September 21, 2011
The trial of Thomas Lubanga, allegedly former chief of UPC-FPLC militia, has reached its final stage with the closing statements of the Office of the Prosecutor, Legal Representatives of victims and the Defense held on 25th and 26 August 2011. Thomas Lubanga is being tried for the war crimes of conscription, enlistment and use of child soldiers under the age of 15 during the Ituri conflict between September 2002 and August 2003 (Article 8 - Rome Statute), he has pleaded not guilty. Despite many controversies and new twists that halted the trial and nearly resulted in the release of the accused twice, the first trial at the International Criminal Court represents a positive step forward as to the question of victims’ participation in international criminal proceedings. Indeed, notwithstanding whether Thomas Lubanga is convicted or not by the judges, the first trial of the ICC will remain for many, a landmark trial with regard to victims’ participation and contribution to the implementation of victim’s rights before the ICC.
As mentioned during the closing arguments, victims’ participation throughout the ICC’s first trial has been challenging and innovative in many respects. For example, following the Appeal Chamber’s confirmation that victims were allowed to lead and challenge evidence relating to the guilt or innocence of the accused in 2008, three victims successfully applied and were allowed to testify in person for the first time before the Court. In 2010, they came and presented evidence in the trial, thus grounding further the rights of victims to participate independently of the Prosecutor and present evidence before the Court.
During her closing submissions, the Principal Counsel of the Office of Public Counsel for Victims (OPCV), Ms. Paolina Massidda, stressed the proactive contribution of victims throughout the trial. Indeed, in May 2009 victims sought to modify the legal characterisation of the facts supporting the charges brought against the accused so as to include additional charges of sexual slavery and cruel and inhuman treatment; Ms Massidda also underlined that victims wanted Thomas Lubanga held liable not only as a co‐perpetrator, but as a direct perpetrator for the alleged crime of enlistment, conscription and use of child soldiers under the age of 15.
The main concerns of victims outlined by victims’ legal representatives during the closing submissions were threefold. First, they asserted that the ultimate goal of victims was the search for the truth and their wish to have their voices heard at the heart of the court proceedings judging the man they believed to be most responsible for their suffering. The second point raised was the scale of the trauma experienced by the victims, most of whom were children at the time. As stated by Ms Paolina Massidda, nothing, not even reparation, will be able to fully restore the children’s stolen childhood or compensate them fully for the inhuman treatment they were subjected to, the wide range of physical and psychological abuses, the violent acts and the sexual violence they endured on a daily basis in the training camps. The parents’ indirect harm due to the moral and psychological suffering they experienced by the abduction and enlistment of their children was also highlighted. Finally, it was mentioned that, despite protective measures implemented by the Court, many victims who had appeared as prosecution witnesses, had suffered threats or reprisals in retaliation for their testimonies before the Court.
The final statements made by the victims’ legal representatives also revisited the issues surrounding the non-inclusion of charges relating to sexual violence, which has long been deplored by civil society organisations working with victims. As was queried by Judge Odio Benito to the Prosecution during the closing hearings: how is sexual violence experienced by girls relevant to the case and how does the Prosecution expect the Chamber to address that issue in so far as there is no mention of sexual violence in the document containing the charges against the accused? The Prosecution indicated in its closing brief, that sexual violence should be considered as a form of active participation of children in hostilities, basing its argument on international jurisprudence relating to the definition of “active participation in hostilities”. In addition, during the hearing, the Prosecutor specified that sexual violence had been inflicted to young girls during their conscription and therefore was to be considered as an element of conscription, and in fact, as the “gender aspect” of the crime of conscription. This echoes victims’ legal representatives’ position that sexual violence should be considered as an aggravating circumstance to the crime of enlistment, recruitment and active participation of children under the age of 15 in hostilities.
Should Thomas Lubanga be convicted, it will be interesting to see whether the Judges will adopt the wider definition of the crime of conscription suggested by the Prosecution and victims’ legal representatives.
 Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, ICC-01/04-01/06-1432, 11 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc529076.PDF; paragraphe 105 p. 35.
 REDRESS timeline on the Lubanga trial, http://www.redress.org/downloads/ThomasLubangaVictimsTimeline-250811.pdf.
 Prosecution closing briefs, 01 June 2011, ICC-01/04-01/06-2748-Red, http://www.icc-cpi.int/iccdocs/doc/doc1123809.pdf, paragraphe 139, 142 and 143 p. 59 and 62. Transcript Office of the Prosecutors Closing Statements, ICC-01/04-01/06-T-356, 25 August 2011, http://www.icc-cpi.int/iccdocs/doc/doc1210316.pdf, p.55 line 16 to 20
 Transcript Office of the Prosecutors Closing Statements, ICC-01/04-01/06-T-356, 25 August 2011,http://www.icc-cpi.int/iccdocs/doc/doc1210316.pdf, p. 54 line 8 to 22
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