Before the defense case for Thomas Lubanga starts in full swing, it is worth reminding ourselves of his team’s opening statement to the court — made almost a year ago now. It may give us a sense of of the direction Mr. Lubanga’s team could take in making a case for his innocence, although the team provided no specific counter-narrative about Mr. Lubanga’s alleged responsibility for the specific crimes of which he stands accused.  Mr. Lubanga’s charged with the war crimes of conscripting, enlisting and using child soldiers in Ituri, eastern Democratic Republic of Congo (DRC). He’s pleaded not guilty. 

Mr. Lubanga’s lead defense counsel, Catherine Mabille, reminded the court of five key rights of her client to a fair trial: the right to be presumed innocent; the right to silence; the right to know the charges against him (including through access to exculpatory material); the right to be tried without undue delay; and the right to a public trial.

She went on to note the difficulties for her team in gaining access to exculpatory materials due to the confidentiality clauses of the Rome Statute’s Artice 54(3)(e) under which the prosecutor had received evidence which he planned to use in the case. Next, she took objection to the number of ex parte hearings leading up to the trial from which her team was excluded (Ms. Mabille said that half the hearings leading up to the trial had taken place without the defense present). She asked “how can we balance the objective of security and the rights of the Defence? How can we accept the fact that half of the hearings took place without it, without the Defence?”  In terms of the charges against Mr. Lubanga, focussing on the possibility raised by the Prosecution that it may add new charges against him in the future, Ms Mabille also objected.  “The Defence can’t accept this, because if the charges for the crimes on which Mr. Thomas Lubanga is prosecuted now aren’t sufficient, we will need a new trial. Well, I believe that to say that is unfair and puts the Defence in a very tricky situation.”  She also raised objections to scope and procedure for victim participation, which she considered could negatively impact Mr. Lubanga’s right to a fair trial.  Finally, she returned to the fear that the trial could be held effectively in secret due to security concerns for those coming to testify.

Ms Mabille passed the floor to her colleague, Mr. Jean-Marie Biju-Duval.  He questioned the choice of charge (one, he said, which no western power could be accused of because western armies no longer use child soldiers aged under 15 years) and target (Mr. Lubanga was a scapegoat, he said, with other individuals bearing greater responsiblities for the crimes committed in Ituri). With these choices, he argued, the ICC had compromised its opportunity to demonstrate its independence in the search for justice and the truth.  He focussed on the image created of the court by this trial: “Not only are those who bear the greatest responsibility unconcerned, untroubled, but it is one of them who arrested and surrendered this person to the International Criminal Court. What image of international criminal justice does this give?” He ended with a plea for the court to be “rigorous in ensuring fair and transparent proceedings.” This could be done, he said, by ensuring: “The actual facts alleged must be investigated. We must ensure or investigate the credibility of the witnesses. We must investigate the authenticity of the documents.”

Interesting note:  In an indication of what would eventually follow in the course of the trial, Ms. Mabille took objection to the possibility, raised by the Legal Representatives of the Victims in their opening statements the day before, that they would seek a legal recharacterization of the charges against Mr. Lubanga to include sexual slavery.  (You can read the full opening statements by the Legal Representatives in an earlier post here: http://www.lubangatrial.org/2010/01/06/and-finally-the-victims-legal-representatives/).

 Ms. Mabille noted with concern to the judges: “I know that the Chamber will not heed this in that the  Rome Statute doesn’t give legal representatives of victims a right to request for new charges to be brought. However, for them to formalize this request in the way they did is something we have difficulty accepting.” 

In further responding to the opening statements of the victims’ legal representatives, she told the court: “I heard the word “rape” and “sexual slavery” mentioned. However, those aren’t charges brought against our client. The Legal Representatives of Victims cannot accuse our client of crimes which he isn’t prosecuted for here. That is why we are concerned, because this is the first case and we know that the participation of victims is still not a very well-defined area, and the Defence wants to be able to stand up to these new accusations.”

We’ve reprinted the defense team’s opening statement in full below – the full transcript of that day, January 27, 2009, can be found here: http://www.icc-cpi.int/iccdocs/doc/doc623848.pdf.

MS. CATHERINE MABILLE (Lead defense counsel for Thomas Lubanga Dyilo – interpretation from French): Your Honours, allow me to take the floor. The opening statement of the Defence shall be given in two parts and cover two topics. My submissions will largely be submissions of a procedural nature related to the issue of the need for a fair trial. Mr. Biju-Duval, my learned friend, shall take the floor after me to speak to you of the matter of Thomas Lubanga’s trial in connection with the objectives of the International Criminal Court.

I wish first to say that the Defence welcomes the creation of this International Criminal Court. This International Criminal Court recalls the most protective of texts on human rights and regarding the rights of the accused. In the basic texts of the International Criminal Court, the death penalty is abolished, and this to us is a tremendous advance for humanity. This International Criminal Court has as its vocation, as its objective, that we no longer see on our television screens what we saw on one 30th of September, 2007, a head of state who had been toppled, who was hung in the wake of a sham trial during which three of his Defence lawyers were one by one assassinated in the course of their duties. The International Criminal Court aims to try those who bear the greatest responsibility for the gravest of crimes against humanity.

