Dear Readers,

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organization that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the third in a series of four Special Issues reporting on the first trial Judgment handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on 14 March 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the third Special Issue Legal Eye eLetter, click here. To read the previous Special Issues, click here.   

On March 14, 2012, Trial Chamber I issued a judgment in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15, 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 August 13, 2003 (Judgment).^[i] Lubanga is the former President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC).  On July 10, 2012, Lubanga was sentenced to 14 years imprisonment.[ii]  The Trial Chamber further ordered that the six years already spent in detention since his surrender to the ICC in March 2006 were to be deducted from his sentence.  ‘That the ICC has reached the stage of sentencing in its first case is an important milestone’, said Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice.  Inder added that the ‘sentencing decision signals an end to the accountability process for Thomas Lubanga, who was rightfully convicted of serious war crimes and will now serve almost 10 more years in prison. It also importantly signals the start of a new era in prosecutions before the ICC.’[iii] The sentencing decision will be addressed in detail in the next Special Issue of Legal Eye on the ICC.

Over the course of the Lubanga case, ongoing concerns over the Prosecution’s investigation and use of intermediaries surfaced as major issues, as described in more detail in the Gender Report Card 2008, 2009, 2010 and 2011. The start of the trial was delayed on June 13, 2008 for five months due to the Prosecution failure to disclose exonerating evidence to the Defense, resulting in the Trial Chamber issuing a formal stay of proceedings until the issues were resolved.[iv] The proceedings were stayed a second time in July 2010 for three months, due to the Prosecution’s refusal to immediately comply with the Trial Chamber’s order to disclose the identity of an intermediary implicated in possible witness tampering.^[v]

Intermediaries played a critical role in assisting the Office of the Prosecutor to identify and contact witnesses for the Lubanga case, and in the overall progress of investigations in Ituri.  As outlined in the Trial Chamber’s earlier decision on intermediaries, the Prosecution used seven intermediaries to contact approximately half of the witnesses that testified against the accused in this case.^[vi] Intermediaries are both individuals and organisations working in the field that act as liaisons between the ICC, including the Office of the Prosecutor, and individuals and communities.

Questions around whether intermediaries influenced witness testimony emerged as an affirmative line of defense soon after the opening of the Prosecution case in January 2009.[vii] As described by the Chamber in its decision on intermediaries, the first Prosecution witness, an alleged former child soldier, recanted his testimony and stated that an intermediary had instructed him on its contents.^[viii] Following this and other allegations that witness testimony had been fabricated at the instigation of Prosecution intermediaries, in December 2010 the Defense filed for abuse of process.^[ix] In its filing, the Defense requested a permanent stay of proceedings and the immediate release of the accused. In a decision in March 2011, the Trial Chamber ultimately rejected the application for a permanent stay of proceedings, while reaffirming its right to reserve judgment on the factual allegations set forth in the Defense submissions in its evaluation of the evidence, including on the credibility of witnesses.^[x]  In the trial judgment, the Trial Chamber found all but one of the alleged former child soldiers called as witnesses by the Prosecution to be unreliable.

In light of this complex procedural history, the Chamber devoted a section of the judgment^[xi] to the investigative history of the case ‘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’.[xii] By carefully examining the serious security and other constraints under which the investigation operated, the Chamber legitimised the necessity and practice of working with intermediaries in the field, and at the same time identified the specific failings of the Prosecution in its negligent supervision of intermediaries and failure to verify the evidence obtained.  In the judgment, the Trial Chamber’s discussion of the Prosecution investigation in the DRC focused on several key, interrelated themes that had a significant impact upon the evidence presented at trial: security and practical difficulties; collaboration with NGOs and international organizations; corroboration of evidence concerning alleged former child soldiers; and the Prosecution’s reliance on intermediaries. As noted above, the Chamber found that the Prosecution’s undue reliance on three of its principle intermediaries, without appropriate supervision, created the significant possibility that they improperly influenced witnesses to falsify their testimony, rendering most of it unreliable.

