these two elements, which the Majority of the Trial Chamber has failed to address. 1 Judgment, para. 600. No. ICC-01/04-01/06 1/17 14 March 2012

5 A distinction must be made between: a) the legal definition of the crimes (in this case enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities); and b) the evaluation of the evidence presented in this case within the limits of the facts and circumstances of the alleged crimes.

6 Article 8 of the Rome Statute includes as war crimes the enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities. Since neither the Statute nor the Elements of Crimes define further these three criminal conducts, the Chamber is required to define them taking into consideration other applicable law. 2 Furthermore, pursuant to Article 21(3) of the Rome Statute, the Chamber is compelled to interpret and apply the law consistent with internationally recognised human rights. 3 The recruitment of children under the age of 15 is prohibited under the Rome Statute, international treaties 4 and international customary law. 5 All these sources of law seek to protect children under the age of 15 from the multiple and different risks which they are subject to in the context of any armed conflict, such as ill treatment, sexual violence and forced marriages. It would consequently be

2 See, for example, Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa, UNICEF, 1997; the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, adopted in February 2007; African Union Solemn Declaration Gender Equality, adopted in June 2006. 3 Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC- 01/04-01/06-772, para. 37. 4 Article 38 of the Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990; Article 3, International Labour Organization (ILO), Convention 182, Worst Forms of Child Labour, adopted on 17 June 1999, Conference Session 87, entry into force on 19 November 2000; Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000, entry into force 12 February 2002; Article 22, African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force 29 November 1999. 5 SCSL, Prosecutor v. Norman (CDF Case), Appeals Chamber Decision on the Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) of 31 May 2004, SCSL-2004-14-Art.72, paras 17-24. No. ICC-01/04-01/06 2/17 14 March 2012

contrary to the “object and purpose” of the Rome Statute, 6 contrary to international recognised human rights and discriminatory under Article 21(3), not to define the legal concepts of enlistment, conscription and use to participate actively in the hostilities, independently of the evaluation of the evidence tendered during trial or the scope of the charges brought against the accused.

7 Although the Rome Statute’s provisions are applied and interpreted in relation to specific charges brought against individuals, the Chamber must not disregard the interests that these provisions are meant to protect. In the present case, the statutory provisions are meant to protect the life and personal integrity of children under the age of 15. It would thus be impermissible for a Chamber to decline to enter a comprehensive legal definition of a crime and leave it open to a case-by-case analysis or to the limited scope of the charges brought against the accused. This would be a step backwards in the progressive development of international law. 7

8 I deem that the Majority of the Chamber addresses only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecution submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by

6 Article 31(1) of the Vienna Convention on the Law of the Treaties, adopted in Vienna on 23 May 1969, entry into force on 27 January 1980, United Nations, Treaty Series, vol. 1155, p. 331. 7 Unlike the crimes of enlistment, conscription and use, which are not defined by the Statute or the Elements of Crimes, there are other crimes in the ICC provisions which are defined more in detail pursuant to international customary law. For example, the crime of rape, as defined in the Elements of Crimes, has a gender neutral definition which foresees rape not only of a female but also of a male victim. Likewise, the perpetrator could also be male or female. It would be incomprehensible for a Chamber to define rape in a restricted manner (for example in a gender-specific manner) simply because a case brought by the prosecution focuses strictly on the concept of rape committed by men against women. No. ICC-01/04-01/06 3/17 14 March 2012

victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed.

The concept of “national armed forces” under Article 8(2)(b)(xxvi) of the Statute

9 Article 8 of the Rome Statute treats the notion of the armed group in a slightly differentiated manner in depending on whether this was committed in the context of an international or a non-international armed conflict. Whereas (Article 8(2)(b)(xxvi) refers to “national armed forces” in the context of an international armed conflict, Article 8(2)(e)(vii) refers “armed forces or groups” in the context of a non-international armed conflict. Thus, a key question that needs to be addressed by the Chamber is whether the concept of “national armed forces” includes non-State actors such as the Union Patriotique Congolose (UPC/FPLC).