The direct corollary of this fight against impunity is a respect for the rights of the accused. What do we understand by the fundamental rights of the accused? I will touch upon them briefly, and I will then develop the matter in our case.

First of all, there is the presumption of innocence. This right is not always put into practice, not always equally recognised. For instance, last night we saw the rendering of the press of the Thomas Lubanga case. In the press he is already convicted, convicted before being tried. And in the eyes of a vast majority, as soon as there is an arrest warrant and as soon as the charges are confirmed and the matter is committed to trial, the presumption of innocence disappears. And I would emphasise that this presumption of innocence disappears in particular in these cases where these most serious of crimes are charged. Such a person appearing before such a court no longer enjoys the presumption of innocence.

The second right is the right to silence. I’ll say no more on that.

Thirdly, the right to fully know the charges bearing against oneself as an accused person, that is to say full disclosure also of the incriminating and exculpatory evidence.

And finally, the trying of the individual without excessive delay.

And last but not least, the proceedings must be public.

Defence lawyers are often questioned on the merits or the basis for fundamental rights, and I would like to recall here that there are two objectives to be served by these fundamental rights. First of all, to protect an individual from arbitrary action. A person who faces charges finds themselves called before an institution which has tremendous powers, tremendous resources, backed by the international community, and that person stands charged and who is ill-equipped. What does protect him is the respect, the safeguarding of his judicial rights, and this goes to the very heart of fundamental rights. Ensuring a balance between an institution who has tremendous power vis-a-vis a single individual, this slight rebalancing is brought about by fundamental rights.

And there is another essential aspect, and this is what is of greatest interest to us, that is that these fundamental rights allow or should allow, when they are correctly exercised by the Defence, that it has the means to participate in the injustice. The Defence, in exercising its fundamental rights, investigates the evidence present by the Prosecutor. It scrutinizes the Prosecutor’s evidence. It seeks to understand what in the Prosecutor’s evidence is  close to the truth and what, on the contrary, is far removed from the truth, and it brings before the Chamber its analysis and its arguments, that there be an adversarial discussion before the Bench. The fundamental rights of the Defence allow the Defence to — if, that is to say, they are exercised fully, allow the Chamber to come to a just and equitable ruling having seen or heard argument on both sides in connection with each piece of evidence.

This is what I wanted to say by way of opening submissions. I would now like to use the 15 months which we have spent together to try and understand various passages in the Rome Statute. One of the challenges of this first trial is that it is the first trial. Another challenge which is problematic for us is that here new texts are being applied containing new prerogatives. The Prosecutor, and here we have an innovation in relation to the two international tribunals for former Yugoslavia and Rwanda, here the Prosecutor is obliged to investigate incriminating and exonerating circumstances equally. The Prosecutor, therefore, has a new rule under this Statute, and as a result, it is up to us, up to all of us to take part in the development of jurisprudence, that is to say an understanding of how these texts will be applied.

I would say that today the Defence has five concerns, hopes, musings. These musings, concerns, hopes arise from what we have been able to do before this Court over the last 15 months. Now, I’m going to say things which are not extraordinary. We have all been through this together, but I would like to take a look at what has happened exclusively from the perspective of the Defence. There are five points which I wish to address.

The first is Article 54(3)(e) with which all here are familiar and the consequences of it for the Defence at this point in time. The second issue, and here you will not be surprised either, is the matter of ex-partes. Thirdly, the charges, the charges levelled against  Thomas Lubanga. Fourthly, victims’ participation. And finally, the concept of publicity. As I said, there’s nothing new in what I will be saying, but I would like to address these issues and express the concerns of the Defence as this trial opens.

To begin, first of all, Article 54(3)(e). Here I would like to summarise briefly the situation. The main difficulty which we had in this case, and I think we can be frank about this, is disclosure. The difficulties arose with the disclosure of incriminating evidence and were followed with difficulties encountered in disclosure of exculpatory evidence. So that all could follow the ideas I’m going to put forward, I should remind all that the incriminating evidence garnered by the Prosecutor must be made available to the Defence as must the exculpatory evidence garnered so that the Defence can identify any mitigating evidence, evidence which can assist the Defence in analysing other evidence by the Prosecution or evidence which tends to show the innocence of the accused. Now, after many twists and turns, exculpatory evidence was disclosed. The Chamber set out a set of rules to assist the Defence so that it could do its work. When the time came for exculpatory evidence to be disclosed, the Prosecutor informed us that he had that evidence in his possession but that, unfortunately, he could not disclose it to us. He could not disclose it to us because he had signed confidentiality agreements with sources. Now, here I must say that from the outset, this trial has been badly approached by the Office of the Prosecutor, or at least the way in which the Prosecutor has carried out his work strikes us as being particularly problematic. The Prosecutor came to this Chamber to inform us that he had obtained 55 per cent of his evidence under confidentiality agreements, whereas we know that the Prosecutor should have obtained evidence under — or based on confidentiality agreements only if that evidence was not going to be used or only used exceptionally and only if that evidence was for the purpose of generating new evidence.  No. The Prosecutor travelled to Ituri, to the Congo, to conduct his investigations. He obtained various documents from various sources. He did not take the trouble at that time to differentiate between the evidence which he was garnering and, rather, he used — he blanketly used confidentiality agreements.

