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87
ICC, PTC I, ˜˜Redacted Version of the Transcripts of the Hearing Held on 2 February 2006
and Certain Materials Presented During that Hearing™™(2006), 32.
88
Ibid., 29“30.
89
Interviews.
220 Building the International Criminal Court


Lubanga: War Criminal, Target of Opportunity, Harbinger?
From eastern Congo, Thomas Lubanga Dyilo came to Kinshasa, the DRC™s
capital, in August 2003 to participate in peace talks, but he continued to
reside there, according to media reports, ˜˜under virtual house arrest.™™
Nonetheless, he claimed that he was in control of his FPLC forces.90 On
March 11, 2005, by order of President Kabila, he was placed under formal
house arrest in the Grand Hotel in Kinshasa along with three other warlords
on charges of genocide and crimes against humanity under the DRC mili-
tary code. He was also accused by the United Nations of having master-
minded the murder of nine Bangladeshi MONUC peacekeepers killed in an
ambush in the Ituri district on February 25. On March 29, the DRC
authorities issued another arrest warrant against Lubanga, alleging crimes
of murder, illegal detention, and torture.91 Lubanga was already notorious,
according to Human Rights Watch, for having commanded Hema (tribe)
militias of the UPC to carry out atrocities.
In the rich gold town of Mongbwalu and surrounding villages they slaughtered some
800 civilians in 2002 and 2003, mostly targeting those who were Lendu. After their
battles, the UPC militia carried out house-to-house searches looking for Lendu
civilians to arrest, torture, and then execute. In one massacre in the town of Kilo,
Hema militiamen killed their Lendu victims “ including women and children “ by
hitting them over the head with a sledgehammer.92

HRW applauded the arrests but chastised President Kabila for appearing to
value the Bangladeshi peacekeepers™ lives more than those of Ituri civilians,
urging him immediately to ˜˜order the arrest and investigation of all the
armed group leaders implicated in killing civilians sitting at the Grand
Hotel in Kinshasa, not just the ones who may have killed U.N. peace-
keepers.™™93
As Tadic™s incarceration in Germany had offered an opportunity to the
ICTY, so Lubanga™s being in jail in Kinshasa presented the ICC OTP an
opportunity to avoid the problems associated with organizing the arrest of
a suspect. Even if the transfer was opportunistic, however, the Prosecutor
argued that it was compelled by events. Under DRC law, Lubanga could be

90
Anderson, ˜˜ICC Enters Uncharted Territory™™ (2006).
91
ICC, Pre-Trial Chamber I, ˜˜Decision Concerning Pre-Trial Chamber I™s Decision of
10 February 2006 and the Incorporation of Documents into the Record of the Case against
Mr. Thomas Lubanga Dyilo™™ (2006), para. 33.
92
Woudenberg, ˜˜Arrest All Ituri Warlords™™ Le Potentiel (2005).
93
Ibid.
221
The First Situations

held for up to a year with month-to-month renewals of the detention by
order of the regional DRC prosecutor™s of¬ce. After the year (which would
have ended in mid-March 2006), however, the case would need to be
reviewed and renewed by a judge. The ICC Prosecutor feared that Lubanga
would be released because the DRC authorities had not compiled a record
that would justify continued detention. Moreno Ocampo argued to the Pre-
Trial Chamber that the ¬le on Lubanga in the Congo was ˜˜literally empty,™™
asserting that ˜˜any judge who has to decide on the extension of deten-
tion . . . will have a very dif¬cult time . . . knowing that there is no investi-
gation being done,™™94 and on January 13, 2006, requested that the PTC
issue an arrest warrant for Lubanga.95 The PTC examined the OTP™s
application in order to determine whether indeed the case conformed to the
ICC™s criteria that the judicial system appeared unable or unwilling to
prosecute crimes under the jurisdiction of the Court, that the case was of
suf¬cient gravity, and that the suspect a ˜˜most responsible™™ leader of large-
scale crimes.
Because of what it called ˜˜certain changes™™ in the DRC national judicial
system since the time of the original referral, particularly in Ituri, the PTC
viewed skeptically the OTP™s argument that the case was admissible on the
grounds that the DRC justice system was inadequate to provide appropriate
judicial measures for the crimes under the Statute.96 However, the PTC
accepted the OTP™s argument that the DRC warrants contained no refer-
ences to child conscription and thus were not acting on the ˜˜speci¬c case
before the court.™™97
The PTC also analyzed the admissibility of the case from the standpoint
of its ˜˜suf¬cient gravity.™™98 It agreed that prosecuting Lubanga would
contribute to the deterrent mission of the ICC. The arrest warrant was
issued, conveyed by the Registrar to the DRC, and Lubanga was ¬‚own out
of Kinshasa on a French military aircraft. He arrived on Friday, March 17,
2006, the day before former Yugoslav President Slobodan Milosevic was
laid to rest in his home town following his death from a heart attack a week


