Compelling testimony from former child soldiers was the main feature of the prosecution’s case against Thomas Lubanga.

Evidence heard included stories of the brutal treatment of boys and girls at the hands of the Union of Congolese Patriots (UPC) military groups. Various witnesses testified about continuous beating, rape, near starvation and other abuses suffered during their time with the UPC.

Although their testimony involved tragedy and suffering, the prosecution has a very difficult charge to prove. This is because Lubanga, president of the UPC and on trial for conscripting and using child soldiers in his militia, was generally removed from the front-lines. There is little evidence to suggest that he himself was involved in physically committing the acts described above.

Therefore, although it seems clear from the evidence that the use of children under the age of fifteen to fight in the DRC conflict was a wide-spread phenomenon, it is less clear whether Lubanga himself is responsible for those crimes.

As the trial moves into the presentation of the defendant’s case, probably in October, it is important to know exactly what the prosecutor set out to prove.

Nature of the conflict

Lubanga is charged for committing a war crime under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute.

Because he is charged with a war crime, the prosecutor must first establish that there was a conflict in the DRC. Lubanga is charged for crimes that occur both during an international conflict as well as during a non-international conflict.

Evidence included testimony from historian Gerard Prunier, who told the court that it involved violence between Congolese ethnic groups, including the Lendu and Ngiti, and the Hema, which were represented by the UPC.

“Everyone was killing everyone,” Prunier told the court.

Prunier also explained that ethnic tensions contributed to the participation of Ugandan forces in the DRC conflict. Another witness testified about Rwanda and Uganda providing arms to the UPC.

Enlistment of child soldiers

The prosecutor must also prove that UPC soldiers conscripted or enlisted children under the age of 15 into armed forces or armed groups or used children under the age of 15 to actively participate in hostilities.

The prosecution must also prove that the perpetrator knew or should have known that such persons were under 15.

Finally, the prosecution must prove that the conduct took place in the context of, and was associated with, armed conflict, and that the perpetrator was aware of factual circumstances that established the existence of an armed conflict.

It is important to note that the prosecution does not have to show that the person who conscripted, enlisted or used the child specifically intended to do so. Nor does the prosecution have to show that this person knew the child was under 15. This significantly lowers the burden of what the prosecution has to prove, which is simply that the person should have known that the child was under 15.

However, proving the age of child soldiers has been challenging for the prosecution. Experts and witnesses have acknowledged that it is difficult to ascertain the age of the young soldiers.

One witness, a high ranking officer in the UPC, admitted that “it’s very difficult” to tell their ages, saying, “it could be they haven’t been well fed.”  Other witnesses also noted that malnourishment could make soldiers appear younger than they actually were.

A UN expert in child protection, Christine Peduto, also told the court that there was no absolute way to verify the age of children in Ituri, because so few people have identity cards or birth certificates. She verified the ages of children by questioning the child and based on circumstantial evidence, including their behavior, and to a lesser extent their appearance.

This type of evidence throws doubt onto testimony about observations of alleged child soldiers or bodyguards based solely on the physical appearance of the person.

However, two different medical experts testified that based on x-ray analysis, they could estimate the age of some former soldiers as well under 15. These experts, however, admitted that the data may be distorted when studying African populations as malnourishment, disease and levels of physical exercise could distort results.

Importantly, Lubanga cannot claim that he is innocent because the children or their families consented to the child becoming a soldier. Merely accepting children into the UPC can be enough to convict for this crime, even when those children were made available by parents or joined voluntarily.

This means that the testimony heard at trial about families giving their children to the UPC cause, or testimony about children joining the UPC of their own volition, will not necessarily harm the prosecution’s case.

For example, one former child soldier told the court how he had joined the rebels after returning from school and finding his home locked and abandoned.  Arriving at the UPC camp, he told the commander he was 10-years-old. The commander laughed, and took the child to be trained and armed at a UPC training camp, he told the judges. This type of evidence will help the prosecution prove the commission of the crime.

Because Lubanga is charged with using child soldiers as a war crime, the prosecution must prove that the use of child soldiers was closely related to the hostilities in the Ituri region between July 2002 and June 2003. Although the children must have been used to directly participate in the conflict, is it not necessary to prove that the children were used in combat situations.

The prosecution can prove that children participated in hostilities by showing that they were used for guarding military headquarters or as bodyguards. Indeed, the prosecution has led considerable evidence on the use of child soldiers in the UPC as guards and bodyguards. Much of this testimony came from the children themselves.

There also is ample evidence of children being used directly in the hostilities, including the testimony of one child soldier who claimed that “if you didn’t shoot at the enemy, the enemy would fire at you and you would die, and that is what would give you the strength to continue.”  The witness told the court that “the enemy” was the ethnic Lendu, a group involved in the Ituri conflict.

Personal responsibility

Despite the evidence of children being used by the UPC, there is not much evidence that Lubanga himself conscripted, enlisted or used child soldiers in the Ituri conflict. There is some evidence that Lubanga used children as young as nine or 10 years-old as bodyguards.

However, under ICC law, Lubanga can be guilty even if he himself did not physically commit the crime.

The prosecution argues that under Rome Statute Article 25(3)(a), Lubanga is vicariously responsible as a co-perpetrator for the alleged crimes.  In very simple terms, Lubanga is not charged with recruiting child soldiers himself, he is charged with being a part of a group of people that did.

Thus, even if there is no evidence of Lubanga committing the crime, a guilty verdict is possible if the prosecution can show several things.