In the wake of this, sources were — did not wish to lift confidentiality. We could discuss why the sources did not wish to lift confidentiality, particularly the United Nations, but this is not the nub of my argument. What I mean to tell you is that we found ourselves in a situation where the Defence did not have access to the evidence. The Defence, but the Judges neither, or even more so the Judges. Then a decision was taken on the 13th of June, and the Defence sees this decision as being courageous, courageous because it placed at the heart of this trial, this first trial, the concept of a fair trial,  the Judges feeling that deprived from consulting that evidence, and as the documents were not disclosed to the Defence, the Judges could – felt that they could not ensure a fair trial and could not be custodians of fair proceedings. The only conclusion which they could take was that they could not continue with these proceedings. That is to say, they drew all of the consequences. This was not an easy matter at that time. At that stage they also decided to free, to release Thomas Lubanga. This is how I would describe the initial problem, and I will go on to say, however — however, on the 18th of November, in the wake of a hearing at which the Defence could not advance arguments because the Chamber decided to lift the stay. I say the Defence could not advance its arguments because the only arguments that it could put forward at that time were in connection with whether the documents were disclosed to the Defence and in what form. That oral decision was issued. The grounds for the decision were not provided to us until Friday evening. The Defence intends to express here its concerns, because the documents which have been disclosed to us and the decision which was provided to us on Friday evening should be accompanied by annexes. It is a partial decision. The annexes make it possible to understand the decision. The decision as we have it allow us to understand the guiding principles that led the Judges to take their decision. However, we do not yet have the material that allows us to know what the systematic approach was on a case-by-case basis to each document, that is to say, why these documents were not provided to us in their totality.  At this point in time, I would say that this is not an isolated phenomenon. I have statistics, and to — basically we’re talking about a dossier of 32.000 pages. The disclosure of which I’m speaking, disclosure of exculpatory evidence from the 18th of November is some 5.000 pages. So quantitatively we’re speaking of very large volumes. However, in relation to disclosure, today we are told that the disclosure cannot be complete, and because of an original error by the Prosecutor and not of the proceedings in themselves. But because of an error which one is attempting to rectify, the Defence still feels that the solution which has been found, still prejudicial, is detrimental to the Defence.

There are four factors at play here. It is clear that the sources have refused that certain documents be provided to us in their totality without redactions. And thus, alternative measures have had to be taken in place of true and full disclosure. However, I insist today  we should have benefitted from this full disclosure and not alternative measures.

The Defence did not commit an original error. It does, however, continue to suffer a prejudice. The Bench, the Chamber, feels that the prejudice is not sufficient to impede the holding of this trial, but nonetheless this is a prejudice. Four months of disclosure, summaries. How are we, the Defence to utilise these summaries? You know well if I appear tomorrow with a summary here in the courtroom, with a summary the author of whom I do not know, the source of which I do not know, which is a partial document, what weight will that evidence have?

You speak to us of alternative evidence. You say, “Yes, we cannot provide you with this document, but if you go looking in this other document you will find that you can find comparable evidence in this alternative evidence.” This, too, for us is not entirely satisfactory. One of the objectives of the Defence is to provide corroborative evidence. If I come tomorrow morning with evidence to this Chamber, if that evidence is corroborated by other evidence, it is thereby strengthened. When I am provided with corroborative evidence, I am missing the original evidence. I am missing the opportunity to corroborate.

Now, turning to this blue pencilling. The Defence needs to fine-tune its skills of jigsaw puzzling. We have to deal with these documents which are redacted, redacted a little, redacted a lot. Often it is genuinely difficult for us to use these documents even though often they are very important documents. So alternative evidence, redactions. I’d like to turn now to the admissions proposed by the Prosecutor. I am not convinced that we can use these admissions or that they would be of real use. Part of the admissions begin with the wording, “It has been said …” What is admission? Is it the admission that it has been said that, or is it the thing this has been said? These admissions, once again, do not fulfil for us what is our rightful expectation, and that is full disclosure. There is thus a prejudice for the Defence through the application of Article 54(3)(e). We start off this trial with a prejudice, whereas this is a wholesale abuse of the rules by the Office of the Prosecutor.

There’s also Rule 82. Rule 82 specifies that when evidence is obtained under or based on confidentiality agreements and the Defence cannot carry out its work fully, it can examine and cross-examine only if the person agrees to this. This is a serious restriction to our work.

Thirdly, it puts the Defence in a very specific – particular situation, because the Chamber will have had access to information the Defence will never ever access. Those are the three consequences of the first points I was making. So how can we have a fair trial under the conditions I have just mentioned?

