We cannot forget the opening statements by the legal representatives of the victims on the first day of trial. Here, the legal representatives speak on behalf of the victims of the crimes in the DRC with which Thomas Lubanga is being charged with criminal responsibility.   Each speaks with some passion about the experiences and suffering their clients  – many of whom are children themselves and former child soldiers — endured in Ituri in 2002-2003.  The rapes, the beatings, the stigma they have felt (particularly girl children) and their desire to see justice done in terms of the crimes they suffered from.

Interesting to note: one of the legal representatives (Ms. Bapita) actually foreshadowed in her opening statement that she wished “to reserve the right to request from your Chamber a classification of the crime of sexual slavery against the accused Thomas Lubanga.”  Of course, the victim’s legal prepresentatives did make such a request in May 2009, and asked not only to include sexual slavery but also cruel and inhuman treatment in the legal reclassification of the charges against Thomas Lubanga.  After the Trial Chamber held in July 2009 that such a legal recategorization was possible, both the prosecution and Mr. Lubanga appealed. In December 2009, the Appeals Chamber rejected this possibility.   

Here are the opening statements by the Legal Representatives of the Victims made on the first day of trial last year — January 26, 2008 (full transcript is available here: http://www2.icc-cpi.int/iccdocs/doc/doc623638.pdf).

MS. PAOLINA MASSIDA (Principal Counsel of the Office of Public Counsel for Victims):  President, your Honours, it is with much emotion that we take the floor today so the voice of victims is heard during the first trial before the International Criminal Court. Indeed, crimes punished by international criminal law result in a very large number of victims. Over 5 million Jews were exterminated during the Second World War. In Rwanda, in the space of a hundred days in 1994, the genocide resulted in 800.000 deaths. In Srebrenica, in July 1995, between 7.000 and 8.000 Muslim men from Bosnia were killed systematically. In the Democratic Republic of the Congo, as the Office of the Prosecutor was saying earlier on, the conflict led to thousands of deaths amongst civilians, and thousands of people were also displaced within their country or elsewhere.

However, for a long time victims were considered as simple witnesses. After the Second World War, the Tokyo and Nuremberg tribunals never took the fate of victims into account except through the punishment of the crimes they had endured. International humanitarian law treaties, in particular the four Geneva Conventions of 1949 and the two additional protocols of 1977, provide that those who infringe them are punishable under criminal law but do not provide that victims have a right to compensation. They do not contain a right for victims to initiate judicial proceedings against those who perpetrate the war crimes to intervene in the proceedings on the issue of guilt or right to obtain reparations.

Treaties on human rights and the development of thinking about human rights in general were what progressively introduced the idea that victims have an individual right to justice and reparations for the harm suffered in international law. As such, the International Covenant on Civil and Political Rights and a number of regional treaties grant victims the right of petition and compensation for victims whose fundamental rights were infringed.

The international recognition of victims’ rights made a significant step forward with the adoption of the declaration on basic principles of justice for victims of crime and abuse of power adopted by the UN General Assembly on the 29th of November, 1985. This declaration, which is the first of a kind, gives a general overview of victims’ rights, the right of petition, the right to dignity and rehabilitation, restitution of property, compensation, medical, psychological and social assistance.

However, when the International Criminal Tribunals for the former Yugoslavia and Rwanda were created victims were somewhat forgotten. It was only with the creation and the adoption of the Rome Statute that victims were put at the very heart of international criminal justice. From then on, great emphasis was placed on the rights and interests of victims which could, from then on, participate in proceedings and ask for reparations for the harm they had suffered.

But why, President, your Honours, do victims want to participate in the proceedings? Before I give you the reasons for their participation, it is important for me to introduce the victims we represent. They are mainly child soldiers, so young when they’re recruited, some even under 10 years old, that it is almost impossible to imagine them carrying weapons and wearing a uniform. However, that is what happened to some of them and their parents. They were recruited to participate actively in the — in the hostilities that were carried out by the Union des Patriotes Congolais, UPC, between September 2002 and August 2003. They committed the crimes of enlisting children under 15 in armed groups and using them to participate actively in hostilities as sanctioned by Article 8 of the Rome Statute.

Some will say that this first historic trial before the International Criminal Court which is opening today is about a minor crime, but that is not our opinion, and not what the victims we represent think either. This crime is an extremely serious crime. It is all the more serious because it concerns children. But the fact that the group of victims we represent is heterogenous should not draw our attention away from specificity of each individual case. The victims have endured physical and psychological harm and still have traces of these – this moral damage today, stigmatisation, for one. In particular, young girls were subjected to sexual violence, sometimes even sexual slavery. In the Democratic Republic of the Congo, a girl who was subject to such a crime is often dishonoured, and even if she is not guilty, generally she is considered bring disgrace on her family. Consequently, many victims are afraid of talking about this aspect of the harm they have suffered. But the group we work with, girls in the Democratic Republic of the Congo, former child soldiers in Ituri, and young women in particular, describe the situation as desperate and say that rape is widespread even if it is rarely mentioned. And my learned colleague, Carine Bapita will come back on the fate of young women in a moment.

