MyMemory, la Memoria de Traducción más grande del mundo
Click to expand

Par de idiomas: Click to swap content  Tema   
Buscar en Google

Usted ha buscado: hando    [ Apagar colores ]

Contribuciones humanas

De traductores profesionales, empresas, páginas web y bases de traducciones de libre acceso.

Añadir una traducción

Español

Inglés

Información

Hand off

Stiff-arm fend

Última actualización: 2014-09-01
Frecuencia: 1
Calidad:
Referencia: Wikipedia

hand soup

intrudsive adware

Última actualización: 2014-03-21
Tema: Genérico
Frecuencia: 1
Calidad:
Referencia: Anónimo

Eiserne Hand

Eiserne Hand

Última actualización: 2014-09-23
Tema: Desconocido
Frecuencia: 1
Calidad:
Referencia: Translated.net

La histiocitosis de células de Langerhans resulta de alteraciones en la inmunorregulación, y sus diferentes formas constituyen las enfermedades que antes se conocían como enfermedad de Hand-Schüller-Christian, enfermedad de Letterer-Siwe, enfermedad de Gaucher, y granuloma eosinofílico.5,34 Las manifestaciones de la enfermedad aparecen como una o varias áreas radiolúcidas, que pueden no estar relacionadas con los dientes o pueden implicar destrucción del hueso de soporte del diente (Figura 31-24).

Langerhans cell histiocytosis results from disturbances in immunoregulation, and its different forms comprise the diseases formerly called Hand-Schüller-Christian disease, Letterer-Siwe disease, Gaucher's disease, and eosinophilic granuloma.5,34 The disease manifestations appear as single or multiple radiolucent areas, which may be unrelated to the teeth or may entail destruction of the tooth-supporting bone (Figure 31-24).

Última actualización: 2014-04-05
Tema: Medicina
Frecuencia: 1
Calidad:
Referencia: Andrm
Advertencia: Contiene formato HTML no visible
Advertencia: Esta alineación puede ser errónea
Le rogamos que la borre si se lo parece.

Seit über einem halben Jahr gehe ich jetzt schon auf die neue Schule. Seit über einem halben Jahr stehe ich morgens eine halbe Stunde früher auf, fahre mit dem Bus zum Stefanplatz und steige dann in die Siebzehn um. Dort treffe ich immer welche aus meiner Klasse. Aber die beachten mich nicht. Sie schauen an mir vorbei, über mich hinweg, als wäre ich ihnen ganz fremd. Manchmal, aber nur ganz selten, winkt Conny mir zu, sagt: "Hallo, Ursula." Meine Mutter sagt Ulla zu mir. In der Schule heiße ich Ursula. Die anderen heißen Conny, Rike, Axi, Gigi, Kathi, Chrissie. Nur ich heiße Ursula. Wenn ich überhaupt heiße. Ganz allein stehe ich da zwischen fremden Menschen in der Straßenbahn und schaue zu den anderen hinüber, die reden und lachen, und ich warte, dass Conny mir vielleicht zunickt. In den letzen drei Wochen hat sie mir dreieinhalb mal zugenickt. Bei dem halben Mal bin ich mir nicht ganz sicher, ob sie mich gemeint hat, weil neben mir die Sabine eingestiegen ist, und die Sabina hat gelacht und die Hand gehoben. Dann ist sie zu den anderen hingegangen und hat ihnen erzählt, warum sie heute schon am Stefanplatz eingestiegen ist. Was wäre, wenn ich die Hand heben würde und lachen und einfach hingehen? Die Tage, an denen Conny mir zugenickt hat, sind schön. Während des Unterrichts kann ich daran denken und wenn ich mittags heimfahre, übe ich im Bus. Ich lächle aus dem Fenster hinaus, bis mein Mund ganz steif wird, nicke, sage: Hallo, Conny. Ganz lässig. Ich hebe die Hand und winke fremden Leuten auf der Straße zu. Hallo, Conny. “Na”, fragt meine Mutter, wenn ich heimkomme. “Hast du alles gekonnt? Warst du gut? Haben dich die Lehrer gelobt?” “Ja, Mama. Natürlich, Mama.” Das stimmt auch. Ich kann immer alles, denn ich lerne so lange, bis ich alles kann. Während ich am Schreibtisch sitze, stelle ich mir vor, dass ich es morgen tue. Morgen gehe ich in der großen Pause einfach auf sie zu und sage: Hallo, Conny, wie geht’s? Sie zuckt mit den Schultern, sagt: So halt. Aber sie schaut mich dabei an und lacht.

I don't like to go shopping with my family.

Última actualización: 2014-01-16
Tema: Genérico
Frecuencia: 1
Calidad:
Referencia: Anónimo
Advertencia: Contiene formato HTML no visible

The corresponding Elements of Crimes read as follows: The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. Such person or persons were under the age of 15 years. The perpetrator knew or should have known that such person or persons were under the age of 15 years. The conduct took place in the context of and was associated with an armed conflict not of an international character. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict. 570. The Chamber’s conclusions on Elements 3 and 5 are addressed separately in the context of Section XI(A)(5).1713 The Chamber has also discussed the definition of an “[organised] armed group” elsewhere in this judgment.1714 571. The Elements of Crimes require that the relevant “conduct took place in the context of and was associated with an armed conflict not of an international character”. 1715 Given the plain and ordinary meaning of this provision, it is unnecessary to discuss its interpretation in detail: it is sufficient to show that there was a connection between the conscription, enlistment or use of children under 15 and an armed conflict that was not international in character. The remaining Elements and the relevant applicable law are analysed below. 1. Submissions a) Prosecution submissions Enlistment and conscription 572. The prosecution adopts the approach of the Pre-Trial Chamber, in defining conscription as forcible recruitment and enlistment as voluntary recruitment.1716 It is argued that the prohibition against both forms of recruitment of children is “well established in customary international law”, and that a child’s consent does not constitute a valid defence.1717 The prosecution refers to the Pre-Trial Chamber’s conclusion that these crimes are of a continuing nature, and only end when the children leave the relevant group or reach 15 years of age.1718 573. The prosecution notes the interpretation of the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) that enlistment (meaning in this context recruitment of a voluntary or compulsory nature) “[…] include[s] any conduct accepting the child as a part of the militia. Such conduct would include making him participate in military operations”.1719 Use of children to participate actively in hostilities 574. It is submitted by the prosecution that the term “child soldiers” includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group, for instance by working as a cook, porter, messenger or when individuals are used for sexual purposes, including by way of forced marriage.1720 575. The prosecution supports the Pre-Trial Chamber’s approach that “active participation in hostilities” includes direct participation in combat, as well as combat-related activities such as scouting, spying, sabotage and the use of children at military checkpoints or as decoys and couriers. In addition, it is argued the term includes the use of children to guard military objectives or to act as the bodyguards of military commanders. 1721 The prosecution accepts the Pre-Trial Chamber’s ruling that activities that are clearly unrelated to hostilities, such as delivering food to an airbase and working as domestic staff in the officers’ quarters, are excluded.1722 576. The prosecution, as part of its submissions, focussed on the approach of the SCSL when it decided that using children as bodyguards, allowing children (armed with cutlasses, knives and guns) to be present in active combat zones, using children to monitor checkpoints and leading “Kamajors”, or dancing in front of them as they go into battle, constitute the use of children to participate actively in hostilities.1723 The prosecution notes that the SCSL has decided that the “use” of children to participate actively in hostilities occurs when their lives are put at risk in combat and if they are present when crimes are committed, irrespective of their particular duties.1724 The SCSL concluded that participation in hostilities includes any work or support that gives effect to, or helps maintain, the conflict, and the interpretation note added to the draft ICC Statute by the ICC Preparatory Commission in 2002 contributed, at least to an extent, to that interpretation.1725 577. The prosecution also rehearses the broad approach taken by the UN Special Representative of the Secretary General on Children and Armed Conflict, Ms Radhika Coomaraswamy (CHM-0003, “Ms Coomaraswamy” or “Special Representative”) on this issue, who suggested that children who were given roles as cooks, porters, nurses and translators, together with those who were sexually exploited, should be viewed as providing essential support and that the Court should ensure that girls are not excluded in this context.1726 578. In summary, the prosecution submits that the Chamber ought to adopt a broad interpretation of the expression “direct support function”, “in order to afford wider protection to child soldiers and to prevent any use of children in activities closely related to hostilities”.1727 b) Defence submissions Enlistment and conscription 579. The defence observes that the Pre-Trial Chamber and the Rome Statute framework have left the concept of enlistment undefined.1728 It is suggested that the broad approach taken in various international instruments, which were designed to afford children the widest possible protection, should not be imported into criminal proceedings before the ICC because tightly-defined criteria are to be applied.1729 In this regard, the defence relies on Articles 22(1) and (2) of the Statute.1730 580. It is, therefore, argued that the various international instruments governing the protection of children in this area, particularly when terms such as “children associated with armed forces and groups” are used, include children who, on account of their role, should not be treated as soldiers for the purposes of the criminal law.1731 The defence refers in this context to the Paris Principles.1732 581. Additionally, the defence relies on jurisprudence from the European Court of Human Rights to the effect that a criminal offence must be clearly defined in the relevant laws, and the criminal law should not be broadly interpreted to an accused’s detriment. 1733 Against this background and in light of a possible lengthy sentence under Article 77 of the Statute, it is suggested that a stricter definition of the concept of military enlistment is necessary. The defence supports the following approach, namely the “[…] integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in the hostilities on behalf of the group”,1734 and it relies on commentary from the ICRC for this suggested approach.1735 582. The critical distinction suggested by the defence is between those children who are integrated into an armed group as soldiers and who undertake military functions, and those who do not perform a military role and are not assigned any functions connected with the hostilities (although they are within the armed group). 1736 The latter, it is submitted, should not be treated as having been enlisted. The defence relies on the Dissenting Opinion of Justice Robertson at the SCSL: […] forcible recruitment is always wrong, but enlistment of child volunteers might be excused if they are accepted into the force only for non-combatant tasks, behind the front lines.1737 Use of children to participate actively in hostilities 583. The defence criticises the Pre-Trial Chamber’s interpretation of the concept of “actively participating in hostilities” because it only excludes those activities that are “clearly unrelated to hostilities”, whilst including couriers, guards at military sites and the bodyguards of military commanders. 1738 It is argued that this interpretation is excessively broad and violates Article 22(2) of the Statute.1739 584. The defence suggests, particularly by reference to the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (“ICTR”), that the concept of “actively participating in hostilities” should be interpreted as being synonymous with “direct participation” which, it is argued, equates to “acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces.”1740 585. The defence relies on the three cumulative criteria1741 for defining direct participation in hostilities as identified by the ICRC, and it argues that those who act as bodyguards or guard military installations (or similar), do not fulfil these criteria and should not be treated as having participated actively in the hostilities.1742 586. The defence submits that the broad interpretation applied by the Pre-Trial Chamber diminishes the meaning of the adjective “active” and its utility for distinguishing between direct and indirect forms of participation in hostilities (the latter, it is suggested, is not proscribed by the Statute).1743 In addition, it is argued that the Pre-Trial Chamber’s interpretation does not allow for a distinction between child soldiers based on whether they participated in the hostilities. 1744 It is contended this is objectionable because the intention was to focus on children below the age of 15 who “actively participate in hostilities”, so as to punish those who endanger them.1745 587. The defence suggests that a footnote to the draft Statute of the Court provides a wholly insufficient basis for extending the concept of “actively participating” to cover all activities other than fighting with an indirect link to the hostilities.1746 By reference to the principle of legality, the defence argues that the decisions of the SCSL, delivered after the relevant events, should not be used in support of a broad interpretation and it suggests that at the time of the events which are the subject of the present charges, international criminal law only addressed the use of children to participate in military operations within fighting units.1747 c) Victims Submissions 588. The legal representatives of the V01 group of victims support the approach of Pre-Trial Chamber I in the Confirmation Decision, namely that enlistment refers to voluntary recruitment and conscription relates to forcible recruitment. However, it is argued this distinction has no bearing as regards “minors”, although it may be a factor in sentencing.1748 589. It is submitted the term “child soldiers” is increasingly being replaced by the expression “children associated with armed forces or groups”1749 and the prohibition against the recruitment of children under the age of fifteen years includes any participation by a child in a military organisation. Accordingly, the argument is advanced that the protection afforded by the Statute extends to young girls who are recruited by armed forces and are then used primarily as servants or sexual slaves. The legal representatives note, however, that these girls also often participate directly in military activities.1750 590. The V01 group highlights the difference between the concepts of “taking a direct part,” as used in Additional Protocol I to the Geneva Conventions, and “participating actively in hostilities”. The legal representatives argue that those who drafted the Statute deliberately chose the latter formulation so as to encompass a wider range of activities.1751 591. The legal representatives refer to the approach adopted by Pre-Trial Chamber I in the Decision on the confirmation of charges on the definition of “active participation”.1752 592. The victim group V02 endorses the approach of Pre-Trial Chamber I and the expert witness Ms Coomaraswamy (CHM-0003), to the effect that conscription is to be defined as forcible recruitment, whereas enlistment covers voluntary recruitment (although the child’s consent is not a valid defence). 1753 Furthermore, the legal representatives support the approach of the expert witness that the Court must approach this distinction on a case-by-case basis, focussing on what was required of the children, together with the circumstances of their enrolment and the manner in which they were separated from their families and communities.1754 593. The legal representatives of the V02 group of victims submit that in order to establish active participation in hostilities, it is unnecessary to prove that the children were directly involved in combat, and that active participation in related activities (such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints, or to transport ammunition) is included.1755 594. The legal representatives rely on the SCSL’s judgment in the case of the case of The Prosecutor v. Brima, Kamara and Kanu (“AFRC” case), in which the Court highlighted: Using children to ‘participate actively in the hostilities’ encompasses putting their lives directly at risk in combat […] [A]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.1756 595. The legal representatives note the approach of Pre-Trial Chamber I that using children to guard military sites, such as the quarters of the commanders, comes within these offences. 1757 However, it is also observed that Pre-Trial Chamber I excluded activities which are “manifestly without connection to the hostilities”, for instance by making deliveries or providing domestic help at the married officers’ quarters.1758 596. The OPCV adopts the position of Pre-Trial Chamber I that “conscripting” and “enlisting” are both forms of “recruitment”, and that the former is forcible whilst the latter is voluntary (albeit the child’s consent is not a valid defence). The legal representative suggests that the principle that children should not be recruited into the armed forces includes an absolute prohibition against the voluntary enlistment of minors.1759 597. It is contended by the OPCV that the offences of conscripting and enlisting are of a continuing nature, in that they are committed for as long as the children are under fifteen years of age and remain in the armed force or group.1760 598. It is submitted that active participation in hostilities covers both direct and indirect participation and there should be no distinction “between the participation of child combatants and that of child non combatants in hostilities.”1761 The OPCV relies on the submissions of Ms Coomaraswamy (CHM-0003), the Cape Town Principles, the Paris Principles and the African Union’s Solemn Declaration on Gender Equality in Africa as support for the proposition that the expression to “participate actively” should be interpreted so as to protect girls recruited into the armed forces for sexual purposes. It is submitted this is usually the primary reason for their recruitment.1762 Moreover, the legal representative suggests this interpretation is fully supported by Ms Coomaraswamy (CHM-0003) in her criticism of Pre-Trial Chamber I’s ruling excluding activities that were manifestly unrelated to hostilities: [t]he Court should deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” [children in hostilities] crime [and] that during war, the use of girl children in particular includes sexual violence. 1763 599. It is said to be unnecessary for the Court to determine whether girls subjected to sexual abuse within the armed forces were used to participate actively in hostilities. The fact they were recruited when under the age of fifteen years is sufficient proof of enlistment, conscription or use under the Statute. The legal representative cites with approval a Decision of the Trial Chamber: [i]t is not necessary […] for the Chamber to engage in the critical question that otherwise arises in this application as to whether the ‘use’ of children for sexual purposes alone, and including forced marriage, can be regarded as conscription or enlistment into an armed force, or the use of that person to participate actively in the hostilities, in accordance with Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute. As just set out, the applicant has presented enough evidence to conclude, prima facie, that she was abducted in the broad context of the systematic conscription of children under the age of 15 into the military forces of the UPC.1764 2. The Chamber’s Analysis and Conclusions 600. Addressing the three relevant acts, namely conscripting, enlisting children under the age of 15 or using them to participate actively in hostilities, in each instance the conduct is not defined in the Statute, the Rules or the Elements of Crimes. Accordingly, the scope of the activities covered by Article 8(2)(e)(vii) of the Statute must be determined in accordance with Articles 21 and 22(2) of the Statute, which provide (as relevant): Article 21 Applicable law 1. The Court shall apply: a. In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; b. In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; c. Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognised norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Article 22 Nullum crimen sine lege […] 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 601. The Appeals Chamber has established that the interpretation of the Statute is governed by the Vienna Convention on the Law of Treaties,1765 as follows: The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.1766 602. The Appeals Chamber has also decided that Article 21(3) of the Statute “makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms”.1767 603. The jurisprudence of the SCSL has been considered by the Trial Chamber. Although the decisions of other international courts and tribunals are not part of the directly applicable law under Article 21 of the Statute, the wording of the provision criminalising the conscription, enlistment and use of children under the age of 15 within the Statute of the SCSL1768 is identical to Article 8(e)(vii) of the Rome Statute, and they were self-evidently directed at the same objective. The SCSL’s case law therefore potentially assists in the interpretation of the relevant provisions of the Rome Statute. 604. Article 4(3)(c) of Additional Protocol II to the 1949 Geneva Conventions includes an absolute prohibition against the recruitment and use of children under the age of 15 in hostilities (in the context of an armed conflict not of an international character):1769 children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; In addition, the Convention on the Rights of the Child, a widely ratified human rights treaty, requires the State Parties to “take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities”, and to “refrain from recruiting any person who has not attained the age of fifteen years into their armed forces” in all types of armed conflicts (“armed conflicts which are relevant to the child”).1770 605. These provisions recognise the fact that “children are particularly vulnerable [and] require privileged treatment in comparison with the rest of the civilian population”.1771 The principal objective underlying these prohibitions historically is to protect children under the age of 15 from the risks that are associated with armed conflict, and first and foremost they are directed at securing their physical and psychological well-being. This includes not only protection from violence and fatal or non-fatal injuries during fighting, but also the potentially serious trauma that can accompany recruitment (including separating children from their families, interrupting or disrupting their schooling and exposing them to an environment of violence and fear).1772 606. It is to be noted that the potentially broad concept of “children associated with armed conflict” was referred to throughout the trial.1773 This expression does not form part of the wording of any of the charges the accused faces, but instead – as submitted by the defence – it is clearly designed to afford children with the greatest possible protection. Although it is to be stressed that the Chamber has applied the provisions of the Statute as opposed to this more general concept, Ms Coomaraswamy gave relevant background evidence that children in this context frequently undertake a wide range of tasks that do not necessarily come within the traditional definition of warfare.1774 As a result, they are exposed to various risks that include rape, sexual enslavement and other forms of sexual violence, cruel and inhumane treatment, as well as further kinds of hardship that are incompatible with their fundamental rights. a) Enlistment and conscription 607. The Chamber accepts the approach adopted by the Pre-Trial Chamber that “conscription” and “enlistment” are both forms of recruitment,1775 in that they refer to the incorporation of a boy or a girl under the age of 15 into an armed group, whether coercively (conscription) or voluntarily (enlistment).1776 The word “recruiting”, which is used in the Additional Protocols and in the Convention on the Rights of the Child, was replaced by “conscripting” and “enlisting” in the Statute. Whether a prohibition against voluntary enrolment is included in the concept of “recruitment” is irrelevant to this case,1777 because it is proscribed by Article 8. 608. This interpretation gives the relevant provisions of the Statute their plain and ordinary meaning. It is to be noted that “enlisting” is defined as “to enrol on the list of a military body” 1778 and “conscripting” is defined as “to enlist compulsorily”.1779 Therefore, the distinguishing element is that for conscription there is the added element of compulsion.1780 Whether this distinction is of relevance in this case is considered below. 609. Bearing in mind the use of the word “or” in Article 8(2)(e)(vii), in the Chamber’s view the three alternatives (viz. conscription, enlistment and use) are separate offences.1781 It follows that the status of a child under 15 who has been enlisted or conscripted is independent of any later period when he or she may have been “used” to participate actively in hostilities, particularly given the variety of tasks that he or she may subsequently be required to undertake. Although it may often be the case that the purpose behind conscription and enlistment is to use children in hostilities, this is not a requirement of the Rome Statute. If Article 8(2)(e)(vii) is taken on its own, the position is potentially ambiguous, given it reads “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” (emphasis added). However, the Elements of Crimes clarify the issue by requiring “1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities” (emphasis added). The Chamber therefore rejects the defence contention that “the act of enlistment consists in the integration of a person as a soldier, within the context of an armed conflict, for the purposes of participating actively in hostilities on behalf of the group.”1782 610. The expert witness, Elisabeth Schauer (CHM-0001), suggested in her report and during her evidence before the Chamber that from a psychological point of view children cannot give “informed” consent when joining an armed group, because they have limited understanding of the consequences of their choices; they do not control or fully comprehend the structures and forces they are dealing with; and they have inadequate knowledge and understanding of the short- and long-term consequences of their actions. Ms Schauer (CHM- 0001) concluded that children lack the capacity to determine their best interests in this particular context.1783 611. In her written submissions, Ms Coomaraswamy (CHM-0003) notes that it can be difficult to differentiate between a conscripted and an enlisted child: The recruitment and enlisting of children in [the] DRC is not always based on abduction and the brute use of force. It also takes place in the context of poverty, ethnic rivalry and ideological motivation. Many children, especially orphans, join armed groups for survival to put food in their stomachs. Others do so to defend their ethnic group or tribe and still others because armed militia leaders are the only seemingly glamorous role models they know. They are sometimes encouraged by parents and elders and are seen as defenders of their family and community. […] Children who “voluntarily” join armed groups mostly come from families who were victims of killing and have lost some or all of their family or community protection during the armed conflict.1784 612. The Special Representative (CHM-0003) further suggests that “the line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict”.1785 613. The Chamber endorses the conclusions of the expert witnesses, in the sense that it will frequently be the case that girls and boys under the age of 15 will be unable to give genuine and informed consent when enlisting in an armed group or force. 614. Against that background, the Chamber addresses the issue of whether the valid and informed consent of a child under 15 years of age provides the accused with a defence in these circumstances. 615. In Ms Coomaraswamy’s expert testimony before the Chamber she suggested that since children under the age of 15 cannot reasonably give consent, the accused should not be able to rely on the voluntary nature of their enlistment into an armed force or group as a defence.1786 616. The Pre-Trial Chamber in the present case adopted this approach, when it determined that a child’s consent does not provide a valid defence to enlistment.1787 It is of note that the Appeals Chamber of the SCSL opined that “where a child under the age of 15 years is allowed to voluntarily join an armed force or group, his or her consent is not a valid defence.”1788 In addition, the SCSL’s Trial Chamber in the case of the Prosecutor v. Fofana and Kondewa (“CDF” case) concluded: [T]he distinction between [voluntary enlistment and forced enlistment] is somewhat contrived. Attributing voluntary enlistment in the armed forces to a child under the age of 15 years, particularly in a conflict setting where human rights abuses are rife, is [...] of questionable merit.1789 617. In all the circumstances, the Chamber is persuaded that the Statute in this regard is aimed at protecting vulnerable children, including when they lack information or alternatives. The manner in which a child was recruited, and whether it involved compulsion or was “voluntary”, are circumstances which may be taken into consideration by the Chamber at the sentencing or reparations phase, as appropriate. However, the consent of a child to his or her recruitment does not provide an accused with a valid defence. 618. Therefore, the Chamber agrees with the Pre-Trial Chamber that under the provisions set out above, the offences of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. In the circumstances of this case, conscription and enlistment are dealt with together, notwithstanding the Chamber’s earlier conclusion that they constitute separate offences. These offences are continuous in nature. They end only when the child reaches 15 years of age or leaves the force or group.1790 b) Using children under the age of 15 to participate actively in hostilities 619. As with “conscripting” and “enlisting“ children under the age of 15 into armed forces or groups, the prohibition against “using them to participate actively in hostilities” is generally intended to protect children from the risks that are associated with armed conflict, for the reasons described above. 620. The prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group. As set out in paragraph 609 above, if Article 8(2)(e)(vii) of the Statute is taken on its own, the position is potentially ambiguous, given it reads “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” (emphasis added). However, the Elements of Crimes clarifies the issue by requiring “1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities. 2. Such person or persons were under the age of 15 years” (emphasis added). Therefore, consistently with Article 22(2) of the Statute, a child can be “used” for the purposes of the Statute without evidence being provided as regards his or her earlier “conscription” or “enlistment” into the relevant armed force or group. 621. The Elements of the Crimes require that “the conduct took place in the context of and was associated with an armed conflict”. The travaux preparatoires of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required. 1791 The Preparatory Committee’s draft Statute had postulated a broader interpretation in one of the footnotes: The words “using” and “participate” have been adopted in order to cover both direct participation in combat and also active participation in military activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It would not cover activities clearly unrelated to the hostilities such as food deliveries to an airbase or the use of domestic staff in an officer’s married accommodation. However, use of children in a direct support function such as acting as bearers to take supplies to the front line, or activities at the front line itself, would be included within the terminology. (emphasis added)1792 622. The Pre-Trial Chamber, by reference to the approach of the Preparatory Committee, decided that a child does not actively participate in hostilities if the activity in question was “clearly unrelated to hostilities.” 1793 The Pre-Trial Chamber distinguished between two categories of participation, first: “Active participation” in hostilities means not only direct participation in hostilities, combat in other words, but also covers active participation in combat-related activities such as scouting, spying, sabotage and the use of children as decoys, couriers or at military check-points. 1794 In the Pre-Trial Chamber’s formulation, guarding military objectives or acting as a bodyguard were also activities related to hostilities, inter alia, when “they have a direct impact on the level of logistic resources and on the organisation of operations required by the other party to the conflict”.1795 623. Second, the Pre-Trial Chamber considered that children who were engaged in activities “clearly unrelated to hostilities”1796 and carry out tasks such as “food deliveries to an airbase or the use of domestic staff in married officer’s quarters” do not actively participate in hostilities.1797 624. As indicated above, the SCSL has examined the scope of active participation in hostilities in a number of decisions when applying Article 4(c) of its Statute, which is identical to Article 8(e)(vii) of the Rome Statute. In the AFRC case, ostensibly relying on the approach of the Preparatory Committee, the SCSL determined that the use of children to participate actively in hostilities is not restricted to children directly involved in combat, noting: An armed force requires logistical support to maintain its operations. Any labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation. Hence carrying loads for the fighting faction, finding and/or acquiring food, ammunition or equipment, acting as decoys, carrying messages, making trails or finding routes, manning checkpoints or acting as human shields are some examples of active participation as much as actual fighting and combat .1798 625. The SCSL therefore held that the concept of “using” children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations. 626. The Special Representative (CHM-0003) suggested that the Trial Chamber should focus “in each case […] [on] whether the child’s participation served an essential support function to the armed force” and she referred to the SCSL jurisprudence in the AFRC Trial Judgment set out above.1799 The Trial Chamber in that case held that: ‘Using’ children to “participate actively in the hostilities” encompasses putting their lives directly at risk in combat.1800 627. The use of the expression “to participate actively in hostilities”, as opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to participate in hostilities. It is noted in this regard that Article 4(3)(c) of Additional Protocol II does not include the word “direct”.1801 628. The extent of the potential danger faced by a child soldier will often be unrelated to the precise nature of the role he or she is given.1802 Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. All of these activities, which cover either direct or indirect participation, have an underlying common feature: the child concerned is, at the very least, a potential target.1803 The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.1804 In the judgment of the Chamber these combined factors – the child’s support and this level of consequential risk – mean that although absent from the immediate scene of the hostilities, the individual was nonetheless actively involved in them. Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. 629. Notwithstanding the conclusions set out above, and given the submissions made at various stages of the proceedings, the Chamber needs finally to address how the issue of sexual violence is to be treated in the context of Article 8(2)(e)(vii) of the Statute. It is to be noted that although the prosecution referred to sexual violence in its opening and closing submissions,1805 it has not requested any relevant amendment to the charges. During the trial the legal representatives of victims requested the Chamber to include this conduct in its consideration of the charges, and their joint request1806 led to Decisions on the issue by the Trial Chamber and the Appeals Chamber (viz. whether it was permissible the change the legal characterisation of the facts to include crimes associated with sexual violence).1807 Not only did the prosecution fail to apply to include rape and sexual enslavement at the relevant procedural stages, in essence it opposed this step. It submitted that it would cause unfairness to the accused if he was tried and convicted on this basis.1808 630. In accordance with the jurisprudence of the Appeals Chamber, the Trial Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them.1809 The Trial Chamber has earlier pointed out that “[f]actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”.1810 Regardless of whether sexual violence may properly be included within the scope of “using [children under the age of 15] to participate actively in hostilities” as a matter of law,1811 because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74(2) on the evidence introduced during the trial that is relevant to this issue. 631. In due course, the Chamber will consider whether these matters ought to be taken into account for the purposes of sentencing and reparations. B. THE FACTS 1. Relevant Evidential Considerations 632. A number of witnesses called by the prosecution and the defence testified as to whether children were recruited and used by the UPC/FPLC, and evidence was given as to their age. The Chamber has considered the credibility and reliability of these witnesses, taking into account, inter alia, the challenges advanced during questioning and in the final briefs. It has assessed whether their individual accounts were consistent with the other relevant and reliable evidence in the case. The general approach adopted is that whenever a witness is first considered in this section, the Chamber has, at that stage, dealt with the witness’s overall credibility and reliability, against the background of the main contested aspects of their testimony. Any discrete issues relating to the witness and the evidence they provided to the Chamber are addressed within the relevant section.1812 633. In its closing brief, the prosecution rehearsed the histories of various alleged former child soldiers who gave evidence (P-0007, P-0008, P- 0010, P-0011, P-0157, P-0213, P-0294, P-0297 and P-0298). 1813 The Chamber, as analysed elsewhere, has concluded that it is unable to rely on the evidence of any of these witnesses.1814 634. Again, as discussed above, the Chamber has concluded that the three victims who were called to testify before the Court will not be relied on for the purposes of the Article 74 Decision. 635. Although the terms “child” and “children” encompass boys and girls under the age of 18 years,1815 the charges specifically relate to children under the age of 15, in accordance with Article 8(2)(e)(vii) of the Statute. 636. Some witnesses used the term “kadogo” to describe small children. For instance, P-0055 suggested that in the UPC and Ugandan armies, indeed in Africa generally, small children from about the age of 13 up to the age of 16 are called kadogos. 1816 637. P-0038 testified that the expression kadogo means a child soldier – in the UPC it was used “above all” to refer to children under the age of 15. The witness indicated that in certain armies it describes the 1812 P-0031 is discussed in Section VII(E)(4). 1813 ICC-01/04-01/06-2748-Red, paras 356 – 522. 1814 See paras 478-484. 1815 See Convention on the Rights of the Child. 1816 T-174-Red2-ENG, page 40, line 5 to page 41, line 15. ICC-01/04-01/06-2842 14-03-2012 289/624 SL T youngest individual in the group (as demonstrated when the witness went for training in Rwanda and was referred to as a kadogo even though he was 18).1817 638. For P-0024 the term kadogos generally means children below 18 years of age, “right down to the lower end of the scale.”1818 639. Various witnesses also referred to the term “PMF”. Witness P-0016 linked the term to female military staff or “personnel militaire feminin”.1819 Witnesses P-0055 and P-0089 said the term referred to a “girl soldier”1820 and P-0046 had also heard of this expression.1821 640. It follows that the term kadogo is sometimes used to refer to children over the age of 15 whilst “PMF” relates to females in the army, and it does not necessarily only relate to girls under 15. 2. Age assessments and determinations of witness credibility 641. The Chamber heard evidence from numerous non-expert witnesses as to the age of the alleged former child soldiers. For the most part, their assessments were based on the individual’s physical appearance, including by way of comparison with other children; 1822 the individual’s general physical development1823 (e.g. whether a girl had developed breasts,1824 and factors such as height and voice);1825 and his or her overall behaviour.1826 642. The defence challenges the evidence given, inter alia, by P-0012, P- 0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046, P-0055, and P-0116 on the age of children in the UPC/FPLC.1827 The defence argues that their unverified, personal assessments are unreliable and it is suggested they do not establish beyond reasonable doubt the presence of children under the age of 15 in the UPC/FPLC. In this section the Chamber has addressed the various challenges advanced by the defence; it has reviewed the age assessments that were provided by a number of witnesses; and the Chamber has set out its general conclusions as to the credibility of the relevant prosecution witnesses, along with defence witnesses D-0007, D-0011, D-0019 and D-0037 (who also gave evidence on this issue). The relevant witnesses are addressed by category: first, the witnesses linked to the work of international organisations or NGOs; second the prosecution witnesses who testified primarily about military matters; third, the prosecution witnesses who principally gave evidence about selected video footage; and finally the relevant defence witnesses, in the order in which they testified. 643. Given the undoubted differences in personal perception as regards estimates of age and, most particularly in the context of this case, the difficulties in distinguishing between young people who are relatively close to the age of 15 (whether above or below), the Chamber has exercised caution when considering this evidence. Even allowing for a wide margin of error in assessing an individual’s age, the Chamber has concluded that it is feasible for non-expert witnesses to differentiate between a child who is undoubtedly less than 15 years old and a child who is undoubtedly over 15. Furthermore, the sheer volume of credible evidence (analysed hereafter) relating to the presence of children below the age of 15 within the ranks of the UPC/FPLC has demonstrated conclusively that a significant number were part of the UPC/FPLC army. An appreciable proportion of the prosecution witnesses, as well as D-0004, testified reliably that children under 15 were within the ranks of the UPC/FPLC.1828 644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were “visibly” under the age of 15.1829 The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone.1830 The Chamber accepts that for many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15. a) P-0046 645. The testimony of P-0046 focussed on her professional knowledge of children recruited and used by the UPC/FPLC and her experience of the demobilisation process. This witness worked in MONUC’s child protection programme during the period covered by the charges, and she went on her first mission to Bunia in this role during September 2002. By the time she was officially based in Bunia in May 2003 she had undertaken a number of missions to the region. Previously, she had been involved in identifying child soldiers in Kenya and in northern Congo. 1831 P-0046 filed weekly reports addressing the security and humanitarian situation of children associated with the armed groups,1832 which were based on the interviews conducted by MONUC’s child protection section, as well as other sources.1833 The majority of the witness’s interviews with children took place between March 2003 and the end of her time in Ituri in 2004. 1834 P-0046 considered the situation of children associated with the armed conflict in Ituri, along with the work of MONUC and other NGOs who dealt with demobilised children, during the period covered by the charges. Her testimony was detailed, credible and reliable, particularly when it was based on her personal experience of working with demobilised children in the region. 646. The defence contends that P-0046 has insufficient personal knowledge of the events about which she testified, given she did not regularly visit Ituri until late May 2003.1835 Since the witness was closely monitoring the situation in the area during the relevant period and she made a series of site visits to Ituri between January 2002 and March 2003, the Chamber is satisfied that she was able to testify about events that took place in the region during the period covered by the charges. 647. The defence further submits that the information provided to P- 0046 by MONUC was unreliable given the testimony of the prosecution expert witness, Gerard Prunier (P-0360).1836 Although Mr Prunier questioned the accuracy of certain aspects of the UN reports, he also referred to the general lack of reliable sources, particularly as regards events during the relevant period in the countryside surrounding Bunia, and he emphasised that of the available material the most reliable information came from the UN.1837 648. The defence submits that during the course of her testimony, P-0046 “showed obvious bias in favour of the prosecution”.1838 By way of example, the defence cites the witness’s reference to reports of very young children who were smaller than the Kalashnikovs they were carrying,1839 along with her assertion that she was “sure [this] was an image which was exaggerated, but to reflect a reality which our informers wanted to get across, the fact that young children were associated with these groups”.1840 Having reviewed the evidence of P- 0046 (aside from this statement, which the witness in any event conceded may not have been entirely accurate) the Chamber is sure the witness has not exaggerated any material facts or otherwise provided biased or unreliable evidence. In addition, as set out below, it is of note that P-0038 testified that some children were lighter than the weapons they carried. Thus, P-0046’s evidence is entirely plausible. 649. It is suggested the account of P-0046 demonstrates that she and her colleagues at MONUC merely collected the statements of the children they interviewed and they failed to carry out further investigations.1841 The Chamber notes that P-0046 gave evidence that: [I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. In fact, I never saw a child with an identity card in Ituri, so carrying out such a verification on the basis of administrative documents was not possible. So when you say independent verification, well, other than the information that the children gave regarding their schooling, that was one way we had to have an idea and to perhaps reinforce the information stated by the children.1842 650. It is significant, however, that P-0046 also testified that she used several methods to verify the information given to her by the children in interview, including comparing the dates they provided with a chronology created by military and political observers from MONUC.1843 When there were doubts about the age or affiliation of a particular child, she sought verification from the relevant NGOs.1844 Sometimes the NGOs supplied age assessments for the children that differed from the information the latter had supplied. This particularly applied to those who said they were older than they appeared to the witness (and the Chamber notes her evidence concerning the confirmation of her doubts by the NGOs).1845 651. P-0046 did not rely solely on the various processes of external verification in order to determine the age of the children she interviewed. Although she acknowledged the lack of any scientific procedure for assessing their ages whilst she was working as a child protection officer in Bunia in 2003,1846 various different factors were taken into account, including information provided by the child (particularly given some had received an education and were able to provide their age or date of birth).1847 Trained social workers were used to conduct detailed interviews with the children, and the latter were asked questions about their families (including the order in which the children in the family had been born), and their academic records.1848 P-0046 focussed on the children’s individual stories in order to establish certain key dates, and the latter were cross-checked against the information they had provided.1849 652. P-0046 stated that physical appearance was also taken into account, but it was not used as the main criteria to determine a child’s age.1850 The age-assessment procedure for child soldiers was broadly similar to that used for unaccompanied children but it included the additional factor of their military experience.1851 The interviewers reviewed the children’s stories, their recruitment history and the battles in which they participated, in order to check their accounts.1852 653. Additionally, P-0046 testified that she evaluated children on the basis of what they said and how they acted.1853 Small children cried in her office1854 and the younger children had difficulty discussing their experiences, especially if one or both of their parents had died.1855 Generally, the witness noticed that it was harder for younger children to talk about the death of their parents as compared with older children.1856 P-0046 recalled meeting two particular little boys (she thought in the summer of 2003), who had previously been with the UPC when they were arrested.1857 They were eleven and thirteen years old respectively, and had been frightened by the military. 1858 P-0046 thought they were very afraid because they did not know where they were being taken or what was to become of them, and when she began asking them questions one of them broke down in tears.1859 P-0046 terminated the interview immediately and sent them to the CTO (a transit centre).1860 Given they were so upset, P-0046 merely took down the names of their parents and their ages before referring them.1861 P- 0046 recalled holding the hand of the younger child when crossing the street. Her evidence was that “[h]e was so small.”1862 654. P-0046 asked numerous questions in order to verify the identity of the children: for instance, whether they had a family or relatives in the area, the schools they attended and the armed groups to which they belonged.1863 She said it was important to identify the date on which the children had been conscripted or enlisted, in order to determine who was responsible for their recruitment and training; the centres they attended; the battles in which they fought; and the last commander under whom they served.1864 Thereafter, P-0046 would refer the child to one of the transit centres.1865 655. The Chamber is persuaded P-0046’s professional history and personal experience with the children she interviewed enabled her to provide realistic age estimates. Given P-0046’s experience and work methods, the Trial Chamber is satisfied that she is overall a reliable and credible witness. b) P-0024 656. P-0024 was employed from 2001 until November 20021866 as a social worker with SOS Grands Lacs, an NGO funded by the UN International Children’s Fund (“UNICEF”), and he testified about his work with the organisation during this time. 1867 The organisation’s mission in Bunia was the demobilisation and reintegration of child soldiers.1868 The witness gave evidence about what he called the sham demobilisation efforts by the UPC, and he provided information on the presence of child soldiers as well as the demobilised children he encountered during his work in Bunia, up to the end of 2002. 657. The defence challenges P-0024’s evidence on the basis that to a significant extent he dealt with events outside the period of the charges,1869 and his evidence related, on occasion, to the RCD/ML as opposed to the UPC. 1870 It is to be stressed that the Chamber has focussed only on those parts of P-0024’s testimony that are relevant to the charges brought against the accused. The witness’s evidence concerning the lack of demobilisation by the UPC is considered in Section XI(B)(3). 658. P-0024 testified that he saw children between 9 and 18 years of age wearing military clothing, and carrying Kalashnikov machine guns and other weapons in various towns and cities in 2002, after the UPC took control of Bunia and following the broadcast of the first demobilisation programmes on television and Radio Candip.1871 He also gave evidence that by November 2002 the UPC was recruiting demobilised children.1872 He estimated they were aged between 8 ½ and 18 years of age when they entered the demobilisation programme of his NGO in 2001, before they were later re-recruited.1873 659. The defence submits that P-0024 failed to provide sufficient details of the dates when, and circumstances under which, the children he worked with were allegedly re-recruited by the UPC. It is suggested his evidence was similarly lacking as regards their identities and ages (including how, apart from his personal impression, he established the latter).1874 660. The prosecution argues that the witness’s daily dealings with children enabled him to testify reliably as to their ages.1875 661. The Chamber considers that P-0024 gave honest, consistent and reliable evidence as regards his work with demobilised children. Although he did not train as a social worker, he spent over a year working with children (viz. from September 2001 until November 2002), including in Bunia until the end of October 2002. This enabled him to provide first-hand information on how children were rerecruited. 662. The witness gave credible testimony about the children he closely worked with for a period of several months, and he was able to explain the basis of his suggestion that they were later re-recruited by the UPC. Although he did not give evidence as to how he assessed the children’s ages, his interaction with them during those months provides a solid and credible basis for his assessments. 663. Notwithstanding his lack of regular contact with the other children he saw on the streets, the Chamber accepts that on the basis of his professional background and experience, he was able to reach reliable assessments. Given the difference in appearance between, for instance, a 9-year-old child and a 15-year-old, the Chamber is persuaded that P- 0024 gave credible and reliable evidence that he saw children well below the age of 15, even if the ages of others may have been more difficult to assess. c) P-0012 664. P-0012 did not join the UPC/FPLC, 1877 but given his role as a highranking official within PUSIC at the relevant time, 1878 he had extensive contacts with armed groups in Ituri, including the UPC/FPLC, and he participated in monthly meetings to discuss problems relating to peace in Ituri. 1879 This witness gave evidence about the presence of child soldiers within the UPC/FPLC and other groups during the period of the charges. 665. The defence challenges this witness’s evidence in several respects.1880 It is submitted that his former role in PUSIC should lead to a cautious approach, because this group includes dissidents hostile to Thomas Lubanga.1881 In addition, the defence contends that P-0012 did not personally witness a large part of the events he addressed in his testimony, as he was absent from Bunia between April 2002 and the end of July 2002, and again between mid-August 2002 and 17 March 2003. 1882 It is said that in the course of his evidence the witness repeatedly acknowledged that he had not personally witnessed all of the events he dealt with, but instead he rehearsed what others had told him. Indeed, it is contended that he failed to reveal the dates when these conversations occurred or their circumstances.1883 666. The defence argues that although P-0012 testified about having seen children under the age of 15 in Ituri, he did not name the armed group or groups to which they belonged. 1884 When he did identify child soldiers as members of the UPC, it is argued there was no basis for his conclusion.1885 The defence also criticises what is said to be his failure to explain the factors that enabled him to estimate the ages of these children.1886 667. The Chamber finds that P-0012’s evidence was, in the main, internally consistent and it is of note that the defence has not provided evidence to substantiate its claim that the witness’s testimony is compromised by virtue of his previous position in PUSIC. The witness gave evidence concerning child soldiers within the UPC/FPLC, and he emphasised that during this period virtually every armed group in the region used children.1887 Although the witness was not continuously present in Ituri throughout the timeframe of the charges, he was there between March and August 2003. 668. Turning to the defence criticisms of the witness’s personal assessments of age, the Chamber finds that, wherever possible, P-0012 gave details as to how he reached a conclusion. For example, when describing seeing a “tiny child” with a weapon in Bunia in May 2003 (an event that is discussed in greater detail below),1888 P-0012 indicated that the child did not come up to his shoulder1889 or to the top of the computer screen in front of where he was sitting in court.1890 Although P-0012 was clearly only providing an estimate when he gave evidence that he was unable to say whether the child was even 12 years old,1891 the detail of his account demonstrates he had a clear basis for concluding that he was below 15. Nonetheless, the Chamber has adopted a cautious approach towards P-0012’s other more general remarks about the age or size of children. 669. The Chamber is satisfied that P-0012 was overall a credible and reliable witness. d) P-0055 670. P-0055 was appointed a high-ranking official within the FPLC in 2002.1892 He gave evidence about the structure of the UPC/FPLC, which included children under the age of 15. 671. The defence submits that after having served in the army of the UPC/FPLC, until 2004 P-0055 was a member of the FAPC (an armed movement that was hostile to the UPC). 1893 It is suggested his testimony is unreliable on account of his close ties to the Ugandan government.1894 672. The defence also maintains that P-0055 acknowledged on several occasions that he was unable to assess the ages of young recruits, and he did not suggest that any of the kadogos who were recruits at the Rwampara training camp, or who worked as guards at Bosco Ntaganda’s residence or as bodyguards for Thomas Lubanga (or other UPC commanders), were under the age of 15.1895 673. The defence argues that notwithstanding P-0055’s evidence that he did not know whether the enlistment register at the Rwampara camp included the children’s ages, he also testified that the ages of the recruits usually had to be given, thereby indicating there was a requirement to make this check:1896 […] I don’t know whether the age was mentioned in that register. Actually I wasn’t really interested in verifying their ages, but generally when somebody comes to enlist for training, they’re asked where they were born, when they were born, their age is mentioned, because this is an identifying element for the person, if the person has a problem, it is made easier for the parents to recognise the person.1897 In all the circumstances this somewhat contradictory evidence provides an insufficient basis for the contention that there was a rule that the ages of the recruits were to be checked. 674. P-0055 indicated that although it was difficult to assess the agerange of those in the army, his conclusions in this regard were based on physical appearance.1898 675. The Chamber has relied on the details provided by this witness as to the ages of child soldiers he saw within the ranks of the UPC/FPLC, bearing in mind that he defined the age-range of kadogos as between 13 and 16 years of age.1899 676. P-0055’s evidence was internally consistent, and although his testimony in court differed to an extent from his statements to the prosecution, these relatively minor discrepancies did not undermine the reliability of his evidence as a whole. Furthermore, the Chamber is unpersuaded that P-0055’s connections with Uganda influenced his evidence (particularly to the detriment of the accused). P-0055 was a generally credible witness and the Chamber has relied on his evidence, save in relation to a discrete area identified below. e) P-0017 677. P-0017 joined the UPC the same week the latter took control of Bunia in 2002,1900 and he remained with the group until he left the city in August 2003. 1901 Previously, the witness had spent about four months wit