My second point, which the Defence has already explained at length, are the ex parte hearings. Now, I would like to start by stating that the Defence is aware that ex partes are provided for under the  Rome Statute, but the Chamber must have very good reasons to decide for an ex parte hearing instead of a public one. However, if we look at the case, we find ourselves in the following situation, and please forgive me again if I’m not very precise in what I’m saying. However, I will give you approximate numbers. There were 54 hearings including the hearings in which oral decisions were given. Of these 54, 24 were ex parte. As such, half of the hearings took place without the Defence. There was a trial within the trial in which the Defence was unable to make its — to state its case. 

Now, we understand that there could be reasons on the grounds of which the Chamber decided in favour of ex parte hearings. However, for us it is difficult to understand and to accept the fact that we have missed half of the hearings, that the Defence — to accept the fact that the Defence was absent for half of the hearings. And we cannot believe that no information was given by the Office of the Prosecutor during the discussions between the Judges and the Office of the Prosecutor at these hearings. We will never know what was said at the hearings. So I was saying this because, in my mind, ex partes can only be held in exceptional circumstances, but I wonder how – and this is the issue at stake – how can we balance the objective of security and the rights of the Defence? How can we accept the fact that half of the hearings took place without it, without the Defence?

Now, I moved on to my third point, the charges against Thomas Lubanga. I have two observations. First, as my learned colleague Jean-Marie Biju-Duval said, we listened to the Office of the Prosecutor very carefully yesterday, and we paid particular attention to a specific point, the concept of domestic armed conflict and international armed conflict. I would say that the Office of the Prosecutor, from the outset, said that the Pre-Trial Chamber referred Thomas Lubanga for a specific crime for enlisting and conscripting children in an armed conflict and also for making them — for participation in an international conflict, but we had understood that the Prosecutor first stated that the conflict couldn’t be qualified as international. They stuck to this point for a long time, but afterwards this changed. And this was difficult for the Defence, because some points were confirmed by the Pre-Trial Chamber but not by the Office of the Prosecutor. So now the Defence has to consider charges, and it doesn’t really know where the Prosecutor stands on them. We understood from what was said yesterday that the Prosecutor somewhat changed its stance. They looked at the national and international conflict issue and stated that they would leave it up to the Judges to characterize the conflict. I think they were referring to Regulation 55. And I won’t open a discussion on this regulation;  however, we have difficulty with it.

Now, that was the first observation on the charges. The second one we had already delved into, but it remains very relevant now. It concerns the threats against Mr. Thomas Lubanga from the Office of the Prosecutor. So Mr. Thomas Lubanga Dyilo is prosecuted now for enlisting and conscripting children and using them in armed conflict, but the  Prosecutor has said, “I may in future prosecute him for other crimes.” Now, we have some concerns. And that is an understatement, because we believe it is very unfair for the Prosecutor, who has been investigating the situation for five years already, who knows the situation perfectly well, for the Prosecutor who has given us yesterday a document that states all the locations the massacres took place and who knows the historical and political context of the situation. The Prosecutor knows the period during which Mr. Thomas Lubanga Dyilo had authority. Actually, it is very specific in time. And now the Office of the Prosecutor is saying that, “I will prosecute him for these crimes but may carry out new investigations and prosecute him for another crime.” We believe that this approach is unfair. We looked at the jurisprudence of international criminal tribunals and the only case in which I read about additional charges and which was similar to the case  of Mr. Thomas Lubanga is the Milosevic case, but in his case the issue was very different. There were three different countries, Kosovo, Croatia, Serbia, Bosnia – I beg your pardon – and these were different countries, different time-frames. And the Prosecutor said, “Well, I started my investigations on this country for this period of time, but I couldn’t finish them.” But now we’re talking about a very specific time-frame. You know exactly what happened, but you are still threatening the Defence with new charges. But the Defence can’t accept this, because if the charges for the crimes on which Mr. Thomas Lubanga is prosecuted now aren’t sufficient, we will need a new trial. Well, I believe that to say that is unfair and puts the Defence in a very tricky situation.

And now my fourth point, the participation of victims. I have already mentioned this to the Chamber. Our main concern about a fair trial is also in relation to the participation of victims. I’ll give you explanations for you to interpret what I want to say properly. My  comments will be procedural in nature. I will not at this stage go to the substance, the merits of the reasoning of the legal representatives. I will only talk about procedural matters. Article 68(3) provides for the participation of victims. They must express their views and concerns, but this article provides that they can only do so if it does not prejudice the rights of the Defence and a fair trial. The Rome Statute is a statute on the participation of victims. It is a compromise between two different legal systems, the  common law system at which victims do not appear at trial – the Prosecutor represents them – and the civil law system in which victims are parties to proceedings. The Rome Statute provides for a hybrid system, a mixed system in which victims’ participation doesn’t mean that victims are a party to the proceedings. The parties are the Defence and the Prosecution. The Prosecutor has a burden of proof, and the Defence must carry out its work properly too. However, victims are not parties in the proceedings. Now, why is the Defence very worried at present? Well, if we become parties, no longer just participants, if anybody does, this will have serious consequences for the Defence, and we already have good reasons for concern. I will try to explain these reasons through four points, the movement from participation to party, and I will give you four examples of how this can happen.