The personal interest of victims in the proceedings of the court coincide in particular with their right to justice. After having met the victims we represent and having listened to the story of the harm they have suffered, it appears natural that the right to justice be one of their main concerns if not their main concern. But behind the claim to enjoy this right are a number of reasons mentioned by the victims which I will try to relay back to you as faithfully as possible and share with you today.

First, the right to the truth is one of them. In this regard, the central interest of victims in establishing the truth about the facts and identification of those responsible and statement and declaration of who is responsible is at the root of the right to truth which was established for victims of serious violations, human rights violations.  In the implementation of this right through criminal proceedings, victims have a central interest in the issue of such proceedings, shedding light on what actually happened, to fill the gap that could take place between procedural establishment of facts and the truth itself.

The victims are independent actors in the proceedings before this Court. They have different concerns than the Office of the Prosecutor. Their position is to contribute to the establishment of the truth. If the issue of guilt or innocence of persons prosecuted before this Court is essential for victims, it is so from the angle of establishing the truth. In other words, if the identification, prosecution, and punishment of people who — of those who have led to their victimisation is very important for the victims, it is because it is an echo to the procedure each of them has to go through to recover following the harm they suffered, and so it’s through these words expressed in public that victims can reconstruct their lives. The words are not only spoken, because they have to come and give their – testify for one or other party at the trial, but because they have acquired the right to share with the Judges who have to try a person that they have identified as being the main person responsible for the harm suffered, the right to know the truth about the facts experienced.

This whole procedure has cathartic and salutary virtues at the individual level but also has restorative virtues at the family, society and community level. This procedure is also part of another procedure, that of the victims’ fight against impunity, another essential part of the search for justice. It will be owing to these expression of points of views and concerns in the proceedings of the court at the individual level that victims of the crimes will be participating in this fight. The steps aim at preventing the perpetrators of the crimes from enjoying impunity. They — this seems to be a part of their daily lives, a main part of their daily life, which is more about surviving than living today, about reconstructing their lives as adults because their childhood seems to have been denied, stolen from them.

Eventually, President, your Honours, the participation of victims in the trial against Mr. Lubanga — Thomas Lubanga Dyilo will be the expression of the wording of the preamble of the Rome Statute, which establishes that during this century millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, and also, the most serious crimes of concern to the international community as a whole must not go unpunished.

President, your Honours, this concludes the introduction of the opening statements of the legal representatives on behalf of the victims we represent. Thank you.

MR. JOSEPH KETA (Legal Representative of the Victims – interpretation form French): Your Honours, Prosecutor, members of the Bench, my learned friends of the Defence, my learned friends legal representatives, ladies and gentlemen.

Voluntary recruitment, like forced recruitment, are crimes under international criminal law. On behalf of the victims which I represent, I am going to address the Court today on the matter of forced recruitment of children by armed groups in Ituri, forcibly recruited as a military strategy and as a social phenomenon.

In 1988 — sorry, in 1998, a civil war broke out in the Democratic Republic of the Congo, notably in the east. Ituri is a district in the north-east of the DRC. Eleven ethnic groups live there, and more than 5 million people. Ituri was the theatre of a multi-party  international and national conflict. Amongst these armed groups were the UPC. Its objectives are unclear. It, like other armed groups, were born in Ituri.

To achieve its objectives, it needed to adopt military strategies, in particular recruiting, enlisting, and using children in hostilities, including children under the age of 15 years old. The idea was to have commanders recruit people from the target area.

In the current case I represent 47 victims, including 46 natural persons and one legal person. The natural persons are children acting either in a personal capacity or acting through a guardian. The adult natural persons — or the adult natural person was a victim of an attack. He was in charge of a school for children. One specific characteristic in my representation of my clients is that the majority of my clients are schoolchildren. The place from which they were forcibly recruited was their school, and the headmaster of that school attempted to refuse that recruitment and became a victim of violence, being beaten at the spot.

Amongst the victims some were forcibly recruited from public places such as the marketplace and the environs of churches. Forced recruitment of children as a military strategy, now, the armed groups in Ituri including the UPC were created towards 2001. Human resources were needed, in particular children.

Why so children? Children because they are docile. They are inclined to obey the instructions of leaders and Kant says that they are easy to convince.

In Mahagi in Ituri, children were forcibly recruited by various armed groups including the UPC and the FNI. It is 15 kilometres from Kpandroma camp and more than 60 kilometres from some UPC training camps, for instance, Bule camp. This locality, Mahagi, was a favourite spot for the recruitment of children. There were two transit centres there where children who had been recruited were regrouped before being moved on to the training camps, notably Bule camp.

Forced recruitment took the form of abduction, and where there was resistance there was violence. Forced recruitment as a social phenomenon. This is as a result of this military strategy. The children forcibly recruited were young schoolchildren. Their education, therefore, was stopped. This means that today they are behind in their schooling. Some children, owing to the trauma, continue to suffer from nightmares. Finally, these children are rejected by their respective families, wrongly so because they are not responsible and often rejected by their communities.

The adult natural person with victim status in these proceedings is the headmaster of the school. To date he has not been able to garner the resources necessary to rebuild his school. Furthermore, injuries sustained to his head have caused trauma to him which continues. The school has also been given victim status in these proceedings, and it has not been rebuilt.

