Lubanga Faces Trial as Congo Conflict Deemed International

In a historic decision, pre-trial judges at the International Criminal Court, ICC, in The Hague have announced that enough valid evidence has been presented by Chief Prosecutor Luis Moreno-Ocampo to proceed to the fledgling court's first trial.



The man who will emerge into the full glare of world publicity hails from one of the world's remotest and least known regions, Ituri in the Democratic Republic of the Congo, where inter-ethnic slaughter has been compared in intensity, if not in scale, with that in nearby Rwanda in 1994.



Thomas Lubanga Dyilo, a 45-year-old father of six, has been in an ICC cell in the Dutch capital since March last year after being arrested by the Congolese authorities and then charged by the ICC with having conscripted child soldiers and used them to fight in Ituri's bloody conflict.



The pre-trial judges said there is “sufficient evidence to establish substantial grounds to believe” Lubanga is criminally responsible as a co-perpetrator on three counts of enlisting and conscripting child soldiers. He is alleged to have kidnapped children as young as seven years old to become fighters.



Lubanga is the former leader of a Hema tribal militia, the Union des Patriotes Congolais (Union of Congolese Patriots), UPC. The Hema are one of more than eighteen ethnic groups in Ituri, a mineral-rich but little developed region in the far northeast corner of the Congo, itself the size of Western Europe.



The Ituri has been the arena of a bewilderingly complex web of conflict that developed from 1988 onwards, mainly in fighting between two of the biggest tribal groups - Lubanga's cattle-herding Hema, who tend to regard themselves as kin to Rwanda's Tutsis, and Lendu agriculturalists who identify with Rwanda's Hutus. The fighting was exacerbated by the Ugandan army, which virtually annexed Ituri in 1999 and is alleged to have plundered its gold, diamonds, timber and columbite-tantalite, known as coltan, a rare ore that is an essential component in cell phones, laptop computers and other hi-tech devices. Oil has also been newly discovered in Ituri.



"It [Ituri] is incredibly complicated and dangerous," said one international aid official. "The players change all the time." The population of the densely forested province is about four million. Of those, the United Nations estimates that more than 60,000 people have died in the fighting since 1999 while more than half a million have been forced to flee their homes.



The presiding judge at the ICC pre-trial chamber, France's Claude Jorda, told his packed courtroom on January 29 that the Ituri conflict was more international than Chief Prosecutor Moreno-Ocampo presented in the initial indictment. Contrary to the submission of the prosecutor, the presence of Uganda “internationalised the conflict” from July 2002 until June 2003, said Judge Jorda. Although from June 2003 until the end of December of that year, the conflict was local.



Legally, this is an important re-qualification consistent with a ruling by the separate Hague-based International Court of Justice, ICJ - the 61-year-old principal judicial institution of the UN that rules in disputes between states but does not try individuals - which said in 2005 that Uganda had occupied territory in Ituri.



The ICJ said Uganda provided military, financial, and logistical support to rebels within the country between 1998 and 2003 while looting gold and other minerals. It also held that Ugandan armed forces were responsible for human rights abuses and that Uganda should pay reparations to Congo.



Judge Jorda also talked of the role of Rwanda in Ituri, alleging that it had supported Lubanga's UPC and supplied it with munitions. Under the 1998 Statute of Rome, which established the ICC and governs its working, some war crimes are categorised as applying to civil armed conflict and others to international armed conflict.



Justice Richard Goldstone, former chief prosecutor of the UN tribunals covering Yugoslavia and Rwanda that preceded the ICC, told IWPR that “grave breaches” of the Geneva Convention of 1949 do not apply to crimes committed in civil conflict, but only in international armed conflict. They are the most serious war crimes defined in the convention and are reflected also in the definition of war crimes in the Rome Statute. The legal significance is that Judge Jorda’s reference to Rwanda means that Chief Prosecutor Moreno-Ocampo could now investigate a raft of other crimes with an international dimension relating to Ituri.



Indeed, Judge Goldstone sees Judge Jorda’s statement as an “invitation to the prosecutor to consider charges that would arise in an international armed conflict”. At a press conference, the ICC's deputy prosecutor, Gambia's Fatou Bensouda, declined to say how Judge Jorda's reference to Rwanda's role in the Ituri conflict might affect the case against Lubanga until she had read his 100-page findings.



But Lubanga’s Belgian defence lawyer Jean Flamme said Jorda's Rwanda reference was important because it contradicted the chief prosecutor, “who always said it was a national conflict". Flamme said that Ituri now qualifies as an international conflict for part of the period of time for which Lubanga has been incriminated, "and that could change things very seriously”.



Human Rights Watch, the New York-based international human rights organisation, has been pushing ICC prosecutors to investigate the involvement of Uganda and Rwanda for several years, arguing that the various Ituri militias have been armed and financed by outside groups with an interest in Congo’s wealth.



Human Rights Watch estimates that the Ugandan army stole more then nine million US dollars worth of Ituri gold between 1999 and 2003 for sale on international markets. "Uganda is the number one gold-exporting country in this area without having a single gold mine. Tell me how that happens?" said one military intelligence official working with the UN.



Géraldine Mattioli of Human Rights Watch told IWPR, “It is our belief that Rwanda and Uganda started wars in Congo because they were interested in chaos in the country in order to exploit the wealth.”



Lubanga’s defence is keen to exploit this new legal view of the Ituri conflict to shift responsibility away from his client.