10 In light of the above, the Pre-Trial Chamber in the present case concluded that the concept of “national armed forces” is not limited to the armed forces of a State. 8

11 The Majority of the Trial Chamber concluded as follows: Given the Chamber’s conclusion that the UPC was engaged in a noninternational armed conflict throughout the period of the charges, 9 it is unnecessary to interpret or discuss Article 8(2)(b)(xxvi) of the Statute. Subject to one significant difference in wording (conscription or enlistment of children into “national armed forces” (Article 8(2)(b)(xxvi) of the Statute) as opposed to “armed forces or groups” (Article 8(2)(e)(vii) of the Statute)), the elements of these two crimes are similar.10 Therefore, the extent to which the crimes of conscription, enlistment and use of children below the age of 15 under Article 8(2)(b)(xxvi) of the Statute have previously been the subject of

8 ICC-01/04-01/06-803-tEN , paras 268-285. 9 See Section IX on the nature of the armed conflict. 10 See wording of the respective elements of crime for Article 8(2)(b)(xxvi) and 8(2)(e)(vii). See also Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary (2003), page 471; Roy S. Lee (eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), page 206; William Schabas, The International Criminal Court - A Commentary on the Rome Statute (2010), page 252. No. ICC-01/04-01/06 4/17 14 March 2012

interpretation and consideration will be relevant to the Chamber’s analysis of Article 8(2)(e)(vii) of the Statute [footnotes omitted]. 11

12 I respectfully disagree with the Majority of the Chamber. Although the Chamber has concluded that the crimes were committed in the context of a non-international armed conflict, this case has been argued by the parties and participants pursuant to the decision on the confirmation of the charges, which encompasses both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Statute. In fact, the defence has from start to finish argued that the armed conflict in question is an international armed conflict, and thus, it is foreseeable that this aspect could be the subject matter of an eventual appeal. Thus, the discussion on the concept of “national armed forces” is required as this is a live issue in the present case.

13 As I previously stated, the recruitment of children under the age of 15 is prohibited under international customary law, regardless of whether this was committed in the context of an international or non-international armed conflict and regardless of the nature of the armed group or force that recruited the child. It would be contrary to the “object and purpose” of the Rome Statute and contrary to internationally recognised human rights (and thus contrary to Article 21(3) of the Rome Statute) to exclude from the prohibition of child recruitment, and armed group, solely for the nature of its organization (State or non-state armed group).

14 Consequently, the concept of enlistment, conscription and use in both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute should be understood as encompassing any type of armed group or force, regardless of the nature of the armed conflict in which it occurs.

11 Judgment, para. 568. No. ICC-01/04-01/06 5/17 14 March 2012

Towards a comprehensive legal definition of “use to participate actively in the hostilities”

15 I respectfully disagree with the Majority’s decision that declines to enter a legal definition of the concept of “use to participate actively in the hostilities”, but instead leaves it to a case-by-case determination, which ultimately will be evidence-based and thus limited by the charges and evidence brought by the prosecution against the accused. Additionally, this case-by-case determination can produce a limited and potentially discriminatory assessment of the risks and harms suffered by the child. The Chamber has the responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accused.

16 Although the Majority of the Chamber recognises that sexual violence has been referred to in this case, it seems to confuse the factual allegations of this case with the legal concept of the crime, which are independent. By failing to deliberately include within the legal concept of “use to participate actively in the hostilities” the sexual violence and other illtreatment suffered by girls and boys, the Majority of the Chamber is making this critical aspect of the crime invisible. Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription and use who systematically suffer from this crime as an intrinsic part of the involvement with the armed group.

17 I thus consider it necessary and a duty of the Chamber to include sexual violence within the legal concept of “use to participate actively in the hostilities”, regardless of the impediment of the Chamber to base its decision pursuant to Article 74(2) of the Statute.

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18 It is also important to state that although I agree with the Majority when it concludes that the decisive factor, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target, it is crucial to determine that, regardless of the specific task carried out by that child, he or she can suffer harm inflicted by the armed group that recruited the child illegally (for example, for the purposes of supporting the combatants through the use of their bodies for sexual violence).

19 Children are protected from child recruitment not only because they can be at risk for being a potential target to the “enemy” but also because they will be at risk from their “own” armed group who has recruited them and will subject these children to brutal trainings, torture and ill-treatment, sexual violence and other activities and living conditions that are incompatible and in violation to these children’s fundamental rights. The risk for children who are enlisted, conscripted or used by an armed group inevitably also comes from within the same armed group.

20 Sexual violence committed against children in the armed groups causes irreparable harm and is a direct and inherent consequence to their involvement with the armed group. Sexual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”. Girls who are used as sex slaves or “wives” of commanders or other members of the armed group provide essential support to the armed groups. Sexual assault in all its manifestations produces considerable damage and it demonstrates a failure in the protection of the life and integrity of its victim. There is additionally a gender-specific potential consequence of unwanted pregnancies for girls that often lead to maternal or infant’s deaths, disease, HIV, psychological traumatisation and social

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isolation. It must be clarified, however, that although sexual violence is an element of the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in hostilities, crimes of sexual violence are distinct and separate crimes that could have been evaluated separately by this Chamber if the Prosecutor would have presented charges against these criminal conducts.