By way of conclusion, in relation to the question as to whether my clients can be considered to be victims of — or perpetrators of these crimes before this Court, they cannot be seen as perpetrators because at the time of the events they were minors and, therefore, are excluded from criminal responsibility pursuant to international texts, not least of that of the ICC.

In relation to the question as to whether my clients are victims, there the answer is yes, because they were forcibly recruited, although under the age of 15 years, and they were used in — to participate in hostilities, these being international crimes.

What my clients expect from the Court is, first of all, recognition of the harm which they have suffered. Then compensation and rehabilitation, and finally, protection to ensure that they are not recruited anew.

Later I will have an opportunity to make observations regarding the nature and the extent of the harm suffered by my clients. Thank you, your Honours.

PRESIDING JUDGE ADIRAN FULFORD: Thank you very much, Mr. Keta. And I think, Mr. Diakiese, it’s you next.

MR. HEVRÉ DIAKIESE (Legal Representative of the Victims – interpretation from French): Your Honours, on behalf of the victims we represent, we wish to highlight at the outset one of the most historical aspects of this trial. This trial is historical on two accounts. First of all because it is taking place, and because it almost did not take place. This trial is historical because it is the first trial in the first case before the court and at which the victims are taking the floor for the first time, taking the floor to express their views and concerns so that at its conclusion the criminal responsibility of the accused is proven beyond reasonable doubt.

The trial is all the more historical because it almost did not take place. The hiatus in the proceedings left the victims of the Lubanga case with a feeling of great helplessness. That hiatus, most unfortunately, coincided with the upsurge in the east of the Democratic Republic of the Congo, in particular in Goma, Kiwandja, and once again in Ituri. Names sadly made famous by the arrest warrants of the Prosecutor of the court began reappearing in the press, revelling in impunity and re-offending in this — in theatre.

Joseph Kony and his LRA; Bosko Ntaganda, alias Terminator, have reemerged, the latter thumbing his nose at the warning given to Laurent Nkunda in connection with crimes currently being perpetrated in the east of the Congo.

By helping create new victims, we can reasonably assume that Bosco Ntaganda who previously collaborated with the accused Lubanga is doing his utmost to have the sole charge levelled against him supplemented with new charges to make his arrest warrant more impressive. During that period, the children, abandoned entirely to their lot, wondered whether the Convention on the Rights of the Child of 1989 was also written for them. They wondered whether Convention 182 of the International Labour Organisation on the worst forms of child labour, of 19th of June, 1999, which prohibits the forced or compulsory recruitment of children for use in armed conflict also applies to them. They wondered whether the International Criminal Court was also their court.

Your Honours, Chamber, the victims who I represent, at the time of the events, were aged between 9 and 13 years. Only one of them is the mother of some other victims. These children were abducted while returning from the fields, abducted while going home from school, torn from their mothers. They were taught to handle weapons and sent to fight. The main reason was to defend their community. This trial is an opportunity for the victims to learn the truth and to have right — a right to justice. The truth about the real motives that caused them to be torn from their families and sent to fight  and to die for the cause of defending their community. In fact, to date the judgement of the  international Court of Justice of the 19th of December, 2005, on armed activities in the Democratic Republic of the Congo, independent reports issued in particular by the United Nations and non-governmental organisations, attest that the conflict in Ituri was manipulated to loot the resources of the Democratic Republic of the Congo with the complicity of Rwanda, Uganda, and certain local players.

The truth, in order to establish why they find themselves abandoned in Bunia, Kasenyi, and across Ituri, with no prospects and no chance of getting an education. How is it that weapons, munitions and military uniforms could be bought for them to send them to the front but there was no money to buy them pens, uniforms and school books to send them to school?

Your Honours, members of this Chamber, these victims have a right to justice so that what really happened to them can be taken into account. The Prosecutor’s arrest warrant and the decision confirming the charges eloquently set out the charges levelled at the accused, but neither of these documents can make you hear the sobbing of these children as they were torn from their families, their fear as guns sounded on the front, the cries of their brothers, of their friends struck down by bullets, their uncertainty when the order  as given to advance or to fall back, or when no order was given at all because there was no one left to give one, although bullets continued to rain down on them. This mother whose stomach churned each time she heard a gunshot, but who was bold enough to hope that her victim children who were also forced players in this war would be spared.

Your Honours, members of this Chamber, the trial which opens today will one day come to a close, but the war which these children have been through will never end. They will relive it each day, each time they wake from a nightmare at night. They will relive it at the sound of gunfire, at the sight of any military uniform, and they are reliving it still through this trial. That is to say if they have the good fortune that someone lets them watch it on television. That is to say if they are not sent packing because they have become outcasts, because they have sunk into alcoholism, become addicted to the drugs that used to be put in their food to make them aggressive and numb to danger.

Your Honours, members of this Chamber, when a ship sinks, the law of rescue is simple: Women and children first. When hostage-takers want to demonstrate good faith, they free the women and children first. Women and children have been the hostages of warlords in Ituri while the ship of their destiny has been submerged by blood. Women and children first. Yes, women and children were given special treatment. That is to say the women were raped. That is to say the children were sent into combat in the case of boys, and also used as sex slaves when it came to girls. These victims respectfully hope that their views and concerns will be taken into account at this trial.