Several new crime categories were incorporated into the ICC's founding Rome Statute - for example, the conscription of child soldiers, which fell outside all previous legal concepts. As Ituri was occupied by Uganda during a portion of the time for which Lubanga allegedly conscripted child soldiers, Flamme is asking whether the Ugandans brought these new crimes under the Rome Statute to the attention of Congo government in Kinshasa, which pressed for and obtained Lubanga's indictment by the ICC. He argues that if Lubanga, and other Ituri residents, were unaware of these new crimes they could not have known they were breaking international law.



Anneke Van Woudenberg from Human Rights Watch’s Africa division told IWPR that the international conflict in Ituri started locally but “spiralled out of control” as militiamen received munitions, training and support from neighbouring Uganda and Rwanda. Although Uganda was clearly an occupying force in Ituri and other parts of the Congo from 1998 to 2003, Van Woudenberg said the wider Congo conflict involved seven other states. So, she argued, the international community, and by implication the ICC, “needs to look at the other Africa actors which played a part in this conflict" [and which in the Congo as a whole took an estimated four million lives].



Alpha Fall, of the International Centre for Transitional Justice in Kinshasa, said, “It is an illusion to try to solve the problem in the Congo alone, when [its] root is linked to Burundi, Sudan, Rwanda and Uganda.” Zambia, Zimbabwe and Angola were also all alleged to be involved in the Congo-wide war in the late 1990s and the early years of this century.



It is clear that the whole vast eastern Congo region, of which Ituri is only a small part, is a safe haven for rebel groups and that control from Kinshasa, the capital, 3,200 kilometres away to the west, hardly exists. Fall said the UN needs to establish some kind of framework for Great Lakes countries to discuss the whole security situation in Eastern Congo, which spills across international borders. [The Great Lakes countries are Congo, Rwanda, Burundi, Uganda and Tanzania bordering on a string of huge inland water bodies, including Lakes Albert, Edward, Kivu and Tanganyika].



Fall said that peacekeeping forces of the United Mission in the Congo, MONUC, needed to establish a stronger and more prominent presence in the eastern Congo to help bring the numerous anarchic militias under control. He said the Congolese army was incapable of fighting them by itself.



MONUC spokesman Kemal Saiki told IWPR that Ituri's different militias had ethnic and political origins, but that as time went on they had become little more than criminal enterprises that plundered the population. “There has undeniably been outside influences, support, supplies and training to the Ituri militias,” he said.



Among the militias were foreign armed groups such as the Forces Democratiques de Liberation du Rwanda, FDLR, and the Allied Defence Force, ADF, a Ugandan rebel force. The FDLR is Hutu-dominated and counts among its number the original members of the Interahamwe militias that carried out the 1994 Rwanda genocide. The FDLR has been present since 1994 in the Congo, from where it has conducted occasional cross-border raids into Rwanda.



The ADF rebels comprise Ugandan Islamists, including Ugandan army commanders from the era of the late former president Idi Amin, who began a rebellion in the mountains of western Uganda, abutting Ituri, with Sudanese support. The ADF came under heavy Ugandan army attack and crossed the border to set up its bases in Ituri.



Although the vast majority of FDLR soldiers are young and could not have been involved in the Rwandan genocide of 1994, their leadership includes “genocidaires” who will, in all likelihood, have to answer for the role they played in 1994 if ever they are caught and returned to Rwanda.



The presence of foreign militias as well as myriad domestic militias renders the situation in Ituri and the rest of the eastern Congo implacably difficult to resolve. "Ituri, for example, is a national conflict with foreign influences from foreign armed groups and cross-border assistance,” said MONUC's Kemal Saiki.



While many of these matters do not fall at the moment under the jurisdiction of the ICC, the problems for its high-powered staff is that there is a perception in Ituri and other parts of the eastern Congo that the court was created purely to fight the Hema, the people of Lubanga, who is perceived as a martyr by many.



Critics say that the only way for the ICC to be seen to achieve fairness and balance would involve indicting all the other armed militias while asking serious questions about the Congolese armed forces, widely accused of atrocities matching those of the militias. MONUC’s association with the Congolese state forces is a major headache: the Congolese are largely unpaid, ill equipped, ill trained and lacking battle leadership, and therefore prone to indiscipline. "They often end up being some of the worst perpetrators of human rights violations, a situation which has repeatedly been denounced by MONUC and brought to the attention of the Congolese political and military leadership,” said Saiki.



ICC prosecutors need to adopt a judicial strategy that addresses the perceptions in the eastern Congo of unfairness and bias that that only one ethnic group, Lubanga's Hema, is being singled out for international justice when it is known that human rights have been abused by every group in the eastern Congo.



But under the ICC's tight and restrictive rules of engagement, the court's officials would need further cooperation from neighbouring states, as well as the Congo administration, to launch new investigations and bring further indictments. Two of the immediate neighbours, Rwanda and Sudan, have not ratified the Rome Statute and are not bound by ICC rules.



However, ICC’s Bensouda has been at pains to stress that the court’s prosecutors do plan to pursue a series of cases in the Congo itself. She said there is already a second investigation team looking into another armed group in Ituri. Another case elsewhere in the Congo will be investigated this year, she added.



Flamme said that in Ituri there have been “thousands of deaths with people dying in a horrific ways, sometimes worse than in Rwanda” for which his client has not been charged. In that case, he asked, “Where are the killers?”



Meanwhile, the ICC presidency must now configure a trial chamber for the Lubanga case. Flamme has warned that he will need at least a year to prepare Lubanga’s defence.



Katy Glassborow is an IWPR reporter in The Hague.