21 In other words, sexual violence or enslavement are illegal acts and in this case a harm directly caused by the illegality of the war crime of enlisting, conscripting and the use of children under the age of 15 in support of the combatants. Sexual violence and enslavement are in the main crimes committed against girls and their illegal recruitment is often intended for that purpose (nevertheless they also often participate in direct combat.) If the war crimes considered in this case are directed at securing their physical and psychological well being, then we must recognize sexual violence as a failure to afford this protection and sexual violence as acts embedded in the enlisting, conscription and use of children under 15 in hostilities. It is discriminatory to exclude sexual violence which shows a clear gender differential impact from being a bodyguard or porter which is mainly a task given to young boys. The use of young girls and boys bodies by combatants within or outside the group is a war crime and as such encoded in the charges against the accused.

B. Dual Status Victims/Witnesses

22 I respectfully dissent with the manner in which the Majority of the Chamber dealt with witnesses who have the dual status of victims, when evaluating their status as victims participating in this case.

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23 I agree with the evaluation the Chamber does as regards witnesses P-0007, P-0008, P-0010, P-0011 and P-0298, 12 particularly that the Chamber cannot rely on their testimony for the purposes of determining the individual criminal responsibility of the accused beyond reasonable doubt.

24 However, I respectfully disagree with the Majority of the Chamber when it concludes: Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chamber’s Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules. Given the Chamber’s present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his son’s role as a child soldier. The Chamber’s conclusions as to the evidence of P-0298 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it is necessary that it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated that they no longer meet the relevant criteria [footnotes omitted]. 13

Witnesses P-0007 and P-0008 25. I deem that the contradictions and weaknesses of these two individuals as witnesses in the present trial should not affect their status as victims with right to participate in the trial proceedings. Although their accounts as witnesses were inconsistent for the Chamber to rely on them as evidence to determine the responsibility of the accused beyond reasonable doubt, I consider that these individuals could have well been recruited, albeit not in the exact circumstances described in their numerous accounts (witness statements, application forms and live testimony) and in at least one of the cases there was video evidence of one of the witnesses as a soldier.

12 See also P-0299, who is the father of P-0298. 13 Judgment, para. 484. No. ICC-01/04-01/06 9/17 14 March 2012

Witness P-0010 26. I agree with the conclusions of the Trial Chamber that there is no doubt that at some stage this individual served as a soldier within the UPC. I also agree that the Chamber does not have evidence beyond reasonable doubt that this occurred when she was under 15 years of age, and thus her testimony in this regard is not to be relied on for the purposes of determining the individual criminal responsibility of the accused.

27 I nevertheless suggest that the contradictions and weaknesses of this witness, especially given the unreliability of establishing accurate birth dates in the Democratic Republic of Congo in the present trial, should not affect her status as victim with participatory status. There is incontestable evidence that she was recruited, although it is impossible to determine with absolute certainty her exact age at the time of recruitment. This witness was most probably under the age of 18, and thus a child at the time of her first meetings with the OTP investigators in 2005. She 14 additionally was a victim of sexual violence as a result of her recruitment. 15 This life experience of a young woman has to be taken into account, notwithstanding that these aspects of her testimony cannot be relied on for the purposes of an Article 74 decision. Her victim status, however, should remain unchanged.

Witness P-0011 28. I firmly believe that any contradictions and weaknesses of this witness in the present trial should not affect his status as victim with participatory status. Even though his accounts as a witness were inconsistent, and cannot be relied upon to convict the accused, I deem that he could have been recruited, albeit the contradictory evidence presented in this trial.

14 See para. 32 below. 15 T-145-Red-ENG, page 29, lines 15 to 25 and page 30, line 25 to page 31, line 9. No. ICC-01/04-01/06 10/17 14 March 2012

Witnesses P-0298 and P-0299 29. I firmly believe that any contradictions and weaknesses of these two witnesses’ testimonies in the present trial should not affect their status as victims with participatory status. Even though their accounts as witnesses could have been inconsistent, and cannot be relied upon to convict the accused, I truly believe that a real possibility exists that P-0298 was recruited, although not in the precise circumstances he stated in his testimony.

