Prosecution Opening Statement and Evidence

The Prosecution had previously outlined matters on which it intended to submit evidence in its detailed charging document. At the hearing the Prosecution presented evidence regarding the background of Mr Lubanga; the existence and character of the armed conflict in Ituri at the relevant time; the structure and nature of the Union des Patriotes Congolais (UPC) and the Forces Patriotiques pour la Libération du Congo (FPLC) and the alleged role of Mr Lubanga within these organisations (as President of the UPC and Commander in Chief of the FPLC); the alleged policy of the UPC/FPLC to enlist, conscript and use children under the age of 15 to participate actively in hostilities; the modes of criminal liability with which Mr Lubanga is charged; and evidence relating to the cases of individual children alleged to be ex-UPC child soldiers.

The Prosecution’s opening statement largely summarised the evidence presented. A summary of the Prosecution case can be found in the charging document of 28 August 2006 at http://www.icc-cpi.int/cases/RDC/c0106/c0106_all12.html, which addresses the various limbs of conscription, enlistment and use of children under 15 to participate actively in armed hostilities and forms of criminal liability.

The Prosecution mainly relied during the hearing on written evidence, such as witness summaries and statements (including witness statements of six alleged former UPC child soldiers), reports of international and non-governmental organisations and documents alleged to be produced by the UPC itself, some purportedly signed by Mr Lubanga. The Prosecution also showed several video excerpts to the court, one of which prompted the presiding judge to comment on its poor technical quality.

The Prosecution did not make use of Rule 69 of the RPE, which provides for the possibility of the Prosecution and Defence agreeing non-contentious facts (such facts then being accepted by the Chamber as proven) but elected to prove all elements of its case.

The Prosecution called one witness to testify in person, a child protection expert who had worked for MONUC, (the United Nations mission to the DRC). She was originally scheduled to testify for two days but completed her testimony in one. The witness referred in her evidence to a number of MONUC missions made to the Ituri region of the DRC (and one to Uganda) during 2002 and 2003, the period covering the charges against Mr Lubanga, including visits to alleged UPC military training camps.

The witness’ testimony included references to interviews with alleged UPC child soldiers and information on the use of child soldiers in the area provided by UN military observers and international organisations. She testified that during her interviews with alleged UPC child soldiers she was told that they had been in battle and that many had functioned as bodyguards for UPC officials. She was also told of threats made to children of reprisals against them or their families if they tried to leave the UPC. According to the witness the children spoke of beatings and mistreatment and the poor food and shelter in the UPC training camps.

In addition, she gave evidence of witnessing armed, uniformed children stationed as guards outside UPC buildings. The witness also stated that she had met Mr Lubanga in person in May 2003 at his house and personally saw children armed with Kalashnikovs guarding the house who were under the age of 15.

At various points in her testimony the witness confirmed that the child soldiers who she interviewed and saw were under 15, based on information given by the children themselves (as to their dates of birth or ages), or her own professional opinion based on their appearance.

A MONUC report submitted in evidence estimated that 40 per cent of the UPC fighting force were child soldiers. The witness stressed this was an estimate and could be 35 or 45 per cent. She also added that the focus of MONUC was to identify persons under 18 rather than 15 years.

When the Prosecution asked the witness the question ‘Did you get to know a Commander Kisembo and did he make similar threats?’, the Defence intervened stating this was a leading question. The Judge rejected the intervention stating the witness needed sufficient clarity and that the Defence could deal with the matter in cross-examination.

The Defence also objected to the witness being given a copy of a 2003 MONUC report, stating that the witness’ testimony was only taken a few months ago and that the Prosecution was trying to refresh the witness’ memory. The Judge rejected the Defence challenge, stating that the report was dated 2003 and that the Defence can challenge the fact that the witness’ memory was refreshed in cross-examination.

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