PRESIDING JUDGE FULFORD: Thank you very much, Mr. Diakiese. Ms. Bapita.

MS. CARINE BAPITA BUYAGANDA (Legal Representative of the Victims – interpretation from French): Your Honours, esteemed members of the Chamber, the victims who I represent in these proceedings thank you for the opportunity which you have afforded them to make an opening statement. Having awaited the opening of this trial for two years, this is the first time that the victims will fully participate in an international criminal trial.

Your Honours, members of the Chamber, the history of the Democratic Republic of the Congo demonstrates that the crime of recruiting child soldiers, enlisting and conscripting them, has become habitual. It is a practice known by all, seen by all, and to date which enjoys entirety immunity. Many groups in the DRC have indulged in the practice. The FTL, the RCD, the UPC, the FNI, the FRPI, the FPJC, the CNDP, the Perico, the MLC, and I could name others. And even those troops allied to the warring parties, including those of Rwanda and Uganda have committed the same crime openly.

The fact of the matter is that the string of political events, incidents and violations of human rights in the east of the Democratic Republic of the Congo and in particular in Ituri stand witness to the fact, and it has been going on since January 1998, and here I would refer you to a report on the situation as regards human rights in the DRC. Reference number E/CN.4/1998/65, submitted by special rapporteur Garreton, demonstrates that it is a regular practice and which is considered not to be a crime, or if it is an offence at all, simply to be a misdemeanour in the eyes of the warlords. Our duty as the representatives of the victims, these children who have been recruited, enlisted and deployed in hostilities within the UPC is not just to identify the person or persons responsible but also to help find a solution to bring to an end this practice of enlisting child soldiers in the Democratic Republic of the Congo.

To this end we do not wish to return to the crimes committed against our clients by their persecutors, recalling the context in which they became victims but, rather, above all we wish to look to the future, and the future also depends on the judgement which will be issued in the wake of an analysis of the evidence presented by the Prosecutor and the Defence by this Chamber.

Given that there are victims, there must be people who are responsible, and that is why we must support our victims by giving them a voice, a voice to tell what they have been through, the distressing situation in which they found themselves, how they were mistreated, and how they were rejected by their community.

The victims which we represent went through recruitment. Some of them signed up voluntarily owing, amongst other things, to the absence of Social Services, the consequences of which are very hard for unaccompanied and orphaned children who most often were seeking protection and food. On the other hand, in the case of others, this recruitment was not voluntary. It was forced. The children concerned had no alternative whatsoever. Whether forced or voluntary, the recruitment of child soldiers is illegal and punishable under international law.

Your Honours, members of this Chamber, the majority of the victims who I represent, 26 in number, were abducted in the street, on the way to school, from their classrooms, from the market, or from their homes. The victims whom I represent were used as spies, messengers, porters, general dogsbodies or sex slaves. Why did the UPC choose children? Four reasons have been put forward or expressed by my clients. Some of them deliberately agreed to enlist to escape poverty. Yes, indeed. They felt that the UPC was the only place where they could be kept and their needs met in the wake of their parents’ death.

Secondly, UPC chose children because it felt that they were docile. Minors are easier to enlist forcibly, to scare, and they’re accustomed to obeying authority.

Thirdly, yet others enlisted because — or were enlisted because of their fool-hardiness, because they were willing to act mercilessly and cruel at all times, and others still were enlisted because of their innocence and their naivete. The fact is that it is easier to drug a child and to push him or her to commit grave crimes.

Your Honours, members of this Chamber, amongst the children who I represent there are also girls who were recruited for the purpose of sex and forced marriage. How does gender play in enlisting and conscripting girls by the UPC? Amongst the 24 victims which I represent, there are five girls who were recruited as child soldiers within the UPC armed forces, that is to say the FPLC. These five girls have described from their experience various forms of participation by children in hostilities and, in particular, that of girl soldiers.

Indeed the girls filled a number of combat support functions, as well as functions not linked to combat but essential for the functioning of the armed force or group. And so it was that these girls could in turn find themselves acting as combatant, wife or sex slave, domestic servant and cook.

Sexual violence is part of the use of child soldiers and, in particular, of girls. Most of the girls recruited by the UPC were very young, and some were aged between 12 and 14 years. They were regularly raped. Rape and other forms of sexual violence being an integral part of the process of enlisting and conscripting girls in the UPC. All the girl soldiers were raped and exploited by their leaders and the soldiers in their units, their comrades.

In the case of certain former girl soldiers who I am representing, rape began as soon as they were abducted and continued throughout their stay with the UPC. In fact, often the abuses were greatest in the initial stages of their abduction and in the training camps where they were trained to become militia soldiers.

Most of these girls, victims of rape, suffer from psychological trauma. Many girls have been tortured, abused or imprisoned for refusing the sexual advances of their superiors which they then underwent against their will. A few girls were sent to fight. Very often they were used for domestic work and for sexual purposes. Some girls allowed themselves to be exploited sexually by their commanders in exchange for food.