Conclusions as regards witnesses P-0007, 0008, 0010, 0011, 0298 and 0299

30 The Chamber called Ms Elisabeth Schauer as expert witness on the topic of children with trauma, particularly post-traumatic stress disorder. During her testimony, Ms Schauer stated that the trauma suffered by child soldiers has intellectual and cognitive consequences in the children’s minds. Children who have suffered trauma have problems with their memory and may have learning difficulties, particularly as regards reading and writing comprehension. 16 She also affirmed that this trauma never goes away. 17 The expert further stated that although persons with post-traumatic stress disorder may recall events that occurred in the past, their ability to answer and remember these events will depend on the way questions are asked, and if they are asked chronologically. She literally stated “you probably have a hard time just wanting to know – jumping and wanting to know little details here and there.” 18

31 The Trial Chamber concluded in its Decision on victims’ participation as follows:

16 T-166-ENG, page 27, line 20 to page 28, line 25. 17 T-166-ENG, page 56, lines 7-9. 18 T-166-ENG, page 56, lines 16-23. No. ICC-01/04-01/06 11/17 14 March 2012

[T]he trial Chamber will seek to achieve a balance between the need to establish an applicant’s identity with certainty , on the one hand, and the applicant’s personal circumstances, on the other. Bearing in mind the current situation in the Democratic Republic of Congo and the difficulties that applicants may often have in obtaining or producing copies of official identity documents, and the need in consequence of ensuring that victims are not unfairly deprived of an opportunity to participate for reasons beyond 19 their control […].

32 These witnesses were subject to multiple interviews and strenuous

examination and cross-examination, which took place on numerous

occasions, during a period of time ranging from 2005 to 2009-2010. In all of

these interviews and interrogatories they were asked to recall events that

occurred between 2002 and 2003. Although there is doubt as to the exact

age of these individuals at the time of the events, it has been proven that

all of them were certainly children or adolescents at the time of their

interviews with OTP investigators in 2005. Some of them could have also

been under the age of 18 when they gave testimony in court in 2009-2010.

20

These witnesses (and anyone under those circumstances) could explicably

and logically have difficulties in recollecting events since the time elapsed

between the events (2002-2003), the first interviews with OTP investigators

(2005) and the actual trial (2009-2010). In fact, with such elapses of time it

would be suspicious if the accounts would remain perfectly alike and

unchanged. Memory is faulty. This is more the case for children and

adults having suffered any traumatic events.

19 ICC-01/04-01/06-1119, para. 87. 20 For witness P-0007, the evidence suggests that he was born between 1987 and 1990; see EVD-D01-01103 (birth certificate), EVD-OTP-00655 (declaration sur la carte d’electeur), ICC-1/04-01/06-2270-Conf-Exp- Anx1, page 3 (Application for Reparations before the Court), and T-148-Red2-ENG, page 18, lines 14-21. For witness P-0008, the evidence suggests that he was born between 1989 and 1991; see EVD-D01-00055 (birth certificate) and T-135-Red3-ENG, page 65, lines 12 – 20. For Witness P-0010, the evidence suggests that she was born between 1988 and 1989; see T-144-Red2-ENG, page 12, line 25 to page 13, line 3, T-145-CONF-ENG ET, page 47, lines 14 – 22, EVD-D01-01102 (birth certificate), and EVD-D01-00082 (individual case story). For witness P-0011, the evidence suggests that he was born in 1992; see T-138-Red2-ENG, page 54, lines 1 - 5 and T-139-CONF-ENG, page 57, line 17 to page 58, line 15. For witness P-0298, the evidence suggests that he was born between 1989 and 1991 (see T-123-CONF-ENG) and his legal representatives submit that he was 11 at the time of the events and 18 at the time of his court appearance (see ICC-01/04-01/06-2746-Red-tENG, para. 53).

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33 The testimony of witness P-0046 further substantiates the difficulties and challenges presented in the present context. This witness stated: [I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. 21

34 For all the reasons above, although I agree with the Majority of the Trial Chamber that the testimonies of these young individuals should not be used for the purposes of determining the individual criminal responsibility of Mr Lubanga, their victims’ status should remain unaffected.

35 Additionally and critically, it is unfair and discriminatory to impose upon individuals with dual status a higher evidentiary threshold (beyond reasonable doubt) as regards their victims’ status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chamber, as these young persons have been. When reparations are evaluated, it will be up to the Trial Chamber to determine the criteria utilised in determining their final status. Consequently, I consider they should maintain their status as victims for the remaining proceedings in this trial.

C. Evidentiary value of video evidence

36 I respectfully disagree with the evidentiary value the Majority of the Chamber has given to some of the video footage introduced as evidence in this trial.