The lack of witness credibility had an additional and direct impact on victim participation. Finding their testimony to be unreliable, the Chamber reversed its original prima facie determination authorizing the participation of six Prosecution witnesses as victims in the proceedings (five alleged former child soldiers and the father of one alleged former child soldier). The Chamber also withdrew the victim participation status of three victims whom it had authorized to give evidence upon the request of their Legal Representative. The paucity of credible witness testimony may have also increased the Chamber’s reliance on video and other documentary evidence in reaching a finding of guilt.[xiii] These issues are all discussed further, below.

The Prosecution Investigation

In its decision on intermediaries of 31 May 2010, the Trial Chamber stated that ‘the precise role of the [Prosecution] intermediaries (together with the manner in which they discharged their functions) has become an issue of major importance in the trial’.[xiv] In this decision, the Trial Chamber ordered the Prosecution to call appropriate representatives ‘to testify as to the approach and the procedures applied to intermediaries’.[xv] In response to this order, the Prosecution called two investigators, Bernard Lavigne and Nicolas Sebire.[xvi] In its trial judgment, the Trial Chamber made extensive reference to their testimony, particularly that of Bernard Lavigne, who led the investigation team, in its discussion of the Prosecution investigation.

The Office of the Prosecutor opened its investigation in the DRC on June 23, 2004, with an ‘emerging focus’ on the Ituri region.^[xvii]  The Deputy Prosecutor decided that the DRC investigation team would be led by a francophone magistrate, in order to provide a degree of ‘legal control’.^[xviii]  The Prosecutor subsequently appointed Lavigne as the team leader. In his testimony before the Chamber, Lavigne described a double hierarchy in which he reported directly to the Deputy Prosecutor and his assistant, who in turn, reported to the Prosecutor.[xix]  A parallel structure, described as ‘joint teams’ composed of representatives from the Prosecution, Investigation, and Jurisdiction, Complementarity and Cooperation Divisions working on the same case, reported directly to the Prosecutor and the Executive Committee.[xx]

As described in the judgment, Lavigne’s first task was to establish a team, which consisted of approximately 12 members recruited from NGOs and others with experience in international justice and human rights.[xxi] Between 2004 and 2007, Lavigne also focused on establishing a protection program within the Office of the Prosecutor.[xxii] According to Lavigne, the investigators identified a number of militia groups that were potentially responsible for the commission of several crimes within the jurisdiction of the Court, and ultimately narrowed their focus to two groups: the UPC and the Front de nationalistes et integrationnistes (FNI)/Force de resistance patriotique en Ituri (FRPI).^[xxiii] Both investigators testified that initial field investigations were difficult for numerous reasons, including the lack of sufficient documentary material, severe travel restrictions and ‘the lack of external support for the Court’s activities in the field’, namely  ‘contradictions and inconsistencies’ in the approach and support provided by the UN.^[xxiv] Lavigne testified that these obstacles delayed efforts to locate witnesses and hampered efforts to provide security for them.^[xxv]

Lavigne also testified that the investigation team did not have an operational field office in place in the DRC until 2006.^[xxvi] Prior to the establishment of the field office, the investigators conducted their interviews in a variety of different locations, including churches, ‘libraries, schools, deserted areas and rented houses’.^[xxvii] The investigators were deployed for ten days at a time, but the Chamber observed that the field conditions and the lack of a field office sometimes gave rise to a loss of motivation.^[xxviii] An investigation team member was in the field ‘as frequently as possible’ in the first months of the investigation, but due to the lack of sufficient investigations staff, Lavigne testified that it was not possible to maintain a permanent field presence.^[xxix] He expressed his belief that maintaining a permanent field presence ‘would have been the correct approach’.^[xxx]

Generally, the investigators’ testimonies indicated certain investigatory challenges posed by the directions coming from within the Office of the Prosecutor. The Chamber recalled that the investigators testified that the specific objectives of the investigation varied ‘because of changes in the choices of the OTP and the way it conducted its cases’, resulting in ‘inconsistent requests’ being made to the investigators.[xxxi]  Lavigne suggested that ‘the OTP hesitated in formulating its objectives and the steps to be taken to attain them’.^[xxxii] In his testimony, Lavigne could not recall exactly when the Prosecutor decided to prosecute Lubanga for crimes relating to child soldiers, but that it was decided ‘that they would only try to prosecute the accused on this basis’, following an evaluation of the available documentation, which included an evaluation of UN reports and NGO documents.^[xxxiii]