During this period of training, the girls were sleep deprived and forced to consume drugs. They learned to fight and to use weapons. Some of the girls were chosen as bodyguards and forced to fight and to die.  Rape was thus an integral part of the daily life of girls recruited and enlisted by the UPC.

The reality in the DRC and in Africa in general is that women and girls are second-class citizens. They are subordinate to men and they are afforded far few opportunities to study. There’s also the fact that many families living in rural areas prioritise sending boys to school at the cost of girls. UNICEF can provide figures on school attendance and school results in the DRC.

Before the war there was already great discrimination as regards schooling. The recruitment of child — of girl soldiers has had very negative consequences on their lives. They have been denied the right to a childhood, to be schooled, a right to safety, a right to be protected, a right to physical integrity, a right to reproductive health and sexual autonomy. Some girls raped by UPC soldiers have had unwanted pregnancies. They have received many internal and external injuries and have been rejected by their families and their communities upon their return.

Rape as an arm of war divides families and communities. It breaks individual and family networks. It fractures social and cultural links and bolsters dominance through gender-based violence, sexual violence and frequently rape.

The victims who I represent have lived through an environment of terror far from their families and in an atmosphere of brutality within the UPC. In the case of conscripting and enlisting girl soldiers in the UPC, their vulnerability as girls has been exploited and violated intentionally and systematic.

The physical and psychological suffering and torture that girl child soldiers have undergone may diminish but will never completely disappear. In other words, they may be able to forgive but not forget these atrocities.

Several victims have taken great risks in participating in these court proceedings before the International Criminal Court. Their safety is under threat as is that of their families. They have been relocated and have lost their access to a family environment and their circle of friends. These victims believe that those responsible should be punished, that the harm done to them should be made good and that they should be enabled to rejoin their communities.

To this end it should be established which adults were responsible. The responsibility of Thomas Lubanga Dyilo in particular should be recognised, because irrespective of the casus belli, there is no justification to forcibly recruit children. No one can plead that there was consent because we are speaking here of minors. The determination of these victims to participate comes from a desire to see the perpetrators of these crimes held responsible, to see correctly documented the violence which they have survived and also to prevent these crimes being recommitted in the future.

Your Honours, members of the Chamber, the crime of enlisting, recruiting, conscripting child soldiers is a serious one indeed. With great negligence the leaders of armed rebel groups trained people who, if not supervised, lapse into criminality. They constitute a time bomb in the east of the DRC. Rather than promoting schooling, schooling for the young people who represent our future, the future of the country, of the community, rather than promoting their schooling, their priority was to train them and to — thereby creating a pool of potential criminals if they are not well supervised. It means that this region in the east of the Congo has become a breeding ground where anyone can come and recruit potential child soldiers who they see as ripe for the re-recruiting. In practical terms, they have turned the youth of their provinces into a time bomb, and that is not right.T

The question is: Have these rebel leaders served their communities well by enlisting these children? I think not, because a proud, strong community is one which is made up of people who are intellectuals, people who are workers, and, unfortunately, these children are not being schooled to earn a living.

Lubanga, in his area, has given rise to a pool of children who are not being schooled but, rather, have been trained as child soldiers, whereas the rest the world is fighting to ensure schooling for young children. The UPC has worked against that aim and, rather, making little girls into soldiers, enlisting and conscripting them, making them sex slaves. How is it, however, that they feel it is normal to enlist other people’s children while sparing their own children? In other words, in protecting their own children have they not demonstrated and recognized themselves that forced enlistment is not a good thing? There lies the matter to be adjudicated during these proceedings. The world and history awaits your answer to the question.

Your Honours, members of the Chamber, in light of which will be presented by the Prosecutor throughout these proceedings, we wish to reserve the right to request from your Chamber a classification of the crime of sexual slavery against the accused Thomas Lubanga. These are my submissions.

PRESIDING JUDGE FULFORD: Thank you very much, Ms. Bapita. Mr. Kabongo, I think, next.

MR. PAUL KABONGO TSHIBANGU (Legal Representative of the Victims – interpretation from the French): President, your Honours, Prosecutor, learned colleagues from the Defence, learned colleagues representing the victims, ladies and gentlemen, the opening statement which I have the privilege and honour of pronouncing today on behalf of the only victim I represent will be about child soldiers and whether or not they are criminals or victims.

President, your Honours, the term “child soldier” applies to any person under 18 which is a part of an armed group, whether regular or irregular. Child soldiers are more likely to become child soldiers if they are poor, far from their families, away from their home, and if they live in a war zone or if they have limited or no access to education. As these children, often without even understanding this and knowing it, are likely to commit crimes, can we qualify them as criminals or characterize them as criminals, or are they war victims?

President, your Honours, to answer this question I will first talk about the criminal liability of child soldiers and then the criminal liability of child soldiers.

Criminal liability is the responsibility of somebody for the crimes they have committed, subjecting them to punishment. This means that the person guilty is responsible. So this is an error of neglect or lack of — or — because they are imprudent. This assumes a person is free. However, President, children under the age of 15, as were most of the children recruited between 2002 and 2003 in Ituri, are not conscious and not free. Their will is extracted from them from the warlords, torn from them from — by those who believe they are strong to make them participate actively in hostilities.