37 I agree with the conclusions of the Chamber that: The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders 21 T-206-ENG, page 9, lines 15-17. No. ICC-01/04-01/06 13/17 14 March 2012

such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC. 22

38 However, I consider that the Majority of the Chamber should have relied on the video footage within EVD-OTP-00571 (02:21:20 to 03:04:57), which was introduced through witness P-0030, in order to support its conclusion. Witness P-0030 stated that this video was filmed at a rally in Goma on 11 January 2003, at which certain UPC officials, including the accused, Mr Kisembo and Mr Rafiki, were present. 23 Mr Lubanga addressed an audience that included children clearly below the age of 15. The accused’s speech concerned a meeting with the RCD-ML and the tensions between the UPC and the UPDF, but most importantly, the accused clearly considered it appropriate to include children under the age of 15 when he spoke publicly about military and other issues concerning the UPC.

39 The Majority of the Chamber should have also considered video footage within EVD-OTP-00585 (from 00:40:00) and EVD-OTP-00586 (from 00:40:18), which was introduced through the same witness P-0030. The witness testified that this event (a UPC rally) took place in Iga Barrière, just after the UPC retook Bunia. The witness identified several UPC child soldiers and Mr Lubanga. 24 The accused was wearing military clothing and he addressed an audience that included many children who were clearly under the age of 15.

40 In the course of his speech to those assembled, the accused states the following: Let's try to avoid the massacres we saw committed by the government soldiers. I'm saying this because what are we going to base ourselves on?

22 Judgment, para. 1354. 23 T-128-Red2-ENG, page 50, line 8 to page 58, line 11. 24 T-130-Red2-ENG, page 70, line 1 to page 72, line 1. No. ICC-01/04-01/06 14/17 14 March 2012

Our neighbours do not like us. The president sends the military to exterminate people. Where are we going to go to seek refuge? We cannot wait for aid to arrive. We have to try and be smart and guarantee our own safety. […]

People can complain the situation is bad and that we need aid. We could receive aid, but -- or assistance, but as I already mentioned, here in Bunia we should bear in mind that the assistance -- that we rely on you for assistance. We rely on you for assistance. I want you to understand that. I think that if there hadn't been any massacres in Bunia and if we had waited for assistance from elsewhere […]

We must look for people who will help us; and whoever will, we should collaborate with to improve the situation. But that won't stop us from doing our work because they could come for two or three months. The work, the help, might be limited. We must be aware and work in the way I have always asked you to work. If, in view of our experience, we are able to forecast the future, even if we are able to do so, we can't be distracted. […]

We are going to continue our activities, meet from time to time, because I don't want us to meet in our offices. We need to do our work, the work that will help our future. So, my brothers, that's what will bring us joy. I know that your stomachs aren't full. I know. We have to share our joy and eat together because that will enable us to do our work. You will be asked to do some work. You should know this. But please work to help all the Congolese of Ituri. We're not fighting in the name of one ethnic group; we're fighting for people's security. […]

Many people heard that I was dead. That's what was announced on the radio. I would like us to be able to meet and enjoy the time together, for at least a few minutes, and ensure that those who remained help each other. And in that way we will be able to resist our enemies. I came here to

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congratulate you for the work you have carried out here in Lopa. Clap, says somebody in the audience. Brothers, today, if before the massacres in Bunia we weren't able to go to Mahagi, well, people hid. And if we managed to save lives, it was all owing to your courage. And I spoke to your leaders on the phone and he said you continue to recruit people. We can together planify together. Thanks to your courage and the resistance -- your resistance, we have won. 25

41 This video sequence demonstrates that the accused considered it appropriate to include children under the age of 15 when he spoke publicly about issues concerning the UPC, including recruitment.

42 These videos demonstrate that the UPC officials, and particularly Mr Lubanga, would address audiences of young children in which he would discuss the military purposes of the UPC. Such events demonstrate not only the existence of recruitment campaigns (which include also rallies such as the ones showed in these two videos), but also that the accused knew that recruitment of children under the age of 15 “will occur in the ordinary course of events” after such rallies took place since they targeted a very young audience.

43 It is relevant that the rallies shown in EVD-OTP-00571, EVD-OTP-00585 and EVD-OTP-00586 took place in the context of the wider recruitment campaigns, and it contributes to the evidence that the accused was involved, in activities that resulted, in the ordinary course of events, in the recruitment of children below the age of 15 in the ranks of the UPC/FPLC.

25 T-130-Red2-ENG, page 73, line 11 to page 75, line 24. No. ICC-01/04-01/06 16/17 14 March 2012