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 1
Calidad:

was confirmed by his father (P-0299), and other witnesses.1330 434. The evidence on P-0298’s enlistment raises various difficult questions. P-0298 said he spent about four months at the camp1331 while P-0299, his father, gave evidence that he left school and went to a training camp for two months.1332 Although this is only a two-month discrepancy, the evidence of D-0015 significantly contradicts the account of P-0298 on this issue. She said P-0298 fled from his school with other children,1333 and returned about a week later, carrying a weapon.1334 As opposed to suggesting that P-0298 obtained the weapon at a training camp, D-0015 gave evidence that P-0298 had stolen the weapon from a soldier1335 and she had heard that he had been working in the market.1336 She acknowledged that he had wanted to join the military and she accepted he may have spent a night at a camp, but she emphasised that he had not become a soldier. 1337 D-0015 gave evidence that P-0298 ran away once more, having spent two weeks at school,1338 and she discovered he went to see members of his family.1339 The prosecution has not advanced any submissions as to the credibility of witness D-0015. 435. The Chamber has considered the circumstances in which she was in a position to give evidence about P-0298,1340 and it has reviewed a particular reason that arose during the evidence which may have led D-0015 to lie about P-0298.1341 However, in all the circumstances, the Chamber found her evidence to be credible and reliable, and it casts significant doubt over the accuracy and reliability of the account of P- 0298. 436. Nonetheless, there were other concerns as to the accuracy and reliability of P-0298, including the contradictions and inconsistencies between P-0298 and his father, P-0299, over the death of P-0298’s mother. P-0298 testified that his mother was dead,1342 but the Chamber heard evidence, which it accepted, that she is still alive and that P-0298 saw her after the war. P-0299 confirmed that P-0298’s mother is alive although he said he had not told his son that this was the case.1343 437. Furthermore, D-0014 gave evidence which contradicts part of P- 0299’s testimony.1344 438. There is a difficulty over the age of P-0298. P-0299, his father, said in evidence that P-0298 was born in 1991 and he was in possession of his birth certificate.1345 While P-0298 initially stated he could not remember his date of birth,1346 he later indicated he was born in 1989.1347 P-0299 confirmed this year (1989) in a re-interview 1348 and this is also corroborated by various school documents (allowing for a 2 day variation).1349 439. The defence submits certain documents contradict the information provided by P-0298.1350 The school records indicate he completed his 5th year in primary school in the school year 2001/2002.1351 Initially, P- 0298 testified that he had finished the fifth year and had joined the sixth grade 1352 but later in evidence he suggested his schooling was interrupted while he was in the fifth rather than the sixth grade1353 (he said that he was abducted in 2002 just before Christmas, during the 5th year).1354 P-0298 said he meant that this occurred at the turn of the year (2002/2003).1355 P-0299 gave evidence that P-0298 “went to school until the 5th grade” but could not complete his schooling because he was abducted before Christmas 2002”. 1356 He also testified that P-0298 resumed his studies, starting and completing his sixth year at primary school. 1357 Overall, the oral evidence accords with the available documentation save for the issue (just set out) that P-0298 was contradictory as to whether his schooling was interrupted in the fifth or sixth form. The school documents additionally indicate that P-0298 received a certificate of primary education in 2004 from a particular school.1358 Although P-0298 denied the certificate that was produced during his evidence related to him or that he had received it, he accepted he had studied at that school.1359 P-0299 confirmed he had enrolled his son at the school in question for his sixth year of primary school, although he also noted “he had given up his studies because he didn’t do well” (rather than because he was abducted).1360 In all the circumstances, the Chamber concludes that although there were some contradictions in the evidence concerning P-0298’s schooling, none were of real significance. 440. However, when P-0298’s lies as regards his recruitment by the UPC are added to the evidence of D-0015 – that he did not serve in the military or spend time at the training camps during the relevant period – the uncertainty as to the reliability of this witness becomes clear. Although there may have been a reason for D-0015 to lie, P-0298 never explained why he said on oath that he had received material rewards and had been instructed as to the evidence he was to give. Although the Chamber accepts P-0298 may have been a soldier, there is a real possibility he was encouraged and assisted to give false testimony, and P-0321 alone has been identified as the person who was likely to have acted in this way (not least, he introduced P-0298 to the investigators). It is to be noted that P-0321’s account of P-0298’s demobilisation is irreconcilable with the accounts of P-0298 and P- 0299. P-0321 suggested P-0298 realised that he could not get anything further out of military service and in those circumstances he deserted and went to an organisation which delivered him to P-0321, who in turn persuaded P-0298’s family to take him back.1361 However, P-0299 testified that P-0298 did not take the initiative and instead he was picked up in the street by members of an NGO.1362 P-0298 suggested he heard an NGO was looking for child soldiers to demobilise, and he found a weapon to hand over before the NGO “took charge of me and of many other children”.1363 Conclusion as to P-0298 441. Notwithstanding the prosecution’s suggestion that P-0298’s initial testimony was merely the result of his anger,1364 the evidence overall before the Chamber creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence. P-0298 is not a witness on whom the Chamber is able to rely. c) The lists of children 442. A significant issue as regards this area of the case is how the various alleged former child soldiers were selected. P-0321 maintained he introduced P-0581 to all the children from a list provided to him by P- 0031 over the telephone,1365 and to those children alone. He testified that he did not have any difficulty in finding the children on P-0031’s list and he brought them all to Bunia.1366 The only additions to the list were said to have been P-0157 and P-0298, who had previously been in contact with the ICC, 1367 but who (on his account) P-0581 did not meet. 1368 In due course, P-0321 changed his evidence, having considered a table comparing the list given to P-0581 by an investigator, the list provided to P-0581 by P-0321 and the list of the children ultimately introduced to P-0581 by P-0321. 1369 Confronted with this evidence, P-0321 said P-0581 did not meet five children from the initial list because they were working and did not want to meet with the OTP.1370 443. P-0581 gave evidence that he noticed discrepancies between the list given to him by P-0321 and the list provided by the investigators. He sent P-0321’s list to his superiors and thereafter he was provided with a final list of names by the OTP via email. The screening was conducted on the basis of this final list. 1371 P-0581 had received instructions to contact P-0321 who was to send the children to him for screening (P-0321 was to contact those who were on the list).1372 444. Focussing on the discrepancies between the list sent to P-0581, the list given to P-0581 by P-0321 and the children introduced for screening by P-0321,1373 eight of the eleven children who P-0581 met in November 2007 were not on the list he was sent by the OTP,1374 and the answers given by P-0321 on this issue were markedly unclear and confused.1375 He failed adequately to explain this anomalous evidence. The Chamber found P-0581 to be a generally reliable witness, and it is likely that P-0321 did not tell the truth when he said he simply introduced P-0581 to children from a list provided to him by P-0031.1376 445. An additional troubling element is that P-0321 stated that the children who he introduced to P-0581 did not come from Bunia,1377 and he gave extensive evidence of how, having paid for his own transport, he travelled by road from Bunia to other localities.1378 However, three of the children (P-0213, P-0297 and D-0004) gave evidence that tends to indicate they were living in Bunia in November 2007.1379 P-0321 also contradicted himself, testifying at one stage that in November 2007, P- 0297 was living at home in Bunia.1380 d) An organisation dealing with victims 446. Before and during the time he worked for the OTP, P-0321 (along with P-0031) acted as an intermediary for a particular organisation,1381 which helped victims to participate in these proceedings. P-0321 introduced P-0299 to this organisation following a request from P- 0031. 1382 Furthermore, children had been put in touch with this organisation (with the assistance of P-0031) prior to being introduced to the prosecution.1383 447. The impact of this evidence is considered in the Chamber’s overall conclusions, set out below. e) Assessment of Intermediary 321 448. On the basis of the all the matters set above, the Chamber is satisfied that P-0321 acted on the instructions of the OTP and under the latter’s supervision for more than a year. This is relevant to a number of witnesses who (save for the first) P-0321 was the original point of contact: P-0157, P-0213, P-0293, P-0294, P-0297 and P-0298. P- 0321 was also in contact with P-0299. 449. D-0003 admitted he lied to the prosecution for financial gain at the invitation of P-0321 and he said the latter instructed him as to the account he was to provide. P-0213, P-0294, P-0297 and D-0004, according to the latter, were instructed by P-0321 to give false accounts about their names and ages, where they lived and their alleged enrolment in the UPC. Taking into account the questions raised about D-0003’s and D-0004’s evidence, the Chamber stresses that it has not relied on their testimony standing alone, but it has examined the available material in its entirety, and in particular the accounts of the individual prosecution witnesses who claimed to be former child soldiers, as well as the documentary evidence and the other relevant witnesses. P-0297’s evidence was unreliable and the Chamber has concluded there is a material risk that P-0321 persuaded or encouraged him to give false evidence. Similarly, the accounts of P- 0213 and P-0294 were generally unreliable. The Chamber does not accept the prosecution’s argument that P-0298’s initial testimony was merely the result of his anger, and it is of the view that the evidence relating to him, viewed overall, creates a real doubt as to his honesty and reliability. Additionally, the real possibility exists that he was encouraged and assisted by P-0321 to give false evidence. 450. Although the Chamber does not criticise the fact that P-0321 assisted the prosecution and a victims’ organisation simultaneously, on the basis of the matters set out above the significant possibility has been established that P-0321 improperly influenced the testimony of a number of the witnesses called by the prosecution. Additionally, real doubt has been cast over the propriety of the way in which children were selected for introduction to the prosecution. 4. Intermediary P-0031 451. In the Decision on Intermediaries, the Chamber considered the evidence relevant to P-0031, who had also been called as a prosecution witness in June and July 2009. 1384 The Chamber decided that the evidence did not “meet the criteria for ordering him to be re-called in the context of the abuse of process application.”1385 a) Background 452. P-0031 was located in Bunia during the period relevant to the charges, dealing with children in particularly difficult situations who included child soldiers.1386 453. P-0143 put P-0031 in contact with the OTP, and he was recruited as an intermediary by the prosecution in 2005 (he continued in this role at least until 2008).1387 P-0031 was closely associated with P-0321, and he occasionally asked the latter to undertake work for the OTP.1388 During the course of his involvement with the OTP, P-0031 had contact with the following witnesses: P-0007,1389 P-0008,1390 P-0011,1391 P-0012,1392 P- 0046, 1393 P-0157 (first contact via P-0031), 1394 P-0293, 1395 P-02941396 P- 0297, 1397 P-0298, 1398 and P-0299, 1399 and potential witness DRC-OTPWWWW- 0110 (first contact was via P-0031).1400 b) The evidence from P-0582 454. P-0582 gave evidence that he probably met P-0031 when he was accompanied by other investigators.1401 He did not trust P-0031 or have confidence that he would be of use to their investigations.1402 455. Throughout 2005, P-0031 furnished the prosecution with videos, photographs and documents, and therefore he came to be viewed as a willing and cooperative witness who was able to provide relevant evidence. He supplied the prosecution with information concerning the demobilisation of child soldiers.1403 456. P-0582 was referred to page 3, paragraph 1, of an internal prosecution report dated 23 February 2006 which sets out that: Investigators returned his original documents after registration of the copies. However, [P-0031] failed to submit new additional documents that would allegedly be in his possession. After numerous occasions in which he failed to do so, major questions arose about his credibility and intentions to collaborate with the ICC. As a consequence investigators decided to suspend contacts for the time being.1404 457. P-0582 gave evidence that it was believed the documentary records referred to in the report would assist in shedding light on the potential problems with P-0031.1405 The latter provided a few documents to the investigators (of doubtful relevance) and although he promised additional material, nothing was forthcoming.1406 458. P-0582 believed it had been decided, with the agreement of Michel De Smedt, to discontinue working with P-0031 because of a lack of trust 1407 following the February 2006 incident. 459. However, this decision was reversed once P-0031 provided certain relevant information, and thereafter he “was evaluated by the prosecution as being a credible trial witness”. 1408 The prosecution called P-0031 as a witness to give evidence about child soldiers and demobilisation. 460. It is accepted that during the relevant period the OTP paid P-0031 at least $23,000. 1409 The prosecution suggests, with the exception of a single payment for travel, this money supported P-0031 within the OTP’s protection programme and it does not represent remuneration for his services as an intermediary. 1410 The accounting documents disclosed by the prosecution demonstrate P-0031 received a monthly allowance from March 2007,1411 and as of 12 March 2010 he continued to receive allowances from the OTP for accommodation and subsistence.1412 c) The evidence of P-0157 461. P-0157 is an alleged former child soldier who was introduced to the Office of the Prosecutor by P-0031. The accounting documents relating to P-0157 demonstrate he was also in contact with P-0143 between August and October 2006.1413 Additionally, P-0321 indicated he had dealings with P-0157.1414 462. P-0157 said he was born in 1991.1415 It is to be noted, however, the documentary evidence suggests that in 2002 and 2003, P-0157 was over 15 years of age. The IEC database demonstrates P-0157 had a voter’s card, bearing his photograph and a date of birth (in 1986). 1416 Moreover, his name appears on the enrolment register for a particular school, and, at what is seemingly his entry, it is recorded P-0157 was born on an identified date in 1986.1417 The 1991-2001 certificate award register for this school indicates that a certificate was awarded to P- 0157 (born on the same date in 1986).1418 The witness said he did not know his date of birth.1419 He was shown a document that came from the general inspectorate for secondary and professional education, which comprises a list of students in the sixth grade in the same primary school for the year 1998.1420 At line 9 it is recorded that he was born in 1986.1421 When the witness was asked whether it was possible that in 1998 he was in the sixth grade at this primary school, he answered, “It could be true. It’s a certified document, a document that states that.”1422 463. The prosecution argues the school records are unreliable and they do not undermine P-0157’s testimony as to his age,1423 and in particular the prosecution suggests that the documents appear to have been altered. The prosecution relies on the expert’s report, along with the evidence of D-0029, to the effect that different students were assigned the same matriculation number and the records contain errors as to numbering.1424 It is argued by the prosecution that it is not necessary for the Chamber to conclude that P-0157 was under the age of 15 at the time he was conscripted.1425 Rather, his evidence is of use as regards the recruitment and use of child soldiers by the UPC.1426 464. There are undoubted inaccuracies in the school records that have caused the Chamber to treat them with caution. As regards the present witness, however, all the relevant entries contradict the date of birth given by P-0157 during his evidence, and he accepted he may have been in the sixth grade of primary school in 1998. Although of limited value, the x-ray evidence tends to support the suggestion that P-0157 was over the age of 15 at the time of his alleged conscription.1427 In all the circumstances, the prosecution has not established that P-0157 was under the age of 15 at the time of his alleged recruitment and use in hostilities. 465. The prosecution argues P-0157 provided a significant and detailed account of the conscription, training and use of children by the UPC and it particularly relies on P-0157’s evidence as to having been beaten, his description of daily life at Mandro and Thomas Lubanga’s visit to the camp. 1428 The defence sought to undermine P-0157’s credibility, 1429 and in response the prosecution highlighted his evidence that certain subjects remained painful for him, along with his frank acceptance that he was unable to remember every detail.1430 466. P-0157 gave potentially differing accounts about where he was enlisted by the UPC on his way home from school.1431 However, he gave a credible explanation that the name of the location where he was abducted in his initial statement to the investigators was wrongly transcribed.1432 467. He gave contradictory evidence as to the stage during his school career when this occurred. At paragraph 16 of the witness’s first statement to the investigators he indicated “[a]t the time [of the abduction] I went to [a particular] Institute […] where I was in the sixth year of primary school”.1433 It is of note that EVD-D01-002581434 indicates he finished his sixth year of primary school in 1998 and the Certificate Issue Register for 1991-20011435 sets out that the witness sat his national exams in 1998. P-0157 said in evidence that at the time of his abduction he was in his first year of secondary school,1436 having just finished his sixth year of primary school. 1437 468. D-0025, who is now a teacher,1438 knew P-0157 (he recognised him in a photograph).1439 They went to school together 1440 in the academic year 2001/2002.1441 D-0025 was born on 12 July 1989,1442 and he said he was younger than P-0157 1443 although he conceded that he does not know P-0157’s age.1444 D-0025 gave consistent evidence, which was not materially contradicted or undermined. In all the circumstances the Chamber has accepted his account. 469. D-0025 indicated that when the population of Bunia fled in May 2003, P-0157 went to a village, close to Bunia and joined an armed group. 1445 He heard P-0157 had joined the FRPI.1446 Although D-0025 was uncertain as to the exact date when he saw P-0157 dressed in a camouflage t-shirt, he was convinced this had happened.1447 470. P-0157 testified that he was taken in a Hilux vehicle to stadium in Bunia1448 and from there he was transferred to Mandro1449 for military training.1450 However, in 2006 the witness told the investigators that he walked to the stadium.1451 When questioned about this discrepancy, P- 0157 accepted there were errors in his earlier statement.1452 He said two particular commanders were with him throughout his time at Mandro.1453 However, he failed to mention one of these commanders during his interview with the investigators over 4 days in October 2006.1454 The witness said he was unable to recount all the details at that stage and instead he set out what he thought was important.1455 The witness’s evidence frequently lacked detail. For instance, he could not recall if he participated in combat during his training,1456 although he later indicated this had happened.1457 He suggested he spent time at Djugu, 1458 Bunia 1459 and Rwampara; 1460 he said he fought at Nyankunde;1461 and he indicated he was part of a group that was selected to fight the Ugandans.1462 However, he was unable to provide details of these events. 471. P-0157 testified that he deserted the UPC and joined the FNI, 1463 although during his first meeting with investigators from the OTP he failed to mention he had originally been in the UPC1464 (he said in evidence this was because of the hurt caused by his membership of the UPC).1465 472. P-0031, when asked about P-0157, simply described him as a child who had been a member of the FNI. 1466 The prosecution relies on P- 0321’s statement that P-0157 had been a UPC/FPLC child soldier,1467 given he indicated that P-0157 told him about being a member of the UPC (however he failed to mention that he had also been a member of the FNI).1468 As mentioned above, D-0025 said he heard about P-0157’s membership in the FRPI, and P-0157 testified that he had been a soldier in the FNI (he said that he joined the group in March 2003).1469 473. The Chamber is of the view that P-0157 did not provide a credible explanation for his failure to mention that he had been a member of the UPC to the investigators and generally his account was notable for its lack of detail as regards certain significant events. In all the circumstances, the Chamber has not relied on his account. d) Assessment of P-0031 474. The defence alleges that all of the witnesses with whom this intermediary had contact lied to the Court (P-0007, P-0008, P-0011, P- 0157, P-0293, P-0294, P-0298 and P-0299), and it is noted he was in touch with intermediaries 143 and P-0321.1470 The defence contends he is biased against Thomas Lubanga and tailored his account to match the charges against the accused.1471 The defence relies on the regular and considerable payments he received, and it is suggested the OTP failed to act on information that had been in its possession since February 2006 which raised doubts as to his integrity (it is suggested these concerns were corroborated by P-0582). 1472 It is argued the logbooks and other documents he produced are unreliable,1473 and the defence submits he accepted in evidence that children sometimes lied in order to benefit from the process of demobilisation. Furthermore, neither the intermediary nor the NGO attempted to corroborate their accounts.1474 475. The prosecution submits “[n]o witness testified that P-0031 manipulated, coached or encouraged witnesses to lie to the Prosecution or to the Court.”1475 It further suggests the defence has misrepresented the evidence and it has failed to establish that P-0031 was biased in his testimony.1476 476. There is insufficient evidence to support the suggestion that P-0031 persuaded, encouraged or assisted witnesses to give false testimony. Although P-0031 had contact with numerous witnesses whose evidence the Chamber has not accepted, this is insufficient, even on a prima facie basis, to lead to the conclusion that P-0031 encouraged any of them to lie. None of the alleged former child soldiers who P-0031 dealt with suggested he influenced their evidence and the Chamber does not accept the defence assertions that P-0031 was biased against Thomas Lubanga.1477 477. However, given his close cooperation with P-0321 and the doubts as to his reliability analysed above, the Chamber has treated P-0031’s evidence with particular care. F. CONCLUSIONS ON THE CHILD SOLDIERS CALLED BY THE PROSECUTION 478. The prosecution submits that the inconsistencies within and between the accounts of the alleged former child soldiers do not necessarily mean their testimony is unreliable, and in this regard the Chamber is invited to focus on the evidence of the expert witness Ms Schauer (CHM-0001).1478 The OPCV submits any contradictions and difficulties in the testimony of P-0007, P-0008, P-0010 and P-0011 should be viewed in the context of the trauma they may have experienced, including the stress of giving evidence.1479 The defence also relies on part of Ms Schauer’s (CHM-0001) evidence, namely that Post Traumatic Stress Disorder can only be identified by way of a medical examination, and accordingly it is suggested it has not been demonstrated that any of these witnesses suffered from this disorder. The defence suggests Ms Schauer (CHM-0001) further testified that trauma does not affect an individual’s memory, including his or her ability to tell the truth, but instead it may make it difficult for them to speak about relevant events (as opposed to other, non-traumatic matters), and therefore the potential impact of trauma should not be considered when assessing the credibility of the witnesses.1480 479. The Chamber has taken into account the psychological impact of the events that have been described in evidence, and the trauma the children called by the prosecution are likely to have suffered. The Chamber accepts that some or all of them may have been exposed to violence in the context of war, and this may have had an effect on their testimony. Additionally, they were often interviewed on multiple occasions following these events. Nonetheless, for the reasons identified in the relevant analysis for each witness, the inconsistencies or other problems with their evidence has led to a finding that they are unreliable as regards the matters that are relevant to the charges in this case. 480. On the basis of the entirety of the analysis set out above, the Chamber has not accepted the prosecution’s submission that it has established beyond reasonable doubt that P-0007, P-0008, P-0010, P- 0011, P-0157, P-0213, P-0294,1481 P-0297 and P-02981482 were conscripted or enlisted into the UPC/FPLC when under the age of 15 years, or that they were used to participate actively in hostilities, between 1 September 2002 and 13 August 2003. It is relevant to note that these nine individuals were identified by the prosecution at an early stage in these proceedings1483 as demonstrating the way in which children were enlisted, conscripted and used by the FPLC.1484 481. The Chamber has concluded that P-0038 who was over 15 when he joined the UPC gave accurate and reliable testimony. Similarly, the Chamber has acted on the evidence relating to the videos addressed by P-0010 in her evidence. The effect of this evidence is considered in the Chamber’s overall conclusions. 482. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries in the way set out above, notwithstanding the extensive security difficulties it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation. 483. As set out above, there is a risk that P-0143 persuaded, encouraged, or assisted witnesses to give false evidence; there are strong reasons to believe that P-0316 persuaded witnesses to lie as to their involvement as child soldiers within the UPC; and a real possibility exists that P- 0321 encouraged and assisted witnesses to give false evidence. 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. Investigations can be initiated on the basis of information communicated by a Chamber or any reliable source. The Chamber hereby communicates the information set out above to the OTP, and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of any investigation. 1485 484. Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chamber’s Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules.1486 In the view of the Majority, given the Chamber’s present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his son’s role as a child soldier.1487 The Chamber’s conclusions as to the evidence of P-0298 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no longer meet the relevant criteria. VIII.THE THREE VICTIMS WHO GAVE EVIDENCE 485. On 2 April 2009, one of the legal representatives for victims submitted an application for three victims, a/0229/06, a/0225/06, and a/0270/07, to participate in person in the proceedings against Thomas Lubanga.1488 The Chamber requested additional information,1489 and a further filing was submitted on 18 May 2009.1490 Mr Keta filed written submissions on 22 June 2009, following discussions with the VWU concerning questions of security.1491 On 26 June 2009, the Chamber adjourned the applications on behalf of the victims to present their views and concerns in person (these applications have not been renewed) and granted their applications to give evidence. 1492 The defence refers to their submissions made in the context of the abuse of process application.1493 In essence, it is alleged by the defence that victim a/0270/07 instigated victims a/0229/06 and a/0225/06 to steal the identities of Thonifwa Uroci Dieudonné (D-0032) and Jean-Paul Bedijo Tchonga (D-0033) in order to claim falsely that they had been abducted by the UPC and used as child soldiers. 486. The Chamber has considered the evidence of these three victims before discussing the contradictory evidence of the relevant defence witnesses. A. Victims a/0270/07 (V02-0001), a/0229/06 (V02-0003) and a/0225/06 (V02-0002) 487. Two individuals who claimed to be victims a/0229/06 (V02-0003) and a/0225/06 (V02-0002) testified as to their alleged recruitment by the UPC in the region of Mahagi, Ituri-Oriental province, DRC. Their evidence covered their alleged training and their active participation in hostilities. 488. The witness who identified himself as victim a/0229/06 (V02- 0003)1494 stated that he was abducted on his way home from school1495 in April 2003. 1496 According to the date of birth he provided during his evidence, he was over the age of 15 at the time he claimed to have been abducted (April 2003). 1497 He stated that he underwent training at Bule camp1498 and that he participated in the battle in Bunia, 1499 when he was shot. 1500 489. The witness who identified himself as victim a/0225/06 (V02- 0002)1501 said that UPC soldiers abducted him1502 whilst he was playing in a Mahagi village in 2003,1503 and that he was taken to a transit camp. 1504 According to the date of birth he provided during his evidence, he was under the age of 15 at the time he claimed to have been abducted.1505 The commanders used him for looting,1506 finding rich people and obtaining hashish. 1507 He subsequently underwent military training at a UPC camp.1508 He was involved in fighting1509and he was injured in his right calf by a bullet at Bunia.1510 490. Victim a/0270/07 (V02-0001) testified as to the alleged recruitment of children from a school in Mahagi, Ituri-Orientale Province, DRC and his efforts to prevent this from happening,1511 and his relationship with certain child soldiers when they returned home. He said he witnessed UPC soldiers enlisting students on 5 February 2003,1512 (four pupils were abducted).1513 He claimed he is the guardian of victims a/0229/06 (V02-0003) and a/0225/06 (V02-0002) and he explained his relationship with each child and how he came to take on the role of guardian. 1514 B. Defence witnesses D-0032 and D-0033 491. The defence relied on evidence that seriously undermined the suggested truthfulness and reliability of a/0225/06 (V02-0002), a/0229/06 (V02-0003) and a/0270/07 (V02-0001). The defence submitted that a/0225/06 and a/0229/06 gave false testimony at the instigation of a/0270/07, and that a/0270/07 was actively involved in encouraging pupils at the Institute where he worked to claim falsely that they had been child soldiers in order to participate in proceedings before the 492. D-0032 testified that he (not a/0225/06) was Thonifwa Uroci Dieudonné. 1516 D-0032 said that together with the others in his class who had been in military service, he was told by a/0270/07 to pay a fee in order to “register” in Ndrele because those who were child soldiers would receive certain benefits and their studies would be paid for.1517 According to D-0032, a/0270/07 told them to claim that their parents had died in order to receive the benefits quickly.1518 D-0032 did not know the “white people” who conducted the registration process, although during his testimony he recognised an ICC victim participation form bearing his name along with (as he believed) his fingerprint. He had not filled it in and the signature was not his.1519 He said one of those accompanying him during the registration process was Jean-Paul Bedijo Tchonga. 1520 D-0032 testified that following registration they did not receive any of the benefits promised to them and while they were in Ndrele, a/0270/07 told him and Jean-Paul Bedijo that the white people had not come and they could go home.1521 The witness later learned that a/0270/07 was going to “replace” them (he was told this by one of those who had been brought by a/0270/07 to take their place).1522 493. D-0032 said he was born in 19881523 and his parents are Ukunya Nyona Bertin1524 and Generose Francoise. 1525 a/0225/06 was unable to identify the individuals in photographs EVD-D01-001011526 and EVDD01- 00102, 1527 whilst D-0032 identified them as his father 1528 and mother1529 respectively. It is unnecessary to go into the details of the evidence, but the accounts of D-0032 and a/0225/06 differ significantly regarding their family histories1530 and their schooling.1531 494. Critically, the testimony of D-0032 is supported by that of D-0034, who testified that he is the father of Thonifwa Uroci.1532 D-0034, who is also the father of D-0033, corroborated the evidence from D-0032 about his family,1533 and he confirmed D-0032’s account as to his primary and secondary education. 1534 Moreover, D-0034 asserted that whilst Thonifwa Uroci was forcibly1535 involved with the UPC as an errand boy, he never bore arms,1536 or underwent military training. 1537 D-0034 was unable to identify the person shown in photograph EVD-D01- 001301538 (a/0225/06).1539 495. The Chamber ordered a forensic test following D-0032’s evidence that his fingerprint was on the victim application form.1540 The results are that one of the fingerprints does not match the witness, while the other fingerprints were inconclusive. 1541 This evidence is therefore essentially equivocal. 496. D-0033 testified that he (not a/0229/06) was Jean-Paul Bedijo Tchonga.1542 He stated a/0270/07 worked for an Institute in Mahagi. The latter “registered” the children who were child soldiers “because the white people were coming”.1543 D-0033 also testified that a/0270/07 promised them that their studies would be paid for.1544 He did not recognise an application to participate carrying his name (along with related material) and he said the signatures were not his.1545 Similarly, he did not recognize a witness statement bearing his name dated 7 August 2009 or the signature on the last page.1546 He suggested the person who had signed the documents might have been an individual in photographs that were put to him during his examination.1547 D- 0033 stated that he could not precisely say who this person was, but he had been told that they had been “replaced by other people” at the instigation of a/0270/07.1548 D-0032 went on to identify the two people he had seen in the photographs and he said a/0270/07 had taken these two individuals in order to register them in their place. 1549 He supported D-0032’s evidence that a/0270/07 took money in exchange for registration; that he told them they would receive material assistance and school fees; and he instructed them to say their parents had died.1550 D-0033 had gone with others to a/270/07’s house within the preceding year and he had discussed with him the assistance they would receive and their service in the armed group.1551 The evidence of D-0034 supports this assertion, in that he stated that his son, D-0032, told him a/0270/07 invited D-0032 to his home. 1552 Furthermore, D- 0034 denies there is any family relationship between a/0270/07 and his son1553 and he asserted a/0270/07 was aware that D-0034 was the father of the real Thonifwa Uroci, namely D-0032. 1554 497. D-0033 testified he was born 17 May 19871555 and his parents are Thomas Ugeno1556 and Georgette Urymen. 1557 A/0229/06 was unable to identify the individuals in photographs 1558 who D-0033 said were Thonifwa Uroci1559 and Thomas Ugeno (Jean-Paul Bedijo’s father). 1560 D-0032 gave a significantly different account to that of a/0229/06 with respect to the family history. 1561 Additionally, a/0229/06 stated he undertook military training at an UPC camp, 1562 whilst, D-0033 indicated that although he received military training, it was a/0270/07 who suggested the name of Bule camp. 1563 498. a/0270/07 was unable to identify the individual in photograph EVD- D01-00096 1564 which D-0033 subsequently identified as Thonifwa Uroci. 1565 a/0270/07 was also unable to identify the individuals in photographs EVD-D01-001011566 and EVD-D01-00102,1567 who D-0032 later identified as his mother1568 and father1569 respectively. C. Conclusions on the three victims who gave evidence 499. The evidence of a/0225/06, a/0229/06, and a/0270/07 contains internal inconsistencies which undermine their credibility. a/0225/06’s recollection of his abduction and military service lacked clarity, and he demonstrated uncertainty when questioned about the details of those events. The witness said he was abducted in both February 2002 and March 2003,1570 although he said he was confused and had problems with dates. 1571 a/0225/06 gave significantly unhelpful answers on occasion when questioned about the gaps and inconsistencies in his testimony; 1572 for example, he claimed to have received a bullet wound at Bogoro, and when asked why this was not mentioned in his August 2009 statement, he simply replied ‘with the intelligence I have, I can’t, I forget’. 1573 500. a/0229/06 was inconsistent in his account of his abduction and military service. For instance, it was unclear whether his abduction occurred when he was in the first or second year of his secondary education.1574 He was often vague in his answers and he tended to respond by stating that he was unable to answer the questions. 1575 501. a/0270/07 was an evasive witness who, on occasion, was reluctant to respond when questioned or he provided inadequate answers. For example, he testified that the Institute had been subjected to a number of attacks, but when asked why the school archives did not contain a report of this event, the witness simply responded that this information might be biased. 1576 502. In all the circumstances, the Chamber has concluded that D-0033 and D-0034 were consistent, credible and reliable witnesses and it accepts that there is a real possibility that victims a/0229/06 and a/0225/06 (at the instigation or with the encouragement of a/0270/07) stole the identities of Thonifwa Uroci Dieudonné (D-0032) and Jean- Paul Bedijo Tchonga (D-0033) in order to obtain the benefits they expected to receive as victims participating in these proceedings. The Chamber is persuaded there are significant weaknesses as regards the evidence of a/0225/06, a/0229/06, and a/0270/07, to the extent that their accounts are unreliable. Given the material doubts that exist as to the identities of a/0229/06 and a/0225/06, which inevitably affect the evidence of a/0270/07, the permission originally granted to a/0229/06, a/0225/06, and a/0270/07 to participate as victims is withdrawn. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated they no longer meet the relevant criteria. IX. THE ARMED CONFLICT AND ITS NATURE A. INTRODUCTION 503. It is necessary to determine whether there was a relevant armed conflict, and if so, whether it was international or non-international in character. 504. The existence of an armed conflict, be it international or noninternational, is a fundamental requirement of the charges under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, which provide, inter alia: 2. For the purpose of this Statute, "war crimes" means: […] b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law […] c) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, […] It follows that if the prosecution has failed to prove the existence of a relevant armed conflict in Ituri from early September 2002 until 13 August 2003, it will have failed to prove the charges against the accused. B. SUBMISSIONS 1. Prosecution submissions 505. The prosecution submits it is undisputed that a significant and protracted armed conflict occurred in Ituri during the relevant ICC-01/04-01/06-2842 14-03-2012 231/624 SL T No. ICC-01/04-01/06 232/ 593 14 March 2012 period.1577 506. Relying on jurisprudence from the Pre-Trial Chambers and the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the prosecution suggests an international armed conflict exists “whenever there is resort to armed force between States.”1578 It is argued a non-international armed conflict is established when States have not resorted to armed force and i) the violence is sustained and has reached a certain degree of intensity, and ii) armed groups with some degree of organisation, including the capability of imposing discipline and the ability to plan and carry out sustained military operations, are involved. Additionally, Article 8(2)(f) of the Statute stipulates that the conflict must be “protracted” for these purposes.1579 507. It is argued non-international conflicts only cease with a “peaceful settlement” and that a mere reduction in the extent of the hostilities is insufficient. 1580 The prosecution submits the evidence demonstrates that a settlement of this kind did not exist prior to 13 August 20031581 because many organised armed groups continued to operate in Ituri during this period, including the FNI, which allegedly perpetrated massacres in June and July 2003; PUSIC, in its opposition to the UPC/FPLC in Tchomia in November 2003; and the Forces Armees du Peuple Congolais (“FAPC”), as regards its fight with the FNI and Forces Populaires pour la Democratie au Congo (“FPDC”) in order to take control of Mahagi in June 2003. 1582 It is the prosecution’s contention that members of the UPC/FPLC attacked MONUC several times.1583 508. The prosecution alleges the UPC/FPLC fought the RCD-ML, the FNI and the FRPI, and that each of these groups was armed and had a sufficient degree of organisation (demonstrated by their leadership structure and participation in the political process). Furthermore, it is suggested these armed groups had the ability to undertake sustained operations, as revealed by their ability to train troops and participate in numerous battles.1584 509. The prosecution submits the conflict was non-international in character, notwithstanding the conclusion of the Pre-Trial Chamber that it was international until Uganda withdrew from Ituri on 2 June 2003.1585 510. It is the prosecution submission that there can be simultaneous conflicts within a particular territory that involve different forces, and that Uganda’s involvement (even if it is found to have constituted occupation), would not automatically mean the armed conflict relevant to the charges was international in character. 1586 The prosecution submits the key issue is the nature of the conflict to which the particular army or militia is a party (viz. the conflict “to which Lubanga’s militia was a party during the relevant times”).1587 511. The prosecution suggests that even if Uganda can be said to have been occupying certain areas of Ituri, such as Bunia airport, there is insufficient evidence that it occupied Bunia as a whole during the relevant timeframe. 1588 In addition, the prosecution submits that although there is some evidence of assistance provided by Rwanda and Uganda, applying the overall control test, as adopted by the ICC and ICTY (see below), it falls short of the threshold for indirect intervention.1589 Equally, it is submitted that neither the presence of multi-national forces nor the direct intervention by Ugandan military forces were sufficient to constitute an international conflict, as the part played by these forces did not result in two states opposing each other. 1590 Finally, the prosecution argues that even if Ugandan involvement did create an international armed conflict, the UPC/FPLC was involved in a distinct, simultaneous non-international armed conflict.1591 2. Defence submissions 512. The defence, as part of its analysis of armed conflicts that are noninternational in character, relies on the approach adopted by Pre-Trial Chamber I. 1592 Referring to the provisions of Article 8(2)(f) of the Statute, it submits the violence must reach a particular level of intensity. Armed conflicts not of an international character are conflicts that take place in the territory of a State when there is a protracted conflict between the government and organised armed groups, or between armed groups.1593 513. It is suggested by the defence that Additional Protocol II to the Geneva Conventions of 8 June 1977 operates to restrict this definition by stipulating that armed conflicts in this category “take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol.”1594 514. The defence argues the prosecution has failed to demonstrate that the FNI, the FRPI, PUSIC, and the FAPC were “organized armed groups” under international humanitarian law.1595 It is submitted it has not been proven that these organisations were under responsible command or exercised sufficient control over a part of the relevant territory, thereby enabling them to carry out sustained and concerted military operations and to implement the provisions of international humanitarian law.1596 515. The approach of the Pre-Trial Chamber is referred to by the defence in this regard: Thus, in addition to the requirement that the violence must be sustained and have reached a certain degree of intensity, Article I.I of Protocol Additional II provides that armed groups must: i) be under responsible command implying some degree of organisation of the armed groups, capable of planning and carrying out sustained and concerted military operations and imposing discipline in the name of a de facto authority, including the implementation of the Protocol; and ii) exercise such control over territory as to enable them to carry out sustained and concerted military operations.1597 516. The defence supports the conclusion of the Pre-Trial Chamber that the conflict in Ituri in the period between September 2002 and June 2003 was an armed conflict of an international character (it is suggested that the conflict only extended until late May 2003).1598 The defence argues that whilst sporadic acts of violence occurred in Ituri after May 2003, these did not involve organised armed groups exercising territorial control and they should be treated as instances of internal disturbance and tension. It is suggested there was no conflict of any kind in Ituri between the end of May 2003 and August 2003. 1599 517. The defence emphasises the evidence of P-0041, who testified as to arms being provided to the FPLC by Rwanda, the involvement of Mr Mbusa Nyamwisi in the conflict in Ituri and the decision of the United Nations to maintain Ugandan troops in the DRC.1600 The defence also highlights the testimony of a number of other witnesses: P-0017, concerning alleged training given by Rwanda to the FPLC and his reference to the Ugandan army as an occupying force;1601 P-0055, as to the presence of the Ugandan army as an occupying force in Bunia and the provision of weapons and uniforms by Rwanda;1602 P-0012, relating to Ugandan arms deliveries to PUSIC; 1603 and the expert Gérard Prunier (P-0360), on Uganda’s role as an occupying force in Ituri, the involvement of the Kinshasa government in the conflict either directly or through the RCD-ML, and what he described as a “war by proxy between the states of the DRC, Uganda, and Rwanda”.1604 However, the defence observes that Mr Prunier (P-0360) stressed that the available information on the events in Ituri in 2002-2003 is not particularly reliable. In addition, the defence submits that some of the views expressed in this witness’s report are partial, although it accepts he is reliable on certain identified subjects.1605 3. Victims submissions 518. The V01 group of legal representatives of victims contends it is undisputed that one or more armed conflicts occurred in Ituri between 1 September 2002 and 13 August 2003.1606 The V01 group submits that the conflict cannot properly be considered as a situation of internal disturbance or tension, given the duration and intensity of the hostilities, the number of victims and the manner in which the forces were organised and armed.1607 519. The V01 team argues that during the period between September 2002 and June 2003, an international armed conflict and a noninternational armed conflict existed simultaneously in the territory of Ituri.1608 520. The V02 group of legal representatives of victims contends that an armed conflict, with a degree of intensity and involving the UPC, PUSIC and the FNI (among others), occurred in Ituri from September 2002 to August 2003.1609 It argues the fight between the UPC and the FNI over control of the gold-mining town of Mongbwalu, 1610 the UPC/FPLC military operations against the towns of Tchomia and Nizi and the village of Iga Barrière, as well as numerous other armed attacks, demonstrate the existence of an armed conflict. It advances by way of further evidence in this regard the Security Council’s Resolution 14931611 (pursuant to Chapter VII of the United Nations Charter), and the latter’s decision to remain actively seized of the Ituri situation throughout the period of the charges. 521. The V02 team maintains that the armed conflict can be classified as international due to its intensity, duration and character. 1612 It is suggested the UPC/FPLC was an organised armed group within the meaning of Article 8(2)(f) of the Statute, as it was capable of carrying out large-scale military operations for a protracted period of time.1613 It also relies on the testimony of several witnesses as to the highly structured nature of the UPC and its chain of command.1614 522. The OPCV has not advanced submissions as to whether there was an armed conflict, arguing that the prosecution is better placed to address this issue.1615 Similarly, it has not presented arguments as to the appropriate characterisation of the conflict. Instead, the OPCV stresses that Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute criminalise the same conduct regardless of the characterisation of the armed conflict.1616 The V02 team advanced a similar submission.1617 C. THE CHAMBERS’S CONCLUSIONS 1. The law Characterisation of the armed conflict (international armed conflict vs. noninternational armed conflict) 523. In the Decision on the confirmation of charges, the Pre-Trial Chamber, having considered the evidence as to Rwanda’s involvement in the armed conflict, concluded there was insufficient evidence to establish substantial grounds to believe that Rwanda played a role that could be described as direct or indirect intervention in the armed conflict in Ituri.1618 524. In its final analysis, the Pre-Trial Chamber held: On the evidence admitted for the purpose of the confirmation hearing, the Chamber considers that there is sufficient evidence to establish substantial grounds to believe that, as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri can be characterised as an armed conflict of an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.1619 […] there are substantial grounds to believe that between 2 June and late December 2003, the armed conflict in Ituri involved, inter alia, the UPC/FPLC, PUSIC and the FNI; that the UPC and FNI fought over control of the gold-mining town of Mongbwalu; that various attacks were carried out by the FNI in Ituri during this period; that a political statement was signed in mid-August 2003 in Kinshasa by the main armed groups operating in Ituri calling on the transitional government to organise “[TRANSLATION] a meeting with us, current political and military actors on the ground, so as to nominate by consensus, new administrative officials for appointment;” that at the very beginning of November 2003, the UPC carried out a military operation against the town of Tchomia, which was then under PUSIC control; and, finally, that the UPC/FPLC armed forces controlled the towns of Iga Barrière and Nizi at the very least in December 2003.1620 525. In determining that the relevant conflict was international between September 2002 and 2 June 2003 and non-international between 2 June 2003 and 13 August 2003, the Pre-Trial Chamber confirmed the charges against the accused on the basis of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute, although the prosecution had only charged the accused with the conscription and enlistment of children under the age of fifteen years, and their use to participate actively in hostilities, within the context of a non-international armed conflict under Article 8(2)(e)(vii) of the Statute. 526. The prosecution 1621 and the defence 1622 applications for leave to appeal were refused by the Pre-Trial Chamber, which observed: [P]ursuant to Regulation 55 of the Regulations of the Court, the Trial Chamber may "change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused." Indeed, there is nothing to prevent the Prosecution or the Defence from requesting that the Trial Chamber reconsider the legal characterisation of the facts described in the charges against Thomas Lubanga Dyilo and as confirmed by the Chamber.1623 527. Following submissions from the parties after the transfer of the case to the Trial Chamber, the latter gave notice, in accordance with Regulation 55 of the Regulations of the Court, that the legal characterisation of the facts may be subject to change. The Chamber instructed the parties and participants to: […] prepare their cases on the basis that the Bench may decide that the first group of three charges encompass both international and internal armed conflicts.1624 528. Accordingly, the prosecution submitted as follows: Consistent with the Trial Chamber’s decision of 13 December 2007 and the amended document containing the charges, the Prosecution will present the totality of its evidence relating to both international and non-international aspects of the conflict. The evidence will enable the Chamber to determine whether the Ugandan occupation of Ituri between the 1st of September 2002 and early June 2003 transformed the character of the conflict into an international armed conflict.1625 529. In its ‘Order on the timetable for closing submissions’, the Chamber invited submissions on the nature of the armed conflict and the factors that should be borne in mind if the Chamber were to modify the legal characterisation of the charges for the period from early September 2002 to 2 June 2003.1626 530. The parties and the participants have not challenged the procedure followed by the Chamber as regards a possible legal recharacterisation of the facts under Regulation 55 of the Regulations of the Court, although they addressed in their submissions whether it would be appropriate for any modification to occur. Definition of armed conflict 531. The relevant Elements of Crimes require that the alleged criminal conduct “took place in the context of and was associated with an […] armed conflict”. 1627 There is no definition of armed conflict in the Statute or in the Elements of Crimes. The introduction to the Elements of Crimes sets out that: The elements for war crimes under article 8, paragraph 2, of the Statute shall be interpreted within the established framework of the international law of armed conflict […] 532. As with the Rome Statute, neither the Geneva Conventions nor their Additional Protocols explicitly define ‘armed conflict.’1628 533. The definition of this concept has been considered by other international tribunals and the Chamber has derived assistance from the jurisprudence of the ICTY: 70. […] an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.1629 Armed conflict not of an international character 534. As to the definition of an armed conflict not of an international character, Article 8(2)(f) of the Statute provides: Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.1630 535. Relying on Additional Protocol II to the Geneva Conventions and the ICTY Tadić Interlocutory Appeal Decision cited above, Pre-Trial Chamber I determined that “the involvement of armed groups with some degree of organisation and the ability to plan and carry out sustained military operations would allow for the conflict to be characterised as an armed conflict not of an international character.”1631 536. The Trial Chamber agrees with this approach, and notes that Article 8(2)(f) of the Statute only requires the existence of a “protracted” conflict between “organised armed groups”. It does not include the requirement in Additional Protocol II that the armed groups need to “exercise such control over a part of [the] territory as to enable them to carry out sustained and concerted military operations”. 1632 It is therefore unnecessary for the prosecution to establish that the relevant armed groups exercised control over part of the territory of the State. 1633 Furthermore, Article 8(2)(f) does not incorporate the requirement that the organised armed groups were “under responsible command”, as set out in Article 1(1) of Additional Protocol II. 1634 Instead, the “organized armed groups” must have a sufficient degree of organisation, in order to enable them to carry out protracted armed violence.1635 537. When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. 1636 None of these factors are individually determinative. The test, along with these criteria, should be applied flexibly when the Chamber is deciding whether a body was an organised armed group, given the limited requirement in Article 8(2)(f) of the Statute that the armed group was “organized”. 538. The intensity of the conflict is relevant for the purpose of determining whether an armed conflict that is not of an international character existed,1637 because under Article 8(2)(f) the violence must be more than sporadic or isolated. The ICTY has held that the intensity of the conflict should be “used solely as a way to distinguish an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”1638 In order to assess the intensity of a potential conflict, the ICTY has indicated a Chamber should take into account, inter alia, “the seriousness of attacks and potential increase in armed clashes, their spread over territory and over a period of time, the increase in the number of government forces, the mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the con