First, we were given applications for participation on the part of victims, and the Defence was asked to give observations on these applications. We looked at them. Most were almost entirely redacted or redacted to such an extent that it was impossible for us to carry out any type of investigation, and the only observations we could make were on the form. We are dealing with applications concerning which – or applications which prevent us from carrying out our work, the reason why there was a defence. There were 80 victims — 92 victims, I beg your pardon.  Ninety-one are entirely anonymous to date. They will come and make statements that play against our client in Chamber, and the Defence will not be able to do anything against it. Moreover, you have requested our  observations. However, 40 victims have been asked to come and give their statements before the Chamber and testify in court, and we are worried because we do not know anything about these people. They are going to come and testify for the Prosecution against our client. They are anonymous. We don’t have any information about them. That means a second or third trial within the trial. We’ll have to deal with the Prosecution, and after that we’ll have to continue with victims, and we won’t have any of the procedural means or judicial guarantees we have to defend ourselves because the Rome Statute has not provided for these victims being parties in the trial. And I will give you another example of why we are so concerned. Yesterday we listened to a legal representative who told us that after the Prosecution’s evidence we would have the victims’ evidence, but the  victims’ evidence is something we know nothing about. We were told we would have three months before the trial to investigate the evidence furnished by the Prosecutor, but we lack visibility here because we’re 6.000 kilometres from the place the events took place, and our ability to carry out investigation is very limited. How will we be able to deal with this second party accusing us?

And the last — the last point which also raised our concerns related to the opening statements of the legal representatives of victims. They said that at one stage, and I would like to look for the text because I want to read it, not to change what was said, however, I’ll give you a general idea of what was said. They would like new charges to be made against Mr. Thomas Lubanga. I know that the Chamber will not heed this in that the  Rome Statute doesn’t give legal representatives of victims a right to request for new charges to be brought. However, for them to formalize this request in the way they did is something we have difficulty accepting.

And I would like to add, and this is the only observation I will make on what the Legal Representatives of Victims said yesterday, I listened to much more than just reference to the crime of enlisting and conscripting. I heard the word “rape” and “sexual slavery” mentioned. However, those aren’t charges brought against our client. The Legal Representatives of Victims cannot accuse our client of crimes which he isn’t prosecuted for here. That is why we are concerned, because this is the first case and we know that the participation of victims is still not a very well-defined area, and the Defence wants to be able to stand up to these new accusations.

I would like to finish my point about the victims by referring to a protagonist in the judicial world in France, and I won’t quote him just because he’s French but more because he actively participated in the establishment of the International Criminal Court. He worked hard to enable this court to function, and he is very informed about the concept I have just been mentioning, and I would like to read the — an article or a part of an article in Le Monde which wasn’t written by Robert Badinter in international criminal justice. It was written in France when we had very important discussions at the time about international criminal proceedings, but I would like to read a passage which I believe to be very relevant:

“On behalf of the victims who are suffering and which call for the whole of society to unite, we would like to state that the fair trial’s principles must be respected. They are enshrined in the international Convention of Human Rights. Justice is not vengeance, and it is not about compassion towards victims. That is why it is a very complicated procedure.”

I believe that to quote him is — will give you a better idea than my own words, what I might say in my own words about the opinion of the Defence on these points.

Now, I would like to come back to what I was talking about earlier on concerning the publicity of the discussions, which is an essential feature of a fair trial.

The International Court of Human Rights has just issued a judgement which confirms what it has written on many occasions before. However, what is the novelty of this judgement is that it was just issued 15 days ago in a Schlumpf case, S-c-h-u-f-p-h [as interpreted], on 8 January 2009. The Court would like to recall that the publicity of legal discussions is a principle that is enshrined in the principles of the convention. It protects those subject to the law from secret judicial matters and, as such, is one of the means that ensures the trust people will have in courts and tribunals. Through this it will help attain the aim of Article 6(1), fair trials, and the principles underpinning any democratic society. I know that the Chamber is very concerned that these principles are applied, but we must make the following statement.

Now, I would like to go back on my reasoning concerning the ex parte hearings. Part of the hearings were confidential for the Defence and the public which didn’t have access to them. Now, we are going to hear the Prosecutor’s evidence. We are going to listen to 32 witnesses, and 23 or 24 of the witnesses will be protected, meaning that part of the examinations will be in closed session. The public will, therefore, not have access to the information. The other part will be as public as possible. However, it might just be  residual.

I listened carefully to the arguments raised. We are dealing with this very complicated issue of security. However, at some stage, and I think it’s my learned colleague Jean-Marie Biju-Duval who was talking about the critical mass earlier on, and I wonder, because our objective for all of us here is to be able to say the truth, our truth, to state the reasons why we are here today. And the people are expecting this adversarial discussion, because this trial should benefit the international community.

