Mixed start to Thomas Lubanga’s ICC trial

The first week of evidence in the historic International Criminal Court (ICC) trial of Congolese man Thomas Lubanga has ended with mixed results for the prosecution. Lubanga has pleaded not guilty to recruiting and using child soldiers under age 15 in 2002-2003. After the first witness recanted his evidence he was a child soldier, a second has restored hope to prosecutors by testifying he taught child soldiers in the art of war. He is the first of four Congolese warlords that will face trial. The trial is the first to be heard by the world's first permanent war crimes tribunal since it was created in 2002. But as the Toronto Star editorialises, the real value of the case is that the practice of using child soldiers “will persist until warlords and others understand they can no longer send children to their deaths with impunity.”

For this first case, ICC chief prosecutor Luis Moreno-Ocampo charged the 48 year old Lubanga with recruiting 30,000 child soldiers to fight in the conflict that raged in north-eastern DRC between 2002 and 2003. Lubanga is the leader of the UPC (Union of Congolese Patriots), a group set up in 2000 that was closely allied to Uganda. The UPC was accused of massacring civilians in 2002 in DRC’s eastern province of Ituri. Ituri is a gold-rich region near the Ugandan border and the Ugandan army took the side of Lubanga’s Hemi ethnic group against the Lendu.

Initially the war here was ignored while peace efforts focussed on more pressing parts of the DRC. Eventually French troops occupied Ituri’s capital Bunia. UN peacekeepers arrested Lubanga in 2005 and transferred him to jail in the DRC capital Kinshasa. A year later he was extradited to the ICC court at The Hague where he was charged with three counts of war crimes for using child soldiers. However it has taken a long process to get him to trial. It was due to begin in June 2008 but immediately stalled when the court ruled that prosecutors had wrongly withheld evidence. The court granted his release a month later but this was delayed pending appeal. In November the suspension was lifted and The British Judge Adrian Fulford announced a start date for the trail of the end of January 2009.

However things went badly for the prosecution on the opening day of the trial last week. Firstly the young star witness flown in from Congo was forced to take his oath three times due to malfunctioning microphones. There was a bigger shock when he finally testified and recanted his earlier testimony that he was a child soldier. Earlier the young man, now a teenager, said he was snatched by Lubanga's militia on his way home from school. However he changed his story in court and denied that he'd ever been a child soldier taken to a military training camp. Instead, the witness claimed his testimony was prompted by an NGO which he did not name. Stunned prosecutors claimed their witness felt unprotected and feared for his safety from the watching Lubanga.

Judge Fulford immediately ordered the witness’s testimony to be adjourned and called for a probe into possible threats against the witness and his family. He also directed the prosecution to examine the risks of self-incrimination faced by witnesses who may face prosecution in the DRC. The court’s "Rule 74" requires that witnesses be fully informed that evidence could possibly incriminate them back home.

Meanwhile the trial continued and prosecutors did better with Friday’s witness. A former militia fighter told the court he trained children to use assault rifles and fought alongside them. The man said he joined Lubanga's militia in 2002 when senior officers threatened to torch his village unless the young people joined up. He had previously served as a child soldier in the Congolese army five years earlier and he was made an instructor because of his experience. He taught recruits the basics of war and how to fire AK47 rifles. He said children often were assigned to officers as armed "bodyguards or escorts," and many fought and died in battle.

The trial is expected to last for six to nine months and is a crucial test for the tribunal's ability to bring war criminals to justice. The ICC is the only permanent tribunal for prosecuting individuals accused of war crimes, genocide and crimes against humanity. Previous war crimes cases have been handled by adhoc tribunals. The ICC was established under the 1998 Rome Statute, a treaty now ratified by 106 states (though the US is a notable absentee). While discussion of ICC membership was studiously avoided during the election campaign, Obama is known to support the court. Bringing the US back into the fold would be an even bigger step towards the ICC’s legitimacy than a Lubanga conviction.