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 1
Calidad:
Advertencia: Contiene formato HTML no visible

incompatible and in violation to these children’s fundamental rights. The risk for children who are enlisted, conscripted or used by an armed group inevitably also comes from within the same armed group. 20. Sexual violence committed against children in the armed groups causes irreparable harm and is a direct and inherent consequence to their involvement with the armed group. Sexual violence is an intrinsic element of the criminal conduct of “use to participate actively in the hostilities”. Girls who are used as sex slaves or “wives” of commanders or other members of the armed group provide essential support to the armed groups. Sexual assault in all its manifestations produces considerable damage and it demonstrates a failure in the protection of the life and integrity of its victim. There is additionally a gender-specific potential consequence of unwanted pregnancies for girls that often lead to maternal or infant’s deaths, disease, HIV, psychological traumatisation and social isolation. It must be clarified, however, that although sexual violence is an element of the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in hostilities, crimes of sexual violence are distinct and separate crimes that could have been evaluated separately by this Chamber if the Prosecutor would have presented charges against these criminal conducts. 21. In other words, sexual violence or enslavement are illegal acts and in this case a harm directly caused by the illegality of the war crime of enlisting, conscripting and the use of children under the age of 15 in support of the combatants. Sexual violence and enslavement are in the main crimes committed against girls and their illegal recruitment is often intended for that purpose (nevertheless they also often participate in direct combat.) If the war crimes considered in this case are directed at securing their physical and psychological well being, then we must recognize sexual violence as a failure to afford this protection and sexual violence as acts embedded in the enlisting, conscription and use of children under 15 in hostilities. It is discriminatory to exclude sexual violence which shows a clear gender differential impact from being a bodyguard or porter which is mainly a task given to young boys. The use of young girls and boys bodies by combatants within or outside the group is a war crime and as such encoded in the charges against the accused. B. Dual Status Victims/Witnesses 22. I respectfully dissent with the manner in which the Majority of the Chamber dealt with witnesses who have the dual status of victims, when evaluating their status as victims participating in this case. ICC-01/04-01/06-2842 14-03-2012 615/624 SL T No. ICC-01/04-01/06 9/17 14 March 2012 23. I agree with the evaluation the Chamber does as regards witnesses P-0007, P-0008, P-0010, P-0011 and P-0298,12 particularly that the Chamber cannot rely on their testimony for the purposes of determining the individual criminal responsibility of the accused beyond reasonable doubt. 24. However, I respectfully disagree with the Majority of the Chamber when it concludes: Witnesses P-0007, P-0008, P-0010, P-0011, and P-0298 were granted permission to participate in the proceedings as victims (see the Chamber’s Decision of 15 December 2008), as the information submitted was sufficient to establish, on a prima facie basis, that they were victims under Rule 85 of the Rules. Given the Chamber’s present conclusions as to the reliability and accuracy of these witnesses, it is necessary to withdraw their right to participate. Similarly, the father of P-0298, P-0299, was granted permission to participate on account of his son’s role as a child soldier. The Chamber’s conclusions as to the evidence of P-0298 render it equally necessary to withdraw his right to participate in his case. In general terms, if the Chamber, on investigation, concludes that its original prima facie evaluation was incorrect, it is necessary that it should amend any earlier order as to participation, to the extent necessary. It would be unsustainable to allow victims to continue participating if a more detailed understanding of the evidence has demonstrated that they no longer meet the relevant criteria [footnotes omitted].13 Witnesses P-0007 and P-0008 25. I deem that the contradictions and weaknesses of these two individuals as witnesses in the present trial should not affect their status as victims with right to participate in the trial proceedings. Although their accounts as witnesses were inconsistent for the Chamber to rely on them as evidence to determine the responsibility of the accused beyond reasonable doubt, I consider that these individuals could have well been recruited, albeit not in the exact circumstances described in their numerous accounts (witness statements, application forms and live testimony) and in at least one of the cases there was video evidence of one of the witnesses as a soldier. Witness P-0010 26. I agree with the conclusions of the Trial Chamber that there is no doubt that at some stage this individual served as a soldier within the UPC. I also agree that the Chamber does not have evidence beyond reasonable doubt that this occurred when she was under 15 years of age, and thus her testimony in this regard is not to be relied on for the purposes of determining the individual criminal responsibility of the accused. 27. I nevertheless suggest that the contradictions and weaknesses of this witness, especially given the unreliability of establishing accurate birth dates in the Democratic Republic of Congo in the present trial, should not affect her status as victim with participatory status. There is incontestable evidence that she was recruited, although it is impossible to determine with absolute certainty her exact age at the time of recruitment. This witness was most probably under the age of 18, and thus a child at the time of her first meetings with the OTP investigators in 2005. 14 She additionally was a victim of sexual violence as a result of her recruitment.15 This life experience of a young woman has to be taken into account, notwithstanding that these aspects of her testimony cannot be relied on for the purposes of an Article 74 decision. Her victim status, however, should remain unchanged. Witness P-0011 28. I firmly believe that any contradictions and weaknesses of this witness in the present trial should not affect his status as victim with participatory status. Even though his accounts as a witness were inconsistent, and cannot be relied upon to convict the accused, I deem that he could have been recruited, albeit the contradictory evidence presented in this trial. Witnesses P-0298 and P-0299 29. I firmly believe that any contradictions and weaknesses of these two witnesses’ testimonies in the present trial should not affect their status as victims with participatory status. Even though their accounts as witnesses could have been inconsistent, and cannot be relied upon to convict the accused, I truly believe that a real possibility exists that P-0298 was recruited, although not in the precise circumstances he stated in his testimony. Conclusions as regards witnesses P-0007, 0008, 0010, 0011, 0298 and 0299 30. The Chamber called Ms Elisabeth Schauer as expert witness on the topic of children with trauma, particularly post-traumatic stress disorder. During her testimony, Ms Schauer stated that the trauma suffered by child soldiers has intellectual and cognitive consequences in the children’s minds. Children who have suffered trauma have problems with their memory and may have learning difficulties, particularly as regards reading and writing comprehension.16 She also affirmed that this trauma never goes away.17 The expert further stated that although persons with post-traumatic stress disorder may recall events that occurred in the past, their ability to answer and remember these events will depend on the way questions are asked, and if they are asked chronologically. She literally stated “you probably have a hard time just wanting to know – jumping and wanting to know little details here and there.” 18 31. The Trial Chamber concluded in its Decision on victims’ participation as follows: [T]he trial Chamber will seek to achieve a balance between the need to establish an applicant’s identity with certainty , on the one hand, and the applicant’s personal circumstances, on the other. Bearing in mind the current situation in the Democratic Republic of Congo and the difficulties that applicants may often have in obtaining or producing copies of official identity documents, and the need in consequence of ensuring that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control […]. 19 32. These witnesses were subject to multiple interviews and strenuous examination and cross-examination, which took place on numerous occasions, during a period of time ranging from 2005 to 2009-2010. In all of these interviews and interrogatories they were asked to recall events that occurred between 2002 and 2003. Although there is doubt as to the exact age of these individuals at the time of the events, it has been proven that all of them were certainly children or adolescents at the time of their interviews with OTP investigators in 2005. Some of them could have also been under the age of 18 when they gave testimony in court in 2009-2010.20 These witnesses (and anyone under those circumstances) could explicably and logically have difficulties in recollecting events since the time elapsed between the events (2002-2003), the first interviews with OTP investigators (2005) and the actual trial (2009-2010). In fact, with such elapses of time it would be suspicious if the accounts would remain perfectly alike and unchanged. Memory is faulty. This is more the case for children and adults having suffered any traumatic events. 33. The testimony of witness P-0046 further substantiates the difficulties and challenges presented in the present context. This witness stated: [I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. 21 34. For all the reasons above, although I agree with the Majority of the Trial Chamber that the testimonies of these young individuals should not be used for the purposes of determining the individual criminal responsibility of Mr Lubanga, their victims’ status should remain unaffected. 35. Additionally and critically, it is unfair and discriminatory to impose upon individuals with dual status a higher evidentiary threshold (beyond reasonable doubt) as regards their victims’ status, while all other victims participating in the proceedings have not been subject to thorough examination by the parties and the Chamber, as these young persons have been. When reparations are evaluated, it will be up to the Trial Chamber to determine the criteria utilised in determining their final status. Consequently, I consider they should maintain their status as victims for the remaining proceedings in this trial. C. Evidentiary value of video evidence 36. I respectfully disagree with the evidentiary value the Majority of the Chamber has given to some of the video footage introduced as evidence in this trial. 37. I agree with the conclusions of the Chamber that: The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC.22 38. However, I consider that the Majority of the Chamber should have relied on the video footage within EVD-OTP-00571 (02:21:20 to 03:04:57), which was introduced through witness P-0030, in order to support its conclusion. Witness P-0030 stated that this video was filmed at a rally in Goma on 11 January 2003, at which certain UPC officials, including the accused, Mr Kisembo and Mr Rafiki, were present. 23 Mr Lubanga addressed an audience that included children clearly below the age of 15. The accused’s speech concerned a meeting with the RCD-ML and the tensions between the UPC and the UPDF, but most importantly, the accused clearly considered it appropriate to include children under the age of 15 when he spoke publicly about military and other issues concerning the UPC. 39. The Majority of the Chamber should have also considered video footage within EVD-OTP-00585 (from 00:40:00) and EVD-OTP-00586 (from 00:40:18), which was introduced through the same witness P-0030. The witness testified that this event (a UPC rally) took place in Iga Barrière, just after the UPC retook Bunia. The witness identified several UPC child soldiers and Mr Lubanga.24 The accused was wearing military clothing and he addressed an audience that included many children who were clearly under the age of 15. 40. In the course of his speech to those assembled, the accused states the following: Let's try to avoid the massacres we saw committed by the government soldiers. I'm saying this because what are we going to base ourselves on? Our neighbours do not like us. The president sends the military to exterminate people. Where are we going to go to seek refuge? We cannot wait for aid to arrive. We have to try and be smart and guarantee our own safety. […] People can complain the situation is bad and that we need aid. We could receive aid, but -- or assistance, but as I already mentioned, here in Bunia we should bear in mind that the assistance -- that we rely on you for assistance. We rely on you for assistance. I want you to understand that. I think that if there hadn't been any massacres in Bunia and if we had waited for assistance from elsewhere […] We must look for people who will help us; and whoever will, we should collaborate with to improve the situation. But that won't stop us from doing our work because they could come for two or three months. The work, the help, might be limited. We must be aware and work in the way I have always asked you to work. If, in view of our experience, we are able to forecast the future, even if we are able to do so, we can't be distracted. […] We are going to continue our activities, meet from time to time, because I don't want us to meet in our offices. We need to do our work, the work that will help our future. So, my brothers, that's what will bring us joy. I know that your stomachs aren't full. I know. We have to share our joy and eat together because that will enable us to do our work. You will be asked to do some work. You should know this. But please work to help all the Congolese of Ituri. We're not fighting in the name of one ethnic group; we're fighting for people's security. […] Many people heard that I was dead. That's what was announced on the radio. I would like us to be able to meet and enjoy the time together, for at least a few minutes, and ensure that those who remained help each other. And in that way we will be able to resist our enemies. I came here to ICC-01/04-01/06-2842 14-03-2012 622/624 SL T No. ICC-01/04-01/06 16/17 14 March 2012 congratulate you for the work you have carried out here in Lopa. Clap, says somebody in the audience. Brothers, today, if before the massacres in Bunia we weren't able to go to Mahagi, well, people hid. And if we managed to save lives, it was all owing to your courage. And I spoke to your leaders on the phone and he said you continue to recruit people. We can together planify together. Thanks to your courage and the resistance -- your resistance, we have won. 25 41. This video sequence demonstrates that the accused considered it appropriate to include children under the age of 15 when he spoke publicly about issues concerning the UPC, including recruitment. 42. These videos demonstrate that the UPC officials, and particularly Mr Lubanga, would address audiences of young children in which he would discuss the military purposes of the UPC. Such events demonstrate not only the existence of recruitment campaigns (which include also rallies such as the ones showed in these two videos), but also that the accused knew that recruitment of children under the age of 15 “will occur in the ordinary course of events” after such rallies took place since they targeted a very young audience. 43. It is relevant that the rallies shown in EVD-OTP-00571, EVD-OTP-00585 and EVD-OTP-00586 took place in the context of the wider recruitment campaigns, and it contributes to the evidence that the accused was involved, in activities that resulted, in the ordinary course of events, in the recruitment of children below the age of 15 in the ranks of the UPC/FPLC.

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 1
Calidad:

it is supported by other evidence, accepted by the Chamber, on the issue of the various battles that were fought at that time. D-0011’s confirmation of the need to mobilise at that time also throws light on the attitude of the accused towards the recruits he spoke to at the Rwampara camp on 12 February 2003, as shown in the video EVDOTP- 00570. 1338. In addition, P-0055, who had an important position in the FPLC hierarchy, gave evidence to the effect that he was unaware of any procedures for child soldier demobilisation within the UPC.3634 He did not attend any UPC meetings, nor was he involved in conversations with Mr Lubanga, Floribert Kisembo, Rafiki Saba, Bosco Ntaganda or Eric Mbabazi, during which the subject of the demobilisation of children within the army was raised.3635 1339. The Chamber has considered video footage from 31 July 2004.3636 One of the sequences, shown during P-0030’s evidence, shows speeches given by several UPC members at the UPC/FPLC training camp in Katoto.3637 Eloy Mafuta addressed the audience as follows: Hello everybody. We’re very pleased with the work being carried out by the youngsters here. You, you know that giving birth to children, well, if somebody cannot give birth to a child, cannot father a child, he’ll be very sad. You can see the work that you, the fathers have already done. You can see the current situation concerning your children and we would like to thank them for the work they’ve carried out. You can see the fruit of their work. You must not tire. You must continue to work in the same way, because we can see the fruit of your work. And it’s because of these children, it’s thanks to these children that we are living here. We could not live here otherwise. Thanks to the work carried out by your children, we can live in peace here. The work carried out by the children here makes it possible for us to live and to continue to live here. My name is Eloy Mafuta. I’m the presidential advisor. I’m also military advisor to the UPC.3638 P-0030 confirmed that the speaker was Eloy Mafuta, the special advisor to the President and military advisor to the UPC.3639 1340. Later in the same video, Bosco Ntaganda, wearing a UPC/FPLC uniform, addressed the crowd:3640 […] I’m talking to you as a civilian population and we’re asking for your support for our military actions. We will continue our work until we are sure we have completed our mission. I’m very pleased because if you go to the equatorial region you will find your child who’s a colonel, or in South Kivu or other parts of the Congo you will find your children who are there. They are working on the basis of what you, as parents, have handed down to them.3641 1341. He was followed by the Minister of Defence, Mr Mbuna: The presidential advisor has spoken to you. He’s also the military advisor. He said that we have borne children and these children have grown up. Among those children there are older children and younger children, and that is why the president wanted and authorised us to give them different ranks. These ranks, that’s to show who are the superiors. I think that the ceremony has been in Largu, Blukwa, and there was a lot of talk about that particular day. The president knew that we were going to come here and he asked us to pass on to the population and to the soldiers, to pass on his greetings. You have the greetings of the president.3642 1342. P-0030 again confirmed that the speaker was the Minister of Defence, Mr Mbuna, who was referring to Thomas Lubanga when he said “the president”.3643 1343. In one scene a soldier wearing a uniform can be seen, who P- 0030 confirms belongs to the FPLC of the UPC.3644 He is below the age of 18, which is the age limit as determined in the Presidential decree of 1 June 2003. 1344. Although the video falls outside of the period of the charges, it gives a strong indication that the presidential decree of 1 June 2003 and the preceding demobilisation orders were not implemented. Young soldiers should have been demobilised, yet the speeches indicate that children below the age of 18 were still being targeted for recruitment and they remained within the ranks of the FPLC. Not only did Eloy Mafuta and Bosco Ntaganda speak of children, but Mr Mbuna also explicitly refers to younger and older children who are given different ranks, which excludes the possibility that the term children was meant to describe family ties rather than age. 1345. Given the Chamber’s conclusion that the self-defence forces were independent of the FPLC, and in light of the finding that the demobilisation orders were not genuinely implemented, it is unnecessary to discuss the position of the self-defence forces vis-à-vis demobilisation.3645 (2) Conclusion 1346. On the basis of the evidence discussed above, the Chamber is persuaded that whether or not the demobilisation orders were implemented for some of the children under the age of 15, others were simultaneously recruited, re-recruited and used by the FPLC throughout the timeframe of the charges. The demobilisation orders additionally prove that Mr Lubanga knew that the recruitment of children was prohibited and that children remained amongst the ranks of the UPC/FPLC in spite of the prohibition. 1347. Focusing on the mental element of the charges, the Chamber is of the view that Thomas Lubanga was fully aware that children under the age of 15 had been, and continued to be, enlisted and conscripted by the UPC/FPLC and used to participate actively in hostilities during the timeframe of the charges. This occurred, in the ordinary course of events, as a result of the implementation of the common plan – to ensure that the UPC/FPLC had an army strong enough to achieve its political and military aims. 1348. Within a functioning military hierarchy, it is necessary that orders are complied with. The defence has been imprecise as to whether the demobilisation order of 21 October 2002 and the decree of 1 June 2003 lead to the conclusion that the resulting crimes did not occur in the ordinary course of events, or whether it is only suggesting that the accused did not have the “intention” to commit the crimes. However, the lack of cooperation on the part of the UPC/FPLC with the NGOs working within the field of demobilisation and the threats directed at human rights workers who were involved with children’s rights tend to undermine the suggestion that demobilisation, as ordered by the President, was meant to be implemented. Instead, Thomas Lubanga used child soldiers below the age of 15 as his bodyguards within the PPU3646 and he gave speeches and attended rallies where conscripted and enlisted children below the age of 15 were present.3647 Mr Lubanga was aware that children under the age of 15 were within the personal escorts of other commanders. 3648 Moreover, the accused visited UPC/FPLC camps,3649and particularly at the Rwampara camp he gave a morale-boosting speech to recruits who included young children who were clearly below the age of 15. As already set out, the Chamber concludes that this video, filmed on 12 February 2003, contains compelling evidence as to Thomas Lubanga’s awareness of, and his attitude towards, the enduring presence of children under the age of 15 in the UPC. b) Awareness of the factual circumstances that established the existence of a non-international armed conflict and the nexus between the commission of the crime and the armed conflict 1349. On the basis of the evidence rehearsed above, the Chamber concludes beyond reasonable doubt that the accused was aware of the factual circumstances that established the existence of an armed conflict throughout the period of the charges. 1350. The accused and other members of the UPC/FPLC articulated the organisation’s military aims.3650 Child soldiers were recruited as a result of the implementation of a common plan in order to ensure the UPC/FPLC was able to implement its military aims, and the accused was aware that they were being recruited, trained and used in military operations.3651 Hence, the Chamber finds beyond reasonable doubt that Thomas Lubanga was fully aware of the undoubted link between the crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities and the armed conflict or the factual circumstances that established the existence of the armed conflict. 4. OVERALL CONCLUSIONS 1351. The accused and his co-perpetrators agreed to, and participated in, a common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri. This resulted, in the ordinary course of events, in the conscription and enlistment of boys and girls under the age of 15, and their use to participate actively in hostilities. 1352. As indicated in an earlier section of this Judgment, the Chamber has concluded that from late 2000 onwards, Thomas Lubanga acted with his co-perpetrators, who included Floribert Kisembo, Bosco Ntaganda, Chief Kahwa, and commanders Tchaligonza, Bagonza and Kasangaki. Mr Lubanga’s involvement with the soldiers (including young children) who were sent to Uganda for training is of significance. Although these events fall outside the period covered by the charges and are outwith the temporal jurisdiction of the Court, they provide critical background evidence on the activities of this group, and they help establish the existence of the common plan before and throughout the period of the charges. 1353. As further background, the accused was in conflict with the RCD-ML from at least April 2002, and he led a group that sought to bring about political change in Ituri, including the removal of Mr Mbusa Nyamwisi and Governor Molondo Lompondo, if necessary by force. The accused remained in control by delegating his authority, whilst he was detained in the summer of 2002 and he sent Chief Kahwa and Mr Beiza to Rwanda to obtain arms. During that period, Floribert Kisembo, Bosco Ntaganda and Chief Kahwa, three of the accused’s principal alleged co-perpetrators, were generally responsible for recruitment and training, which included girls and boys under the age of 15. 1354. The accused and at least some of his co-perpetrators were involved in the takeover of Bunia in August 2002. Thomas Lubanga, as the highest authority within the UPC, appointed Chief Kahwa, Floribert Kisembo and Bosco Ntaganda to senior positions within the UPC/FPLC. The evidence has established that during this period, the leaders of the UPC/FPLC, including Chief Kahwa, and Bosco Ntaganda, and Hema elders such as Eloy Mafuta, were active in mobilisation and recruitment campaigns aimed at persuading Hema families to send their children to join the UPC/FPLC. Those children recruited before the formal creation of the FPLC were incorporated into that group, and a number of training camps were added to the original facility at Mandro. The Chamber has concluded that between 1 September 2002 and 13 August 2003, a significant number of highranking members of the UPC/FPLC and other personnel conducted a large-scale recruitment exercise directed at young people, including children under the age of 15, whether voluntarily or by coercion. 1355. The Chamber is satisfied beyond reasonable doubt that as a result of the implementation of the common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri, boys and girls under the age of 15 were conscripted and enlisted into the UPC/FPLC between 1 September 2002 and 13 August 2003. Similarly, the Chamber is satisfied beyond reasonable doubt that the UPC/FPLC used children under the age of 15 to participate actively in hostilities, including during battles. They were also used, during the relevant period, as soldiers and as bodyguards for senior officials, including the accused. 1356. Thomas Lubanga was the President of the UPC/FPLC, and the evidence demonstrates that he was simultaneously the Commanderin- Chief of the army and its political leader. He exercised an overall coordinating role over the activities of the UPC/FPLC. He was informed, on a substantive and continuous basis, of the operations of the FPLC. He was involved in planning military operations, and he played a critical role in providing logistical support, including as regards weapons, ammunition, food, uniforms, military rations and other general supplies for the FPLC troops. He was closely involved in making decisions on recruitment policy and he actively supported recruitment initiatives, for instance by giving speeches to the local population and the recruits. In his speech at the Rwampara camp, he encouraged children, including those under the age of 15 years, to join the army and to provide security for the populace once deployed in the field following their military training. Furthermore, he personally used children below the age of 15 amongst his bodyguards and he regularly saw guards of other UPC/FPLC members of staff who were below the age of 15. The Chamber has concluded that these contributions by Thomas Lubanga, taken together, were essential to a common plan that resulted in the conscription and enlistment of girls and boys below the age of 15 into the UPC/FPLC and their use to actively participate in hostilities. 1357. The Chamber is satisfied beyond reasonable doubt, as set out above, that Thomas Lubanga acted with the intent and knowledge necessary to establish the charges (the mental element required by Article 30). He was aware of the factual circumstances that established the existence of the armed conflict. Furthermore, he was aware of the nexus between those circumstances and his own conduct, which resulted in the enlistment, conscription and use of children below the age of 15 to participate actively in hostilities. XII. DISPOSITION 1358. For the foregoing reasons and on the basis of the evidence submitted and discussed before the Chamber at trial, and the entire proceedings, pursuant to Article 74(2) of the Statute, the Chamber finds Mr Thomas Lubanga Dyilo: GUILTY of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003. 1359. Pursuant to Regulation 55 of the Regulations of the Court, the Chamber modifies the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character from early September 2002 to 13 August 2003. 1360. At the request of the defence and in accordance with Article 76(2) of the Statute and Rule 143 of the Rules, the Chamber will hold a separate hearing on matters related to sentencing and reparations. 1361. The Chamber communicates to the Prosecutor, pursuant to Article 70 of the Statute and Rule 165 of the Rules, its findings that P- 0143, P-0316 and P-0321 may have persuaded, encouraged, or assisted witnesses to give false evidence. 1362. The Majority of the Chamber withdraws the right of dual status witnesses P-0007, P-0008, P-0010, P-0011, P-0298 and P-0299 to participate in the proceedings as victims. 1363. The Chamber withdraws the right of victims a/0229/06, ICC-01/04-01/06-2842 14-03-2012 591/624 SL T No. ICC-01/04-01/06 592/ 593 14 March 2012 a/0225/06, and a/0270/07 to participate in the proceedings. 1364. Judges Fulford and Odio Benito append separate and dissenting opinions to this Judgment on particular discrete issues. ICC-01/04-01/06-2842 14-03-2012 592/624 SL T Done in both English and French, the English version being authoritative. âcWvs (^Ut>^ Judge Adrian Fulford Judge Elizabeth Odio Benito Jtrage René Blattmann Dated this 14 March 2012 At The Hague, The Netherlands SEPARATE OPINION OF JUDGE ADRIAN FULFORD 1. I write separately to explain my views on the scope of Article 25(3)(a) of the Statute, as regards an individual who is alleged to have committed a crime “jointly with another”. 2. I wish to make clear at the outset that I agree with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied at this stage of this case. Focussing on the requirements of Article 25(3)(a) of the Statute, with minor modifications to ensure compliance with the Statute, the test described at paragraph 1018 mirrors the approach of the Pre-Trial Chamber in the Decision on the Confirmation of Charges,1 which established (certainly in this context) the principles of law on which the trial has been prosecuted and defended. No substantive warning has been given to the parties that the Chamber may apply a different test, and as a matter of fairness it would be wrong at this late stage to modify the legal framework of the case. In short, it would be unjust to the present accused to apply a different, and arguably lesser, test. 3. Generally, it is my view that the test laid down by the Pre-Trial Chamber is unsupported by the text of the Statute and it imposes an unnecessary and unfair burden on the prosecution. The Pre-Trial Chamber’s reading of Article 25(3)(a) of the Statute 4. In its decision on the confirmation of charges, the Pre-Trial Chamber held that under Article 25(3)(a) of the Statute, liability for committing a crime “jointly with another” attaches only to individuals who can be said to have control over the crime.2 It adopted a five-part test for co-perpetrator liability under this theory, which, as just indicated, is directed at those who “have control over the commission of the offence”.3 The five elements are: i. The “existence of an agreement or common plan between two or more persons”;4 ii. The “co-ordinated essential contribution made by each coperpetrator resulting in the realisation of the objective elements of the crime;”5 iii. “[T]he suspect [must] fulfil the subjective elements of the crime with which he or she is charged”;6 iv. “[T]he suspect and the other co-perpetrators (a) must all be mutually aware of the risk that implementing their common plan may result in the realisation of the objective elements of the crime, and (b) must all mutually accept such a result by reconciling themselves with it or consenting to it”;7 and v. “[T]he suspect [must be aware] of the factual circumstances enabling him or her to jointly control the crime.”8 5. The Pre-Trial Chamber, in essence, provided two reasons for adopting the control of the crime9 approach to co-perpetration. First, to “distinguish[] between principals and accessories”.10 Second, to ensure that the liability of principals extends to individuals who, notwithstanding their absence from the scene of the crime, exercised control over its commission because they were in a position to decide whether and, if so, how the offence was to be committed. 11 I will first address the basis of this theory, and thereafter explain my approach to joint perpetration under Article 25(3)(a) of the Statute. The control of the crime theory is unsupported by the text of the Statute 6. As set out above, the Pre-Trial Chamber’s adoption of the control of the crime theory was founded, in the first place, on the perceived necessity to establish a clear dividing line between the various forms of liability under Article 25(3)(a) – (d) of the Statute and, in particular, to distinguish between the liability of “accessories” under Article 25(3)(b) and that of “principals” under Article 25(3)(a) of the Statute.12 I respectfully disagree with this view. 7. In my judgment, the plain text of Article 25(3) defeats the argument that subsections (a) – (d) of Article 25(3) must be interpreted so as to avoid creating an overlap between them. Article 25(3)(a) establishes the concept of committing a crime through another, whilst Article 25(3)(b) focuses on ordering, soliciting and inducing the commission of the offence. These concepts, which appear in separate subsections, will often be indistinguishable in their application vis-à-vis a particular situation, and by creating a clear degree of crossover between the various modes of liability, Article 25(3) covers all eventualities. Put otherwise, in my judgment the plain language of Article 25(3) demonstrates that the possible modes of commission under Article 25(3)(a) – (d) of the Statute were not intended to be mutually exclusive.13 8. Some have suggested that Article 25(3) establishes a hierarchy of seriousness as regards the various forms of participation in a crime, with Article 25(3)(a) constituting the gravest example and Article 25(3)(d) the least serious.14 I am unable to adopt this approach. In my judgment, there is no proper basis for concluding that ordering, soliciting or inducing a crime (Article 25(3)(b)) is a less serious form of commission than committing it “through another person” (Article 25(3)(a)), and these two concepts self-evidently overlap. Similarly, I am unable to accept that the criminality of accessories (Article 25(3)(c)) is greater than those who participate within a group (Article 25(3)(d)), particularly since many of history’s most serious crimes occurred as the result of the coordinated action of groups of individuals, who jointly pursued a common goal. 9. I am also unpersuaded that it will assist the work of the Court to establish a hierarchy of seriousness that is dependent on creating rigorous distinctions between the modes of liability within Article 25(3) of the Statute. Whilst it might have been of assistance to “rank” the various modes of liability if, for instance, sentencing was strictly determined by the specific provision on which an individual’s conviction is based, considerations of this kind do not apply at the ICC. Article 78 of the Statute and Rule 145 of the Rules of Procedure and Evidence, which govern the sentences that are to be imposed, provide that an individual’s sentence is to be decided on the basis of “all the relevant factors”, “including the gravity of the crime and the individual circumstances of the convicted person”. Although the “degree of participation” is one of the factors listed in Rule 145(1)(c) of the Rules, these provisions overall do not narrowly determine the sentencing range by reference to the mode of liability under which the accused is convicted, and instead this is simply one of a number of relevant factors. 10. The control of the crime theory has its origins in the post-war German legal system, where particular domestic considerations – which do not exist at the ICC – have made it appropriate to apply this principle. In adopting this theory, the Pre-Trial Chamber focussed substantially on a minority view from the ad hoc tribunals,15 in that it cited the judgment of the ICTY Trial Chamber in the Stakić case when it held that the accused was responsible as a co-perpetrator16 (the conviction on this basis was set aside on appeal)17 and Judge Schomburg’s separate opinion in the ICTR Appeals Chamber’s judgment in the Gacumbitsi case. 18 In these two instances, the judges relied heavily on the scholarship of the German academic Claus Roxin as the primary authority for the control theory of co-perpetration,19 and in the result, this approach was imported directly from the German legal system. 20 While Article 21(1)(c) of the Statute permits the Court to draw upon “general principles of law” derived from national legal systems, in my view before taking this step, a Chamber should undertake a careful assessment as to whether the policy considerations underlying the domestic legal doctrine are applicable at this Court, and it should investigate the doctrine’s compatibility with the Rome Statute framework. This applies regardless of whether the domestic and the ICC provisions mirror each other in their formulation. It would be dangerous to apply a national statutory interpretation simply because of similarities of language, given the overall context is likely to be significantly different. 11. This case demonstrates why a detailed assessment of this kind is necessary. Under the German legal system, the sentencing range is determined by the mode of liability under which an individual is convicted, 21 and it is therefore necessary to draw clear distinctions between principals on the one hand and accessories on the other. As set out above, these considerations do not apply at the ICC, where sentencing is not restricted in this way, and this example of the differences that exist is of significance in this context. 12. The second justification advanced by the Pre-Trial Chamber for adopting the control of the offence theory was to establish “principal” liability for individuals who, “in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed”.22 However, as developed below, in my judgment a plain reading of Article 25(3)(a) establishes the criminal liability of co-perpetrators who contribute to the commission of the crime notwithstanding their absence from the scene, and it is unnecessary to invoke the control of the crime theory in order to secure this result.23 Therefore, individuals who are involved indirectly can be prosecuted as co-perpetrators without relying on this principle. Joint-perpetration under a plain text reading of Article 25(3)(a) of the Statute 13. As it seems to me, the Court’s approach to this issue should be rooted in the plain text of the Statute. The Appeals Chamber has held that the Statute is to be applied in conformity with Article 31(1) of the Vienna Convention on the Law of Treaties,24 which requires that the Statute’s provisions are to be interpreted “in good faith in accordance with the[ir] ordinary meaning [ . . . ] in their context and in light of [the Statute’s] object and purpose”.25 In line with these principles, I have sought to give the relevant terms their plain meaning, and it has been unnecessary to read in additional terms in order to give effect to the express words of the Statute. 14. In relevant part, Article 25(3) of the Statute provides: In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: a. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; 15. When establishing joint perpetrator liability, the prosecution must prove that an individual committed the crime jointly with another. The latter words (“jointly with another”) clearly indicate the involvement of at least two people, whilst the expression “commits […] jointly” denotes coordination between the individuals involved. This self-evidently necessitates a sufficient meeting of minds, by way of an agreement, common plan or joint understanding. In practice, this will not always be explicit or the result of long-term planning, and the existence of the joint venture may need to be inferred from the conduct of the co-perpetrators. Although the text of the Statute does not provide that the agreement, common plan or joint understanding must have an overarching criminal goal, the mental element of Article 30 of the Statute must be satisfied, and unless the Court’s legal framework has “otherwise provided”,26 the joint perpetrators must, at a minimum, be aware that executing the agreement or plan will lead to the commission of a crime within the jurisdiction of the Court “in the ordinary course of events”.27 I consider it is unhelpful to investigate whether the requirement of awareness (on the part of the accused) that a crime will be committed “in the ordinary course of events” is to be equated with a “possibility”, a “probability”, a “risk” or a “danger” (see paragraph 1012 of the Judgment). Put otherwise, the Chamber’s decision as to whether the accused was aware that something will happen in the ordinary course of events is not assisted by asking the question as to whether he was aware of the possibility, the probability, the risk or the danger that it would occur. The words are plain and readily understandable, and it is potentially confusing to reformulate or to interpret this test using other words. Finally, the verb “commits” requires a contribution to the commission of the crime. Nothing in the Statute requires that the contribution must involve direct, physical participation at the execution stage of the crime, and, instead, an absent perpetrator may be involved. Either way, the use of the word “commits” simply requires an operative link between the individual’s contribution and the commission of the crime. Additionally as regards causation, the plain text of Article 25(3) does not require proof that the crime would not have been committed absent the accused’s involvement (viz. that his role was essential). 28 Rather, the prosecution must simply demonstrate that the individual contributed to the crime by committing it with another or others. 16. To summarise, a plain text reading of Article 25(3)(a) establishes the following elements for co-perpetration: a. The involvement of at least two individuals. b. Coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to undertake action that, in the ordinary course of events,29 will lead to the commission of the crime. c. A contribution to the crime, which may be direct or indirect, provided either way there is a causal link between the individual’s contribution and the crime. d. Intent and knowledge, as defined in Article 30 of the Statute, or as “otherwise provided” elsewhere in the Court’s legal framework. I consider it would be unfair, at this stage of the proceedings, to approach the issue of the accused’s knowledge on a lesser basis than “he knew” there were children under the age of 15 who were conscripted, enlisted or used (see paragraph 1015 of the Judgment). 17. Not only is the above approach supported by the plain text of the Statute, it also provides a realistic basis for the Court to conduct its work. It avoids a hypothetical investigation as to how events might have unfolded without the accused’s involvement (which is necessary under the “essential contribution” formulation) and it places appropriate emphasis on the accused’s state of mind, once it is established that he or she contributed to the offence. It seems to me to be important to stress that an ex post facto assessment as to whether an individual made an essential contribution to war crimes, crimes against humanity or genocide will often be unrealistic and artificial. These crimes frequently involve a large number of perpetrators, including those who have controlling roles. It will largely be a matter of guesswork as to the real consequence for the particular crime if the accused is (hypothetically) removed from the equation, and most particularly it will not be easy to determine whether the offence would have been committed in any event. 18. For all of these reasons, I respectfully disagree with the approach to coperpetrator liability on the part of the Pre-Trial Chamber and my judicial colleagues in Trial Chamber I. Applying the approach of the Pre-Trial Chamber 19. Notwithstanding the conclusions set out above, at this stage in the present case I am of the view that the Chamber ought to apply the tests in paragraphs 1013 and 1018 of the Judgment, which largely mirror the approach of the Pre-Trial Chamber, in the present context. The case has been conducted on the basis of the legal framework established by the Pre-Trial Chamber, which should not be significantly altered if that step would cause material prejudice. 20. One of the Trial Chamber’s principal duties under the Statute is to ensure that the “trial is fair” and “is conducted with full respect for the rights of the accused”. 30 Of particular relevance is the accused’s right, under Article 67(1)(a) of the Statute, to be informed “in detail of the nature, cause and content of the charge[s]” against him. In my view, this requirement for notice means that the accused should not only be informed of the factual allegations against him, but he needs to be aware of the basic outline of the legal framework against which those facts will be determined. This ensures that the accused knows, at all stages of the proceedings, what he is expected to meet. This is an essential prerequisite for a fair trial.31 21. Abandoning the control of the crime theory for the purposes of the Article 74 Decision would significantly modify the law governing the charges, at a stage when the evidence is closed and the parties have made their submissions. The alternative approach which I have described above arguably involves applying a “lesser” test. If at this stage in the proceedings (and without prior notice) the Chamber ruled that the prosecution only has to establish a contribution – as opposed to an “essential” contribution – the trial would be rendered unfair, in violation of Article 64(2) of the Statute. The accused is likely to have made a number of tactical decisions that, at least in part, have been informed by the legal requirements for a conviction. I am therefore in agreement with my colleagues that the tests described in paragraphs 1013 and 1018 of the Judgment are to be applied, notwithstanding my overall reservations as to the “control of the crime” theory. kit^>AÀ^ r ^ w Judge Adrian Fulford Dated this 14 March 2012 At The Hague, The Netherlands SEPARATE AND DISSENTING OPINION OF JUDGE ODIO BENITO 1. I agree with the final decision of the Trial Chamber as regards the individual criminal responsibility of Mr Lubanga Dyilo. However, I have a separate and dissenting opinion on three particular aspects of the Judgment. I hereby explain the reasons for my dissent. A. Legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to actively participate in the hostilities 2. I respectfully disagree with the conclusions of the Majority of the Chamber as regards the legal definition of the crimes of enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities. 3. The Majority of the Trial Chamber stated, and I agree, that: Addressing the three relevant acts, namely enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities, in each instance the conduct is not defined in the Statute, the Rules or the Elements of Crimes. Accordingly, the scope of the activities covered by Article 8(2)(e)(vii) of the Statute must be determined in accordance with Articles 21 and 22(2) of the Statute […]. 1 4. However, the Majority of the Trial Chamber is failing to address two key elements: i) the concept of “national armed forces” within Article 8(2)(b)(xxvi) of the Rome Statute; and ii) the activities covered by Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely those that should be included within the legal definition of enlistment, conscription and “use to participate actively in the hostilities”. Consequently, I consider that it is important to evaluate these two elements, which the Majority of the Trial Chamber has failed to address. 5. A distinction must be made between: a) the legal definition of the crimes (in this case enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities); and b) the evaluation of the evidence presented in this case within the limits of the facts and circumstances of the alleged crimes. 6. Article 8 of the Rome Statute includes as war crimes the enlistment, conscription and use of children under the age of 15 to participate actively in the hostilities. Since neither the Statute nor the Elements of Crimes define further these three criminal conducts, the Chamber is required to define them taking into consideration other applicable law.2 Furthermore, pursuant to Article 21(3) of the Rome Statute, the Chamber is compelled to interpret and apply the law consistent with internationally recognised human rights. 3 The recruitment of children under the age of 15 is prohibited under the Rome Statute, international treaties 4 and international customary law. 5 All these sources of law seek to protect children under the age of 15 from the multiple and different risks which they are subject to in the context of any armed conflict, such as ill treatment, sexual violence and forced marriages. It would consequently be contrary to the “object and purpose” of the Rome Statute,6 contrary to international recognised human rights and discriminatory under Article 21(3), not to define the legal concepts of enlistment, conscription and use to participate actively in the hostilities, independently of the evaluation of the evidence tendered during trial or the scope of the charges brought against the accused. 7. Although the Rome Statute’s provisions are applied and interpreted in relation to specific charges brought against individuals, the Chamber must not disregard the interests that these provisions are meant to protect. In the present case, the statutory provisions are meant to protect the life and personal integrity of children under the age of 15. It would thus be impermissible for a Chamber to decline to enter a comprehensive legal definition of a crime and leave it open to a case-by-case analysis or to the limited scope of the charges brought against the accused. This would be a step backwards in the progressive development of international law.7 8. I deem that the Majority of the Chamber addresses only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecution submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed. The concept of “national armed forces” under Article 8(2)(b)(xxvi) of the Statute 9. Article 8 of the Rome Statute treats the notion of the armed group in a slightly differentiated manner in depending on whether this was committed in the context of an international or a non-international armed conflict. Whereas (Article 8(2)(b)(xxvi) refers to “national armed forces” in the context of an international armed conflict, Article 8(2)(e)(vii) refers “armed forces or groups” in the context of a non-international armed conflict. Thus, a key question that needs to be addressed by the Chamber is whether the concept of “national armed forces” includes non-State actors such as the Union Patriotique Congolose (UPC/FPLC). 10. In light of the above, the Pre-Trial Chamber in the present case concluded that the concept of “national armed forces” is not limited to the armed forces of a State.8 11. The Majority of the Trial Chamber concluded as follows: Given the Chamber’s conclusion that the UPC was engaged in a noninternational armed conflict throughout the period of the charges,9 it is unnecessary to interpret or discuss Article 8(2)(b)(xxvi) of the Statute. Subject to one significant difference in wording (conscription or enlistment of children into “national armed forces” (Article 8(2)(b)(xxvi) of the Statute) as opposed to “armed forces or groups” (Article 8(2)(e)(vii) of the Statute)), the elements of these two crimes are similar.10 Therefore, the extent to which the crimes of conscription, enlistment and use of children below the age of 15 under Article 8(2)(b)(xxvi) of the Statute have previously been the subject of interpretation and consideration will be relevant to the Chamber’s analysis of Article 8(2)(e)(vii) of the Statute [footnotes omitted]. 11 12. I respectfully disagree with the Majority of the Chamber. Although the Chamber has concluded that the crimes were committed in the context of a non-international armed conflict, this case has been argued by the parties and participants pursuant to the decision on the confirmation of the charges, which encompasses both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Statute. In fact, the defence has from start to finish argued that the armed conflict in question is an international armed conflict, and thus, it is foreseeable that this aspect could be the subject matter of an eventual appeal. Thus, the discussion on the concept of “national armed forces” is required as this is a live issue in the present case. 13. As I previously stated, the recruitment of children under the age of 15 is prohibited under international customary law, regardless of whether this was committed in the context of an international or non-international armed conflict and regardless of the nature of the armed group or force that recruited the child. It would be contrary to the “object and purpose” of the Rome Statute and contrary to internationally recognised human rights (and thus contrary to Article 21(3) of the Rome Statute) to exclude from the prohibition of child recruitment, and armed group, solely for the nature of its organization (State or non-state armed group). 14. Consequently, the concept of enlistment, conscription and use in both Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii) of the Rome Statute should be understood as encompassing any type of armed group or force, regardless of the nature of the armed conflict in which it occurs. Towards a comprehensive legal definition of “use to participate actively in the hostilities” 15. I respectfully disagree with the Majority’s decision that declines to enter a legal definition of the concept of “use to participate actively in the hostilities”, but instead leaves it to a case-by-case determination, which ultimately will be evidence-based and thus limited by the charges and evidence brought by the prosecution against the accused. Additionally, this case-by-case determination can produce a limited and potentially discriminatory assessment of the risks and harms suffered by the child. The Chamber has the responsibility to define the crimes based on the applicable law, and not limited to the charges brought by the prosecution against the accused. 16. Although the Majority of the Chamber recognises that sexual violence has been referred to in this case, it seems to confuse the factual allegations of this case with the legal concept of the crime, which are independent. By failing to deliberately include within the legal concept of “use to participate actively in the hostilities” the sexual violence and other illtreatment suffered by girls and boys, the Majority of the Chamber is making this critical aspect of the crime invisible. Invisibility of sexual violence in the legal concept leads to discrimination against the victims of enlistment, conscription and use who systematically suffer from this crime as an intrinsic part of the involvement with the armed group. 17. I thus consider it necessary and a duty of the Chamber to include sexual violence within the legal concept of “use to participate actively in the hostilities”, regardless of the impediment of the Chamber to base its decision pursuant to Article 74(2) of the Statute. 18. It is also important to state that although I agree with the Majority when it concludes that the decisive factor, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target, it is crucial to determine that, regardless of the specific task carried out by that child, he or she can suffer harm inflicted by the armed group that recruited the child illegally (for example, for the purposes of supporting the combatants through the use of their bodies for sexual violence). 19. Children are protected from child recruitment not only because they can be at risk for being a potential target to the “enemy” but also because they will be at risk from their “own” armed group who has recruited them and will subject these children to brutal trainings, torture and ill-treatment, sexual violence and other activities and living conditions that are