If we look at all the cases at hand, not only that of Mr. Thomas Lubanga, there are always issues of security. And if we approach the matter in this way, it will mean that international criminal justice will become very secretive, and this will defeat the purposes we have set ourselves.

We have another concern. We were told that these witnesses can’t testify in public because threats have been made against them. The Defence was not present during these debates on security. We were excluded. So therefore, we don’t know about them. We have just been told that there are security problems. But I heard a Legal Representative of Victims tell us yesterday that even though some victims were anonymous, the pressure was put upon them and that they had problems due to this, and I don’t want to underestimate this. However, we do not know all the ins and outs of situation of these anonymous victims, which are still confidential, anonymous at present, and of course we won’t question the fact that there are security issues.

This issue is, after all, at the very heart of the objective of the justice which we are attempting to render. If this whole trial becomes opaque, secret vis-a-vis the Iturian people, that is highly problematic, and I must say that I feel most ill at ease to be 6.000  kilometres from the scene of these terrible crimes and to be here inside this secure courtroom in this cool northern country. I understand that there are imperatives, there are constraints and the Chamber  would have liked us to be, at least in part, close to the victims and to that place where these terrible acts have taken place. If in addition to not being in proximity the proceedings are rendered secret and untransparent, there we lose both the fairness of the trial and also the objectives which we have set ourselves.

I propose to conclude by saying that the Defence is confident, the Defence is confident.

The Defence has — hopes for a fair trial. It has confidence in the Judges that its concerns, its questions will be remedied as these proceedings unfold. We are confident, but we are also vigilant. I am gratified with your attention, and I propose to pass the floor to my learned friend Jean-Marie Biju-Duval for the second part of our statement with your leave.

 MR. JEAN-MARIE BIJU-DUVAL (defense counsel – interpretation from French): Your Honours, Catherine Mabille has just brought to our attention the threats to these proceedings, a lack of presumption of innocence, an imbalance between the powers of the Prosecution and the little means of the Defence, but above all, the weight of secrecy which in a multitude of forms and sometimes for obscure reasons comes to trammel the revelation of truth.

Ex parte hearings, closed-session proceedings, the selection of the charges, the selection of the evidence which is carefully redacted, carefully sorted by the United Nations organisation as if it were inappropriate to look at the materiality of the facts, as if there was a fear to name those who bore the greatest responsibility, as if the trial itself was more fearsome than the crimes being tried.

Well, no, your Honours. No, Prosecutors.

Mr. Thomas Lubanga and his Defence is not satisfied by this means of seeking out the full truth, this way of seeking out who bears the greatest responsibility, this way of seeking to render justice. The truth, yes, but nothing but the truth. In the cold light of day and before all, as it has been said, justice should not simply be done, but it must be seen manifestly and incontestably to be done. And it is for that purpose that Thomas Lubanga has chosen to plead not guilty, because he seeks no compromise, or he seeks not to negotiate with the truth, whatever it may be.

After being held in Congolese gaols, after awaiting the opening of a trial constantly postponed, after struggling with his Defence to push back the wave of secrecy, he wants to have a trial where nothing remains in the shadows. So, yes, let us examine together the issue of child soldiers in Ituri. Let us examine together the responsibility of the political leader, Thomas Lubanga. Everyone should put forward their arguments, put forward their evidence, and the Judges should adjudicate on the basis of the full facts. Justice should not simply be done, but it must be manifestly and incontestably seen to be done.

Beyond a fair trial, the fair trial with justice owes to the accused, the International Criminal Court must publicly demonstrate that this trial fulfils the key remit which has been allocated or missions which have been allocated to the International Criminal Court. What are these? They are to prosecute the most serious crimes of concern to the international community, to try those who bear the greatest responsibility, and the International Criminal Court today must demonstrate that in the framework of this trial these two missions are being fulfilled. This is all the more important because this is the first trial, and the fulfilling of these missions has very poorly been demonstrated, Madam Prosecutor, up until now when we consider the methods that have been used to fulfil the role assigned in the struggle against impunity.

Let us dwell a moment on why, your Honours, this trial cannot meet the hopes which the International Criminal Court has brought into being.

First of all, its first remit, to prosecute the most serious crimes of concern to the international community. Let us leave to one side the fact that the Prosecutor seems only to be turning his attention to Africa. It is true that serious crimes are many, not least in the east of the Democratic Republic of the Congo, including in the period which falls under the jurisdiction of the court, that is to say from the 1st of July, 2002. We can even probably say without any risk of error that all or many of the crimes covered by the Rome Statute will have taken place there.

However, the Prosecutor, having reflected on the situation, has chosen but one crime, and that is the enlisting and conscripting of child soldiers. No one would contend that this is not a serious crime, not least the Defence. Legal Representatives of the Victims, yes, one is always right when one defends children. Children are always, everywhere, the first victims of war and massacre, the most vulnerable, the most innocent of victims, and in all wars they symbolise innocence, martyred innocence. In modern wars, like in ancient wars, like those of the 21st Century, there are no — there is no war without war crime, and everywhere children die in the fighting.