Responsibility implies the ability to understand and to want something. However, all the child soldiers under 18 at the time of the facts didn’t have the capacity of understanding or wanting to participate in committing a crime within the jurisdiction of the court.

President, now I would like to talk about the criminal responsibility of child soldiers. The Rome Statute of the International Criminal Court, under Article 26, excludes from your court’s jurisdiction children under 18. It’s the principle of absolute criminal responsibility in — at the court. So in the eyes of the court, people who have not reached the age of criminal responsibility cannot be considered as being criminally responsible or be characterized as criminals. It is difficult to imagine that these children under 15 had sufficient reasoning to be able to accuse them of any action which could be called a crime. Moreover, President, it is important to take into account the moral and physical coercion these children were subjected to as they were vulnerable before accusing them of any — or holding — accusing them. This is the principle of criminal responsibility, which is in Article 31 of the Rome Statute of the International Criminal Court.

President, often these children acted under the effect of drugs which impeded them from understanding the wrongdoing or the nature of their behaviour and to understand that their behaviour was a crime within the jurisdiction of the court. Often they were drugged up not to fear and not to be afraid of violence.

In the case of the victim I represent, who is, moreover, a young girl, you can imagine, President, she was drugged. That means the whole society was drugged, because, President, we are all human beings, and we all have women here we consider our mothers.

President, your Honours, to turn children into cannon fodder in an armed conflict is wrong. Children are not war weapons. They are people that have rights, and they are therefore victims. President, your Honours, they are victims of war crimes. They have suffered harm, physical abuse, psychological abuse. They were taken away from school. At the appropriate moment with the evidence we have, we will show you, President, what type of harm was suffered by these victims, and then, President, these children will expect from your venerable Chamber, will expect reparations.

PRESIDING JUDGE FULFORD: Thank you very much, Mr. Kabongo. Mr. Walleyn, I think you’re last.

MR. JEAN-CHRISOSTOME MULAMBA NSOKOLONI (Legal Representative of the Victims – interpretation from French): President, your Honours, Prosecutor, learned colleagues from the Defence, Legal Representatives of Victims, members of the Chamber, enlisting children as a war crime, is this a crime within the jurisdiction of the court, the Rome Statute?

African tradition recognises children and women’s rights. Women enable parenthood, and within the family they are a vital force in the group. Indeed, President, African tradition protects children for the benefit of community life.

In his article on African tradition and human rights, Mr. Leger claims that from the age of 5 onwards, little boys live with their fathers. Their fathers bring them to the men’s home, and young girls live with the women and the family. From 10 years onwards, little boys and little girls live together in their homes. They live together as they have the same age.

In the African community, children have a lot of freedom.

President, your Honours, African children inherit the vital forces of the group and can be corrected but not too harshly. In rural areas they work a couple of days a week for their parents, but then spend their time playing or supervising livestock. They represent vital potential, and that is why they are not abandoned.

President, your Honours, in this type of community you won’t ever see this type of approach in the education of children. Your mothers are your souls; they watch out for you day and night. The gun is a source of power. It will protect you and give you everything you need if you know how to use it. That is what was said this morning — quoted this morning by the Prosecutor. So enlisting young children, little girls and little boys, in armed forces goes against African traditions.

President, your Honours, the Democratic Republic of the Congo ratified several international treaties on human rights and humanitarian law. They banned their — enlisting and conscripting children. And the treaty on children of 1991, ratified in 1991, which was officially published in 2002, 11 years later, states in Article 38 that the States Parties will take all the necessary measures in practice to ensure that those under 15 do not directly participate in hostilities. The Geneva Protocols, which were also ratified by the Democratic Republic of the Congo, also contained provisions on the use of children in armed conflicts, in particular Article 77 of the first Protocol. And you — we should also mention the optional Protocol on the right of children from the year 2000 that was ratified by the Democratic Republic of the Congo in 2002, because under Article 2 it provides that those under the age of 18 should not be enlisted in armed forces. For armed groups there is a prohibition on enlisting and using children under 18.

The African charter on the rights and welfare of children that was ratified by the Democratic Republic of the Congo in 2002, in Article 22(2), encourages parties to take all necessary measure to ensure that no children are enlisted in the forces. And then there’s customary international law and the case law that shows that recruitment is prohibited.

Other than these specific instruments on the rights of the child, it is important to recall Security Council Resolutions and relevant provisions on the Democratic Republic of the Congo which prohibit the enlistment of children, enlisting children and using them in hostilities.

I would like to quote the Geneva Conventions, and in particular the fourth concerning the recruitment of civilians. Convention 182 of the ILO against the worst forms of labour, child labour. And I would like to add that Security Council Resolutions on the topic, the most important being Resolution 1291 of 25 February 1999, under point 2 prohibits the use or condemns the use of children in armed conflict under international law. Resolution 1314 of the 11 of August, 2000, under point 4 asks — requests Member States to sign and ratify the optional Protocol on the convention — on the rights of children concerning the participation of children in armed conflict, and under point 16 encourages them, urges them, to take regional measures to generalise the prohibition of the use of child soldiers as under international law.