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 1
Calidad:
Advertencia: Contiene formato HTML no visible

the recruitment of children, and working to raise awareness on this issue. They were considered a nuisance because their activities were having an impact.3468 1288. In addition, D-0037 agreed there were complaints made by the United Nations and other international organisations in October or November 2002 and early 2003 regarding the recruitment of children in the FPLC, which were received by his office within the UPC.3469 In a departure from his earlier testimony, D-0037 indicated he had not been informed about the complaints against the UPC in May or June 20033470 and he only learnt about them in the letters that the President of the UPC sent to the commanders.3471 D-0019 suggested that complaints by MONUC or from other members of the international community about the presence of children in the UPC army were discussed at executive committee meetings, and the UPC President considered it necessary to try and take action in order to protect the FPLC from such accusations. 3472 D-0011 also indicated Thomas Lubanga received complaints from the United Nations and other international organisations during October and November 2002, although he attempted to minimise their significance by suggesting that they were “attacks” of the sort that are usually made against any rebel movement.3473 1289. The defence rejects the suggestion that pressure was exerted on the FPLC in September and October 2002 because of the presence of children.3474 It refers to a video excerpt introduced through P-0030 of a meeting between Mr Lubanga and a MONUC delegation on 24 February 2003, in support of the contention that meetings with MONUC occurred in February and the subject of child soldiers was not raised. 3475 It is further submitted that P-0012 confirmed that meetings with MONUC or other NGO that addressed the topic of child soldiers were held in late August or early September 2003.3476 1290. On the basis of the evidence discussed above, the Chamber is persuaded that by May 2003 at the latest Thomas Lubanga was fully aware of the prohibition on child recruitment and was aware of the concerns of outside bodies as to the recruitment and use of child soldiers, and that this issue was repeatedly raised regardless of the precise nature or context of their meetings. Moreover, the evidence demonstrates the UPC/FPLC attempted to impede the work of the organisations which were involved with helping child soldiers during the period of the charges. On the basis of the testimony of D-0019, D- 0037 and D-0011, the Chamber is satisfied that complaints about the use of child soldiers were levelled at the UPC/FPLC by late 2002 and early 2003, and it accepts D-0019’s evidence that these complaints were discussed at meetings. 1291. Other aspects of the involvement of international and national organisations in demobilisation are discussed below. (b) Demobilisation instructions of 21 and 30 October 2002 (EVD-OTP-00696 and EVD-D01- 01096) 1292. P-0055 was shown a document entitled “Enrolement des enfants soldats” signed on 21 October 2002, which appears to originate from the cabinet of the President.3477 The letter is written on UPC/FPLC letterhead and is signed by Thomas Lubanga.3478 It notes that contrary to the UPC ideology, the practice had developed of recruiting children of both sexes into the armed forces and the revolutionary armies.3479 As regards the armed branch of the UPC army (the FPLC) the letter purports to prohibit this practice, which it is said goes against the UPC’s prior initiatives concerning the demobilisation of child soldiers with the NGO SOS Grand-Lacs.3480 P-0055 indicated he had not been informed of the document and was not on the list of addressees,3481 and he had been unaware of its existence.3482 P-0055 stated he had not received any order to demobilise child soldiers, and he was not conscious of any instruction to this effect.3483 1293. D-0011 was also shown this letter of 21 October 2002,3484 and he indicated it was his draft and he “proposed it to the president for signature, on his recommendation” in October 2002.3485 According to D-0011, the President sought in this letter to remind the Chief of Staff of the FPLC that the ideology of any army that he commands should include avoiding the enrolment of minors, 3486 by which Thomas Lubanga meant “any individual below the age of 18.”3487 According to D-0011, other military groups tended to enrol individuals of all ages, and since the UPC was establishing a military wing 3488 Thomas Lubanga wished to indicate to the chiefs of staff “that children were not to be enlisted in this army.”3489 D-0011 said “that was a rationale in which Thomas Lubanga has always moved. Since he started in this field, he’s never wanted children to be enrolled in armies, […].”3490 1294. The prosecution questioned D-0011 about the reference number “287” on the 21 October letter, which was higher than the reference numbers for documents dated November3491 and December,3492 and it was suggested that this violated the administrative regulations in the UPC.3493 D-0011 replied that there was a register for numbering letters to the Presidency that came from the President’s cabinet and there was a further register for documents sent directly by his private secretary.3494 He explained that the apparent divergence between the reference numbers occurred because of the existence of these two separate registers (which used discrete systems for assigning numbers to documents),3495 and because more documents were produced by the President via his private secretary than by the director of his cabinet.3496 It was suggested to D-0011 that the document of 21 October 2002 was a false document, or a “smokescreen”, that had been created deliberately to give a false impression.3497 D-0011 maintained that the document was genuine and it had not been written after the event for this reason.3498 1295. Another order dated 30 October 2002 drafted on behalf of the Chief of Staff of the FPLC, Floribert Kisembo, instructs all the commanders of the various units of the FPLC to disarm children below the age of 18, including those within the self-defence forces.3499 The order is worded generally and does not specify that the commanders should disarm children in the FPLC3500 and it does not refer to the previous demobilisation order of 21 October 2002. When asked about potential discrepancies in the numbering on this and a later document, D-0037 testified that the reference number of the letter was inappropriate within the context of military regulations and he suggested that given it was a time of war, there may have been problems in the filing – that documents had not been dealt with in the same way and the numbers had possibly “jumped”. 3501 D-0037 accepted there were irregularities in the signature and the stamp, but he did not give a clear explanation as to why the seal was that of the “chargé des operations” if the document was drafted and signed on behalf of the Chief of Staff.3502 1296. D-0019 testified that the decree dated 21 October 2002 was published and read out on Candip radio station during a news broadcast.3503 Although D-0019 was unsure about the precise date, he stated it was read out on the date of publication during October 2002, and that this was possibly around the middle of the month.3504 He explained that in the absence of its own official newspaper, the UPC published documents in the national press and it used programmes on the Radio Nationale et Television du Congo.3505 1297. D-0019 denied that the October and other similar orders were sham documents, in the sense that it was not intended to put them into effect.3506 1298. D-0019 also testified that the UPC G5, Eric Mbabazi, spoke on the radio several times in order to make announcements about demobilisation and to raise awareness so as to prevent children from joining the army.3507 D-0019 denied the suggestion that Eric Mbabazi was actively attempting to recruit more children into the FPLC or that he sent documents complaining about the lack of children and the difficulty in recruiting them into the FPLC.3508 1299. The Chamber accepts the account provided by D-0019 that the 21 October order was read out over the radio. A UN report admitted into evidence supports the suggestion that UPC documents were broadcast in this way as it contains in its annex a later order, as read out over the radio. 3509 However, given the wealth of evidence demonstrating that recruitment continued unabated in spite of the demobilisation orders, the Chamber rejects D-0019’s evaluation of the nature and the underlying purpose of these orders. 1300. D-0037 similarly disagreed with the prosecution’s assertion that the demobilisation letters were produced at the time solely to fend off complaints by the international community, together with the contention that it was never intended to implement the demobilisation measures. 3510 D-0037 stated that demobilisation started within the RCD-ML in 2001, and indeed individuals were brought from the training centres and handed over to NGOs in 2000/2001.3511 However, D-0037 also acknowledged he knew Eric Mbabazi, the G5, and that from October 2002 through into 2003 the latter was trying, inter alia, to rally young people to attend at the training centres.3512 D-0037 stated he could not say whether Eric Mbabazi was “recruiting” children.3513 1301. The defence disputes the prosecution’s claim that the instructions of 21 and 30 October 2002 were only issued following protests from the international community and the NGOs, and it argues there is no evidence of pressure or protests regarding the presence of minors in the FPLC in the period immediately preceding the instructions.3514 The defence further submits that the documents could not have been intended to mislead MONUC and the NGOs as they were designed for internal use only, and had not been made available to representatives of the international community or the NGOs by members of the UPC/FPLC.3515 It is further suggested that the fundamental difference between the political documents and the demobilisation orders are that the former were public while the latter were confidential prior to their use at trial.3516 1302. The prosecution suggests the defence has conceded that the accused routinely drafted false documents.3517 The defence argues that in relying on this alleged concession, the prosecution appears to accept that some of the documents it relied on to prove the existence of a common plan lack reliability.3518 1303. The Chamber accepts, contrary to the defence submissions, that the orders were made available to the public via the media. Whether or not the orders were a “sham”, and were issued in response to external pressure, is analysed below. (c) Request for report of 27 January 2003 (EVDOTP- 00697) and letter of 16 February 2003 (EVDD01- 01097) 1304. A letter dated 27 January 2003, and signed by Thomas Lubanga, refers to the demobilisation order of 21 October 2002 and requests a detailed report on the demobilisation of children below the age of 18 within the FPLC from the Chief of Staff.3519 P-0055 gave evidence that he had not seen this letter and he was unaware of it, although he had been in the UPC at that time.3520 However, D-0037 indicated he saw the letter when it arrived in the office where he was working.3521 D-0011 testified that he had drafted the letter following a request by the accused in order to generate a follow-up report from the Chief of Staff of the FPLC in relation to the order that had previously been issued.3522 1305. A report dated 16 February 2003 addressed to the general administrator of UPC security refers to the demobilisation instructions of 21 October 2002 and 27 January 2003 and states they had been correctly disseminated to all the major units. However, guidance was requested given the opposition from the self-defence forces to demobilise and disarm the children in their groups.3523 D-0037 testified he had drafted and signed the report on the orders of Bosco Ntaganda.3524 He conceded that the report’s reference number did not appear to be consistent with the military regulations, 3525 and it mistakenly did not contain the reference number given to the 21 October 2002 order.3526 1306. The prosecution argues the letter of 27 January 2003 is a sham because a genuine follow-up report would have been requested earlier than three months after the demobilisation order was issued in October. 3527 It suggests the letter supports the proposition that the October order was drafted later and backdated,3528 and submits that, in any event, the follow up order was not implemented and recruitment continued.3529 The prosecution draws attention to the fact that D-0037 could not explain why the 16 February 2003 report omits the reference number “287” that had allegedly been assigned to the 21 October 2002, and itself contains an erroneous reference number.3530 1307. The defence argues the two documents of 27 January and 16 February 2003 reflect the intention of the accused to demobilise children and they demonstrate that the instructions issued by Thomas Lubanga in this regard were transmitted to the relevant military authorities, which then proceeded to implement them.3531 The defence notes the prosecution does not challenge the authenticity of the documents and it reiterates its argument that they were not created to deceive the international community, given their content.3532 1308. The Chamber considers the documents of 23 January and 13 February 2003 below, within the context of the evidence in its entirety in order to establish whether they are of relevance, as advanced by the defence, to the mental element of the charges. (d) Letter of 12 February 2003 from the National Secretary for Education (EVD-OTP-00518) 1309. As discussed above, a 12 February 2003 letter from the UPC/FPLC’s National Secretary for Education, Adubango Biri, dated 12 February 2003 and addressed to the UPC/FPLC’s G5 officer, refers to a demobilisation program for child soldiers aged 10 to 15 or 16 years that had been initiated in the name of the UPC and its President.3533 1310. The prosecution relies on this document to demonstrate that the accused was aware of the presence of children in the UPC/FPLC.3534 1311. The defence suggests the letter demonstrates that the decisions as to demobilisation were being implemented.3535 1312. The Chamber accepts that the letter may have been a response to previous demobilisation orders but the relevant question is whether children under 15 years of age formed part of the FPLC troops after September 2002. In the Chamber’s estimation, this letter clearly demonstrates that children under 15 years of age were serving in the FPLC in February 2003. (e) Demobilisation decree of 1 June 2003 (EVDOTP- 00728) 1313. P-0041 described a meeting he attended during which the demobilisation of child soldiers was discussed and the President read out a decree on the issue, dated 1 June 2003, which he had signed in order that they “would not have difficulties with […] human rights.”3536 P-0041 stated that the issue of child soldiers was on the agenda of the meeting because there was a problem with MONUC and human rights organisations and that the UPC “had to take a decision so that we would not have that problem within the UPC, and so it was that the child soldiers were demobilised.”3537 1314. The decree provides in Article 1 that any individual below the age of 18 years is demobilised forthwith from the FPLC.3538 Pursuant to Article 2, a National Secretary and the Chief of Staff were charged with implementing the decree and this was effective from the date it was signed, 1 June 2003.3539 It does not specifically address the position of child soldiers below the age of 15, and instead refers to “children” in the armed forces.3540 P-0041 commented that although he had not been provided with the decree, “those concerned [had] most probably received the document”.3541 He stated that, in principle, the document should have been transmitted by the president’s office to each of the national secretaries, but apparently that did not happen.3542 D-0037 stated that he recognised the document, having seen it in the office of the Chief of Staff.3543 1315. Since the wording of the decree is contained in an annex to a MONUC report dated 15 June 2003, as broadcasted by Radio Candip on 2 June 2003, 3544 the Chamber is satisfied the contents of the decree were published in the public domain. 1316. Following up on this decree, a document entitled “Memo number 014” dated 5 June 2003, addressed to all brigade commanders of the FPLC and signed by Commander Floribert Kisembo refers to the decree of 1 June 2003 and contains the following instructions:3545 In accordance with the spirit of decree number 1 bis/UPC/RP/Cab/Pres/2003 of the 1st of June, 2003, of the UPC/RP President, FPLC Commander-in-Chief, you are requested to demobilise all people among our ranks under the age of 18 according to the regular procedure. 1317. Turning to the circumstances in which the 1 June 2003 decree was issued, during the period when the UPC sought to take control of the town of Bunia, a MONUC representative often visited the UPC/FPLC staff headquarters, where the kadogo unit was stationed (indeed, it was present during his visits).3546 P-0017 gave evidence that the children in the kadogo unit, prior to their disarmament, were dressed in military uniforms and carried weapons. 3547 However, according to P-0017, the major problem for the UPC/FPLC during this period lay with the media, who were perceived by the UPC as a 3543 T-349-ENG, page 17, lines 13 – 20. threat.3548 The witness explained that: [p]hotographs were being taken, especially where child soldiers were moving around with weapons. And sometimes they would try to focus on the area where heavy weapons were located, and this was disturbing. This was embarrassing, because this was going to take on a different dimension. A lot was already being said about child soldiers, that it is – was not a good thing. Almost everyone was aware of that at that time. As so that is why I say their presence was threatening, because they would pass by at any time. […]3549 1318. At one point, a European foreign journalist was given special permission to interview a kadogo soldier in the UPC/FPLC.3550 P-0017 stated that the child was no more than 13 years old, and for the interview he was given a red beret and he carried his weapon.3551 The interview was eventually broadcast on television.3552 1319. P-0017 testified that the demobilisation order of June was issued within a week of this interview with the child soldier, 3553 and the witness suggested the decision to disarm child soldiers was influenced by this attention on the part of the media.3554 The Chamber accepts this contention. 1320. Taking into account the evidence concerning the complaints received by the UPC, the evidence of P-0041 relating to meetings in which demobilisation was discussed as a means to avoid human rights problems within the UPC, the evidence of P-0017 on the visits by the MONUC representative and the attention of the media, the Chamber is persuaded the UPC was subjected to strong external pressure because child soldiers were within the FPLC and it is sure the demobilisation decree of 1 June 2003 was issued in response to this external pressure. 1321. However, the effective implementation of this order, as well as the other demobilisation instructions, has not been demonstrated, even on a prima facie basis. As analysed below, the evidence proves that child recruitment continued regardless of the external pressure and internal orders to demobilise. (f) Lack of demobilisation, continued recruitment and re-recruitment 1322. Turning to the question of whether the demobilisation orders were implemented, according to P-0017, during a morning assembly at the UPC/FPLC staff headquarters, the Chief of Staff “talked about the fact that he was going to ask the commander in charge of the child soldiers to disarm them. They were not supposed to carry weapons or wear military uniforms.” 3555 Following this announcement, P-0017 stated “we were surprised”.3556 However, having been disarmed, some of the children remained at the military headquarters because they were provided with meals, although they no longer carried weapons or wore military uniforms.3557 In particular, children below the age of 15 – the youngest being about 12 years old3558 – who had originally come from the kadogo unit in Mamedi remained at the headquarters even if they no longer had weapons or uniforms because they felt tied to the headquarters and the Chief of Staff.3559 P-0017 suggested those child soldiers who joined at a later stage did not feel protected by the general staff and ran away to other commanders.3560 He stated he saw them once they had joined units in Mudzipela and Centrale because they were permitted to continue using their weapons provided they were out of sight of the Chief of Staff.3561 When asked whether he was aware of children being disarmed on other occasions, P-0017 gave evidence that he only saw children from the UPC being disarmed in Bunia. 3562 In Kilo they were following their commanders to Mongbwalu, although he witnessed the departure of numerous child soldiers.3563 1323. Notwithstanding his evidence on the Chief of Staff initiating the disarmament of child soldiers in Bunia, P-0017 testified that only ten days later those who remained at the military headquarters were again provided with weapons when the Artemis force arrived. 3564 The kadogos who were available when the fighting began in Bunia were re-armed on the order of the Chief of Staff, Floribert Kisembo, to assist in the ongoing fighting.3565 Although P-0017 initially stated that he thought Mr Lubanga was still in town when the order to re-arm the children was given, he thereafter confirmed an earlier statement in which he had indicated that the order to re-arm the children was given in the middle of battle and it did not come from Thomas Lubanga, who had already left the town.3566 P-0017 suggested that a child who had been re-armed died in fighting during the course of the night before the Artemis contingent arrived.3567 P-0017 further gave evidence that the Chief of Staff proclaimed himself as President of the UPC/FPLC on his return to Bunia following the arrival of Artemis and the ensuing battle.3568 1324. The defence appears to suggest that the accused was not responsible for re-arming the children because he had left the town and Floribert Kisembo “was trying to take control of the UPC”.3569 However, there is no evidence to suggest that Mr Kisembo was in control or acted against the authority of the accused in the period following the incident with Artemis. His attempted take-over did not occur until December 2003,3570 and the documentary evidence suggests that Floribert Kisembo acknowledged, at least in a formal sense, the authority of the accused as president as late as November 2003.3571 In evidence that the Chamber accepts, P-0017 indicated that the UPC/FPLC’s response to the Artemis operation included deploying the children during the battle. Given the continued, essentially uncontested authority of the accused at this time, the return of weapons and uniforms to the child soldiers for this purpose is compelling evidence that their involvement was the result of the common plan, namely to use soldiers of any age to maintain control over Bunia rather than representing a decision that had been taken by the Chief of Staff alone. 1325. The Chamber heard evidence that before demobilisation finally occurred in October and November 2003 (after the period of the charges),3572 there had been “sham” demobilisation attempts by the UPC/FPLC.3573 P-0024 gave evidence that two months after the UPC took control of Bunia, there were broadcasts by Radio Candip and on television in which the UPC/FPLC “pretended to demobilise certain children”. 3574 P-0024 said children had remained within the armed groups, and they were seen, for instance, acting as bodyguards in their pick-up vehicles.3575 He suggested any demobilisation that occurred only concerned a limited number of children – he estimated no more than 20. 3576 P-0024 also gave evidence that after the purported demobilisation in October 2002, he saw armed children from the FPLC threatening members of the population.3577 The defence suggests P- 0024’s claim that the UPC/FPLC only pretended to demobilise children was simply his opinion and that he failed to provide further details.3578 It is argued the witness was biased, and he attempted to minimise the significance and scope of the demobilisation measures which he accepted existed.3579 The evidence of this witness is evaluated in the context of the other material on this issue. 1326. P-0046 gave similar evidence, namely that the UPC/FPLC demobilisation efforts were not genuine, 3580 and that once the demobilisation instructions had been issued, the UPC/FPLC failed to cooperate, notwithstanding the meetings with MONUC representatives that were held several times a week. 3581 P-0046 indicated that during a meeting on 30 May 2003 at Thomas Lubanga’s residence, “contrary to the reaction of other armed groups that I had met with previously, there was no indication on his part of any will to cooperate […] if you will allow me to compare with the FAPC3582 that I had met with in March, the RCD-ML, or other groups, the Mai Mai groups in the North Kivu who had publicly stated that they were willing to cooperate with child protection agencies from the United Nations, on 30 May, there was no sign of open-mindedness or any will to actually discuss the matter.” 3583 During this meeting, P-0046 informed Thomas Lubanga that MONUC was trying to make a detailed record of the ongoing recruitment of children,3584 including, in particular, by the UPC/FPLC.3585 P-0046 showed certain documents to Mr Lubanga, including various international resolutions and other instruments concerning the protection of children, 3586 and they discussed the DRC’s ratification of the Rome Statute.3587 1327. After the 30 May 2003 meeting between the MONUC delegation and Thomas Lubanga, and once the MONUC teams had been able to monitor the information that was publicly broadcasted, P-0046 was informed about a text, distributed by the Presidency of the UPC, which referred to the demobilisation of certain children. 3588 In the days following this announcement, P-0046 and others tried unsuccessfully to find the official text.3589 However, two or three weeks later they were told by one of the child protection agencies that the latter had been contacted by a UPC commander about taking care of some of the children.3590 P-0046 discovered that some of the children who left the UPC travelled to a particular transit centre, but repeated requests by MONUC and other child protection agencies for an official meeting with members of the UPC on this issue were ignored.3591 P-0046 gave evidence about an incident in the fall of 2003 when she encountered a child she had previously met at the Rwampara camp in March 2003, who told her that the children she had interviewed at that time had not been demobilised or ordered to return to civilian life.3592 Generally, the UPC continued to recruit children throughout the time the witness was responsible for Ituri.3593 After having indicated that many children were released by the UPC in October and November 2003 (in contrast to June),3594 P-0046 testified that some families asked the centres not to return the children who had been within the UPC to their homes because they were afraid they might be re-recruited.3595 1328. Supporting the evidence that recruitment continued, the weekly MONUC report of 15 June 2003 (mentioned above)3596 included in an annex the content of the demobilisation decree as it was read out over the radio, and it contained a section on the continued recruitment of children.3597 The report referred in terms to children who were being recruited by the UPC.3598 Although the ages of the children are not specified, the decree purportedly referred to all children below the age of 18. 1329. P-0024 did not recall that SOS Grands Lacs was involved in any demobilisation initiatives for children undertaken by the UPC – indeed, he did not recall any UPC initiatives of this kind. 3599 He indicated that at the time of the first letter, 21 October 2002, their work in Bunia was becoming difficult, 3600 and in November 2002 their activities were discontinued for security reasons,3601 with the NGO losing many of the children within its care.3602 1330. P-0116 did not receive any information about a UPC demobilisation initiative in the period between September 2002 and October 2003,3603 and he said he would have been aware of an event of this kind on account of his work.3604 According to information P-0116 received, including from child protection workers operating in Bunia at the time, some of the NGOs approached the UPC “through purely bilateral relations” to ask it to release children, but appointments that were made were not kept.3605 P-0116 gave evidence about a meeting with the child protection unit of MONUC and the donors of the World Bank that took place in March or April 2003 in Kinshasa to discuss demobilisation in the DRC, to which numerous armed groups were invited.3606 However, although they wanted to establish contact with the UPC, the latter was not invited because it was considered too dangerous to approach, and, in any event, no one within the UPC was engaged with the issue of child demobilisation.3607 Therefore, P-0116 suggested it was difficult for the international organisations to contact the UPC on this issue, and it was recognised that it was difficult to persuade the UPC to release children unconditionally.3608 An initiative, forming part of the national DDR programme and open to all those concerned with the issue, including the armed groups, failed to receive the necessary commitment.3609 Indeed, prior to October 2003, P-0116 was unaware of any formal commitment on the part of the UPC to release children within its ranks.3610 1331. In contrast, D-0037 drafted and signed minutes of a meeting he attended on 16 June 20033611 that had included, amongst others, Mr Rafiki and Bosco Ntaganda,3612 in the course of which instructions were given to demobilise children and to hand them over to the NGOs. 3613 According to the minutes, during the course of this meeting, the question was raised as to how the demobilisation order of 1 June 2003 related to the FPLC, given it had seemingly banned the use of children at its inception. 3614 The following answer was given during the meeting: […] With regard to the few child soldiers seen around town, we need to work on them, as you did with the self-defence militias in the field. The decree is for wide-ranging awareness-raising […] As it stands, faced with evil we need to act for the benefit of society as a whole. This is the argument presented by the President, which we have adopted.3615 In order to establish the authenticity of the typed minutes of this meeting, the defence refers to particular unsigned, handwritten notes dated 16 June 2003 that, according to D-0019, appear to have been drafted by the Chief of Staff of the FPLC, Floribert Kisembo3616 and which may be some form of preparatory notes.3617 The two documents appear to relate to the same meeting, and the defence suggests they demonstrate that demobilising child soldiers was a priority for the FPLC; that the demobilisation policy extended to all minors bearing arms within each of the armed groups in Bunia and Ituri; and certain initiatives in this context had already been implemented.3618 1332. D-0011 gave evidence that the decree of 1 June 2003 was brought to the attention of the public via the press attaché of the Presidency when he spoke on the radio.3619 The witness indicated that he was aware the decree had been implemented because it was normal practice to send the decrees to all the national secretaries, who ensured their provisions were put into effect.3620 According to D-0011, the Chief of Staff had been ordered to disseminate the content of the decree.3621 Additionally, D-0011 testified that Monsignor Nekoosa, the director of Caritas in Bunia, met with Thomas Lubanga and they discussed transferring the children in the army to Caritas so as to ensure their social re-integration.3622 The defence relied on notes drafted by D-0011 in which this meeting is mentioned.3623 D-0011 consistently maintained the demobilisation decree of 1 June 2003 had been effectively implemented, and he denied that children were re-armed by the FPLC/UPC. 3624 Given D-0011’s general lack of credibility on the recruitment and use of child soldiers as discussed above, the Chamber has disregarded his testimony on the implementation of the demobilisation decree. 1333. Moreover, as described in detail earlier, Thomas Lubanga visited the Rwampara training camp in February 2003 – after the first demobilisation orders were issued – and he encouraged the recruits, some of whom were below the age of 15, including by telling them they would be armed and deployed after the completion of their training.3625 1334. The defence denies that Thomas Lubanga’s visit to the Rwampara camp in February 2003 conflicts with his demobilisation orders and it is asserted that “his kindness towards these irreproachable young people” during his visit to Rwampara should be viewed in light of the firm instructions he gave in this context.3626 1335. It is to be noted P-0030 gave evidence to the effect that the youngest of the recruits must have been around nine.3627 Indeed, the images in the video of 12 February 2003 show recruits well below the age of 15. 3628 Thomas Lubanga arrived in a military uniform, accompanied by soldiers, and he addressed and encouraged young recruits in their military training. He told them that as soon as they completed their training they would be given weapons and entrusted with the security and safety of the population.3629 The accused also told them they would be useful soldiers, who were to be deployed in the field.3630 The Chamber is of the view that the accused intended for those under the age of 15 who were present to be provided with military training before they were sent into combat, treating them identically to those over the age of 15. Even if the procedures for demobilisation were complex and lengthy, as described by P-0046,3631 the behaviour of the accused was wholly incompatible with a genuine intention to avoid recruiting children into, or to demobilise children from, the FPLC. 1336. The defence also suggests that since most of the recruits present at the training centre were of an appropriate age to be soldiers, the speech he gave was “directed essentially at recruits old enough to be soldiers”.3632 The Chamber is unable to accept this submission. The accused addressed all the recruits at the Rwampara camp on 12 February 2003 and there is no credible evidence to support the submission that he was only focussing on those above 15. 1337. D-0011 also gave evidence that in February 2003 there were a considerable number of attacks in the outskirts of Bunia, leading to the need to mobilise (rather than demobilise) the troops. 3633 While the Chamber has not accepted a large part of D-0011’s evidence (given his close relationship with the accused), this statement relates to the circumstances of the conflict rather than the issue of child soldiers, and