Lavigne testified that during the initial 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 program’.^[xxxiv] He further explained that ‘it became known in Bunia that a threatened witness might be relocated and some individuals treated this as an opportunity to secure free re-housing’.^[xxxv]

Security Risks and Impacts

Both investigators testified that the investigation team faced significant security threats. In his testimony, Lavigne reported that armed groups were still active on the outskirts of the city and that he heard the sound of gunfire every evening during his first mission to Bunia.^[xxxvi] Lavigne also stated that one of the investigators reported that his vehicle was struck by bullets during a mission to a village while being escorted by armoured vehicles from MONUC.^[xxxvii] Because the investigation team did not have an operational field office in place in the DRC until 2006,^[xxxviii] MONUC personnel accompanied the team on visits outside Bunia to provide security.^[xxxix] The investigators risked being attacked or abducted during their investigations, or becoming involved in confrontations between MONUC troops and other armed opposition groups.^[xl] Lavigne further testified that safety risks and travel restrictions limited investigators’ ability to travel to villages to meet with potential witnesses. The fact that ‘[a]ny foreigner seen in Bunia was assumed to be from the ICC’ made operating in an open way impossible and forced the investigators to do ‘everything possible to hide the fact that they were conducting an investigation’.^[xli]

Lavigne testified that the serious security situation affected the investigators’ duty of protection with regard to potential witnesses. The investigators considered that ‘all witnesses – not just from the prosecution – were at risk, regardless of whether individual threats were credible’.^[xlii] This led the investigators to adopt a ‘very specific and rigorous policy for investigators and witnesses’, which slowed their work but prioritised security.^[xliii] While several militias were investigated regarding threats to witnesses, Lavigne testified that ‘[t]he 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’.^[xliv] Lavigne noted that as a result, the investigators did not pursue additional information that might have corroborated witness accounts, such as contacting the families of witnesses or checking school records for alleged child soldiers. He explained that such actions would have exposed the witness ‘to the risk of immediate abduction’ by political or military leaders still active in Bunia, and investigators ‘would have been immediately identified if they had visited the neighbourhoods’.^[xlv]

Corroborating the Ages of Alleged Former Child Soldiers

Given that one recurring issue in the case was whether some intermediaries had encouraged children to lie about aspects of their past, including their ages, the Chamber reviewed the investigative steps taken by the Office of the Prosecutor to objectively establish the ages of alleged child soldiers. In his testimony, Bernard Lavigne had noted that, at the relevant time, ‘the civil administration in the DRC functioned only to a limited extent, and the conditions the team were operating under were not ideal for establishing, with ease, the age of the alleged child soldiers’.^[xlvi] Lavigne testified that ‘as an investigation leader, [he] 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’, and that this remained an ‘important debate’ within the Office of the Prosecutor.^[xlvii] However, Lavigne testified that ‘the Executive Committee within the [Office of the Prosecutor] was of the view that the statements given by the witnesses sufficiently indicated that the relevant individuals were below 15 years of age’.[xlviii]  The investigators requested, but did not collect in person, relevant civil status documents from the administration in Bunia and information about whether the children had been seen by a doctor.^[xlix]  The Chamber noted that investigators did not speak to their families or arrange interviews with the children due to security concerns.^[l] Lavigne testified that their policy ‘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. This policy was applied to all witnesses and it was only varied on an exceptional basis.’^[li]

Lavigne testified that he did not ask village chiefs about child soldiers, given their close ties to the militia groups. He further explained that investigators did not request the files of child soldiers from the headmasters or directors of the relevant schools to cross-check their ages. Although he noted that Intermediary 143 carried out some research into school registers and requested birth certificates for some individuals on behalf of their families in order to pass the information on to investigators.^[lii] However, he clarified that the Prosecution ‘was not seeking to verify whether particular children were listed in the relevant school registers; instead […] they wanted to establish whether, at a particular age, a child would be in an identified class’.^[liii]

The Chamber concluded that, while acknowledging the difficulties faced by investigators in the field, ‘this failure to investigate the children’s histories has significantly undermined some of the evidence called by the prosecution’.^[liv] It also noted 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’,^[lv] citing differences between the oral testimony and documentary evidence as to the ages of several alleged former child soldiers.