94
ICC, PTC I, ˜˜Redacted Version of the Transcripts of the Hearing Held on 2 February
2006,™™ op cit., 35.
95
ICC, PTC I, ˜˜Warrant of Arrest™™ (2006).
96
ICC, PTC I, ˜˜Decision Concerning Pre-Trial Chamber I™s Decision of 10 February 2006 and
the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga
Dyilo, Annex I: Decision on the Prosecutor™s Application for a Warrant of Arrest, Article
58™™(2006), para. 36.
97
Ibid., para. 38“9.
98
Ibid., para. 64“75.
222 Building the International Criminal Court

before in his ICTY jail cell in The Hague. A new chapter in international
criminal prosecutions began just as an old one ended.
Lubanga was brought to the ICC on charges of enlisting, conscripting,
and using children younger than age ¬fteen in his army.99 Upon Lubanga™s
arrival at The Hague, Moreno Ocampo stressed that this was only a ¬rst
step:
This is important, it™s a sequence. We will investigate crimes committed by other
militias and other persons “ this is the ¬rst case, not the last.
We are totally committed to staying in Congo “ to make sure justice is done. . . .
Our investigation is our contribution to building a stable democracy in Congo.
As I have said, this is only the beginning. I am committed to continuing to work for
the people in Ituri and in Congo as a whole. This arrest is a step forward in
realizing the Rome Statute vision “ to end impunity and atrocities all over the
world.
For 100 years, a permanent international criminal court was a dream “ this dream
is becoming a reality.100

A warrant for a second suspect was apparently requested by the OTP later
in 2006 but rejected by the PTC on grounds allegedly having to do with the
inadequate level of responsibility of the suspect. The rejection was appealed
by the OTP, but no public traces of the matter appeared by the middle of
2007.101


Moving Toward Trial: Victim Participation, Scope of Charges, Defense
Thomas Lubanga appeared before the Pre-Trial Chamber in open court for
the ¬rst time on March 22, 2006, where he con¬rmed his identity,
acknowledged the charges against him, and received a court-appointed
defense attorney, Belgian Jean Flamme. The next step in the Court™s pro-
cedures called for a ˜˜con¬rmation hearing™™ before the PTC, for arguments
between prosecution and defense over whether there was suf¬cient reason
to proceed to the trial phase. More new machinery had to be developed and
engaged, as the prosecution, Registry, and defense, working directly with
each other and through the Pre-Trial Chamber, developed routines for the
disclosure of information to the defense while still seeking to protect victim


99
War crimes under either Statute Article 8(2)(e)(vii) (for a noninternational con¬‚ict) or
Article 8(2)(b)(xxvi) (an international con¬‚ict), Ibid., para. 25.
100
ICC, Statement by Luis Moreno Ocampo to the Press Conference in Relation with the
Surrender to the Court of Mr. Thomas Lubanga Dyilo (2006).
101
Interviews.
223
The First Situations

and witness identities. The OTP and defense ¬led repeated motions for PTC
resolution over the content and nature of document ˜˜redactions,™™ while the
defense and OTP collaborated to smooth the information ¬‚ow and reduce
Registry participation in the document exchanges. The Registry had argued
that all documents should be transmitted through it from prosecution to
defense; however, the prosecution and defense argued that this would
unreasonably delay the process, and that the Registry had no reason to have
custody of substantive information. The PTC resolved the issue by per-
mitting direct transfer of the information, with noti¬cation to the PTC and
Registry of each transfer, so that the Registry could keep a log of all
materials.
With support from NGOs, and then the appointment by the PTC of
counsel to represent victims, additional claimants to victim status and
participation in the process were ¬led with the Court, and this prompted
a second long series of hearings and ¬lings, as each victim™s status was to be
adjudicated by the PTC.
The original date for the con¬rmation hearing was set for June 23, but it
was postponed by the PTC in order to allow suf¬cient time for the defense
to acquire and study the materials being transferred to it from the prose-
cution. On June 28, the OTP informed the PTC that due to problems with
the security situation in Ituri, further investigations into the case were being
suspended, and thus the planned September con¬rmation hearing would be
limited to charges against Lubanga for enlisting, conscripting, and using
children as soldiers.
Concerned that the charges against Lubanga were too narrow, on July
31, Human Rights Watch and seven other NGOs issued a ˜˜joint letter™™ to
the Chief Prosecutor: ˜˜We are disappointed that two years of investigation
by your of¬ce in the DRC has not yielded a broader range of charges against
Mr. Lubanga.™™102 The NGOs argued that the narrow charges threatened to
reduce the possibility of appropriate victim representation, since victims of
other crimes would not be directly connected to the case, and that the
suffering of victims of other crimes would not be validated or exposed. They
hoped that additional suspected perpetrators would be brought to court.
The NGO Women™s Initiative for Gender Justice meanwhile ¬led a request