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 1
Calidad:

in the UPC it was used “above all” to refer to children under the age of 15. The witness indicated that in certain armies it describes the youngest individual in the group (as demonstrated when the witness went for training in Rwanda and was referred to as a kadogo even though he was 18).1817 638. For P-0024 the term kadogos generally means children below 18 years of age, “right down to the lower end of the scale.”1818 639. Various witnesses also referred to the term “PMF”. Witness P-0016 linked the term to female military staff or “personnel militaire feminin”.1819 Witnesses P-0055 and P-0089 said the term referred to a “girl soldier”1820 and P-0046 had also heard of this expression.1821 640. It follows that the term kadogo is sometimes used to refer to children over the age of 15 whilst “PMF” relates to females in the army, and it does not necessarily only relate to girls under 15. 2. Age assessments and determinations of witness credibility 641. The Chamber heard evidence from numerous non-expert witnesses as to the age of the alleged former child soldiers. For the most part, their assessments were based on the individual’s physical appearance, including by way of comparison with other children; 1822 the individual’s general physical development1823 (e.g. whether a girl had developed breasts,1824 and factors such as height and voice);1825 and his or her overall behaviour.1826 642. The defence challenges the evidence given, inter alia, by P-0012, P- 0014, P-0016, P-0017, P-0024, P-0030, P-0038, P-0041, P-0046, P-0055, and P-0116 on the age of children in the UPC/FPLC.1827 The defence argues that their unverified, personal assessments are unreliable and it is suggested they do not establish beyond reasonable doubt the presence of children under the age of 15 in the UPC/FPLC. In this section the Chamber has addressed the various challenges advanced by the defence; it has reviewed the age assessments that were provided by a number of witnesses; and the Chamber has set out its general conclusions as to the credibility of the relevant prosecution witnesses, along with defence witnesses D-0007, D-0011, D-0019 and D-0037 (who also gave evidence on this issue). The relevant witnesses are addressed by category: first, the witnesses linked to the work of international organisations or NGOs; second the prosecution witnesses who testified primarily about military matters; third, the prosecution witnesses who principally gave evidence about selected video footage; and finally the relevant defence witnesses, in the order in which they testified. 643. Given the undoubted differences in personal perception as regards estimates of age and, most particularly in the context of this case, the difficulties in distinguishing between young people who are relatively close to the age of 15 (whether above or below), the Chamber has exercised caution when considering this evidence. Even allowing for a wide margin of error in assessing an individual’s age, the Chamber has concluded that it is feasible for non-expert witnesses to differentiate between a child who is undoubtedly less than 15 years old and a child who is undoubtedly over 15. Furthermore, the sheer volume of credible evidence (analysed hereafter) relating to the presence of children below the age of 15 within the ranks of the UPC/FPLC has demonstrated conclusively that a significant number were part of the UPC/FPLC army. An appreciable proportion of the prosecution witnesses, as well as D-0004, testified reliably that children under 15 were within the ranks of the UPC/FPLC.1828 644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were “visibly” under the age of 15.1829 The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone.1830 The Chamber accepts that for many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15. a) P-0046 645. The testimony of P-0046 focussed on her professional knowledge of children recruited and used by the UPC/FPLC and her experience of the demobilisation process. This witness worked in MONUC’s child protection programme during the period covered by the charges, and she went on her first mission to Bunia in this role during September 2002. By the time she was officially based in Bunia in May 2003 she had undertaken a number of missions to the region. Previously, she had been involved in identifying child soldiers in Kenya and in northern Congo. 1831 P-0046 filed weekly reports addressing the security and humanitarian situation of children associated with the armed groups,1832 which were based on the interviews conducted by MONUC’s child protection section, as well as other sources.1833 The majority of the witness’s interviews with children took place between March 2003 and the end of her time in Ituri in 2004. 1834 P-0046 considered the situation of children associated with the armed conflict in Ituri, along with the work of MONUC and other NGOs who dealt with demobilised children, during the period covered by the charges. Her testimony was detailed, credible and reliable, particularly when it was based on her personal experience of working with demobilised children in the region. 646. The defence contends that P-0046 has insufficient personal knowledge of the events about which she testified, given she did not regularly visit Ituri until late May 2003.1835 Since the witness was closely monitoring the situation in the area during the relevant period and she made a series of site visits to Ituri between January 2002 and March 2003, the Chamber is satisfied that she was able to testify about events that took place in the region during the period covered by the charges. 647. The defence further submits that the information provided to P- No. ICC-01/04-01/06 294/ 593 14 March 2012 0046 by MONUC was unreliable given the testimony of the prosecution expert witness, Gerard Prunier (P-0360).1836 Although Mr Prunier questioned the accuracy of certain aspects of the UN reports, he also referred to the general lack of reliable sources, particularly as regards events during the relevant period in the countryside surrounding Bunia, and he emphasised that of the available material the most reliable information came from the UN.1837 648. The defence submits that during the course of her testimony, P-0046 “showed obvious bias in favour of the prosecution”.1838 By way of example, the defence cites the witness’s reference to reports of very young children who were smaller than the Kalashnikovs they were carrying,1839 along with her assertion that she was “sure [this] was an image which was exaggerated, but to reflect a reality which our informers wanted to get across, the fact that young children were associated with these groups”.1840 Having reviewed the evidence of P- 0046 (aside from this statement, which the witness in any event conceded may not have been entirely accurate) the Chamber is sure the witness has not exaggerated any material facts or otherwise provided biased or unreliable evidence. In addition, as set out below, it is of note that P-0038 testified that some children were lighter than the weapons they carried. Thus, P-0046’s evidence is entirely plausible. 649. It is suggested the account of P-0046 demonstrates that she and her colleagues at MONUC merely collected the statements of the children they interviewed and they failed to carry out further investigations.1841 The Chamber notes that P-0046 gave evidence that: [I]dentity cards and documents in the Congo are not very common. Very few people have official papers, in particular, children. In fact, I never saw a child with an identity card in Ituri, so carrying out such a verification on the basis of administrative documents was not possible. So when you say independent verification, well, other than the information that the children gave regarding their schooling, that was one way we had to have an idea and to perhaps reinforce the information stated by the children.1842 650. It is significant, however, that P-0046 also testified that she used several methods to verify the information given to her by the children in interview, including comparing the dates they provided with a chronology created by military and political observers from MONUC.1843 When there were doubts about the age or affiliation of a particular child, she sought verification from the relevant NGOs.1844 Sometimes the NGOs supplied age assessments for the children that differed from the information the latter had supplied. This particularly applied to those who said they were older than they appeared to the witness (and the Chamber notes her evidence concerning the confirmation of her doubts by the NGOs).1845 651. P-0046 did not rely solely on the various processes of external verification in order to determine the age of the children she interviewed. Although she acknowledged the lack of any scientific procedure for assessing their ages whilst she was working as a child protection officer in Bunia in 2003,1846 various different factors were taken into account, including information provided by the child (particularly given some had received an education and were able to provide their age or date of birth).1847 Trained social workers were used to conduct detailed interviews with the children, and the latter were asked questions about their families (including the order in which the children in the family had been born), and their academic records.1848 P-0046 focussed on the children’s individual stories in order to establish certain key dates, and the latter were cross-checked against the information they had provided.1849 652. P-0046 stated that physical appearance was also taken into account, but it was not used as the main criteria to determine a child’s age.1850 The age-assessment procedure for child soldiers was broadly similar to that used for unaccompanied children but it included the additional factor of their military experience.1851 The interviewers reviewed the children’s stories, their recruitment history and the battles in which they participated, in order to check their accounts.1852 653. Additionally, P-0046 testified that she evaluated children on the basis of what they said and how they acted.1853 Small children cried in her office1854 and the younger children had difficulty discussing their experiences, especially if one or both of their parents had died.1855 Generally, the witness noticed that it was harder for younger children to talk about the death of their parents as compared with older children.1856 P-0046 recalled meeting two particular little boys (she thought in the summer of 2003), who had previously been with the UPC when they were arrested.1857 They were eleven and thirteen years old respectively, and had been frightened by the military. 1858 P-0046 thought they were very afraid because they did not know where they were being taken or what was to become of them, and when she began asking them questions one of them broke down in tears.1859 P-0046 terminated the interview immediately and sent them to the CTO (a transit centre).1860 Given they were so upset, P-0046 merely took down the names of their parents and their ages before referring them.1861 P- 0046 recalled holding the hand of the younger child when crossing the street. Her evidence was that “[h]e was so small.”1862 654. P-0046 asked numerous questions in order to verify the identity of the children: for instance, whether they had a family or relatives in the area, the schools they attended and the armed groups to which they belonged.1863 She said it was important to identify the date on which the children had been conscripted or enlisted, in order to determine who was responsible for their recruitment and training; the centres they attended; the battles in which they fought; and the last commander under whom they served.1864 Thereafter, P-0046 would refer the child to one of the transit centres.1865 655. The Chamber is persuaded P-0046’s professional history and personal experience with the children she interviewed enabled her to provide realistic age estimates. Given P-0046’s experience and work methods, the Trial Chamber is satisfied that she is overall a reliable and credible witness. b) P-0024 656. P-0024 was employed from 2001 until November 20021866 as a social worker with SOS Grands Lacs, an NGO funded by the UN International Children’s Fund (“UNICEF”), and he testified about his work with the organisation during this time. 1867 The organisation’s mission in Bunia was the demobilisation and reintegration of child soldiers.1868 The witness gave evidence about what he called the sham demobilisation efforts by the UPC, and he provided information on the presence of child soldiers as well as the demobilised children he encountered during his work in Bunia, up to the end of 2002. 657. The defence challenges P-0024’s evidence on the basis that to a significant extent he dealt with events outside the period of the charges,1869 and his evidence related, on occasion, to the RCD/ML as opposed to the UPC. 1870 It is to be stressed that the Chamber has focussed only on those parts of P-0024’s testimony that are relevant to the charges brought against the accused. The witness’s evidence concerning the lack of demobilisation by the UPC is considered in Section XI(B)(3). 658. P-0024 testified that he saw children between 9 and 18 years of age wearing military clothing, and carrying Kalashnikov machine guns and other weapons in various towns and cities in 2002, after the UPC took control of Bunia and following the broadcast of the first demobilisation programmes on television and Radio Candip.1871 He also gave evidence that by November 2002 the UPC was recruiting demobilised children.1872 He estimated they were aged between 8 ½ and 18 years of age when they entered the demobilisation programme of his NGO in 2001, before they were later re-recruited.1873 659. The defence submits that P-0024 failed to provide sufficient details of the dates when, and circumstances under which, the children he worked with were allegedly re-recruited by the UPC. It is suggested his evidence was similarly lacking as regards their identities and ages (including how, apart from his personal impression, he established the latter).1874 660. The prosecution argues that the witness’s daily dealings with children enabled him to testify reliably as to their ages.1875 661. The Chamber considers that P-0024 gave honest, consistent and reliable evidence as regards his work with demobilised children. Although he did not train as a social worker, he spent over a year working with children (viz. from September 2001 until November 2002), including in Bunia until the end of October 2002. This enabled him to provide first-hand information on how children were rerecruited. 1876 662. The witness gave credible testimony about the children he closely worked with for a period of several months, and he was able to explain the basis of his suggestion that they were later re-recruited by the UPC. Although he did not give evidence as to how he assessed the children’s ages, his interaction with them during those months provides a solid and credible basis for his assessments. 663. Notwithstanding his lack of regular contact with the other children he saw on the streets, the Chamber accepts that on the basis of his professional background and experience, he was able to reach reliable assessments. Given the difference in appearance between, for instance, a 9-year-old child and a 15-year-old, the Chamber is persuaded that P- 0024 gave credible and reliable evidence that he saw children well below the age of 15, even if the ages of others may have been more difficult to assess. c) P-0012 664. P-0012 did not join the UPC/FPLC, 1877 but given his role as a highranking official within PUSIC at the relevant time, 1878 he had extensive contacts with armed groups in Ituri, including the UPC/FPLC, and he participated in monthly meetings to discuss problems relating to peace in Ituri. 1879 This witness gave evidence about the presence of child soldiers within the UPC/FPLC and other groups during the period of the charges. 665. The defence challenges this witness’s evidence in several respects.1880 It is submitted that his former role in PUSIC should lead to a cautious approach, because this group includes dissidents hostile to Thomas Lubanga.1881 In addition, the defence contends that P-0012 did not personally witness a large part of the events he addressed in his testimony, as he was absent from Bunia between April 2002 and the end of July 2002, and again between mid-August 2002 and 17 March 2003. 1882 It is said that in the course of his evidence the witness repeatedly acknowledged that he had not personally witnessed all of the events he dealt with, but instead he rehearsed what others had told him. Indeed, it is contended that he failed to reveal the dates when these conversations occurred or their circumstances.1883 666. The defence argues that although P-0012 testified about having seen children under the age of 15 in Ituri, he did not name the armed group or groups to which they belonged. 1884 When he did identify child soldiers as members of the UPC, it is argued there was no basis for his conclusion.1885 The defence also criticises what is said to be his failure to explain the factors that enabled him to estimate the ages of these children.1886 667. The Chamber finds that P-0012’s evidence was, in the main, internally consistent and it is of note that the defence has not provided evidence to substantiate its claim that the witness’s testimony is compromised by virtue of his previous position in PUSIC. The witness gave evidence concerning child soldiers within the UPC/FPLC, and he emphasised that during this period virtually every armed group in the region used children.1887 Although the witness was not continuously present in Ituri throughout the timeframe of the charges, he was there between March and August 2003. 668. Turning to the defence criticisms of the witness’s personal assessments of age, the Chamber finds that, wherever possible, P-0012 gave details as to how he reached a conclusion. For example, when describing seeing a “tiny child” with a weapon in Bunia in May 2003 (an event that is discussed in greater detail below),1888 P-0012 indicated that the child did not come up to his shoulder1889 or to the top of the computer screen in front of where he was sitting in court.1890 Although P-0012 was clearly only providing an estimate when he gave evidence that he was unable to say whether the child was even 12 years old,1891 the detail of his account demonstrates he had a clear basis for concluding that he was below 15. Nonetheless, the Chamber has adopted a cautious approach towards P-0012’s other more general remarks about the age or size of children. 669. The Chamber is satisfied that P-0012 was overall a credible and reliable witness. d) P-0055 670. P-0055 was appointed a high-ranking official within the FPLC in 2002.1892 He gave evidence about the structure of the UPC/FPLC, which included children under the age of 15. 671. The defence submits that after having served in the army of the UPC/FPLC, until 2004 P-0055 was a member of the FAPC (an armed movement that was hostile to the UPC). 1893 It is suggested his testimony is unreliable on account of his close ties to the Ugandan government.1894 672. The defence also maintains that P-0055 acknowledged on several occasions that he was unable to assess the ages of young recruits, and he did not suggest that any of the kadogos who were recruits at the Rwampara training camp, or who worked as guards at Bosco Ntaganda’s residence or as bodyguards for Thomas Lubanga (or other UPC commanders), were under the age of 15.1895 673. The defence argues that notwithstanding P-0055’s evidence that he did not know whether the enlistment register at the Rwampara camp included the children’s ages, he also testified that the ages of the recruits usually had to be given, thereby indicating there was a requirement to make this check:1896 […] I don’t know whether the age was mentioned in that register. Actually I wasn’t really interested in verifying their ages, but generally when somebody comes to enlist for training, they’re asked where they were born, when they were born, their age is mentioned, because this is an identifying element for the person, if the person has a problem, it is made easier for the parents to recognise the person.1897 In all the circumstances this somewhat contradictory evidence provides an insufficient basis for the contention that there was a rule that the ages of the recruits were to be checked. 674. P-0055 indicated that although it was difficult to assess the agerange of those in the army, his conclusions in this regard were based on physical appearance.1898 675. The Chamber has relied on the details provided by this witness as to the ages of child soldiers he saw within the ranks of the UPC/FPLC, bearing in mind that he defined the age-range of kadogos as between 13 and 16 years of age.1899 676. P-0055’s evidence was internally consistent, and although his testimony in court differed to an extent from his statements to the prosecution, these relatively minor discrepancies did not undermine the reliability of his evidence as a whole. Furthermore, the Chamber is unpersuaded that P-0055’s connections with Uganda influenced his evidence (particularly to the detriment of the accused). P-0055 was a generally credible witness and the Chamber has relied on his evidence, save in relation to a discrete area identified below. e) P-0017 677. P-0017 joined the UPC the same week the latter took control of Bunia in 2002,1900 and he remained with the group until he left the city in August 2003. 1901 Previously, the witness had spent about four months with the RCD.1902 He led one of the UPC sections in 2003,1903 and he worked with heavy weapons within a field brigade.1904 P-0017 gave evidence about children under the age of 15 in, and the scale of their recruitment by, the UPC/FPLC, along with the latter’s military structure. 678. The defence emphasises the evidence from P-0015 that he acted as an intermediary between P-0017 and the prosecution. 1905 It is also suggested that the accused has not been provided with the exact identity of the individual who first introduced P-0017 to the prosecution, thereby preventing the defence from conducting effective verification and investigation,1906 (the table of contacts indicates that contact with this witness was initially made through a prosecution investigator). 1907 The Chamber is invited to take these general circumstances into account, along with what is said to be P-0015’s involvement in “a concerted operation aimed at presenting false testimony before the Chamber”, when evaluating P-0017’s account.1908 679. Notwithstanding these submissions, no evidence has been introduced to the effect that P-0015 influenced the testimony of P-0017. Generally, there is no foundation for the suggested adverse inference that the defence asks the Chamber to draw as regards the credibility of P-0017, based solely on the nature of the contact between these two witnesses. 680. As discussed in greater detail below, P-0017 testified that he saw recruits as young as 12 years old, although the defence challenges this suggestion on the grounds that it was based solely on his personal assessment, which was founded on their physical appearance.1909 P- 0017’s conclusions as to the age of girls derive from the assumption that those over the age of 15, as well as a number of those who are 13 or 14, have developed breasts.1910 P-0017 gave the names of two girls who were initially in the FPLC’s kadogo unit, and he said one of them was small.1911 Although he had not asked them their age, he estimated that they were between 13 and 14 years,1912 and he wholly rejected the defence suggestion that one of them could have been 17.1913 681. As regards boys, P-0017 indicated “you could see it from their behaviour. Some would cry for their mother when they were hungry. They would whine at night, and during the day they were playing games, children’s games, even if they had their weapon next to them. So you would see that these children weren’t even adolescents yet. Their voice hadn’t yet broken, so they were children […] still.”1914 682. Notwithstanding the undoubted difficulties that exist as regards personal, non-expert estimates of the age of children, the Chamber is satisfied P-0017’s evidence concerning the ages of recruits, and particularly the youngest (those who were in the 12 year old bracket), is to be relied upon. The Chamber found him to be a credible, consistent and reliable witness. f) P-0016 683. P-0016 was appointed as a high-ranking official within the FPLC in 2002 after Governor Lompondo had been forced out of Bunia.1915 He testified that children were part of the UPC/FPLC army. He also stated there were PMF recruits of all ages, including very young girls.1916 684. P-0016 remained with the UPC/FPLC until the end of November or early December 2002. 1917 His tasks included “giving instructions to children”, as well as talking about discipline and about military regulations.1918 When asked to explain what he meant by “children” in this context, the witness simply replied that he had to provide instruction to those undergoing military training,1919 but when further questioned about the ages of the soldiers he trained, he denied he had acted in that capacity.1920 The Chamber is of the view that the witness, in these answers, was attempting to minimise his own role, including by suggesting that he could not properly discharge his duties.1921 The Chamber has treated this aspect of his testimony with caution, given the clearly evasive nature of his evidence as to his own involvement. In addition, the Chamber had doubts as to the accuracy of another discrete area of his testimony, which is dealt with below in the section on the individual criminal responsibility of the accused. 685. The defence contends that there are reasonable grounds for concluding the witness has particularly close ties to the Congolese government, and as a result his testimony should be approached with particular care.1922 686. Notwithstanding these criticisms, on analysis, there is no evidence to support the contention that he provided false testimony out of loyalty to the DRC government, and the Chamber found him to be a generally consistent, credible and reliable witness who, in the main, testified about events he personally witnessed. However, as indicated, there is a qualification to this overall assessment. 687. The defence argues that P-0016’s assessment of age was based solely on his personal impressions.1923 However, P-0016 was convincing on this issue. When asked how he was able to determine the ages of the young recruits,1924 P-0016 replied that “you could always tell that they were children, because after training they would create groups and everything they did resembled what children do”, such as playing games.1925 He said they would make toys for themselves and look for sticks in order to “play at being soldiers”, imitating the way soldiers went to war. 1926 Children put down their weapons and played marbles, 1927 and this, he suggested, demonstrated that they were immature.1928 He also gave evidence about a 13-year-old child at the camp in August 2002 that he described as a “little one”, who was “really too small”, and the witness often sent him on errands, for example for cigarettes from the village behind Mandro.1929 Overall, in the Chamber’s view, P-0016 provided a clear and credible explanation as to how he assessed the ages of the children he encountered in the ranks of the UPC/FPLC. g) P-0038 688. As already discussed above, P-0038 gave evidence that he was a member of the UPC army (the FPLC) between 2001 and 2005. 1930 During that time, he acted, inter alia, as a trainer in the Mandro centre, prior to becoming a bodyguard at Chief Kahwa’s residence (during the period April to September 2002). 1931 He addressed the structures within the FPLC, and he described the training for the recruits and various battles. There were some recruits below 15 years at the camp at Mandro when he worked there as a military trainer (before the period of the charges),1932 and he saw other children in the same age group during his time in the UPC, including many he noticed whilst he was training soldiers in Mongbwalu, who were between 13 and 16 years of age.1933 P-0038 was able to assess their ages by their physical appearance, including their height, and in his view it was easy to tell who was above and who was below 15 years.1934 Some of the children weighed less than their weapons, with the result that the smaller children could not carry their AK-47s for a long period of time.1935 Although his group of 12 soldiers, which used heavy weapons at the battle of Mongbwalu, did not include any children,1936 he indicated that children below the age of 15 acted as bodyguards, escorts and soldiers during this battle.1937 689. In addition to the challenges already addressed above, 1938 the defence submits that P-0038 based his assessment of the ages of children on their appearance, and it is suggested he would only have been in a position to make this assessment for the soldiers in his immediate group (i.e. those with whom he had the most frequent contact).1939 The defence also relies on his evidence that at 18 years of age he was the youngest soldier sent for training in Rwanda, where he was referred to as “the kadogo”.1940 690. As already indicated, 1941 the Chamber finds that P-0038 was a generally reliable and credible witness. His account that he joined the army of the UPC in 2001 – before its armed branch was formally established – does not undermine his testimony, given D-0037 explained the group in Mandro (to which P-0038 belonged) later became the FPLC.1942 In this connection, the Chamber notes that D- 0006 testified that he joined the UPC at the end of May 2002.1943 691. The Chamber is persuaded he assessed age reliably, as demonstrated by the details in his testimony which help explain his conclusion that certain children were below the age of 15 (e.g. the difficulties some had carrying weapons), and he was clearly able to evaluate soldiers outside his immediate group. P-0038 was in constant contact with many other soldiers – for instance, during their training – and therefore he was in a position to reach reliable conclusions as to age. 692. Furthermore, the reference to P-0038 as “the kadogo” during his training in Rwanda is not determinative of the age of those similarly referred to within the UPC/FPLC. As the witness himself indicated, the term kadogo was used in the UPC/FPLC above all to refer to those below 15 years of age.1944 693. Although the Chamber has taken into account the fact that P-0038 initially acted as a trainer at Mandro prior to the period covered by the charges, this does not affect the weight of his evidence as a whole, and most particularly the reliability of his assessment that child soldiers formed part of the UPC/FPLC whilst he was within that group (viz. until 2005). h) P-0041 694. P-0041 was a member of a different group 1945 before Thomas Lubanga appointed him to a post within the UPC executive in September 20021946 and thereafter to another position in May 2003.1947 He has known the accused since childhood.1948 695. P-0041 gave evidence that he saw child soldiers within the UPC/FPLC bearing weapons, who were between 10 and 18 years old. 1949 He said Thomas Lubanga and others in the UPC/FPLC used child soldiers as their bodyguards,1950 and he gave a detailed account of his own bodyguard, whom he believed was about 14 years old.1951 P-0041 also addressed the issue of recruitment, training and demobilisation. 