At the beginning of this month of January 2009, bombs are – or children are dying under the bombs of the most sophisticated democracies, but this is not what we are talking about. We are talking about the enlisting of children under 15 years, that is to say, the only crime that cannot be — that modern Western armies cannot be accused of. That is a crime which they do not commit, or at least not anymore. The other crimes, yes, but this one not. The modern armies of Western countries undoubtedly approve of your choice, Madam Prosecutor. That crime does not concern them.

The choice of this crime for this inaugural trial of the International Criminal Court, is it appropriate? No. It is the very image of blind justice which only looks at the crimes of communities, countries which are in dire straits and not those of more privileged countries.

In the wake of five years of investigation into the atrocities and massacres perpetrated on the Iturian people, this is the only crime with which Mr. Lubanga is charged.

Now, I know well, and Ms. Mabille mentioned it but moments ago, I know well that investigations are ongoing into other crimes, and the Office of the Prosecutor reserves itself the right at some point in time to issue new charges against him at a later point in time. One could look at the unfairness of this in light of the rules on a fair trial, but the reality is even simpler. If five years later insufficient evidence has been gathered to charge Mr. Thomas Lubanga with the responsibility for other crimes, it is simply because this political leader cannot be suspected with substantial or with decently robust grounds of such crimes.

Why has the Prosecutor targeted Thomas Lubanga for this first trial? There is no lack of suspects of war crimes and crimes against humanity between Kinshasa and Kampala. Madam Prosecutor, you know better than anyone. Since 2003 all major human rights organisations have been exhorting you to prosecute them, from Bunia to Kinshasa, through Beni and Kampala, everybody knows them. Those who have sowed chaos and have manipulated hate, armed militias, organised massacres, and turned to their benefit all of it.

To silence rumours that are hostile to the International Criminal Court, the International Criminal Court should have, from its first trial, demonstrated its independence. The Prosecutor should have clearly taken up the challenge of justice which dared to challenge the powers and not simply be a dupe and an instrument of them, be they national powers or international organisations. But what is the reality?

First of all, Madam Prosecutor, it is not the Office of the Prosecutor who takes the initiative to investigate crimes in Ituri. It is President Joseph Kabila himself who refers the situation in the DRC to the court, claiming that he is unable to deal with it. It is he who surrendered Thomas Lubanga to you, having held him in prison for two years in Kinshasa after being dubbed a rebel by the MONUC, that is to say the United Nations. The United Nations. Ms. Mabille referred to that organization moments ago. From the beginning of the investigation, confidentiality agreements were signed, which placed the Office of the Prosecutor through — under the direct responsibility of the United Nations, and this brought about a situation whereby the Chamber was obliged to recognise the impossibility of ensuring a fair trial.

In this context a question arises. Has the Prosecutor indeed fulfilled his mission and his raison d’etre to struggle against impunity and to prosecute those who bear the greatest possibility for massacres in Ituri, those who bear the greatest responsibility, those who bear the greatest responsibility and who the national authorities cannot or will not prosecute in light of the immunities connected with their own positions? There is the possibility of negotiating immunity in the framework of cynical negotiations at the international level.

The Prosecutor has already shown that he can be audacious in requesting an arrest warrant against the president of Sudan, but we must also point out that the International Criminal Court was referred the situation of Sudan by the United Nations Security Council when the — only after the United States, a very important power, claimed the genocide taken there. Look at this. Is this independence?

Allow us to return our attention to the DRC and Ituri. There are many leaders who undoubtedly bear responsibility, including the leader with whom you collaborate, Madam Prosecutor, President Joseph Kabila. Troops formed, armed, supported by the Kinshasa government. And here there is no doubt about it. All of the observers agree that the former rebel chief Mbusa Nyamwisi working on behalf of the Kinshasa government,  operating on behalf of the Kabila government, is one of those who bears  the greatest responsibility for atrocities committed in Ituri. September 2002, just one example, the Nyakunde massacre. More than 1.000 men, women and children were massacred. Hema, in the Hema population, a terrible massacre. One of the most terrible committed in Ituri during the period concerned. A Lendu militia supported Mbusa’s army, the APC, and with the support of Kinshasa troops perpetrated that massacre.

No prosecution is underway into those who bear the responsibility for that. The APC, the army of Mbusa, paid for by the Kinshasa government. No reference is made to it in your opening statement, Madam Prosecutor. And I’m sorry to hear that amongst the long list of  armed groups referred to by my learned friend Ms. Bapita she did not refer to it either. There, too, there is a gap, a silence which needs to be filled.

The name of Mbusa does not appear once if — in your brief, Madam Prosecutor. Is it by coincidence that Mbusa Nyamwisi has become minister of foreign affairs in the Kabila government?

And that is not all. Madam Prosecutor, do you not remember the direct involvement of the Ugandan government, the Ugandan troops arming local groups and participating itself in massacres? Is it so difficult to draw the obvious conclusions when one is charged with fighting impunity and prosecuting those who bear the greatest responsibility? The  relations which the Prosecutor must maintain with the highest Ugandan authorities, are they so precious that they must compromise its key remit?