The Prosecution’s Reliance on Intermediaries

From the investigators’ testimony it became clear that the Prosecution’s extensive reliance on intermediaries in this case was in large part due to the prevailing security concerns in the DRC. The Chamber noted that ‘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”’.[lvi] Lavigne explained that the intermediaries were ‘better placed’ to move about freely and to speak to witnesses and potential witnesses without endangering them.^[lvii] He testified that as a result, ‘the investigation team or some of the activists suggested the latter should act as intermediaries’.^[lviii] The other investigator called to testify, Nicolas Sebire, stated that ‘the only solution to the security problem was to use intermediaries, who enabled the team to contact witnesses’.^[lix] However, as the Chamber noted, ‘many – 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)’.^[lx]

Intermediary 143 introduced numerous witnesses to the Prosecution, including five of the alleged former child soldiers whom the Trial Chamber found lacking in credibility, and one of the other intermediaries in question.[lxi] As noted above, the Prosecution’s failure to immediately comply with the Chamber’s order to disclose the identity of Intermediary 143 was the subject of the second stay of proceedings in this case in July 2010.[lxii] In evaluating the allegations about witness tampering, the Trial Chamber concluded that there was ‘a risk’ that Intermediary 143 ‘persuaded, encouraged or assisted witnesses to give false evidence’.[lxiii]

Intermediary 321 facilitated contact between the Prosecution and its first witness, who recanted his testimony.[lxiv] In addition to the testimony of alleged former child soldiers and Defense witnesses, alleging that Intermediary 321 had encouraged and assisted them to give false evidence, the Chamber also noted discrepancies between the lists of alleged former child soldiers from which the witnesses were selected. Essentially, the discrepancies indicated that Intermediary 321 did not utilise lists provided by the Office of the Prosecutor in setting up interviews between investigators and the children; 8 of the 11 children whom the investigator met with in 2007 were not on the original list provided by the Prosecution.[lxv] The Chamber concluded that ‘a real possibility exist[ed]’ that Intermediary 321 ‘encouraged and assisted witnesses to give false evidence’.[lxvi]

Intermediary 316 also had contact with numerous witnesses.[lxvii] He was simultaneously employed by the Congolese intelligence services, Agence Nationale de Renseignement.[lxviii] The Chamber expressed its concern ‘that the prosecution used an individual as an intermediary with such close ties to the government that had originally referred the situation in the DRC to the Court’.[lxix] It also determined that Intermediary 316 had falsely claimed that Congolese police services had threatened witnesses,[lxx] and had lied about the fact that his assistant and his family had been murdered, and that the killers were pursuing him.[lxxi] Of the three intermediaries in question, the Chamber issued its strongest words of condemnation regarding Intermediary 316, stating that there were ‘strong reasons to believe’ that he ‘persuaded witnesses to lie as to their involvement as child soldiers within the UPC’.[lxxii]

In the Judgment, the Trial Chamber formally ‘communicated’ this evidence to the Prosecution for the purpose of an Article 70[lxxiii] investigation into the alleged improprieties of these three intermediaries, and concluded:

The prosecution should not have delegated its investigative responsibilities to the intermediaries . . . 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 scrutinize 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.^[lxxiv]

The Chamber’s analysis established the links between each intermediary in question and the alleged former child soldier witnesses. In doing so, it thus combined its assessment of the reliability and credibility of evidence proffered by each alleged former child soldier witness with the evidence concerning the improper influence over these witnesses by the intermediaries in question. The standard used by the Chamber in determining witness reliability was whether it was:

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).^[lxxv]

