The International Criminal Court (ICC) took another major step towards prosecuting individuals committing serious war crimes on Thursday, beginning its confirmation of charges hearing in the case against Thomas Lubanga Dyilo of the Democratic Republic of Congo (DRC). UNPO attended the hearing that will last until December 28.

After the Prosecution and Defence present their evidence relating to Mr. Lubanga’s charge of war crimes for conscription, enlistment, and use of children under fifteen in hostilities, the three-judge Pre-Trial Chamber will either confirm, amend, refuse to confirm, or request further evidence regarding the charge. If the Chamber decides to confirm the charges, the ICC will create a Trial Chamber and move toward the first trial for the 4-year old Court based in The Hague, the Netherlands.

Mr. Lubanga, 45, was the President of the Union des Patriotes Congolais (UPC) and the Commander-in-Chief of the UPC’s military wing, the Forces Patriotiques pour la Libération du Congo (FPLC). Operating in the area hardest-hit during the war that started in 1999, the Ituri region of north-eastern DRC, the FPLC was known as one of the most violent of the various armed groups that led to over 66,000 deaths in Ituri alone during the 5-year war. Arrested in March 2005 by Congolese authorities, his transfer to the ICC’s prison unit in The Hague was the first in the Court’s history. Charged on August 28, 2006, the Office of the Prosecutor contended that he created and implemented a plan to enlist and conscript large numbers of children under 15 and sometimes as young as 10. Prosecutors say that, at its height, Mr. Lubanga’s militia consisted of 30,000 children of both sexes and various ages. Represented by M. Jean Flamme, Mr. Lubanga will receive the Chamber’s judgment on his status within 60 days of the final day of the hearings.

In its opening day, Presiding Judge Claude Jorda initiated the hearings and the Registry of the Court announced the charges against Mr. Lubanga. In a seminal event for international law, Legal Representatives of the Victims were allowed to make an opening statement, exhibiting the unprecedented participatory role victims are allowed under the ICC statute. Chief Prosecutor Luis Moreno Ocampo then began by presenting an overview of the evidence the Prosecution would provide to prove that there are substantial grounds to argue that Mr. Lubanga committed the alleged crimes. M. Flamme responded, and the Chambers then heard the respective sides’ comments on preliminary matters.

In its arguments in the preliminary matters phase, counsel for Mr. Lubanga requested his release and a postponement of the confirmation hearings until the Appeals Chamber of the Court heard decided on the Defence’s motion for release, based on the Court’s lack of jurisdiction over their client’s crimes. M. Flamme further outlined reasons for postponement such as lack of access to the DRC to conduct investigations and inadequate resources and personnel to properly guarantee Mr. Lubanga a fair trial. Associate Counsel at the Office of Public Counsel for Defence at the ICC, Ms. Melinda Taylor, referred to the Prosecution’s excessive use of redacted documents and the Chamber’s complicity as additionally impeding the proper defence of Mr. Lubanga. The Defence also alleged that the Office of the Prosecutor (OTP) failed to investigate exculpatory evidence equally with incriminating evidence, contravening its mandate to find the truth.

Prosecutor Ekkehard Withopf responded by denying obstructing the Defence’s case with non-cooperation, and stated that the OTP had complied with the Rome Statute and the ICC’s Rules of Procedures and Evidence by disclosing exculpatory as well as incriminating documents. Echoing Judge Jorda’s comment that the Defence was simply reiterating arguments that had already been heard, he characterized the Defence’s complaints as mere agitation. Regarding the question of the OTP’s impartiality, specifically the claim by the Defence that an alleged OTP staff member threatened Mr. Lubanga’s life, it rejected the allegations and said the man in question did not work for the OTP but another Court institution. Mr. Bruno Cathala, the ICC’s Registrar, then responded to the Defence’s charge that it was not allowed proper access to the ‘field’ in the DRC by referring to the unstable situation in the country and its attempts to be flexible and accommodate the requests of the Defence. Finally, concerning the Defence’s claim of lacking translators to communicate the Pre-Trial Chamber’s decisions to Mr. Lubanga, he said that no such request had been made.

From November 10-16, the Prosecution will address the relevant charges and examine one witness. The Defence for Mr. Lubanga will then have from November 20-21 to cross-examine the witness and subsequently present its own evidence and respond to the Prosecution’s arguments. The hearing, to be held in public session unless the Chamber orders otherwise, will conclude on November 28 with closing statements. The ICC currently has Pre-Trial Chambers also for its situations in Sudan, Uganda, and the Central African Republic. Established in 2002 out of a desire for a permanent war crimes court of last resort to succeed the two ad hoc tribunals created by the United Nations in Rwanda and the Former Yugoslavia, the ICC is an independent institution and the Rome Statute bringing it into existence is currently signed by 102 countries.

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The Fifth Session of the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC), to which UNPO will attend, takes place from 23 November to 01 December 2006 in The Hague, the Netherlands. Read more.