DRC: ICC's First Trial Focuses on Child Soldiers

The International Criminal Court's (ICC) trial of Thomas Lubanga Dyilo, scheduled to begin on January 26, 2009 in The Hague, marks an important stage in efforts to establish responsibility for the use of children in military operations, Human Rights Watch said today. Another Congolese warlord sought by the ICC, Bosco Ntaganda, remains at large.

Lubanga, the former leader of the Union of Congolese Patriots (UPC) militia who operated in the district of Ituri in northeastern Congo, is charged with enlisting and conscripting children under the age of 15 as soldiers and using them to participate actively in combat between September 2002 and August 2003. Lubanga's UPC forces also carried out widespread killing, rape, and torture of thousands of civilians throughout Ituri, though to date the ICC has not charged him or any other member of the UPC with such crimes.

"This first ICC trial makes it clear that the use of children in armed combat is a war crime that can and will be prosecuted at the international level," said Param-Preet Singh, counsel in Human Rights Watch's International Justice Program. "Lubanga's UPC also slaughtered thousands, and those responsible should be held accountable for these crimes as well."

Lubanga's trial was originally scheduled to begin in June 2008. However, the judges of the trial chamber unanimously decided to stay the proceedings - suspending the trial - because the prosecution could not disclose a number of documents collected confidentially from information providers as permitted under the Rome Statute, causing concerns that Lubanga would not receive a fair trial. The prosecution worked with these information providers to address the judges' concerns, and in November 2008 the trial chamber allowed proceedings to resume.

The Ituri conflict and other conflicts in eastern Congo highlight the participation of non-Congolese forces. Ituri in particular became a battleground involving the governments of Uganda, Rwanda, and Congo. These governments provided political and military support to Congolese armed groups despite abundant evidence of their widespread violations of international humanitarian law. The ICC prosecutor, Luis Moreno Ocampo, has repeatedly stated that he will bring to justice those who bear the greatest responsibility for serious crimes.

"Getting to the root of the conflict in Ituri means that the ICC must go beyond local war lords like Lubanga," said Singh. "We look to the prosecutor to investigate those who supported Lubanga and other militias operating in Ituri, including senior officials in Kinshasa, Kigali, and Kampala."

The ICC is faced with the challenge of making sure that the proceedings are meaningful for the communities most affected by the crimes in Congo. Human Rights Watch said that the Lubanga trial is a unique opportunity that the ICC cannot afford to miss and should make every possible effort to communicate with people in Congo about important legal proceedings in The Hague. To be effective, justice must not only be done but also must be seen to be done. Human Rights Watch will be looking very closely at the court's performance to this end.

Bosco Ntaganda Still Sought by the ICC

Bosco Ntaganda, who collaborated with Lubanga as chief of military operations for the UPC, has also been charged with war crimes by the ICC but remains at large. He currently serves as the military chief of staff of the National Congress for the Defense of the People (CNDP), a rebel group that is now collaborating with the Congolese and Rwandan national armies in military operations against a Rwandan armed group in eastern Congo.

On November 4 and 5, 2008, CNDP troops under Ntaganda's command killed an estimated 150 people in the town of Kiwanja, one of the worst massacres in North Kivu in the past two years.

In early January, Ntaganda claimed he was taking over leadership of the CNDP from its former head Laurent Nkunda, and on January 16 he declared that instead of making war on the Congolese national army, he would join its troops in fighting the Democratic Forces for the Liberation of Rwanda (FDLR), a Rwandan armed group some of whose leaders participated in the genocide in Rwanda in 1994.

"Bosco Ntaganda is not a viable partner for the Congolese or any other government," said Singh. "He is a war crimes suspect sought by the ICC, and he should be immediately arrested, not celebrated as a partner for peace."

The Congolese government, a state party to the Rome Statute, which established the ICC, is obligated to arrest Ntaganda. Yet no such attempt was made last week when Ntaganda was in Goma alongside the Congolese minister of the interior and other senior Congolese military officers.

Background

In addition to crimes related to child soldiers, Thomas Lubanga's UPC, which purported to further the interests of the Hema ethnic group in the Ituri region of northeastern Congo, has also been involved in ethnic massacres, torture, and rape during the Ituri conflict.

In March 2006, Lubanga was arrested and transferred to the International Criminal Court in The Hague on charges involving child soldiers. In January 2007, the judges of the ICC determined that there was sufficient evidence to move forward with a trial.

This trial is the first in which victims will be allowed to participate in international criminal proceedings. More than 90 victims who have been found eligible will participate through their legal representatives. While not parties, victims have certain rights in proceedings, provided their exercise is consistent with the rights of the accused and a fair trial. This may include the right to submit evidence pertaining to Lubanga's guilt or innocence and thus contribute to the search for truth.

The ICC has charged three other Congolese warlords with crimes related to child soldiers, including Bosco Ntaganda, mentioned above. Two others, leaders of militias of ethnic groups allied with each other but rivals of Lubanga's, are in custody. They are Germain Katanga of the Ituri Patriotic Resistance Forces (FRPI), a Ngiti-based group, and Mathieu Ngudjolo, of the Nationalist and Integrationist Front (FNI), a Lendu-based militia. Both are accused of using child soldiers in attacking civilians in Bogoro village in early 2003, among other war crimes and crimes against humanity, including murder, sexual slavery, and rape.

Children are currently recruited and used in armed conflict in at least 15 countries and territories: Afghanistan, Burma (Myanmar), Central African Republic, Chad, Colombia, Democratic Republic of Congo (DRC), India, Iraq, Occupied Palestinian Territories, Philippines, Somalia, Sri Lanka, Sudan, Thailand, and Uganda. In the DRC, at least five parties to the armed conflict are known to use child soldiers. These include the Congolese army (FARDC), the Democratic Forces for the Liberation of Rwanda, the National Congress for the Defense of the People, pro-government Mai Mai groups, and the Lord's Resistance Army.

In addition to the ICC's cases, the Special Court for Sierra Leone has charged all nine of its original defendants, including former Liberian president Charles Taylor, with the crime of recruiting and using children under the age of 15 as soldiers. To date, the Special Court has convicted four defendants of this crime; those convicted are serving prison terms ranging from seven to 50 years. The Special Court's trial of Taylor is ongoing.

Ituri is one of the areas worst-affected by Congo's devastating wars. A local armed conflict between Hema and Lendu ethnic groups that began in 1999 was exacerbated by Ugandan military forces and through linkages to the broader conflict in the Great Lakes region. As the conflict spiraled and armed groups multiplied, more than 60,000 civilians were slaughtered in Ituri, according to the United Nations. Competition for the region's lucrative gold mines and trading routes was a major contributing factor to the fighting. Foreign armies and local militia groups - seeing control of the gold mines as a way to money, guns, and power - fought each other ruthlessly, often targeting civilians in the process. In their battles for gold, armed groups such as Lubanga's UPC were implicated in widespread ethnic slaughter, torture, and rape.

Human Rights Watch has been documenting human rights abuses committed in Ituri since 1999. Human Rights Watch published detailed reports in 2001, 2003, and 2005, as well as dozens of news releases and briefing papers detailing the widespread atrocities by all armed groups.