696. The defence submits that although the witness claimed there were child soldiers in the UPC/FPLC, and he provided details particularly about the bodyguards of Thomas Lubanga, Floribert Kisembo, Bosco Ntaganda and other commanders, 1952 he did not provide sufficient particulars as to how he was able to estimate their ages – indeed, he conceded that this was a difficult exercise – and he did not claim he was able to assess the age of the soldiers assigned to the fighting units.1953 697. Although P-0041 was unsure of the exact age of his own bodyguards and he frankly accepted it is difficult to assess the ages of children, he testified unequivocally that children from 10 years upwards were part of the armed forces.1954 698. The evidence of P-0041 was internally consistent and the Chamber considers that this former member of the UPC executive was a reliable source as to the decisions made within the UPC during the relevant period. He provided significant detail in his answers, whilst being frank as to the matters about which he was uncertain. By way of example, notwithstanding P-0041’s assessment that his bodyguards were between 14 and 16 (given their physical appearance), he agreed that it is difficult to gauge the age of a young boy or child.1955 He suggested this particular evaluation depends on several factors and he accepted it was necessary to consider diet because children may have been underfed.1956 In all the circumstances, the Chamber is persuaded that P-0041 saw children who were clearly under the age of 15 in the UPC/FPLC and it found him to be a credible and reliable witness. i) P-0014 699. P-0014, whose work required him to be up-to-date on political matters,1957 travelled to Ituri at least once a week prior to 31 January 2002, and although he was not based in the area after August 2002, he returned to Ituri sporadically.1958 He gave detailed evidence – based on his personal knowledge and experience of the region – about events and the key people in Ituri between 1999 and 2003. In particular, he focussed on the composition and aims of the UPC, along with its recruitment, training and use of child soldiers under the age of 15. The witness went to the UPC headquarters nearly every day for a limited period shortly before the timeframe of the charges, when he saw the recruits and their training.1959 700. P-0014 witnessed military training at the UPC’s headquarters in Bunia immediately preceding the period of the charges in 2002.1960 He indicated the recruits were trained to fight the RCD-ML and the Lendu,1961 and they ranged from 5 years old to adulthood.1962 P-0014 estimated that 30% of approximately one hundred young recruits he saw were children aged 15 and under.1963 Excluding those who were 15, he estimated about 20% of the recruits were below that age.1964 701. The prosecution highlights P-0014’s evidence that there was no lower age limit for the recruitment of children and the UPC/FPLC systematically pressured Hema families to provide children for military service, through “mobilisation campaigns” or “recruitment drives”. 1965 P-0014 gave evidence about the harsh punishment and other treatment inflicted on the child soldiers,1966 and he saw children under the age of 15 with gunshot wounds.1967 702. The defence is critical of the reliability and credibility of the witness’s evidence on issues relating to the presence of child soldiers within the UPC/FPLC, inter alia, because he was not in Ituri throughout the period covered by the charges. 1968 However, the Chamber is persuaded that the witness’s frequent trips to the region before and during this time, and his account of the way in which he received information about Ituri when he was absent, means his evidence is reliable. In particular, P-0014 took steps to ensure the information was accurate, and he sought to rely on several sources who were unknown to each other.1969 After the witness left Ituri, he had direct contact with various individuals who were personally involved in politics, and he spoke with people “in the field”.1970 P-0014 relied on the latter to obtain information on what was happening and the “actions that were being prepared”.1971 703. The defence challenges the witness’s evidence as to having seen children aged 5 to 18 in the UPC training camps in 2002. It is argued that his testimony lacked detail (particularly on how he assessed the age of the children).1972 704. As to a particular incident recounted by P-0014 that falls within the period of the charges (viz. seeing a boy of 12 years among the troops of Commander Jerôme Kakwavu in Aru in March or April 2003) the defence asserts his account was lacking in detail or any indication as to how he estimated the boy’s age.1973 Moreover, the defence maintains that Commander Kakwavu defected from the UPC in March 2003 and that the UPC was not in Aru at the relevant time.1974 This is addressed below. 705. The defence also questions P-0014’s credibility as regards his evidence that he is able to differentiate between ethnic groups based on physical appearance.1975 This issue is essentially irrelevant to the Chamber’s Decision. 706. Assessing P-0014’s evidence as a whole, the Chamber is of the view his account was credible and reliable. The witness testified in a straightforward and honest manner, distinguishing clearly between the events he had witnessed and those that were reported to him. 707. Regarding his assessments of age, the witness gave detailed evidence about the child soldiers he saw in Ituri between 1999 and 2003. As discussed below, the witness provided a precise account of the circumstances in which he saw particular individuals at various times and how he assessed their ages. 708. P-0014 observed there was “no age limit” as regards the children recruited into the UPC/FPLC, and he saw 8 – 15 year-olds who had been forcibly recruited.1976 He estimated the age of a particular fiveyear- old child at a training centre on the basis that a six-year-old should be able to reach over his head and touch his opposite ear, and this child was unable to do this when asked. 1977 As to how he estimated the age of the other children he saw, the witness indicated that he used to be a teacher and he had been in daily contact with individuals within this age group; this helped him to identify the ages of young people he saw within the UPC/FPLC.1978 The witness took into account the children’s physical characteristics, including such things as the change in a boy’s voice when he reaches puberty.1979 709. As with other witnesses who also gave personal estimates of ages, the Chamber has reflected the difficulties in this area; however, in the context of P-0014’s evidence as a whole, the Chamber is satisfied that his evidence on this subject was credible and reliable. j) P-0002 710. P-0002 testified about video evidence introduced during the trial. This witness worked for the UPC ”since it was created” until May 2003.1980 During the period following March 2003, he went to Thomas Lubanga’s residence nearly every day.1981 The prosecution introduced a number of videos into evidence via this witness showing UPC political speeches, assemblies, rallies and interviews. Although the defence criticises the lack of precision in P-0002’s evidence on the age and identity of young people in the UPC,1982 it does not challenge the authenticity of the underlying material. The Chamber is satisfied that the evidence of P-0002, in which he identified various people and locations in the videos shown to him during his evidence, along with the dates of the relevant events, is credible, consistent and reliable. 711. P-0002 declined to elaborate on his estimate as to the ages of former UPC soldiers in a video excerpt – some of whom he thought could be underage – because he had not asked them their ages.1983 Given P- 0002’s evident caution as regards the ages of children, the Chamber is confident he only expressed an opinion on this issue when he had a proper basis for reaching a firm conclusion. Overall, P-0002 was a credible and reliable witness. The Chamber has independently assessed the ages of the children identified in the video footage, to the extent that it is possible to draw a safe conclusion based on their appearance. k) P-0030 712. P-0030 principally gave evidence about a number of videos concerning UPC-related political speeches, popular assemblies, press conferences and other meetings he attended. He provided an explanation of the events reflected in the video footage, and he identified various people and locations. 713. P-0030 testified that he noticed children under the age of 15 within the ranks of the UPC/FPLC,1984 including children as young as 9 years old who were part of Thomas Lubanga’s presidential guard.1985 He commented on a number of video excerpts that show recruits and bodyguards belonging to the UPC, some of whom were clearly under the age of 15.1986 714. The defence submits the evidence of P-0030 is limited in its scope, as he was essentially called to authenticate the video extracts played during his testimony. 1987 However, the witness was questioned extensively about certain political events that were connected to the video footage he viewed in court, and the defence was provided with a fair opportunity to examine him on these issues. In the circumstances, the Chamber has not restricted its consideration of P-0030’s evidence as suggested by the defence but instead it has taken the entirety of his testimony into account. 715. Although the defence maintains that P-0030’s contact with Intermediary 143 1988 should be considered when evaluating his credibility,1989 there is no evidence to suggest that Intermediary 143 influenced P-0030 in the evidence he gave. Accordingly, there is no basis for drawing an adverse conclusion as to his testimony based solely on any contact between them – indeed, the Chamber found the evidence of P-0030 to be consistent, credible and reliable. 716. The defence addressed his account of having seen young soldiers within the ranks of the UPC, whose age he estimated as between 9 years and adulthood. The defence emphasises this conclusion was based solely on his visual assessment. 1990 Similarly, the defence contends that P-0030 did not verify the ages of the bodyguards he saw at Thomas Lubanga’s residence, whom he also suggested were between 9 years and adulthood.1991 It is argued it is impossible to distinguish with sufficient certainty between a 12 or 13 year-old and a 15 or 16 year-old child on the basis of a photograph or video extract.1992 Therefore, the defence asserts the video excerpts provide an uncertain basis for concluding that the adolescents in them were below the age of fifteen. 1993 717. The Chamber notes that P-0030’s estimate that the children guarding Mr Lubanga’s residence were 9 or 10 years of age was not based solely on a limited number of visits. His account, which the Chamber accepts, was that he visited the residence frequently (two or three times per week).1994 When questioned about the ages of certain 14 and 15 year-old child soldiers he had seen, the witness explained his assessment as follows: A. Well, I can say, I can justify myself, but the images also speak. If you doubt what I say, I think that by looking at the image that the image can help you see that there were kadogos.1995 He added there might be differences in size depending on the ethnicity of the children.1996 718. The Chamber concludes that P-0030 based his assessment of age on the appearance of the individuals he saw, some of whom he encountered on a frequent, as opposed to a sporadic, basis. The Chamber is satisfied that there are instances when a reliable distinction can be drawn between a 9 or 10 year-old child and a 14 or 15 year-old child, based solely on appearance. The Chamber has independently assessed the ages of the children identified in the video footage and about whom this witness expressed a view, to the extent that it is possible to draw a safe conclusion based on their appearance. Overall, P-0030 was a credible and reliable witness. l) D-0011 719. D-0011 joined the UPC in about July of 2002 when he was living in Bunia.1997 He served as Thomas Lubanga’s “expert consultant” and later as his “private secretary” until around September 2004.1998 In the latter role, D-0011 managed Mr Lubanga’s meetings, acted as his driver and prepared documents, and he was concerned with other aspects of the President’s daily activities.1999 He assumed responsibility for procuring rations for the troops, which were purchased by the President. 2000 His office was located within Thomas Lubanga’s premises and sometimes he attended meetings organised by the President. 2001 A significant part of the testimony of this witness concerned the demobilisation process allegedly implemented by the UPC, as addressed in Section IX(B)(3)(a)(1). This includes evidence concerning the Disarmament, Demobilisation, Repatriation, Resettlement and Reintegration (“DDRRR”) programme and the letter of 12 February 2003.2002 720. D-0011 testified that between September 2002 and the end of May 2003 he did not see any child soldiers in the UPC and, if there were, “perhaps they were in the interior.”2003 He explained that possibly there were children under the age of 15 within the umbrella of the FPLC “in the interior” (not in Bunia), who sought food or protection, and although on occasion they were asked to carry out “minor task[s]” such as transporting military equipment, they did not receive military training.2004 721. He did not know whether children under the age of 15 were used by the FPLC to fight in the front line at Lipri, Bambu and Kobu in February 2003. 2005 D-0011 also did not know whether children under the age of 15 were at the Rwampara military camp, and, given his absence, he was unable to give evidence about Thomas Lubanga’s visit to that camp in February 2003.2006 He was unaware of any procedures for verifying the ages of the recruits, although he stated that when the armed branch of the FPLC was set up, an order was issued prohibiting the enrolment of children – who D-0011 defined as individuals below the age of 18 – into the army.2007 D-0011 suggested it was possible to determine whether an individual was below the age of 18 by their physical appearance.2008 722. D-0011 testified that at the end of May 2003, Thomas Lubanga held a rally in Bunia, where they both saw a number of children carrying weapons, who appeared to be under the age of 18, amongst the group of FPLC soldiers. 2009 After he brought this to the attention of Mr Lubanga, the latter asked him to prepare an emergency decree “to ensure the demobilisation of soldiers within the FPLC who were visibly child soldiers.” 2010 D-0011’s explanation for this new phenomenon (viz. the presence of children) was that before the UPDF retreated from Bunia on or about 5 May 2003, it distributed weapons to those who wished to protect themselves.2011 Children within the ranks of PUSIC, and those who had been abandoned, were armed as a result,2012 and he indicated this explained the “abundant presence of child soldiers in the ranks of the FPLC”.2013 D-0011 suggested that child soldiers were to be found in the FPLC after the end of May 2003 as a result of a period in which they “weren’t in a position to manage affairs in the territory”, but that by end of July 2003 they had been demobilised by various organisations, due to the efforts of the commanders of the FPLC.2014 723. The defence suggests that on account of the large number of armed groups present in Bunia in May 2003, which included armed forces that had split from the UPC, it was impossible to identify the various armed groups to which the children bearing arms belonged simply by looking at them.2015 D-0011 indicated that when he saw a large number of armed individuals amongst the soldiers providing security at a UPC rally in Bunia, who gave the impression of being under 18, he could not say with certainty whether they were all soldiers because some of them were dressed partially in civilian clothing.2016 Notwithstanding this possible difficulty, it is clear that the individuals wearing uniforms who were obviously providing security were easier to categorise. This witness only referred to children in the sense that there were soldiers who were below the age of 18. His testimony therefore does not assist as to whether there were children below the age of 15 in the FPLC. 724. The Chamber has taken into account the close professional relationship between this witness and the accused, and it has weighed his evidence in light of the other persuasive material that indicates there were children below 15 years of age in the FPLC. The Chamber considers that this witness was frequently evasive in his testimony, which the Chamber has approached with considerable caution. In the result, the Chamber has only relied on his account when supported by other credible evidence. m) D-0037 725. D-0037 is a former soldier who was with the APC army in 2001 and 2002. 2017 Later, he joined an armed group in Mandro which was organised to defend the Hema community under the leadership of Chief Kahwa and Commander Bosco Ntaganda. 2018 The witness’s evidence was that he recalled joining this group around the middle or end of June 2002 2019 and that it later became part of the FPLC, following the takeover of Bunia in 2002.2020 Within the FPLC, D-0037 became secretary to Commander Bosco Ntaganda.2021 Thereafter, he was also appointed as the Chief of Administration in the UPC/FPLC (G1), around July or August 2003, following the defection of Floribert Kisembo.2022 726. He gave evidence about the rebellion against the RCD/ML and he supplied information concerning the self-defence forces, the structure of the FPLC and the alleged demobilisation of children. D-0037 said that although there were children below 18 years of age within the FPLC, there were none below 15.2023 The witness described how some individuals who arrived at FPLC training centres were refused training although others below the age of 18 were admitted if they were well built.2024 727. The Chamber has concluded that D-0037’s evidence was, in most respects, credible, consistent and reliable although on certain discrete issues, that have been addressed to the extent necessary, his evidence was of less assistance. n) D-0019 728. D-0019 was an early member of the UPC (he helped draft the UPC’s programme, dated 15 September 2000)2025 and he served as the UPC’s national secretary for internal and customary affairs (following his original appointment as deputy national secretary).2026 He also acted as spokesman and, in August 2003, as the interim president of the UPC.2027 He remains a member of the UPC. D-0019 gave evidence on the origins and nature of the UPC and the FPLC; the events in Ituri during the period leading up to and including the charges; the relationship between the UPC/FPLC and the self-defence committees; the UPC/FPLC’s attempts at demobilisation; and the situation of children, as regards the UPC army. 729. Although the prosecution and the defence rely on the testimony of D-0019, the prosecution challenges significant portions of his evidence, particularly regarding the position of Thomas Lubanga within the UPC (and the nature of the organisation) prior to the period of the charges,2028 as well as his testimony as to the lack of young children within the FPLC.2029 730. The Chamber found D-0019 to be an evasive and contradictory witness on the issues that particularly concerned Thomas Lubanga, and in some instances during his testimony he demonstrated partiality towards the accused. Bearing these factors in mind, as well as his position within the UPC, the Chamber has exercised caution as regards certain aspects of his testimony. However, on issues that were not directly related to the accused, such as the structure of the UPC, his account tended to be more consistent, credible and reliable. In all the circumstances, the Chamber has accepted his testimony in these latter areas, particularly when corroborated by other credible evidence or if they were uncontroversial. o) D-0007 731. D-0007, who was the co-ordinator of the Hema self-defence committees in Ituri during the relevant period,2030 gave detailed and compelling evidence on the use of children under the age of 15 by the self-defence forces,2031 although he suggested the latter were separate from the UPC/FPLC.2032 The Chamber found his evidence, in the main, to be credible and reliable, notwithstanding certain notable exceptions. For instance, as discussed below, his evidence on the ages of the children who were sent to the UPC/FPLC for training (and who the villagers expected to return)2033 was implausible. His account, along with the prosecution’s criticism of parts of it,2034 is considered hereafter in the section on the self-defence groups. 3. Documentary evidence on the presence of child soldiers within the UPC/FPLC 732. In this section, the Chamber considers particular items of documentary evidence that are challenged by the defence. a) Logbooks from a demobilisation centre (EVD-OTP- 00474, EVD-OTP-00476 and EVD-OTP-00739) 733. During the testimony of P-0031, the prosecution introduced several logbooks recording the entry and departure of child soldiers from a particular demobilisation centre in Bunia.2035 EVD-OTP-00474 is a list drawn up by social workers containing the names, ages and other details relating to children who were to be placed with host families. 2036 The prosecution referred to this logbook repeatedly in relation to the alleged former child soldiers who were called to give evidence.2037 734. The prosecution submits that logbook EVD-OTP-00476 concerns 12 former UPC/FPLC child soldiers under the age of 15 who were at the centre prior to 13 August 2003, along with an additional 15 UPC/FPLC child soldiers below the age of 15 who arrived between 13 August 2003 and 13 September 2003 (the latter group, it is submitted, were likely to have been conscripted, enlisted or used prior to 13 August 2003).2038 P- 0031 gave evidence on the identity of the individual who compiled this logbook.2039 735. EVD-OTP-00739 was a record that was made to assist in monitoring children who were reunited with their families.2040 The prosecution submits that EVD-OTP-00476 and EVD-OTP-00739 demonstrate the systematic nature of the plan that children were to be conscripted and enlisted into, and used by, the UPC/FPLC.2041 736. The defence challenges the reliability of these logbooks. 2042 First, it is submitted that since P-0031 is alleged to have manipulated other evidence, the “information provided by the organisations linked to this witness […] cannot be considered to be sufficiently reliable.”2043 Second, it is argued that given many individuals lied at the demobilisation centres about their age and status as former child soldiers for material gain, notwithstanding the reliability of the people who collected the material, the content of the logbooks is not to be trusted. 2044 Further, it is submitted that the information was not adequately verified, and in this respect the defence observes that although P-0031 testified that a particular organisation was supposed to confirm that the individuals mentioned in EVD-OTP-00476 had belonged to an armed group, the testimony of D-0023 and P-0089 demonstrates that this did not occur.2045 In an interview with the prosecution following his testimony, P-0089 stated that the Commission Nationale de Désarmement, Démobilisation et Réinsertion (“CONADER”) accepted a number of children who had falsely claimed to be demobilised soldiers, and they recorded the information provided without any process of verification.2046 D-0023 similarly stated that many civilians falsely registered as former soldiers with CONADER in order to obtain financial and other benefits from the demobilisation process. 2047 He also testified that many individuals did not use their real names when registering with CONADER in order to avoid later prosecution. 2048 The defence emphasises that the UPC/FPLC is not referred to in logbook EVDOTP- 00739.2049 737. It is submitted that the list in document EVD-OTP-00474, which was prepared by MONUC along with another organisation, similarly fails to include a reference to the armed group to which the demobilised children belonged. 2050 Furthermore, the defence contends that the testimony of witness P-0031 – that the UPC recruited the children referred to in the list in Mongwalu in August 2002 and they were discharged by Jerôme Kakwavu on 1 April 2004 in Aru – is implausible given the RCD/ML controlled the region up until November 2002.2051 In addition, the defence notes that the UPC lost control of the region of Aru in March 2003, the time when Mr Kakwavu defected from the UPC.2052 738. The defence submits that although witness P-0031 stated that in a general sense MONUC, UNICEF and other NGOs undertook the verification of the children’s ages,2053 P-0046 indicated that MONUC often relied on its partners for this purpose.2054 739. Assessing this evidence overall, the lack of information concerning the armed group or groups to which the children registered in logbook EVD-OTP-00739 and listed in EVD-OTP-00474 belonged, leads the Chamber to conclude that these two documents cannot be relied on in order to establish the presence of children within the UPC/FPLC. 740. Similarly, the Chamber is unable to rely on the contents of logbook EVD-OTP-00476, notwithstanding the fact that it contains information about the armed groups with which the children were associated, along with their dates of birth, 2055 because of the potential unreliability of the information when it was originally provided and the apparent lack of sufficient (or any) verification. b) Letter of 12 February 2003 from the National Secretary for Education to the G5 Commander of the FPLC (EVD-OTP-00518) 741. The prosecution relies on a letter dated 12 February 2003 from the National Secretary for Education and Youth, addressed to the G5 in the UPC/FPLC and copied to Thomas Lubanga, concerning the selection of thirteen officers from the army who were to be trained in a DDRRR programme.2056 The letter states that the programme is to be applied to those soldiers aged 10 to 15 or 16 who are “willing” to return to civilian life,2057 which the prosecution submits confirms, first, the presence of children under the age of 15 or 16 years in the FPLC during the relevant period and, second, the accused’s awareness that this was occurring.2058 742. The prosecution argues that the testimony of D-0011 demonstrates that this letter referred to children within the FPLC. 2059 It is emphasised that it is a report from a UPC national secretary, addressed to the G5 who was in charge, inter alia, of recruitment.2060 743. The defence argues that the letter does not prove that child soldiers below the age of 15 were part of the FPLC. It emphasises that it refers to a DDRRR programme without specific mention of the FPLC.2061 Rather, the reference to child soldiers (specifically between 10 and 15 or 16 years) is said to include all children targeted by the DDRRR programme, and was not restricted to those from the UPC/FPLC.2062 The defence also refers to D-0011’s evidence that the programme was not solely concerned with the UPC/FPLC because he said that it also related to Rwanda and Burundi.2063 In further support of its argument the defence relies on the testimony of P-0046 that the DDRRR was a MONUC project to repatriate Rwandese soldiers from the DRC, and the testimony of D-0019 that it was a programme aimed at others from the east of the Congo.2064 744. D-0011 suggested that the 12 February 2003 letter (EVD-OTP-00518) concerned a nationwide DDRRR programme aimed at children in all the armed forces. 2065 Although the witness agreed that it was addressed to the G5 commander of the FPLC and referred to the selection of thirteen FPLC officers who were to participate in demobilisation training,2066 he strongly resisted the suggestion that it solely related to children within the UPC/FPLC.2067 He maintained that the UPC/FPLC was addressed because it was “the political arm that was in charge of this region”, and that, along with Save the Children, it was able to implement the DDRRR programme of demobilising children from the village self-defence committees and the other armed groups, such as PUSIC.2068 D-0011 suggested that soldiers in the region were exclusively assimilated into the FPLC because it was “the only power in place”, 2069 although he also gave evidence that everyone under 18 was involved and “not just those enlisted in the FPC [sic.] once we came back from the bush.”2070 However, he did not agree with the assertion that the document addressed the position of child soldiers in the FPLC or those assimilated into pro-FPLC units.2071 745. The Chamber has placed little reliance on D-0011’s evidence concerning EVD-OTP-00518, a document about which he was frequently evasive and argumentative. As an example, he suggested that the letter does not include any reference to the FPLC, 2072 notwithstanding the fact that the G5 commander of the FPLC was the addressee. 746. Although the issue of child soldiers may well have been a concern for the entire region, the document implies that there were children between the ages of 10 and 15 or 16 within the FPLC (regardless of their nationality). PUSIC and the self-defence forces were not referred to, and D-0011 agreed that Eric Mbabazi was not PUSIC’s commander and he had no control over those troops. 2073 Furthermore, D-0019 indicated that “[t]he programme concerned minors who wanted to leave the UPC” (although he added that “there were minors who were also active in the self-defence forces”).2074 747. As addressed in greater detail above, D-0011 suggested there were no minors among Thomas Lubanga’s bodyguards (or, more generally, in the UPC/FPLC until May 2003, save possibly in the “interior”), a contention that is contradicted by other witnesses and the video evidence. Therefore, the Chamber discounts his evidence about the 12 February 2003 letter to the extent that he suggests it did not concern child soldiers within the ranks of the FPLC. 748. Given this letter of 12 February 2003 was sent by the UPC/FPLC’s national secretary for education to the UPC/FPLC’s G5 (whose key responsibilities were training, morale and recruitment),2075 its reference to the demobilisation of child soldiers aged 10 to 15 or 16 years old and the testimony of D-0019 that the demobilisation programme concerned child soldiers in the UPC, the Chamber considers that regardless of whether it could also be interpreted as referring to children in the selfdefence forces or other armed groups, it was clearly directed principally at the position of children in the UPC/FPLC. It follows that on this issue the Chamber found the evidence of D-0019 to be reliable – namely that the letter also concerned child soldiers within the FPLC. Therefore, this document significantly corroborates other evidence before the Chamber that child soldiers under the age of 15 were part of the UPC/FPLC during the period of the charges. c) Logbook of radio communications (EVD-OTP-00409) 749. The prosecution relies on a UPC/FPLC logbook with the entry “chez nous un seul enfant a recu une balle mais il est encore vivant et il n’est pas gravement blesse” to demonstrate that children under 15 were within the ranks of the UPC/FPLC.2076 750. The defence submits the true meaning of the word “children” in the UPC/FPLC military context is demonstrated by video footage of the Governor of Ituri making a speech in support of FPLC soldiers,2077 which includes the following extract: [Translation] Ou

