The Hague, August 25 2011 (FH) - All parties are slated to present their closing arguments on Thursday and Friday in Thomas Lubanga's  case before the International Criminal Court (ICC).

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The former Congolese rebel, President of the Union des patriotes congolais (UPC), is charged with crimes against humanity for enlisting children under 15 in his troops during the conflict in Ituri, eastern Democratic Republic of Congo, in 2002-2003.

Lubanga's trial opened on January 26, 2009. The accused had been incarcerated in Kinshasa since March 2005 before being transferred to The Hague in March 2006.

He was the first accused to go on trial before the ICC.

According to the Registrar, a verdict should be handed down before December 2011. However, if the defendant is found guilty, the sentence will be rendered in a separate decision in 2012.

Twists and turns of a case

In June 2008, the court ordered Lubanga's release because the United Nations Peacekeeping force in Congo (Monuc) was refusing to lift confidentiality on some 150 documents given to the prosecutor, meaning that they could not be disclosed to the defence and so the accused could not be guaranteed a fair trial. However, the documents were finally given to the defence, thanks to the intervention of the UN Head of Peace Keeping Operations in New York.

Six months later came more drama. The first prosecution witness brought by the prosecutor refused to testify out of fear for his own security. After this, the majority of testimonies from 36 prosecution witnesses and 24 defence witnesses were heard behind closed doors.

Two key issues

The battle between Thomas Lubanga and the prosecutor rests on two key points: what was the nature of the conflict in Ituri, and the credibility of the prosecution witnesses.

Was the Ituri conflict national or international? The judges' decision on this point could have a big impact on the case. In the case of an international conflict, only national armies are specifically forbidden to enlist children under 15, whereas Lubanga headed an "armed group". In internal conflicts, however,  international law does specifically make it a crime for "armed groups" to recruit children under 15.

On the second point, the defence case has rested mainly on trying to prove that prosecution witnesses are not credible and that there was a "vast operation to lie and hoodwink the court".

False testimony

In July 2010 the judges again ordered Lubanga's release after the prosecution refused to comply with court orders and disclose to the defence certain evidence concerning prosecution intermediaries on the ground in Ituri. The Appeals Chamber found, however, that the sanction was too harsh.

The hearings continued with testimonies from 19 witnesses, of whom some described how they had been pressed to give false testimony. "A considerable proportion of prosecution witnesses have given false testimony at the instigation of agents of the prosecutor's office," say defence lawyers Catherine Mabille and Jean-Marie Biju-Duval. They conclude that all the prosecution evidence is therefore in question, making it impossible for the judges to convict "beyond a reasonable doubt".   

Defence claims Lubanga's power was limited

During the trial, the prosecutor has tried to demonstrate  that Lubanga was co-author of a plan whose aim was to "take over the governance of Ituri through the recruitment of young persons". According to the prosecution, this plan was carried out by the FPLC, the armed witn of the UPC, "by conducting targeted recruitment drives in schools, in the streets and through coercive village campaigns".  The defence, however, claims that Lubanga had only limited power over the FPLC.

123 victims have also been represented at the trial so far. If Lubanga is found guilty, they could launch proceedings to obtain reparations.


© Hirondelle News Agency