Firstly, that Lubanga was part of a group of two or more persons and this group had a “common plan.”

This element seems fairly easy to prove, since there is ample evidence that Lubanga was the leader of the UPC and FPLC, with witness after witness testifying that Lubanga was the UPC president.

The group’s common plan does not necessarily have to be inherently criminal, but it has to involve the commission of the crime.

In this case, the prosecution alleges that Lubanga, along with other members of the UPC, had a common plan to “further the UPC/RP and FPLC war effort” by recruiting, voluntarily or forcibly, young people into the UPC or FPLC; subjecting them to military training; and using them to participate actively in military operations and as bodyguards.

Although this alleged common plan did not specifically target children under 15, the pre-trial chamber held that their involvement was an objective risk associated with recruiting “young people.”

Thus, even if the UPC did not set out to recruit children under 15, their inclusion in the recruits was a risk that the UPC allegedly took in carrying out its plan.

There is considerable evidence of young soldiers being kidnapped by the UPC or enlisting voluntarily. Many former child soldiers and former UPC commanders testified that these children went through brutal training sessions, after which they were armed and sent into combat or used as bodyguards.

Secondly, a guilty verdict is possible if the prosecution can show that Lubanga and the other members of the group each had an “essential task” in carrying out this plan, which they performed in coordination with each other; that Lubanga knew that he had this essential task necessary for the execution of the common plan; that he knew that by not performing this task, he could frustrate the purpose of the common plan.

“Essential” in this case means that if he didn’t perform his task, the plan would fail.  The task can be far removed from the actual commission of the crime, such as planning the crime or providing finances so that others could commit the crime.

This means that Lubanga must have had some kind of control over whether the plan was carried out, and by extension, whether the crimes associated with the plan would be committed.

Lubanga’s essential task was characterized by the pre-trial chamber as having “direct and ongoing contacts with the other participations in the common plan …, inspecting several FPLC military training camps to encourage the new FPLC recruits, including those under the age of 15, and prepare them to participate in the hostilities, and providing the necessary financial resources for the implementation of the common plan.”

The prosecution presented much testimony and video evidence of Lubanga’s presence at UPC training camps, where he would give inspirational speeches and inspect military troops.  In one video clip, Lubanga led a group of soldiers and new recruits, including children, in song.  He then gave a speech telling them they must be courageous in battle.  “This type of work is of great importance.  It can involve suffering,” Lubanga told the crowd.

There is also considerable testimony about Lubanga’s political authority over the UPC, and his distance from military activities.  Indeed, the prosecution entered over 80 documents into evidence that allegedly shows Lubanga’s authority over the UPC. Some of the documents demonstrate the structure of the organization, and others were letters addressed to “His Excellency, the president of the UPC, Thomas Lubanga.”

A former military leader of the UPC explained that the organization was split into several divisions, including administration, intelligence, logistics, public relations and morale.  This formal structure provides strength to allegations that the military and political branches of the UPC were tightly linked, and that each division was considered necessary for the functioning of the organization as a whole.

One witness testified that Lubanga had no role in military operations, because he was not a soldier. However, this witness said that Lubanga would receive reports on military activities from his staff.

The prosecution’s evidence has also included testimony about meetings between Lubanga and UPC military leaders, including Bosco Ntaganda, who has been indicted by the ICC on charges similar to those brought against Lubanga but who remains free in the DRC.  Documents introduced by the prosecution also allegedly demonstrate that Lubanga was aware of the UPC’s military activities.

Conversely, another witness who testified about Lubanga’s political role, said that he did not have control over military operations.  He claimed that Lubanga was not influential over the military and may not have known about child soldiers used by the UPC.

Finally, a guilty verdict is possible if the prosecution can prove that Lubanga either intended for the UPC to conscript, enlist or use child soldiers, or knew that it would happen as a consequence of trying to achieve the common plan and accepted the risk by going ahead with the plan. All of the other members of the group also knew and accepted that recruiting child soldiers was a possible outcome of implementing their plan.

This means that the prosecution must prove that Lubanga and everyone else who participated in the common plan were at least aware that under ordinary circumstances, recruiting, training and using “young soldiers” under the common plan would involve children under 15.

The prosecution must show that they accepted this possibility by reconciling themselves with it or by condoning it. This could explain why the prosecution has presented evidence that Lubanga himself used child soldiers as bodyguards and did not attempt to stop the recruitment or training of child soldiers.

However, in video evidence showed by the prosecution, Lubanga himself denies that the UPC used child soldiers. In the video, Lubanga places blame for the use of child soldiers on Ugandan forces.

This denial may be contradicted by other evidence, though.  For example, the journalist shooting the video later spots a child he estimates to be 11 or 12 years-old dressed in military fatigues carrying a gun. The young soldier is captured on film at a UPC military rally, where Lubanga is speaking to the troops. This would suggest that Lubanga knew about the child soldiers being used by the UPC, and took the risk that they would be recruited along with other “young” soldiers.

Ultimately, the evidence will be reviewed by the judges for credibility and weight.  The trial still has yet to hear the defense case, which could throw much of the prosecution’s case into doubt.  Ultimately, it will be up to the judges to determine Lubanga’s guilt or innocence under the legal principles discussed above.

Jennifer Easterday is a senior researcher with the U.C. Berkeley War Crimes Studies Center in California, USA.  The views expressed by the author do not necessarily represent the views of IWPR or the Open Society Justice Initiative.