During the trial proceedings, the Chamber heard testimony from 11 Prosecution witnesses who were alleged former child soldiers. Evaluating the reliability of these witnesses together with the evidence about the intermediaries, the Chamber determined that all of the alleged former child soldiers who were witnesses for the Prosecution gave contradictory evidence concerning either their ages, school attendance, the identity and well-being of family members, or the circumstances of their recruitment, with one exception.^[lxxvi] This led the Chamber to reject ‘the prosecution’s submission that it ha[d] established beyond reasonable doubt that P-0007, P-0008, P-0010, P-0011, P-0157, P-0213, P-0294, P-0297 and P-0298 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’ during the relevant period.^[lxxvii]  These witnesses were all alleged former child soldiers or their immediate relatives. In fact, the Chamber found only one of the alleged former child soldier witnesses for the Prosecution to be reliable: Witness 38.

The Chamber recognised that the witnesses might have given a truthful account of elements of their testimonies, while ‘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’, facts directly related to the guilt of the accused.^[lxxviii] For example, while the Chamber found Prosecution Witness 38 to be a credible witness, it also found that he was above the age of 15 when he joined the UPC. Conversely, the Chamber relied on those portions of the testimony of Prosecution Witness 10 (a female alleged former child soldier) concerning the video of the training camp in Rwampara, although it otherwise found her not to be a credible witness. In general terms, with respect to former child soldiers, the Chamber frequently found Defense witnesses to be more credible than the Prosecution witnesses whose testimony they were contradicting.^[lxxix] Finding that its original prima facie evaluations as to their meeting the criteria of victim participant were incorrect, the Chamber withdrew the victim status it had previously granted to Prosecution Witnesses 7, 8, 10, 11, 298 and 299 (Witness 298’s father).^[lxxx]

The Three Participating Victims who Gave Evidence

In January 2010, for the first time at the ICC, three participating victims were given the opportunity to testify as witnesses in the proceedings against Lubanga.^[lxxxi] Referring to the testimony of Defense witnesses that raised material doubts as to the identities of two of the victim-witnesses who had testified, in the trial judgment, Trial Chamber I withdrew the victim participation status of the three victims who had been authorized to appear as witnesses upon request by their Legal Representatives. The Chamber based its decision to withdraw their status on their ‘evasiveness’ and internal inconsistencies in their testimony, including the fact that they could not identify photos of the parents of the children whose identities were in question.

At issue was the assertion by Defense Witnesses 32 and 33 that Victims a/0225/06 and a/0229/06 had stolen their identities at the instigation or encouragement of Victim a/0270/07, who claimed that he was their guardian. Victim a/0270/07 was alleged to have encouraged ‘pupils at the Institute where he worked to claim falsely that they had been child soldiers in order to participate in proceedings before the ICC’,^[lxxxii] with the aim of receiving benefits. Victims a/0225/06 and a/0229/06, as well as Defense Witnesses 32 and 33, paid Victim a/0270/07 to register them as victims.  Witnesses 32 and 33 were later told that others were going to replace them. The Chamber found the Defense witnesses credible, partly based on the fact that they correctly identified photographs of the parents of Thonifwa Uroci Dieudonne and Jean-Paul Bedijo Tchonga, whom they claimed to be.

While issues concerning victim-witness credibility clearly extended beyond the ambit of Prosecution witnesses, its failure to provide effective oversight of intermediaries and to verify evidence related to alleged former child soldiers significantly increased the amount of litigation in the case, with resultant delays affecting the rights of the accused. As described in the Second Special Issue, the lack of sufficient credible witness testimony likely increased the Chamber’s reliance on video and documentary evidence in reaching the verdict, and provided the Defense with substantial additional grounds to challenge the case, thus jeopardising the successful outcome of the trial.

Read the Trial Chamber’s Judgment

Read the previous Special Issues of the Legal Eye on the ICC eLetter, discussing the Chamber’s findings on sexual violence and on Lubanga’s individual criminal responsibility

Read more about the Defense abuse of process claims in Legal Eye on the ICC, May 2011

For more background on the Lubanga case, see Gender Report Card 2008, 2009, 2010 and 2011