The same can be said for Rwanda. The Prosecutor affirms that Rwandan authorities delivered arms and organised the training of militiamen. Now, if that were true and if the whole concept of complicity has any meaning, how can it be that no prosecution has been  opened? But let us return our attention to the Union des Patriotes Congolais itself and the specific involvement of child soldiers in the armed branch of that organisation.

Madam Prosecutor, you are prosecuting the political leader of the Union des Patriotes Congolais. What about the leader of its armed branch? What about its military leader? What about its Chief-of-Staff, General Floribert Kisembo? You have not mentioned him once in your opening statements. You prefer to refer to Mr. Bosco Ntaganda, who is one of his subordinates. Why is he not beside Mr. Thomas Lubanga to answer for matters under his direct responsibility, military affairs? Is it a coincidence in — that after trying to overthrow Thomas Lubanga as the head of the organisation, he is appointed general of a brigade in the national army of the DRC on the 11th of November, 2004? One is always  hasty and willing to get rid of a political leader.

That may be the situation locally, but what about the Office of the Prosecutor? Why is Kisembo, this rebel leader who now is at the side of President Kabila, spared but his political opponent, Thomas Lubanga, imprisoned in the gaols of Kinshasa? Here, too, the Prosecutor’s choices are surprising, are disquieting. Uganda, Rwanda, Kabila, Mbusa, the Prosecutor has chosen to spare these, the highest — who bear the highest responsibility and, rather, to focus on somebody who there is a desire to eliminate for political reasons.

Your Honours, we await justice, uncompromised justice, justice which is not compromised with the authorities, whereas what we see is diplomatic goings-on that seem to involve stepping away from justice, which seem to turn their back on the absolute power of international criminal justice, the power to denounce crimes and identify those who bear the greatest responsibility irrespective of the height of the offices they hold. Justice should be independent and sovereign. What have you done to it, Madam Prosecutor? The Office of the Prosecutor is silent on the most essential matters.

When it comes to crimes in Ituri, those who are the most powerful are spared. Thomas Lubanga is charged in place of those who should have been prosecuted, and so the accused is placed in an unacceptable situation. The International Criminal Court is put before an immense danger, a fearsome danger, because the International Criminal Court cannot prosecute all of the suspects. And because it can never prosecute all of the suspects, international criminal justice must necessarily face the temptation to convict by proxy those who are absent.

The danger is tremendous, because beyond the prosecution of an individual, an attempt is made to prosecute a criminal phenomenon which is far greater than him. The accused then becomes or risks becoming a scapegoat.

Your Honours, with the Lubanga trial the Prosecutor has placed you in the worst of configurations. Not only are those who bear the greatest responsibility unconcerned, untroubled, but it is one of them who arrested and surrendered this person to the International Criminal Court. What image of international criminal justice does this give?

 The Prosecutor announces proudly this trial, that this trial is the trial of the child soldiers, but who gave — who scandalously gave justification to that criminal practice? Who has given awful prestige to the Great Lakes region of Africa and to these children taken up in war? Laurent-Desire Kabila who had an army of kadogo. Who was the commander of operations of that shameful army, that army of children? His son, Joseph Kabila, today at the head of the country. And what is more, which is the army that at this very point in time is enlisting and sending on the hills of the Kivus child soldiers? The armed forces of President Joseph Kabila, the army of he who delivered to you. Thomas Lubanga, Madam Prosecutor.

And we want to make — and you want to make of Thomas Lubanga the emblematic criminal of events which are not of his making and for which those who bear the greatest responsibility are not being prosecuted, and that is why instead of making or rising to the challenge of the international criminal justice a major injustice is being created. That is the nature of the first case brought before the International Criminal Court.

Well, so be it. Let’s try Thomas Lubanga, but let’s do so in such a way that this trial wipes from our minds this disastrous situation, in such a way that it will not be said that the Judges were dupes and played by the powers of the time. How do we do so? By being rigorous in ensuring fair and transparent proceedings. The actual facts alleged must be investigated. We must ensure or investigate the credibility of the witnesses. We must investigate the authenticity of the documents.

As regards scapegoats, we must ensure that the concept of individual criminal responsibility is applied. Only this vigilance on the principles and on the evidence can enable the International Criminal Court to meet the challenges of justice, the human and symbolic challenges inherent in any trial before it; and that double vigilance is all the more important, your Honours, in that in bringing before you to be judged Thomas Lubanga, and bringing before you Thomas Lubanga to be judged in the place of those who bear the greatest responsibility for the crimes committed in Ituri, one is seeking to have you play a role which is not yours, one which cannot be yours, one which must not be yours.

Your judgement should not be a smokescreen behind which powerful players continue to commit their crimes after a man has been convicted for matters for which he was not responsible. At a point in time your Court will say that is not appropriate, that that runs against the high reasons that men and women have fought to have international criminal justice triumph, and so justice will be done.

 PRESIDING JUDGE FULFORD: Thank you very much, Mr. Biju-Duval.