ICC declares Lubanga guilty of recruiting child soldiers

By Standard Reporter

News of conviction of former Congolese head of armed militia, the first ever secured by International Criminal Court, spread across the country like bushfire because next on the dock are four Kenyans.

This is because the appeals filed by four high profile Kenyans against full trial have all been rejected, except one on jurisdiction of the ICC on the Kenya case. This may also likely fall on the face given the pattern of The Hague’s past rulings.

But the significance of the ruling handed on Wednesday, and beamed live on television in Kenya, lies in the fact that most of the conclusions reached by the judges have a bearing on the way the set of three that could be picked to try the four Kenyans may decide on the issues raised by the suspects and the Prosecution.

Top on the list is the claim by Deputy Prime Minister Uhuru Kenyatta, former Head of Public Service Francis Muthaura, Eldoret North MP William Ruto, and Kass FM Radio journalist Joshua arap Sang that the prosecutor relied on witnesses who fabricated evidence on meetings and allegations that did not occur.

In the case of Thomas Lubanga, ICC found out not only that six witnesses were fake and unreliable, but also that some of the victims could also not be depended upon, and recommended that they be investigated.

So, in the Kenya case, if the cases go to full trial, the suspects can still continue to tear into the evidence presented, character and integrity of the witnesses presented, as well as veracity of their testimonies and suitability for the roles accorded them by prosecution.

If they succeed on this front, they could put them in the hot seat that Lubanga’s defence has placed those that came up against their client.

"The Chamber has withdrawn the right of six dual status witnesses to participate in the proceedings, as a result of the Chamber’s conclusions as to the reliability and accuracy of these witnesses. The Chamber rejected testimony of the three victims who testified in court for unreliability," read the ruling.

It went on: "Given the material doubts that exist as to the identities of two of these individuals, which inevitably affect the evidence of the third, the Chamber decided to withdraw the permission originally granted to them to participate as victims."

The judges then threw in the stinger: "These individuals may have committed crimes under Article 70 of the Statute. Pursuant to Rule 165 of the Rules, the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution."

Criminal organization

The Kenya case is also being fought on the basis of whether as prosecution claims, as in the case of Lubanga, that they belonged to an organisation that shared a "common plan", "organisational policy, command, and structure", and that they were well-placed to issue guidance and instruction.

In the Lubanga case, the chamber found out that he indeed was a member of the criminal organization; he was its head, and he cannot have been innocent of its use of child soldiers – which is the crime for which he is now awaiting sentence.

It is now left for the Ocampo Four to prove, separately, they were neither members nor prefects of Mungiki and the so-called Kalenjin Network, or that these groupings did exist and for the purposes that the prosecution argued they stood for.

The Lubanga case, apart from giving a roadmap to how ICC treats false witnesses, will also demonstrate the fact that judges may write dissenting rulings, but they can still concur on the sentencing, or the crucial charge that will determine one’s fate.

It can therefore be argued that all the charges against one can be dropped, but even the only one left can be serious enough to attract a maximum of 30 years that the ICC can give.

The case is also a lesson on not just how long and protracted ICC cases can be, but how despite some witnesses and evidence being discredited, the little left can still secure the suspect a jail term.

This is a matter over which the defence teams of the Kenyans will be looking at keenly, as they prepare for the next stage if it comes.

The Kenyans facing trial have also accused ICC Prosecutor Luis Moreno-Ocampo of not doing his own investigations and relying on reports of rights groups, biased State organisations, and non-governmental organisations.

In the case of Lubanga, the Chamber concluded that the Prosecutor was at fault to have used ‘intermediaries’ to gather evidence in some parts of the Congo.

The chamber concluded that this was irregular and uncalled for even if it were because of security concerns in some areas where investigations took place.

exchange submission

Lubanga, 52, unlike Kenyans who are facing crimes against humanity, was convicted for war crimes. Among those who showed up to listen to the verdict was Hollywood movie star, Angelina Jolie.

Lubanga has requested the Trial Chamber to hold a separate sentencing hearing under Article 76(2) of the Rome Statute. But the sentence will not be given anytime before May.

The prosecution and the defence have been given time to exchange submission up to April 18, after which the court will set the date for sentencing.

For any of the four categories of the crimes under the Rome Statute – genocide, crimes against humanity, war crimes and crime of aggression – the court can impose an imprisonment term not exceeding 30 years or a life imprisonment when justified by extreme gravity of the crime and individual circumstances of the convict.

The court can, in addition, impose a fine and order forfeiture of any proceeds, property or assets directly or indirectly derived from the crime. This must be a matter weighing heavily on the minds of the Kenyan suspects if they are committed to full trial and eventually sentenced.

So far 15 cases in seven situations have been brought before ICC. Four of them with 10 suspects have reached the trial stage.

Wednesday’s judgment by three judges – Adrian Fulford (presiding judge), Judge Elizabeth Odio Benito, and Judge RenÈ Blattmann – will provide the Kenyan suspects with the vital spots on which to tackle the prosecution’s case, should they go to trial.

Test trial

Lubanga’s case, which began in 2006 after being referred to ICC by DRC President Joseph Kabila, has been the test trial for the ICC itself. It was the first to get to trial stage since the court was established in 2002.

Lubanga was found guilty of conscripting and enlisting children under the age of 15, and using them to participate in hostilities.

All the judges made the unanimous verdict, but each of them wrote an additional opinion agreeing or dissenting on particular legal issues.

The defence is entitled to appeal the conviction within 30 days of receiving the French translation of the judgement.