And Resolution 1379 of the 30th of November, 2002, under point 8 demands of all parties in armed conflicts to respect international laws of war, especially concerning recruitment of children in armed forces and the Geneva Conventions, the optional — the optional Protocol and — states that the — that enlisting children under the age 15 in armed conflict is one of the war crimes under the Statute, taking specific measures to ensure the rights and duties of young girls affected by armed conflict and to put an end to all forms of violence and exploitation, especially sexual abuse and rape.

President, under point 9 of the same Resolution, States are requested to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes, and other despicable crimes committed by children, and to exclude these crimes from any amnesties or similar legislative measures, and to ensure that the mechanisms to establish truth and reconciliation after the conflict deal with the other grave, serious crimes children fall victim to during conflict. And the same applies to Resolution 1539 of the 11th of April, 2004, and Resolution 1612 of the 26/12/2005.

But as regards enlisting children, the provisions on enlisting children, the new nation congres [as interpreted] published on the 18th of February, 2006, does not explicitly ban recruiting children but provides guarantees for the protection of children under — or minors, and provides protections for children who are under 18 under Article 41.

And then there’s a law on the organisation of the defence and armed forces. Under Article 7 it prohibits the use of civilians under 17. And there are other national provisions that reflect the commitment of the Democratic Republic of the Congo, the commitment to exclude other children from participating in armed conflict. For example, law 15 of the 6th of February, 2002, from the Labour Code about Convention 182.

President, your Honours, can we be indifferent, blind to the fact that a young woman aged 9, a young girl aged 9 looking for food is captured and raped by child soldiers? Can we remain indifferent when learning about the fact that a young child under 15 going to visit his father or mother is enlisted by force, and when the mother or the father ask for the child to come back to the family, for the child to point his gun at the mother to show he is no longer part of the family.

In view of all these difficulties, victims I represent are waiting to see what justice can bring them. By expressing themselves before the Court, they want the sanctioning of the person responsible and reparations for the harm suffered. Thank you. 

PRESIDING JUDGE FULFORD: Mr. Mulamba, thank you very much. Mr. Walleyn.

MR. LUC WALLEYN (Legal Representative of the Victims – interpretation from French): Your Honours, first of all, I would like to read the statement which was prepared by Franck Mulenda before moving on to my own statement. Mr. Mulenda’s statement recalled, notably, the difficulties which the victims and the legal representatives have had to overcome to be here today. It is all the more unfortunate that he, who has been working on the case for the last three years, is unable to be here today owing to the fact that he has been taken under observation this morning. I might — I would like to take this opportunity to say that our thoughts are with him and his family and they hope that he will be able to join us within a few days.

Mr. Mulenda wished to speak to you of the efforts made by the former child soldiers and their families to have their voice heard. After being assisted by the Registry, non-governmental, national and international organisations and filling out a form with great difficulty, a form which was extremely difficult for them to understand, the victims whose schooling had brutally been put to an end when they were enlisted into military life, these victims have long awaited this point in time, this historic trial which should stand as an example and as a deterrent. The victims, at least those who are still alive today and who are taking the floor, we must remember that many have died and others do not yet have access to justice. These victims have overcome many obstacles and followed along a path over the last three years. These hurdles are more numerous. Allow me but to mention a few.

First of all, difficulties in communicating with their legal representatives, trying to manage the rumours and myths propagated by the press, often without any foundation. In other words, “Thomas Lubanga acquitted by the Court,” “Thomas Lubanga returning to Ituri immediately,” this combined with the lengthiness of the proceedings and the difficulties in living in a post-conflict environment which is fraught with difficulties.

The legal representatives have not had an easy time either. Their work in an area which is not safe has been most demanding. They are not safe, nor are their clients. More often than not the legal representatives have had to battle to have the voice of the victims heard in making multiple submissions in relation to submissions by the Defence, for instance.

Although it can be said that the legal framework permitting the participation of victims at proceedings before the International Criminal Court does indeed exist, in practice it is still extremely difficult for victims to participate. Headway has, nonetheless, been made. The victims who appear before you today are filled with confidence and thank this Chamber and thank the various services at the Registry for having facilitated their task.

As regards the age of the children – and this was an issue of some contention before the Pre-Trial Chamber – these victims who were former child soldiers, some of whom are now over the age of 18, wish a number of points to be made regarding their age at the time of the events.

The discussions before the Pre-Trial Chamber had an outcome which was in line with the realities in the field, in the DRC, the difficulty of obtaining documentation to document one’s age made it all the more important that various international mechanisms be brought into play.

Congolese law-makers have recently expressed a new approach to this in a new law, in the preamble to the law of — law number 428 of the 28th of December, 2004, and paragraph 10 of that law. Furthermore, voting cards can also be used as an ID card. Their issue offers more than one advantage to the citizen. First of all, it allows them to register on the electoral roll, but it also gives them a document which allows them to vote at elections but also to prove their identity. Also, Article 6, paragraph 2, of the same law states that the voting centre may also base their decision on testimony given by persons accompanying the individual as to the geographical origins, et cetera, of the person.

Article 10 refers to other — other advances and increased flexibility. It is also stated that if certain documentation is missing, testimony given at the office will be considered valid.