ã © ste

Última actualización: 2012-11-08
Tema: Genérico
Frecuencia: 6
Calidad:

While this may entail increased costs for the system operator on the one hand, on the other hand the very high volumes generally allow such systems to exploit economies of scale, thus reducing their costs per unit. There should not be an overregulation of retail payment systems.
http://www.ecb.int/

Si bien esta circunstancia podría suponer un incremento de los costes para los gestores del sistema, los volúmenes muy elevados permiten en general a dichos sistemas explotar las economías de escala, reduciendo con ello los costes unitarios.
http://www.ecb.int/

Última actualización: 2012-03-19
Tema: Finanzas
Frecuencia: 1
Calidad:

Espero que pronto todos los ciudadanos de la UE lleven lo que me gustaría llamar un «Hand C», no un «PC», es decir, un reloj de pulsera que es una combinación de PC, teléfono móvil y pantalla LCD que nos permitirá comunicarnos audiovisualmente, procesar datos, comprar, vender y pagar a través de un buzón de voz, mirar cualquier encuentro deportivo y escuchar nuestra música favorita.
http://www.europarl.europa.eu/

I hope we will soon have every EU citizen wearing what I would like to call the 'Hand C' not a 'PC', a wristwatch that is a combination of a PC, mobile phone and an LCD screen that will enable us to communicate audiovisually, process data, buy, sell and pay by voicemail, watch any sport and listen to our favourite music.
http://www.europarl.europa.eu/

Última actualización: 2012-02-29
Tema: Ciencias Sociales
Frecuencia: 3
Calidad:

Esta pregunta implicaba la cuestión del hand rolled tobacco .
http://www.europarl.europa.eu/

This question concerns the issue of hand rolled tobacco .
http://www.europarl.europa.eu/

Última actualización: 2012-02-29
Tema: Ciencias Sociales
Frecuencia: 3
Calidad:

A propósito, si hemos podido cumplir ese papel, también ha sido por el hecho de que nunca nos hemos excedido, porque nos hemos cuidado de no extralimitarnos o, como se dice en inglés, "not to overplay our hand".
http://www.europarl.europa.eu/

Incidentally, it is also due to the fact that we have never pushed too far, that we have taken care 'not to overplay our hand', as they say in English, that we have been able to fill this role.
http://www.europarl.europa.eu/

Última actualización: 2012-02-29
Tema: Ciencias Sociales
Frecuencia: 1
Calidad:
Advertencia: Contiene formato HTML no visible

Hand Grenade Ha
http://wixgame.com/es/la-ca [...] homachan.html

Scooby Doo 1000
http://wixgame.com/en/madne [...] ion-time.html

Última actualización: 2011-00-01
Frecuencia: 1
Calidad:

Eusebius, surnamed Pamphilus, writing the History of the in ten books, closed it with that period of the emperor Constantine, when the which Diocletian had begun against the came to an end. Also in writing the life of Constantine, this same author has but slightly treated of matters regarding Arius ../cathen/01718a.htm, being more intent on the rhetorical finish of his composition and the praises of the emperor, than on an accurate statement of facts. Now, as we propose to write the details of what has taken place in the churches since his time to our own day, we begin with the narration of the particulars which he has left out, and we shall not be solicitous to display a parade of words, but to lay before the reader what we have been able to collect from documents, and what we have heard from those who were familiar with the facts as they told them. And since it has an important bearing on the matter in hand, it will be proper to enter into a brief account of Constantine's conversion to making a beginning with this event.

Eusebius, surnamed Pamphilus, writing the History of the in ten books, closed it with that period of the emperor Constantine, when the which Diocletian had begun against the came to an end. Also in writing the life of Constantine, this same author has but slightly treated of matters regarding Arius ../cathen/01718a.htm , being more intent on the rhetorical finish of his composition and the praises of the emperor, than on an accurate statement of facts. Now, as we propose to write the details of what has taken place in the churches since his time to our own day, we begin with the narration of the particulars which he has left out, and we shall not be solicitous to display a parade of words, but to lay before the reader what we have been able to collect from documents, and what we have heard from those who were familiar with the facts as they told them. And since it has an important bearing on the matter in hand, it will be proper to enter into a brief account of Constantine's conversion to making a beginning with this event.

Última actualización: 2010-04-29
Tema: Genérico
Frecuencia: 1
Calidad:

Señora Presidenta, en un informe al 133 comité sobre la reunión de la OMC en Qatar, la Comisión afirma que: active participation by European civil society strengthened the hand of the EU negotiator.

Madam President, in a report to the 133 Committee on the WTO meeting in Qatar, the Commission asserts that 'active participation by European civil society strengthened the hand of the EU negotiator '.

Última actualización: 2008-03-04
Tema: Ciencias Sociales
Frecuencia: 1
Calidad:

Ajuste estas opciones de configuración de Grabaciones para mejorar el funcionamiento de la grabadora de pantalla
http://www.stranslations.co [...] n_service.asp

Adjust the following Recordings settings to improve the performance of your screen recorder
http://www.stranslations.co [...] n_service.asp

Última actualización: 2006-04-21
Tema: Legal y patentes
Frecuencia: 1
Calidad:
Advertencia: Contiene formato HTML no visible

Hay satélites clasificatorios las 24 horas en el software de Titan Poker, con precios reducidos como nuestro satélite Sit'N'Go "1 Hand" Stage 3 de 0.33$ + 0.03$.
http://www.titanpoker.com/e [...] pen_2010.html

Qualifying satellites are taking place round the clock in the Titan Poker software, starting as low as our ongoing "1 Hand" Stage 3 Sit'N'Go satellites at $0.33 + $0.03.
http://www.titanpoker.com/i [...] pen_2010.html

Última actualización: 2014-09-23
Tema: Genérico
Frecuencia: 1
Calidad:
Advertencia: Contiene formato HTML no visible

Añadir una traducción