102
Human Rights Watch, ˜˜D.R. Congo: ICC Charges Raise Concern: Joint Letter to the Chief
Prosecutor of the International Criminal Court™™ (2006). The other NGO signatories were
Avocats Sans Frontieres, Center for Justice and Reconciliation, Coalition Nationale pour
`
la Cour Penale Internationale “ RCD (the CICC chapter in the DRC), Federation
´ ´´
Internationale des Ligues des Droits de l™Homme (FIDH), International Center for
Transitional Justice, Redress, and Women™s Initiative for Gender Justice.
224 Building the International Criminal Court

to participate in the case as an amicus curiae (˜˜friend of the court™™),
a request that the OTP and defense both opposed.
Local NGOs were reportedly angry and disappointed about the progress
of the case. ˜˜ ˜There is too much amateur work at the of¬ce of the prose-
cutor. It™s not that the charges don™t exist; it™s that the prosecutor has done
mediocre work . . . and we in Ituri will be the ones to pay the price.™ ™™103
According to a report from Bunia, eastern Congo, a lawyer there said,
˜˜Investigating cases of child soldiers in Ituri is like picking a ripe mango
that fell at your feet. It could not be any easier.™™104
Con¬rmation hearings for the Lubanga case ¬nally took place November
9“28, 2006, and on January 29, 2007, the Pre-Trial Chamber decided to
send the case to the Trial Chamber.105 The prosecution contended that
Lubanga had overall responsibility for his armed organization that recruited
and used child soldiers, and that he was aware of the practice. The defense
portrayed the prosecution case as being based on a misunderstanding of
Lubanga™s role, presence, and activities in eastern Congo. Movement
toward trial was delayed when Jean Flamme, Lubanga™s defense attorney,
resigned from the case, and a replacement had to be found, assigned, and
begin work. The Presidency established Trial Chamber I and assigned the
Lubanga case to it, but in light of a request from Lubanga™s temporary
counsel, the transmission of the records of the pretrial phase to the Trial
Chamber were suspended until a new defense counsel was appointed
and could become familiar with the case.106 Requests to the PTC for
permission to appeal various aspects of the charges against Lubanga ¬led
by both Flamme and the Of¬ce of the Prosecutor were denied by the PTC
on May 24.107 As events unfolded in summer 2007, the case appeared to
be on track to come before the Trial Chamber sometime in early 2008.
The ¬fth Assembly of States Parties convened in The Hague while the
con¬rmation hearings were still taking place in the fall of 2006. In accord
with his previous statement about proceeding ˜˜sequentially,™™ Chief Prose-
cutor Moreno Ocampo reported to the ASP that a second investigation was
under-way in the Congo and that the OTP was considering opening a third.



103
Anonymous quote, in Petit, ˜˜Minimalist Investigation in Lubanga™s Case™™ (2006), 1.
104
Ibid.
105
ICC, PTC I, ˜˜Decision on the Con¬rmation of Charges™™ (2007).
106
ICC, The Presidency, ˜˜Decision Constituting Trial Chamber I and Referring to It the Case
of The Prosecutor v Thomas Lubanga Dyilo™™ (2007).
107
ICC, Pre-Trial Chamber I, ˜˜Decision on the Prosecution and Defence Applications for
Leave to Appeal the Decision on the Con¬rmation of Charges™™ (2007).
225
The First Situations

He said that his of¬ce expected to seek arrest warrants in the second case
during the ¬rst half of 2007.108
With its ¬rst suspect in custody, the ICC™s judicial operations ground
forward, developing information-sharing routines, screening methods for
victims seeking representation at the Court, and establishing that victims
could participate even before charges had been con¬rmed. The ICC
OTP˜s intention to avoid what observers considered the overly broad
charges that had been pressed by the ICTY and ICTR resulted in a case
focused on the recruitment and use of child soldiers in Ituri, a charge
that NGO commentators found signi¬cant but too narrow. Even with
the PTC™s intention to limit the length of court proceedings, the pretrial
phase lasted for approximately a year, and it appeared that the actual
trial would perhaps begin, but likely not end, within the eighteen-month
period that Judge Jorda had long before indicated was his target for the
maximum duration of court proceedings (see Chapter 4). The Prosecu-
tor™s intention to proceed sequentially meant that major suspects in the
DRC had not been publicly named at all by the time that the ¬rst trial pro-
ceedings were to begin in the Lubanga case, leading to impatience on the part
of NGO observers.
On October 18, 2007, the ICC announced that, pursuant to an arrest

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