All of this, I think it goes to demonstrate the difficulties which are involved in obtaining and holding identity papers in the Democratic Republic of the Congo, notably in the east and notably in the District of Ituri which is war-torn. This Chamber will undoubtedly take account of that.

Addressing now the situation as regards safety in the area. The conflict is well documented. From the colonial era, two important tribes living in the area have lived together and been obliged to operate together. The victims here are under threat often because they are also of the same tribe as the accused person. This is whole matter is still followed with great interest in the area. Many victims, intermediaries, and even legal representatives have suffered threats and some of them have needed to avail of protection.  Throughout this trial the Chamber will undoubtedly be attentive to this issue of the safety of victims.

Turning now to the expectations of the victims in these proceedings. The victims expect that justice will be done, even if no outcome can compensate the harm which they have suffered. Some fled and even recommenced schooling before being captured anew and being sent to the front again only to be saved later by French troops. Another person who was enlisted was sent to fight before being used as a sex slave of her commander before being handed over to another commander. Two further victims were enlisted forcibly after their elder brother who was accused of treason had to eat and meet in their presence.

The father of one child was killed after refusing to fight and will never see his son again. Other victims find themselves in similar if not worse situations. Their dossiers reveal their situation.

All of these victims turn to this Chamber and hope that these proceedings will proceed swiftly. These are the submissions of Mr. Mulenda.

Your Honours, esteemed members of this Court, to conclude this series of opening statements, I wish through this Court to address those who are listening to us in Bunia and in Ituri, listening to transistor radios or looking at computer screens, be they Hema, Lendu, Alur, or other.

Today is a day of hope, not only for the International Criminal Court which hereby opens its first trial but also for them, for the thousands of victims of the Congolese conflict which seems to be without end, for these former child soldiers who are attempting to rehabilitate and rebuild their lives, for their families, and finally for those who today are still somewhere in the bush, filthy, exhausted, anxious, hungry, suffering aches and pains, crying themselves to sleep thinking of their old friends and their old school, and with just a bit of hemp to console them.

International justice must bring an end to the impunity for the most serious crimes and also prepare the way for reconciliation. It must identify those who bear the greatest responsibility and those who followed, those who are innocent and victims. Justice offers an alternative to stigmatisation of whole communities as being guilty.

The sentences handed down but also the reparations granted to victims will help break the vicious circle and vicious circle of revenge. And thus, your Honours, I think that you will be generous enough to allow me to address my words to the accused himself.

Mr. Thomas Lubanga Dyilo, the victims who we represent are not your enemies. They are not proxies of some government or other or NGOs. They are your kadogos and their families, who are members of your people, often minors, have accepted to testify before this Court at the request of the Office of the Prosecutor. It was not an easy decision for them to take because they are fragile, because they have taken risks and sometimes have had to agree to the conditions of a protection programme, but also because you were their president, their Papa Lubanga, the person for whom they suffered and faced death. They did it because they – or they’re doing it because they want the truth to be known. They merit respect. They have been disappointed, but they are not clamouring for vengeance. They ask to be recognised as victims. They want truth, justice, and reparations. They hope that the Court will confirm that their enlistment in the FPLC was a crime. The best reparation for them would undoubtedly be that you, Mr. Lubanga, recognise them.

Your Honours, you have agreed to a hundred-odd victims and families participating today. Behind the reference numbers, the code-names, et cetera, there are many stories, stories of disaster but also of courage. It is an honour for us, we, as lawyers, to represent them at this court, to report to them, to be their voice and to be their eyes and ears.

Thank you, Your Honours, for the time which you have given us.

PRESIDING JUDGE FULFORD: Mr. Walleyn, thank you very much indeed.

There are two short matters arising out of those presentations for which we’re grateful and which fell entirely, save for two things I’m about to mention, within our expectations, and we are genuinely grateful for them.

Ms. Bapita, can I — I’m very sorry. Ms. Bensouda, can I ask one question in relation to the evidence we’re going to hear. From my reading of the papers, I think the name Joseph Kony doesn’t really appear at all.

MR. LUIS MORENO-OCAMPO (Prosecutor): Mr. President, no. Mr. Kony is not represented in this court, no.

PRESIDING JUDGE FULFORD: Thank you very much indeed. Mr. Diakiese, I know it was to a very large extent something of a flourish of oratory, but it was in a sense an example of something that we’ve got to be very careful about in this case in that the ambit of participation by the victims in this case must be focussed, must be really directed at the evidence that we’re going to be dealing with in this trial and, in particular, the charges which this accused faces. So it was not a significant or a serious transgression, and I’m only using this as an example of territory which we really shouldn’t visit. So please accept this in the spirit with which it’s meant. It’s not a strong observation. I’m simply using this as a demonstration. Mr. Walleyn, similarly, I know that it was really just a device of oratory, but can we please not in future have counsel directly addressing their remarks at the accused. Indeed, remarks should not be addressed at anyone apart from the Bench. I’m afraid it has the potential for raising the temperature in the case wholly artificially and in a very bad way. So again said mildly, and I understand the spirit within – in which it was meant, but please not to be repeated.